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Blair’s bastard

Few tears will be shed over the decision not to release rapist John Worboys.  It is thought that Worboys may have raped and sexually assaulted more than 100 women during his reign of terror between 2002 and 2008.  But here’s the first important fact you need to know about the case:  In law, Worboys is not a “mass rapist” – his actual conviction was for 1 count of rape, 5 counts of sexual assault, 1 count of attempted sexual assault and 12 counts related to drugging his victims.

The failure of the police and the Crown Prosecution Service to bring charges for more than 100 alleged rapes and sexual assaults marks the beginning of a tragedy of errors that led the Parole Board to order Worboys’ early release and the subsequent Justice Secretary/High Court decision to overturn the Parole Board’s initial decision.  The cause of the tragedy, however, lies firmly in the hands of the Blair government and its morbid fascination with the 2002 film Minority Report.

New Labour – which had come to power on the back of the slogan “tough on crime/tough on the causes of crime” – became obsessed with the notion that, as in the movie, developments in computing and data gathering would allow the authorities to accurately predict criminal behaviour even before the perpetrator had decided to commit the crime.  This led to the introduction of key legislation in two fields – mental health and sentencing policy.

In both areas, the Blair government embraced the entirely unproven proposition that it was possible for psychiatrists and psychologists to separate genuinely cured/reformed individuals from those who would inevitably repeat the acts that had caused their detention in the first place.  People detained under a new Mental Health Amendment Act, primarily designed to classify paedophilia as a mental illness, were to face additional barriers designed to prevent their release into the community.  Meanwhile, a new “Indeterminate Sentence for Public Protection” (IPP) was to be introduced into criminal law with the aim of detaining dangerous repeat offenders for life.  In both cases, it fell to the detainee to somehow prove that they were cured or reformed; while the authorities began with the presumption that they should not be released.

A vociferous campaign by mental health advocacy groups together with psychiatrists themselves (of which I was a part) forced the government to back down on the most authoritarian aspects of the mental health proposals.  In the end, too many apparently “innocent” mental health patients would be adversely affected – at huge cost to the state – for the government to get away with it.  In criminal justice, where the public has little sympathy for the plight of offenders, the government was able to get its way.

Barrister and author Helena Kennedy referred to New Labour’s approach to law making at the time as “government without wing mirrors:”

“The removal of civil liberties by governments is not new.  The public has always been sold erosion on the basis that the new restrictions are designed to convict the guilty, and that decent citizens have nothing to fear.  The rhetoric of all governments who reduce rights is that they are doing so for good reason, in the interests of the people and to counter disruptive elements in society.  And we, the citizens, can easily feel that the current move is all about the ‘other’ – terrorists, criminals, paedophiles, prostitutes, the mentally ill, Muslims, young blacks.  We always think it is other people’s liberty that is being traded, which somehow makes it all right.  We do not realise that liberty is not divisible in this way.”

Kennedy’s point was that extremely dangerous legislation of the kind used by authoritarian dictatorships was being passed into law with the sole safeguard from Blair that “I’m a nice guy, you can trust me.”

Across the board, New Labour laws were deliberately wide in their scope even as the Blair government assured the public that they would be narrowly focussed.  Antisocial behaviour powers aimed at preventing particular individuals from engaging in specified, repeated antisocial acts quickly morphed into local authority blanket bans on everything from consuming alcohol to busking.  Anti-terror laws that Blair promised would be used solely to monitor suspected terrorists were soon being used by local councils to check households were putting their rubbish in the correct bin and sending their children to the right schools.

This mission creep also occured with indeterminate sentencing:

“As always with a new judicial toy, IPP has been used far too much, especially for the shorter sentences. The success rate in cases coming before the Parole Board for early release has been under 10 per cent.”

A policy that was intended to be applied to a handful of dangerous repeat offenders was soon being used to indefinitely detain thousands of petty criminals; adding unnecessarily to Britain’s growing prison overcrowding problems.  According to the Prison Reform Trust, there were 10,803 people serving indeterminate sentences in England and Wales last year.  Of these, 574 are serving life sentences despite their original crime attracting a tariff (the amount of time the court recommended they should serve) of less than two years – 270 of these have served more than eight years longer than their original tariff.

In 2012, the Cameron government, alarmed by the growing number of people receiving indeterminate sentences, abolished them.  Nevertheless, those already detained depended upon the decision of the Parole Board for their release.  As a result, more than 85 percent of the prisoners given indeterminate sentences remain in jail.  However, increased political pressure has led to an increase in the rate at which these prisoners are being released.

It is in this climate that the John Worboys case arrived in front of the Parole Board late last year.  Because Worboys had only been convicted of a single rape, and because just one of the sexual assaults was considered severe enough to attract the same sentence as the rape, Worboys had been sentenced in 2009 to “imprisonment for public protection” with a tariff of five years for all but two of the offences, and eight years for the two (presumably the rape and one of the sexual assaults); the sentences to run concurrently.  In effect, he was eligible to apply for parole perhaps eight years earlier than he would have been if he had not been given an indeterminate sentence.

No doubt the prosecution and the sentencing judge assumed that the indeterminate sentence would do exactly what it said on the tin.  Worboys was precisely the kind of dangerous repeat offender for whom the sentence had been introduced and it was inconceivable that he would be released at least until he was too old and frail to offend again.  The problem was that the 100 or so additional rapes and sexual assaults that would have established beyond doubt that Worboys was a dangerous repeat offender were never brought before the courts.  As a briefing for I News explains:

“Keir Starmer MP, who as Director of Public Prosecutions in 2009 is said to have taken the decision that no further proceedings against Worboys were appropriate in light of the indeterminate sentence passed.”

The police wrote to victims at the time, to inform them that the indeterminate sentence meant that he would never be released.  For this reason, there was no need to bring their cases before the courts.  But as MP and Barrister Sir Christopher Chope argued, far too much reliance was given to the indeterminate sentence:

“The problem is that there are a host of other offences which he has never been charged with.  The fact that a decision was taken not to throw the book at him is an error.

“The notion of the indeterminate sentence may have contributed to the decision not to charge him with those other crimes.”

The Parole Board was obliged to review the Worboys case on the basis of the evidence brought before the courts; not on the unproven allegations of his victims, the speculation in the national newspapers or the outraged benches of the House of Commons.  As Matthew Paris in the Spectator puts it:

“The police have blundered, the sentence was surely too lenient, and the failure to inform his victims was disgraceful. But it was not upon some careless whim that Parliament barred parole boards from giving reasons, and the new Justice Secretary, David Gauke, should think hard before reversing the interdiction.”

This, perhaps, is the final legacy of New Labour’s failed approach to law and order – Parole Board decisions are now to be determined by the whim of ministers and the faux outrage of the tabloid press.  Because, while we can all share the sentiment that they should lock up Worboys and throw away the key, we should be wary of dismantling the system of parole that makes tough decisions on prisoner releases on a daily basis.  As Matthew Paris explains:

“Other such cases would sooner or later arise. The press would develop a case for discovering a sense of outrage every time a palpably unsavoury character was given parole.

“It would then not be long before the demand arose for a procedure for appealing against a release on parole, either by victims, or the CPS, or a wider public, or a new body set up to allow or disallow appeals. These demands would often be made against the backdrop of a wave of media-driven or social media-driven indignation, with the original crime reheated for a new readership, and the victims paraded through the newspapers with their stories, their recollections and (often enough) their own voices raised against the granting of parole.”

By forcing Nick Hardwick the chair of the Parole Board to resign, for short-term political gain David Gauke has paved the way for the media and MPs to feign outrage over every potential prisoner release and to more or less oblige the Parole Board to detain prisoners for the whole of their sentence; which, in the case of IPP prisoners means forever.

To some less far sighted readers, this may sound like a good thing.  If someone is sentenced to 5, 8 or 10 years, they should stay behind bars for 5, 8 or 10 years.  The trouble with this “common sense” approach is that it makes prison discipline difficult (there is no time off for good behaviour) and rehabilitation impossible (there is no incentive for prisoners to engage with rehabilitation programmes).  The result is that entirely unreformed criminals are unceremoniously dumped back into the community at the end of their sentence to almost certainly offend again within hours.  And, of course, there is our growing problem of prison overcrowding, staff shortages and fast declining morale in the prison service.  According to the Prison Reform Trust:

“The prison system as a whole has been overcrowded in every year since 1994. Overcrowding affects whether activities, staff and other resources are available to reduce risk of reoffending, as well as distance from families and other support networks. At the end of May 2017, 76 of the 117 prisons in England and Wales were overcrowded—holding 9,496 people more than they were designed to.”

These are costs – both social and financial – that an increasingly beleaguered UK economy simply cannot afford.  One cannot help but think that the decision to save time and money by not prosecuting all of the rape cases against Worboys back in 2009 will prove to have been a false economy if its outcome nine years later is to usher in a new Parole bureaucracy with a chilling presumption against releasing any but the most petty of petty offenders from our overcrowded jails… Law-making without wing mirrors indeed!

As you made it to the end…

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