Opinion: The end of innocence
I was driving up the M2 at 6.00 in the morning when I heard the first news bulletin outlining the Home Office's proposal to detain people seen as a serious risk to the public even if they haven't committed any crime. At first I thought I must have been half-awake and misheard something. But the newsreader's own tone of disbelief as she explained that the government intended to 'lock up' people with 'serious personality disorders' and 'throw away the key' convinced me that what I had heard was actually what she had said, and that she could hardly comprehend it herself. And this was sedate and understated Radio 3 (the most I can bear at that hour), not some shock-jock sensationalist.
The Home Office is concerned that currently the law does not allow people with antisocial personality disorders to be 'removed from the community'. They cannot be held under the Mental Health Act unless psychiatrists regard the condition as treatable. If they are in prison they must be released at the end of the sentence imposed by the court even if there is a good reason to believe they would commit further offences.
The people the Home Office has in mind are, apparently, dangerous psychopaths such as Michael Stone, convicted of murdering Lin and Megan Russell, who had said he was going to kill before he did kill, and serial paedophiles. Mental health campaigners and politicians of all persuasions agreed that the proposals were a good thing. And home secretary Jack Straw confirmed that there would be 'robust checks and balances' to prevent abuses, that sentences would be reviewable every two years, and that an individual would only be detained after the matter had been before a senior court.
If this is the future of the British legal system it is truly scary. Think about this.
In future your liberty will depend not on your deeds and actions but on your state of mind. Criminals and antisocial elements, it seems, will no longer be defined by what they do, but by the kind of people they are considered to be. As Liberty director John Wadham pointed out, it is almost impossible to prove that you are not dangerous and will not be at some time in the future, and it was inevitable that people who were no danger would be locked up.
Mind, the mental health charity, estimates that up to 13 percent of the population has a personality disorder - more than one in eight of us. Who will decide exactly which among us has a 'serious personality disorder' that represents a threat to the public, and on what basis? There may seem to be an obvious difference between Michael Stone's threats of murder and those I routinely issue when, say, the printer breaks down. But I am not sure I want my freedom to depend on a 'look, everybody knows I don't mean it' defence.
The blurring of the distinction between crime and potential crime takes us into the world of thought policing. Take the issue of paedophilia - clearly something which Jack Straw wants his proposals to address. At what point does somebody become a danger to the public to be detained in anticipation of future acts? Is a man a danger to the public because he has 'impure thoughts' about little boys even if he never acts on his fantasies? Is he a danger to the public if he regularly loiters around watching children going home from school, even if he never so much as talks to one? Is he a danger to the public if he befriends some of the children, all the time being careful never to allow expression of his sexual thoughts?
Brought before a court such a man could mount a convincing defence that he has committed no crime - because he hasn't. Is there a guarantee that he will never act out his fantasies in future? Which of us could ever give such a guarantee? But that does not mean that it is inevitable that 'thought' inexorably leads to 'deed'. We need not, and do not, give expression to all aspects of our personality. Most of us spend a considerable amount of time wrestling to control the disordered aspects of our psyche. To have the potential to commit a crime is not the same as to commit the crime.
Jack Straw's proposals mark an end to the tenet that you are innocent of a crime until proven guilty. In future you won't even have to be guilty. In fact there won't even need to be a crime to be guilty of - just a judge's fear that you might commit one. It gives a new meaning to the end of innocence.
Reproduced from LM issue 119, April 1999