Is it fair to lock up potential criminals?

From a lecture given at Southwark Cathedral by Jonathan Glover, the director of the Centre of Medical Law and Ethics at King's College London

The Home Secretary has put forward proposals for compulsory detention, in the interests of protecting the public, of those who have the diagnosis of severe antisocial personality disorder, and who are also predicted by psychiatrists to be dangerous. In the debate over this proposal, very important values are at stake on both sides. On the one hand, there is an obvious breach of civil liberties. Most of us prefer to live in a society where being locked up results from being convicted in court of a crime, rather than from the fact that someone predicts we are likely to commit a crime. On the other hand, as the Home Secretary has pointed out, our civil liberties also include not being attacked, raped or murdered.

The Home Secretary has put forward proposals for compulsory detention, in the interests of protecting the public, of those who have the diagnosis of severe antisocial personality disorder, and who are also predicted by psychiatrists to be dangerous. In the debate over this proposal, very important values are at stake on both sides. On the one hand, there is an obvious breach of civil liberties. Most of us prefer to live in a society where being locked up results from being convicted in court of a crime, rather than from the fact that someone predicts we are likely to commit a crime. On the other hand, as the Home Secretary has pointed out, our civil liberties also include not being attacked, raped or murdered.

The principle that people should not be deprived of liberty unless they have been convicted in a court of a crime is central to our civil liberties. But there are what are generally held to be justifiable exceptions. There is the power of the police to detain someone for questioning, acceptable only because there is a clear time-limit to this power. There is the power of a court to remand someone in custody, acceptable because it applies only pending a trial. There are more serious exceptions than these temporary ones. There is the possibility of compulsorily detaining someone to prevent the spread of a serious infectious disease. And there are the powers to "section" someone, to detain them in a psychiatric hospital under the Mental Health Act.

The Mental Health Act allows the detention of people in hospital under certain conditions. Simply having a mental disorder is not enough. The detention has to be either in the interests of their own health or safety or else intended to protect others. And there is a further condition: the detention has to be necessary for treatment (defined in terms of either alleviating the disorder or stopping it from deteriorating). This last condition, the "treatability test", is the central feature which marks off the present law from the new proposals.

Without the treatability test, the present law would provide what the Government hopes for. It would allow people to be detained because of their psychopathic disorder, where this was intended for the protection of others.

To many, it seems obvious that dropping the treatability test is justified. Those who support the new proposals think that predictions of dangerousness would be right about two- thirds of the time. The suggestion is that, in a year, 300 people might be detained under the proposals. Of those 300, 100 would not have committed violent offences and 200 would have done so. Saving 200 people from being assaulted, in some cases from being raped or killed, is not trivial.

But there are serious worries on the other side. One is about the 100 people detained who would not in fact have done the kind of thing predicted. Is this margin of error acceptable when people's liberties are at stake?

But the more fundamental worry concerns the implications of dropping the treatability test. That test means that detention under the Act has a justification to do with the medical interests of the patient. Abandoning this requirement turns the issue into one of preventative detention. The psychiatrist who has no treatment to offer these patients will have, towards them, the relationship not of a doctor, but of a jailer.

Once the matter becomes one of preventative detention, an alarming slippery slope looms. If we allow this group of people to be detained because of predictions that they are dangerous, what about other groups? There are people with Aids who might be predicted to have unprotected sex. There are people with political views which might justify predictions that they are potential terrorist bombers or racist arsonists. To allow people to be locked up on the basis of merely predicted rather than actual crimes has implications frightening to those of us who care about civil liberties.