Charles Clarke, violent offenders

In this essay, I aim to explore and critically examine both the negative and positive elements of this proposed violent offenders’ order and register. I will start by introducing the existing violent and sex offender register that this proposal could be based on. I will go on to discuss who might identify the people targeted by this new order, and how. I will explore the social theory of the fear of crime, postmodern culture, definitions of risk and victimology. I will then critically evaluate the arguments for and against Charles Clarke’s proposal.

Charles Clarke reported to the media that this violent offenders’ register could follow the format of the existing violent and sex offender register (Guardian Staff ; Agencies, 20th April 2006). The violent and sex offender register (ViSOR) was implemented under the Sexual Offences Act 2003. This Act revised the previous requirements set out under the Sex Offenders Act 1997. By law, the following categories of individuals must register their details with the police: those convicted under the 2003 Sexual Offences Act, anyone who has served a custodial sentence of more than 12 months for a violent offence, and anyone not yet convicted but thought to be at risk of offending. The database holds such information as risk assessments, details of individuals’ modus operandi and photographs, as well as names and addresses.

The last category of people to be included in the ViSOR, ‘anyone not yet convicted but thought to be at risk of offending’, raises certain questions: who would assess the violent offenders in this proposed order? Would it be judged on previous convictions? Would it come down to media and public pressure?

There are two different methods of appraising individuals: clinical and actuarial assessments. Actuarial assessments use formal systems and guidelines, and look at the individual from a statistical viewpoint. Clinical assessments are formed around one-to-one interviews with the individuals, and use non-verbal communications to inform their assessment. In the case of this new register, would both methods be used? Or solely actuarial methods such as the Risk Matrix 2000 (as used by the Multi-Agency Public Protection Arrangements (MAPPA))?

It has been well-documented that the postmodern society in which we live is dominated by fear (Ditton & Farrell, 2002; Hanmer & Saunders, 1984; Harding, 2006; Kemshall, 2003; Lewis, 1986; Prins, 2006). Why is this? An exploration into the roots of this society may provide answers to these questions. The age of pre-modernity was agricultural and led by superstition. The industrialised modern society that grew from pre-modernity looked to science to improve society’s quality of life. Postmodern culture, however, has seen the effects that industrialisation has brought with it, and no longer believes that science has all the answers. Postmodern society is charaterised by globalization and the domination of the mass media.

Ulrich Beck comments that postmodern society can now see the negative side of modernist achievements (Beck, 1992). In terms of criminal justice, it means that we can now see its failings. This brings with it cynicism and mistrust of ‘expert’ opinions and legislation (Garland, 2000). We also see the media portraying crime as rising despite the efforts of the government.

Jo Goodey states that society needs to fear a group of people. This group merely shifts throughout the centuries (Goodey, 2005). This can be seen, for example, by the patriarchal fear of women in the Middle Ages and the consequential hunting of ‘witches’. Risk society theorists argue that postmodern society has moved from distrusting experts and officials: we now fear each other (Hudson, 2003).

David Garland links the fear of crime with the fear of strangers and the ‘other’. He goes on to say that because of postmodern society’s unguarded, ‘porous’ lifestyle, crime control now seeks to close off that openness and create boundaries (Garland, 2000). If this proposed register imposed the same restrictions on violent offenders as it currently does on certain sex offenders (i.e. exclusion zones), would this not be creating more boundaries? Are we losing our acceptance of others? Hazel Kemshall asserts, “all crime, any crime is intolerable” (Kemshall, 2003:46).

Fear of crime is just as valid to the public as the experience of crime itself (British Crime Survey, 2006; Goodey, 2005; Hudson, 2003). Research has indicated that people change their behaviour, whether consciously or subconsciously, as a direct result of fear of crime (Goodey, 2005). It is because of this that there exists pressure on the government to prevent crime.

Victimology examines different forms of victimisation, the wide-ranging impacts it can have, and the place of victims in society. ‘Positive Victimology’ emphasizes the role of human characteristics and actions (Fattah, 1989). It tries to identify whether or not the victim played a part in their victimisation. It holds victims accountable for their actions, and encourages self-reliance.

The concept of risk is central not only to criminology but to politics at every level: from local government to international policies (Goodey, 2005; Kemshall, 2003). Barbara Hudson says that “there has been a significant shift from doing justice to controlling risk as the goal of law and order and penal strategies” (Hudson, 2002:101).

There are a number of different varieties of risk. These include risk of harm (to the self, others, children, agency staff, etc.), risk of re-offending and risk of re-conviction (which are immeasurably disparate). The risk that governments are under the most pressure to address is the risk of harm.

This proposed order and register could have a number of positive effects. Firstly, it would be a measurable public protection tool. If this order came into force, the public would see the monitoring of violent offenders, and feel more secure in the knowledge that their government had implemented a strategy to make the individual safer and more protected.

‘Administrative Criminology’ is a term used to describe group trends of crime (Young, 1994). In this way, crime can be measured. The British Crime Survey presents its data in an administrative criminological fashion, and this would be the way in which the government could prove to its electorate that it is fighting crime. Administrative criminology does not, however, account for societal factors, such as age, race, etc., and so the data presented is not specific.

The proposed plans can also be seen as a way that the government is fighting for the rights of victims of violent crime. It is an approach that could placate victims, and reinforce to the offenders the severity of the offence. Alan Travis reports that the increasing numbers of pieces of criminal justice legislation are intended to redress the balance of the criminal justice system in favour of the victim (Travis, 21st July 2006a).

Another important effect of this new register would be a measurable step forward in risk management. The management of risk is becoming an increasingly important focal point for criminal justice legislation. There have been several cases reported in the media of high risk offenders being unsatisfactorily managed in the community. The result of the high media attention has been far-reaching, and has had a positive impact on offender management.

As brought to the public’s attention by the media, Damien Hanson and Elliot White’s murder of John Monckton encouraged the parole board to be more specific with their requirements1. It is possible that a register such as this could have stopped the killings of Naomi Bryant (by Anthony Rice) and John Monckton, amongst others.

High-profile cases such as these have forced the government to act in the interest of public safety. The government’s desire to be seen to be acting for the public has led to “increasingly strident and impatient … demands that the state meets its obligations to risk manage” (Kemshall, 2003:46). New proposals for legislation, such as the violent offender’s order and register, are the government’s response to these demands.

Positive victimology, as discussed earlier, has questioned the role that the individual plays in their experience of crime. Emphasis on responsibility for crime had previously been placed on the citizen, instead of the state. Kemshall, writing in 2003, says that there had been a “displacement of risk burdens from the state centre to locales” (Kemshall, 2003:143). This proposed piece of legislation can be seen as a marked step away from that area of thinking. It would seem that the government has heeded Goodey’s assertion that “government … needs to recognize its responsibilities to ‘at risk’ citizens” (Goodey, 2005:27).

This proposal can be seen as government acting in the interest of public safety, and taking an interest and responsibility in community safety. David Garland states that crime control is becoming increasingly conditioned by social and cultural factors (Garland, 2000). At the time of writing, he argued that the governments of both the United States and the United Kingdom were employing two distinct lines of action towards law and order: an ‘adaptive strategy’ which emphasised prevention of crime and agency partnerships, and ‘sovreign state strategy’ which focussed on stronger control and expressive punishment (Garland, 2000). This proposed order and register clearly fits into both of these governmental lines of approach.

The government’s objective of legislation is to manage crime control in this postmodern, liberal society. Mr Clarke has acknowledged that it is impossible to eliminate all risks, but remained adamant that this new proposal was important in the progression of ways to protect the public (Guardian Staff ; Agencies, 20th April 2006).

Set against these positive possible outcomes of this proposed violent offenders’ register and order are a number of concerns. The first argument against these measures is that the commonly termed sex offenders’ register, as discussed earlier, actually incorporates sex offenders and violent offenders. If this new register is based on the ViSOR, as Charles Clarke said it would be, surely then it is duplicate legislation. It could undermine the public’s belief in the effectiveness of measures that are already in place.

When examining and understanding government’s responses to risk and its responsibility to the electorate, Goodey discusses a key concept: ‘penal populism’. Penal populism describes tough legislation brought in by the government in response to high-profile media cases and moral panic (Goodey, 2005). The government needs to be seen to be reacting to perceived public concerns, which are brought to light by the media in their portrayal of certain cases (e.g. Rice, Hanson and White). This register can be seen as penal populism in practice. Is this proposed register based on research into actual public opinion? Or has it been proposed as a reaction to pressure from the media?

It is important to be aware of the influence that the media portrayal of actual events has in shaping the public pressure that is put on the government. Research has shown that the readership of ‘tabloids’ are approximately twice as likely to believe that the crime rates have risen over recent years than readers of ‘broadsheets’ (Kershaw et al., 2006).

The populist demands for security and punishment of criminals derive from the fact that thousands of people fear or experience crime. These potential and actual victims are voters. Goodey puts it succinctly: “criminal justice policy is now highly responsive to the electorate; or at least gives the appearance of doing so.” (Goodey, 2005:22).

The increasing instances of Home Office policy and legislation as a reaction to media pressure have been well-documented (Garland, 2000; Goodey, 2005; Guardian Staff ; Agencies, 20th April 2006; Kemshall, 2003; Singer, 2001; Travis, 21st July 2006a). The current Home Secretary, John Reid, clearly illustrates the importance of what the government is seen to be doing, just as much as what it is actually doing (Reid, 20th July 2006). Charles Clarke himself acknowledged the influence that the media has over politicians (Clarke, 24th April 2006).

The government could put in place hundreds of pieces of legislation in order to make the public feel safe, but they fail to be realistic. They do not advise the public that violence will always happen, and as a consequence, they are using legislation as a solve-all for violent (and other) crime. This new register would imply to the public that they are safer, by the police knowing where the violent offenders are, but is this the reality?

David Davis, the Conservative home affairs spokesperson, commented that Mr Clarke’s proposals would not deter those individuals who were prepared to commit serious violent offences (Guardian Staff & Agencies, 20th April 2006).

A further point to raise here is the different varieties of violence: how much is reported and what actually happens? Domestic violence is an area of violent crime that may be covertly targeted by this new register and order. Statistics from Women’s Aid (2006) illustrate that only 40.2% of domestic violence crimes are reported to the police, and that domestic violence has the highest rate of repeat victimization2. The emphasis on ‘stranger danger’, as enforced by the media, presents an unrealistic focus on violence, and where it might come from.

Violence against arguably vulnerable groups, such as women, the elderly and children, is disproportionately perpetrated by people known to them (family, carers or ‘friends’)3. Would an order or register such as this confront this risk? Or, instead, could it place the victims of these types of crime in an increased risk?

There is a wealth of statistical information which discredits the focus of the public’s fear of violence from strangers. There is significant evidence that in the majority of violent offences, the offender is known to the victim (British Crime Survey, 2006; Gillan, 22nd June 2006; Goodey, 2005; Hanmer & Saunders, 1984; Heidensohn, 1994; Kelly, 1988; Kershaw et al., 2006).

Goodey explains the reasons behind the media focus on ‘stranger danger’. By defining the offenders as ‘them’ and ‘not like us’, it provides the public with a way of distancing themselves from these crimes, and therefore coping with them. This technique distances the threat and therefore lessens the fear and makes us feel more secure (Goodey, 2005). However, a violent attack on an individual is much more likely to be by a friend or relative (British Crime Survey, 2006), so the media focus on ‘stranger danger’ is not helpful in combating violent crime. Therefore, legislation like this proposed order, which is due to the media’s pressure and focus, is also unhelpful, and may place victims in increased danger.

An interesting point to raise here is the number of murderers without any previous convictions and misleading risk assessments. Some of the individuals who commit serious sexual and violent offences may not have committed any offences previous to that (HM Inspectorate of Probation, 2006). Risk assessments made by professionals, such as the parole board, may not, with hindsight, be accurate, for example Anthony Rice was assessed as low risk and yet he murdered Naomi Bryant. This register would not prevent these occasions.

Multi-Agency Public Protection Arrangements (MAPPA) have been monitoring sexual and violent offenders in the community since 2001. MAPPA has three categories of offenders that it monitors, and three levels of management.

The three categories are broken down into those on the ViSOR, any violent or non-registered sex offenders with 12 or more months’ imprisonment, and any others that pose a risk or could draw media attention – the “critical few” (Metropolitan Police Service, City of London Police & London Probation, 2004:11). Currently there are 39 people in London on the highest level of MAPPA surveillance (Metropolitan Police Service, City of London Police & London Probation, 2004:21). Of the 400 cases managed at the highest level by the Multi-Agency Public Protection Panel (MAPPP) during 2003-4, only four individuals were returned to custody for breaching their licence. None breached their restraining orders or sex offender orders, and none were charged with a serious sexual or violent offence (Metropolitan Police Service, City of London Police & London Probation, 2004:11). There are 65 specified violent offences that qualify an individual for MAPPA guidance (National Probation Service, 2004). Charles Clarke’s ‘new’ proposal is already in practice. Does this not undermine public belief in current systems and legislation?

There is other existing legislation which aims to monitor members of the community who present a risk of harm. For example, if an offender is convicted for a second serious violent or sexual crime, they then face a mandatory life sentence as set out under the Crime (Sentences) Act 1997 (Singer, 2001). The Criminal Sentencing Act 2000 states that sentences can be made harsher than the norm in order to punish the offender for what has happened, and what is likely to happen. Is this proposed order really protecting the public to a greater degree? Or is it merely another repetitive piece of legislation that, in reality, is no different to others that are already in place?

The welfare state in which we live already has limited and stretched resources in the public sector. This would negatively impact on the effectiveness of the monitoring and management of offenders placed on an order such as this.

There is also a possibility that the public may wish to access information on this new register, as there has been in the United States since the introduction of Megan’s Law, and from there the possibility of vigilante action which would take the power of law and punishment from state. There are political, personal and professional arguments against the possibility of Sarah’s Law (Megan’s Law for the UK). One of these is that sex offenders who are currently on the register and being monitored by MAPPA may ‘go to ground’, and therefore evade monitoring (Hudson, 2003). This has already happened in New Jersey, USA, where 37 registered sex offenders are now listed as fugitives on the state’s website (Gillan, 22nd June 2006). If the information on Clarke’s proposed register were to be made public, this might drive violent offenders underground and, in essence, increase their risk to the public.

The idea of proportionality (the punishment fitting the crime) was legislated by the Home Secretary of the time, Douglas Hurd, in the Criminal Justice Act 1991. I believe that this proposed register and order would skew that idea, forcing offenders to continue being punished after they have served their sentence.

Hudson argues that the new methods of risk management breach some of the fundamental beliefs of due process. She goes on to assert that risk has overtaken the principles of no punishment without conviction, and proportionality (Hudson, 2003). The individuals subject to these orders will already have served a sentence. This new order would punish a person for a crime they had not committed, and may not commit (Guardian Staff & Agencies, 20th April 2006).

There are two distinct types of violence: instrumental violence, meaning that it is pre-meditated, and expressive violence, which tends to be impulsive. The violence seen in John Monckton’s killing was instrumental. If Hanson and White had been on a register, would it have stopped them killing Mr Monckton? I don’t believe it would have.

The final issues I would like to raise in my argument against Mr Clarke’s proposed order relates to human rights infringements. Goodey (2005) argues that on occasion a government will put into place legislation that does not correspond with their duty to human rights. Hudson adds that anyone who is seen as a risk to the public forfeits their rights to justice (Hudson, 2002). I believe that this proposed order would impinge on that individual’s basic human rights, breaking articles two and five of the Human Rights Act 1998: the right to life, and the right to liberty and security.

Goodey argues that there needs to be a functional relationship between due process (the rights of offenders) and victim-centred criminal justice. She goes on to say that these two sides do not necessarily have to oppose each other, citing Sanders and Young’s ‘Freedom Model’ which sees victims’ rights and due process as inherently linked and allied.

Politicians have argued that legislation such as this is put in place in order to protect victims’ rights, and that the victim’s rights take priority (Clarke, 24th April 2006; Reid, 20th July 2006). Hudson (2003) unpicks this reasoning. She questions the assumption that an increase in one person’s rights (i.e. victim) must mean a decrease in another’s rights (i.e. offender). This echoes Sanders and Young’s Freedom Model.

Alvaro Gil-Robles, Commissioner for Human Rights, commented that human rights implications of control orders being introduced by the UK’s government are a concern and could amount to punishment without trial (Liberty, 8th June 2005). This would contravene article six of the Human Rights Act, which states everyone must be presumed innocent until proven guilty.

I believe that government’s responses to risk must be objective. I agree with Hudson when she argues that the risk of being the victim of crime must be weighed against the risk posed that offenders (whether actual or potential) have their rights as humans and citizens of this country denied (Hudson, 2003).

Proponents of certain ideas and ideals of criminal justice might argue that this proposed order and register would serve justice, protect the public and manage risk (Travis, 2006a; Travis, 2006b). I disagree. The word ‘justice’ in this case implies an inherent synonymity with punishment. I disagree with the notion that the two must have a symbiotic relationship.

During this essay I have given a background to Charles Clarke’s proposed order and argued from both the proponents’ and the opponents’ sides. Having weighed up both sides of this debate, I believe that there is overwhelming evidence to reject this proposed order and register. I consider that risk will always exist, and that the unfairly biased media portrayal of the facts surrounding violence does not warrant repetitive legislation that, in reality, I do not believe would protect the public to any further degree. I agree with Hudson when she says that “risk is, after all, an inescapable part of the human condition” (Hudson, 2003:45).