Evil men, yes. But a greater evil would be prison without trial
Published in: Daily Mail
The Lord Chief Justice, Lord Woolf, is one of the most fervent - and most prominent - advocates of human rights in Britain. Indeed, he is associated with the development of a type of judicial activism which has tilted the balance in favour of the individual defendant, to the growing outrage of the general public.
So it is remarkable that he, of all people, should be suggesting that suspected paedophiles should be locked up even if the police have no evidence against them. should happen to suspected paedophiles about whom the police have no evidence that could be brought to court.
Even if such people have committed no offence, says Woolf, there should be a power to lock them up indefinitely if it is thought they might commit a sexual offence against children in future.
This is a far-reaching proposal indeed. It is a fundamental principle of English common law that people cannot be deprived of their liberty unless they have been convicted of an offence or are awaiting trial. Justice demands that one can only be jailed for what one has actually done, not for what one might be thought to be about to do.
This principle has been restated in the Human Rights Act for which Lord Woolf is such an enthusiast. So how can he be proposing such a draconian shift in the law?
Paedophiles present our society with a set of intractable problems, as the murder of eight year-old Sarah Payne so graphically illustrated. Her murderer, Roy Whiting, was a paedophile who had previously been convicted of abducting and sexually assaulting a young child but who had been released only to commit murder - even though the psychiatrist who assessed him had warned that he was likely to offend again.
The first problem is that paedophiles like Whiting are all too often likely to commit more offences after their original sentences have come to an end. It would surely be sensible, therefore, for all convicted paedophiles be subject to the same kind of indeterminate recall that is imposed on lifers, who may be hauled back to prison if they ever commit another offence.
But Woolf's proposal goes beyond this. He is suggesting locking someone up before he has committed any offence at all.
Now it is true that paedophilia poses peculiar difficulties for the justice system. Most sexual offences are difficult to prove because of the absence of witnesses. But paedophilia is even more insidious because it is a process of intimidation, corruption and self-deception. One of the most horrifying characteristics of this abuse of adult power is the way its child victims are made complicit accomplices in their own corruption.
As a result, these victims may not only be unwilling to blow the whistle on what is happening to them but may even be incapable of acknowledging the abuse that it constitutes. After all, they are only children.
Moreover, paedophiles are often the most plausible liars, convincing even themselves that they are doing nothing wrong. Those who are treated for their condition often claim they are 'cured' of their predilections. But time and again such claims have been sickeningly revealed to be lies as the paedophile resumes his activities with new child victims.
All this presents the justice system with a set of very grave dilemmas. Common sense dictates that all reasonable steps should be taken to protect children from such harm. But on the other hand, how can it be justified to lock someone up when he has been convicted of no offence?
Lord Woolf has acknowledged that his own proposal makes him feel very uncomfortable. Yet as he says, a balance must nevertheless be struck between the right to liberty of the suspect and the right of children to be safe from sexual assault.
And it is certainly true that precedents do exist for the approach he suggests. People can be sectioned under the Mental Health Act and detained indefinitely in a secure psychiatric hospital if they are considered to present a danger to the public, even if they have committed no offence.
Such a provision is necessary in the extreme circumstances of mental illness. Nevertheless, there are significant dangers in extending it to sexual offenders. For a start, who would be deciding that an individual posed a danger to children? And in the absence of any offences, on what evidence?
People are sectioned under the Mental Health Act only when two doctors agree. Even then, they may get it wrong; but at least there are recognisable symptoms that can be judged by experts to present a potential danger to the public.
But paedophilia is not an illness. So who would be the experts assessing it? Social workers, with their inglorious record of misdiagnosing child sexual abuse?
And what would constitute the evidence on which a suspected paedophile would be incarcerated? Would it be the say-so of a group of parents who have decided that a man seen hanging round the school gates must be a paedophile?
We know that public hysteria about paedophilia can create the atmosphere of a witch-hunt in which the most outlandish errors are made. Who can forget the targeting of an innocent children's doctor in Portsmouth by a populace too ignorant and enraged to recognise the difference between paedophile and paediatrician?
Moreover, claims of sexual abuse are already used against men in bitter custody proceedings by mothers who offer not a shred of evidence, but whose claims are all too easily swallowed by judges who have fallen for the extreme feminist propaganda that men are fundamentally predatory and that women's claims of abuse are always to be believed.
The result has been examples of manifest injustice in our divorce courts against men whose lives are shattered on the basis of no evidence at all. Are we really now to extend such injustice through a process which will do little more than institutionalise mob rule?
Yes, the law needs to be strengthened to protect children by ensuring that child molesters like Roy Whiting remain under permanent supervision. Of course the public have a right not to become the victims of crime.
But the ultimate protection for all of us is the rule of law, and the protection of the courts against the abuse of power. Replacing the objective testing of evidence by a procedure relying on rumour and hearsay will create injustice. And injustice can never be an acceptable way of dealing with child abuse or any social problem, however grave.