Locking up the innocent to be on the safe side
How soon will the government cite the tragic killings at Virginia Tech on 16 April in support of the deeply flawed Mental Health Bill now before parliament? Quite soon, no doubt. However, to do so would be completely invalid.
The present Bill stems from a number of cases of murder or other violent crimes committed by 'psychopaths' such as Michael Stone, who had a history of mental illness and who was convicted of the murders of Lin and Megan Russell in 1996. In the words of the Guardian's editorial on the new Bill published, by unhappy coincidence, on the day of the Virginia Tech killings, it was conceived —
nine years ago, when, in the light of Michael Stone's conviction, the government signalled that it wished to bolster the power of medics pre-emptively to detain and attempt to treat those who, like Stone, suffered from severe personality disorders – or, in more traditional terms, were psychopaths – even where no treatment of proven effectiveness is available.
At present a mentally sick person for whom no effective treatment is available and who has committed no offence can't be 'sectioned' and detained against his will under the existing Mental Health Act, even if he is thought by doctors and psychiatrists to be a potential danger to himself or others, although there are of course various procedures under which the police and Social Services can be warned of the risk that he is thought to represent. New Labour ministers regard this as a loophole in the law and want to plug it in the new Bill. Now the House of Lords has passed an amendment to the Bill (one of several) on which the Guardian editorial rightly commented:
And on detention, the Lords insists that treatability should remain an essential condition – that has to be right when it alone can offer the hope of rehabilitation and release, which those suffering custody without having committed any crime are surely entitled to.
The government says however that it will resist the Lords' amendments and will insist on the original provisions of the Bill, under which a mentally ill person who has committed no offence and whose condition can't be treated, but who is thought by his doctors to be a potential danger to himself or to others, will be liable to be detained, presumably indefinitely, not so that he can be compelled to undergo treatment (none is available), nor as punishment for any offence (he has not committed one), but purely on the suspicion that he might harm himself or others in the future.
This is the latest in a series of examples of the obsession with pre-emption of a pathologically risk-averse government. However remote and improbable a danger, action must be taken to pre-empt it. Saddam Hussein might not have WMD now, but might he develop them one day and pass them to terrorists who might then use them against us? Overthrow his régime and bomb and occupy his country for years, just to be on the safe side. Might some unnamed country one day conceive the idea of launching a nuclear attack on Britain, only to be deterred by fear of specifically British nuclear retaliation in circumstances where the risk of American nuclear retaliation is insufficient deterrence? No-one can construct a credible scenario in which such a thing could possibly happen, but better spend a few billions on renewing Trident, just to be on the safe side. Is there someone in Britain who has committed no offence but who the security service (or a neighbour with a grudge) suspects might get involved in terrorism at some time in the future? Slap a Control Order on him, effectively putting him under house arrest, wrecking his working life and probably his social life and his family and labelling him a terrorist in the eyes of his friends and neighbours — just to be on the safe side. A teenager is playing rock music late at night, disturbing a neighbour's sleep: could this be a sign of a future violent hooligan? He has committed no prosecutable offence, but put an ASBO on him: he's sure to breach its conditions sooner or later, which will be an offence, and then he can be locked up — just to be on the safe side.
Why this passion for predicting and then trying frantically to pre-empt all these worst-case scenarios? A genuine sense of duty, no doubt, to the interests of public safety, on the principle that salus populi suprema lex. But it's more than that. Ministers have a collective terror of being accused of those capital political crimes: complacency, indolence and inactivity in the face of danger, failure to put public safety first, whatever the cost to civil rights and due process. Better to lock up any number of people with mental illness who would never have done any harm to others or themselves, than to leave a single psychopath "free to roam the streets", murdering at will. Then if an undetected psychopath does nevertheless commit a murder, no-one can blame the crime on the government's 'complacency' or failure to foresee the future: ministers did all they could. The tabloids rule, OK?
But, I hear a Blairite cry, doesn't Virginia Tech demonstrate the need to lock up a potentially dangerous psychopath before, rather than after, he has massacred classrooms full of terrified students and gallant professors? Look at today's Guardian report:
Fears led university to commit gunman to mental hospital
Cho Seung-hui … had a history of bizarre behaviour dating from November 2005. That trail raised disturbing questions last night about how campus police and the university responded to early warning signs of mental illness. When a student reported [that] Cho seemed depressed, the university arranged his admission to a mental health hospital in December 2005 for his evaluation as a suicide risk, the campus police chief, Wendell Filchum told a press conference. The doctor who examined him the next day reported that Cho was mentally ill, but as he denied having suicidal thoughts ordered his release… Lucinda Roy [former head of the English department] had removed Cho from a poetry class in November 2005 because his behaviour and writing frightened fellow students, as well as his professor… She notified campus counselling services, the legal department, and the dean of students about Cho. "He seemed incredibly depressed. He really needed help," she said. She also asked campus police to review the writing sample which had disturbed Ms Giovanni. The police were responsive, but Ms Roy said there was little they could do because Cho had not made direct threats.
The implication of this chronicle of conscientious but ultimately unsuccessful attempts to help a deeply disturbed and potentially dangerous student is that beyond a certain point there is nothing that can be done to restrain even the most suspect of potential criminals until they cross the line into illegality, without the unacceptable risk of wrecking the lives of the innocent and harmless. An American, even if mentally ill and obsessed with violence and killing, is protected by the US constitution from being detained against his will if he has done nothing that could justify charging him with an offence. No such safeguards, apparently, will protect a Briton in similar circumstances, once the government's Bill (without the Lords' amendments) becomes law. Where are such unfortunates to be locked up? Not in hospitals, presumably, since they can't be treated and they would be blocking hospital beds that could be used for those who could. Prison seems unsuitable for someone who has committed no offence, who has not been charged with any offence and who can't be said, even by New Labour ministers, to deserve punishment. How many amenities of ordinary life are to be made available to these unfortunates, at public expense (since the state is to deprive them of the opportunity to earn a living)? Theatre outings? A car? The pleasures of good food and wine? Sex? What will the Sun newspaper say about that?
The truth is that evil things will happen, whatever pre-emptive action is taken in the fruitless effort to prevent them. Even if the definition of a psychopath were to be accepted as meaningful ("severe personality disorder" has a disturbingly Stalinist ring to it), we can lock up a thousand people who answer to that description and who have been prudently assessed as liable to harm others or themselves (by mental health specialists who are fully aware of the danger to themselves of pronouncing someone safe who then goes out and commits a murder), and still there will be a murder committed by another person with a severe personality order who got through the net. Action to avert future danger, especially if it entails gross injustice to innocent people, needs to be proportionate to the degree of risk involved, and to the likelihood that it will be effective. Legislation to deprive of their liberty people who have done nothing wrong, and who are mentally disturbed but whose condition can't be treated, is not proportionate to the low risk involved and can't possibly be effective: on the contrary, it is obviously wide open to gross abuse, and is certain to involve gross injustice to innocent people, perhaps on a huge scale. The Guardian's editorial writer knew whereof he or she spoke, in writing that "on detention, the Lords insists that treatability should remain an essential condition – that has to be right when it alone can offer the hope of rehabilitation and release, which those suffering custody without having committed any crime are surely entitled to."
It's all very well being risk-averse: but ministers ought to be equally, if not more, averse to the risk of undermining fundamental freedoms in the search for copper-bottomed guarantees against future dangers when there can be no such guarantees. Some risks have to be accepted if we are to continue to live in a free society.