Student Law Review 2018 by UWE Bristol

STUDENT LAW REVIEW �� Volume 1, Issue 1

CONTENTS Key to Abbreviations

Introduction

Is castration an appropriate and effective treatment for sex offenders in England and Wales? Annie Livermore - Criminology and Law (BA Hons)

Human Trafficking: Is the Identification, Protection, Support and Treatment of Victims an Issue for the UK? Georja Boag - LLB (Hons) Law

Child Sex Offenders: A Critical Analysis of Regulation, Reintegration and Rehabilitation Amber Rush - Criminology and Law BA (Hons)

Contents

KEY TO ABBREVIATIONS AWA

Adam Walsh Act 2006

NRM

National Referral Mechanism

ADT

Androgen Deprivation Therapy

RMP

Risk Management Plan

Competent Authority

RRAS

Registrant Risk Assessment Scale

CBT

Cognitive Behavioural Therapy

RSO

Registered Sex Offender

Chemical Castration

Surgical Castration

CJIA

Criminal Justice and Immigration Act 2008

SOA 1997

Sex Offenders Act 1997

SOA 2003

Sexual Offences Act 2003

CMU

Case Management Unit

SOPO

Sexual Offences Prevention Order

CoE

Council of Europe

COSA

Circles of Support and Accountability

SORNA

Sex Offender Registration and Notification Act

CPA

Cyproterone acetate

SOTP Sex Offender Treatment Programme

CPS

Crown Prosecution Service

SRO

Sexual Risk Order

ECHR

European Convention on Human Rights

SSLs

Slavery Safeguarding Leads

ECPAT

Every Child Protected Against Trafficking

SSRI

Selective Serotonin Reuptake Inhibitors

United Kingdom

ECtHR

European Court of Human Rights

UKVI

UK Visas and Immigration

GLM

Good Lives Model

United Nations

HMP

Her Majestyâ&#x20AC;&#x2122;s Prison

IPP

Imprisonment for Public Protection

MAPPA

Multi-Agency Public Protection Arrangements

MPA

Medroxyprogesterone Acetate

MSHTU

Modern Slavery Human Trafficking Unit

MST

Multi-Systemic Therapy

UN Protocol United Nations Protocol against Trafficking in Persons ViSOR

Violent and Sex Offenders Register

Key to Abbreviations

INTRODUCTION I am pleased to introduce the inaugural issue of the University of the West of England Student Law Review (UWESLR). The future of legal research is, like the legal profession, dependent on our current students. As such, it is essential to both encourage the efforts of young scholars and to assist in the development of their research and writing skills. This publication intends to do so by showcasing outstanding examples of research by undergraduate Law students at UWE. This fulfils twin objectives: to reward their endeavours by sharing their work with a wider audience, and to demonstrate â&#x20AC;&#x201C;to both their peers and others â&#x20AC;&#x201C;the quality of the research produced by our future academics and lawyers. This issue includes three articles; these are based on the submissions of undergraduate students as part of the final year Dissertations module for the Law and Joint Awards programmes. Annie Livermore writes about the use of surgical and chemical castration in the treatment of sex offenders; Amber Rush writes about the regulation, reintegration and rehabilitation of child sex offenders; and Georja Boag writes about the identification, protection, support and treatment of victims of human trafficking. All have produced excellent and engaging pieces of research, and should be congratulated for their efforts. The Review represents part of an ongoing effort to make students a part of the academic research community within the Department of Law at UWE. The research culture of any university should reach beyond the individual and collective activity of professional researchers; students should feel part of the scholarly environment in which they are learning. It is hoped that the Review will help to create an unbroken chain between academic and undergraduate research. In doing so, researchers can pass on their expertise and experience to the next generation of scholars, and students can better develop their skills. I hope you enjoy reading it. Dr Tom Smith (Lecturer in Law) Editor September 2018

Introduction

IS CASTRATION AN APPROPRIATE AND EFFECTIVE TREATMENT FOR SEX OFFENDERS IN ENGLAND AND WALES? Annie Livermore Criminology and Law (BA Hons) University of the West of England Faculty of Business and Law

Law Journal

ABSTRACT Since 2009, chemical castration has been available as a treatment for sex offenders in England and Wales; this has now been rolled out to prisons throughout this jurisdiction. Given that prison appears to be ineffective in dealing with sex offenders, this dissertation will provide insight into two alternative methods of treatment; surgical and chemical castration. In doing so, it will aim to evaluate them in terms of their appropriateness and effectiveness, to determine whether they are acceptable treatments for sex offenders. Through an evaluation of research evidence, this dissertation will conclude that both surgical and chemical castration are relatively effective in lowering an individualâ&#x20AC;&#x2122;s libido, as well as reducing re-offending rates. This dissertation will also explore the controversies around these treatments, and conclude that surgical castration, with or without consent, is legally, morally and ethically unacceptable in England and Wales. In terms of chemical castration, this dissertation will conclude that it is a proportionate, acceptable and appropriate treatment for individuals who have consented.

Abstract

1. Introduction 1.1 Motivation for this dissertation

The objectives are:

Sex offences are a universal issue which can provoke a mixture of fear, anger and repulsion.1 The disturbing nature of these offences, combined with the high level of media coverage they receive, results in a topic that is frequently discussed.2 Because of this general consensus of fear, it is imperative that there is an effective and reliable treatment for sex offenders. This dissertation will therefore provide insight into two methods of treatment; surgical and chemical castration, to determine whether they are acceptable treatments for England and Wales (E&W).

• To examine the issue of consent, and whether it should be considered valid, given that an early release from prison is available.

1.2 Overview of castration, aims and objectives Surgical castration (SC), otherwise known as orchiectomy, involves the permanent removal of the testicles.3 As the testicles are responsible for producing male hormones, such as testosterone, it inhibits the level of testosterone within the body which diminishes an individual’s libido.4 Chemical castration (CC) involves the use of pharmaceutical drugs to lower testosterone levels. 5 The most common drugs used within E&W are Cyproterone Acetate (CPA) and Selective Serotonin Re-Uptake Inhibitors (SSRI).6 Some effects include a reduction in sperm production, frequency and intensity of masturbation, and potency.7 From a criminal justice perspective, the purpose of castration is to lower an individual’s testosterone levels, in order to decrease their libido, with the overall aim to lower re-offending rates. This dissertation will explore how valid this argument is, to establish whether SC and CC are successful in this aim, and if so, how appropriate they are as treatments. The aim of this dissertation is to challenge whether surgical and chemical castration should be used, given the legal and moral issues that may rise. In order to answer this question, I must address several research objectives.

Amie Gordon, ‘Disabled sex offender, 49, who was snared by paedophile hunters trying to meet girls, 13, for sex is SPARED jail by judge because ‘years of bullying’ have made him ‘a victim himself’ The Daily Mail (London, 21st March 2018)

hris Greer, ‘News Media, Victims and Crime’ In Pamela Davies, Peter C Francis and Chris Greer (ed) Victims Crime and Society (Sage Press 2007) 21, 28

illiam Winslade and T. Howard Stone and Michele Smith-Bell and W Denise M. Webb, ‘Castrating Pedophiles Convicted of Sex Offenses against Children: New Treatment or Old Punishment?’ (1998) 51(1) SMU Law Review 350, 376

Ibid

• To consider whether castration breaches any human rights protected by the European Court of Human Rights (ECtHR) • To examine whether it is a proportionate and ethically acceptable method of treating sex offenders In order to address whether castration is effective, I will have to examine a number of issues, including whether it is successful in changing sexual behaviour, lowering libido and lowering recidivism rates. How appropriate castration is will be determined through analysing whether it is ethically and morally acceptable, as well as proportionate. These are the key themes I will return to throughout my dissertation, which will enable me to reach a thorough conclusion about the use of castration in E&W. 1.3 Summary of each chapter Chapter 1 will provide some historical context for castration, and discuss why it is important that society sufficiently addresses sex offending behaviour. In doing so, it will provide some background context which is essential to understanding some of the issues raised within this dissertation. Chapter 2 aims to determine the appropriateness of SC, through an intense evaluation of the legal, ethical and practical issues with the treatment. Chapter 3 intends to evaluate the effectiveness of SC, using research which measures offender’s recidivism rates, also known as re-offending rates, and the offender’s libido. Chapter 4 will then move on to CC, again, evaluating its appropriateness through addressing the ethical, legal and practical issues with the treatment. Chapter 5 will explore the effectiveness of CC, through analysing

Marnie E Rice and Grant T Harris, ‘Is Androgen Deprivation Therapy effective in the treatment of sex offenders?’ (2011) 17(2) Psychology, Public Policy and Law 315, 317

Rebecca Lievesley ‘The Use of Medication to Treat Sexual Preoccupation and Hypersexuality in Sexual Offenders’ In Nicholas Blagdan (Eds) HMP Whatton – A Prison of Change (2013) 1(208) Prison Service Journal 1, 18

Karen Harrison, ‘The High-Risk Sex Offender Strategy in England and Wales: Is Chemical Castration an Option?’ (2007) 46(1) The Howard Journal 16, 20

1. Introduction

studies that have looked at recidivism rates and the offender’s libido. It will also include an examination of the trials of CC in Her Majesty’s Prison (HMP) Whatton, using research evidence to determine its current level of success. The final chapter will provide a summary of the findings and the resulting conclusion, then determine how this contributes to answering the dissertation question. The chapter will go on to provide a comparison of the two treatments, before discussing the future of SC and CC in E&W. 1.4 Methodology This dissertation will aim to reach a thorough and detailed conclusion through the use of three approaches. The primary methodology used within this dissertation will be socio-legal. This approach focuses on the law and its relationship to a social situation, understanding aspects that the doctrinal approach neglects.8 For example, in relation to castration, the socio-legal approach would analyse the moral arguments that arise with castration, as well as the wider social benefits of it being used as a treatment rather than a punishment, and compare that to the law. This approach will be used within each chapter, but predominately in chapters 2 and 4. The dissertation will also take a doctrinal approach, which focuses solely upon the law in order to achieve legal doctrines through an analysis of the legal rules.9 This approach will be used predominantly within the context chapter, as this dissertation outlines the relevant frameworks governing castration. It will also be used when analysing whether castration violates any human rights protected by the ECHR, which are extensively explored in Chapters 2 and 4. Additionally, this dissertation will adopt a comparative approach, as I compare the law in E&W to other jurisdictions where the law on castration differs.10 This approach is valuable as it will allow me to determine which approach is essentially better, and whether these foreign policies are directly applicable to E&W.11

Brian z. Tamanaha, Realistic Socio-legal Theory: Pragmatism and a social theory of Law (Published in 1997 in the United States by Oxford University Press) 1, 3

Paul Chynoweth, ‘Legal Research’ In Andrew Knights and Les Ruddock (eds) Advanced research methods in the built environment (Published in 2008 Wiley-Blackwell) 28, 1

There are a number of key sources that will be used throughout this dissertation to answer my dissertation question. For example, • Winder B, Lievesley R, Elliot H, Hocken K, Faulkner J, Norman C and Kaul A, ‘Evaluation of the use of pharmacological treatment with prisoners experiencing high levels of hypersexual disorder’ (2017) 29(1) The Journal of Forensic Psychiatry & Psychology 53-71 • Maletzky B, Tolan, A and McFarland B, ‘The Oregon Depo-Provera program: A Five-Year Follow-Up’ (2006) 18(3) A Journal of Research and Treatment 303-16 • McMillan J, ‘The Kindest cut? Surgical castration, sex offenders and coercive offers’ (2014) 40(9) Journal of Medical Ethics 583-90 Much of the research included within this dissertation looks at castration in other jurisdictions, as there is limited operation of CC in E&W, and none of SC.12 Also, there was little research conducted within the 21st century, therefore the majority of studies investigating the effectiveness of surgical and chemical castration are from the 20th century. Whilst castration may be considered an extreme option to research, since 2016 the use of CC has been extended to a number of prisons throughout E&W.13 As such, it is a relatively recent development which this dissertation wishes to explore further.

Ibid

aren Harrison, ‘Legal aspects of Surgical Castration’ In Karen Harrison K and Bernadette Rainey Legal and Ethical Aspects of Sex Offender Treatment and Management (ed) (Sex Offender Treatment 2010)

1.5 Literature review

Fiona Hamilton, ‘Chemical castration offered to paedophiles in prison’ The Times (March 1 2017)

1. Introduction

2. Context This chapter will aim to provide a detailed outline of surgical and chemical castration. It will discuss the historical context of castration, the way in which it has evolved over time and why it is important that society manages sex offenders proficiently. 2.1 Historical overview Surgical castration (SC), also known as orchiectomy, has been frequently documented for centuries. It has been used as a punishment, a treatment, and to achieve other objectives. For example, it was carried out in Italy in the 16th century to boys under the age of 9 to preserve their unbroken voices.14 In Nazi Germany, anyone who was considered to be ‘unfit’ for reproduction was forcefully castrated, such as sex offenders, homosexuals, and the mentally ill.15 In the modern era, SC is also performed as a consensual medical treatment on men who have advanced testicular or prostate cancer, to stop or slow the spread of the disease.16 The use of castration has undergone a profound transition in the E&W. In the past, sex offenders were forcefully surgically castrated as a punishment for their crimes, however, public opinion and the law have changed over time. Whilst SC would be deemed illegal if it were carried out as a punishment, chemical castration (CC) – which is comparatively new - has emerged as a voluntary treatment for criminal behaviour. 2.2 The law on castration and how it has evolved over time 2.2.1 Surgical castration As early as the 11th century, SC was administered as a punishment for medieval crimes such as treason and general political disobedience in England.17 In 1066, in order to re-establish order and preserve peace, William the Conqueror declared ‘I also forbid that anyone shall be slain or hanged for any fault, but let his eyes be put out and let him be castrated’.18 Whilst the death

Epameindas A. Koutsiaris, Christos Alamandis, Aristotle Eftychiadis and Anastasios Zervas, ‘Castrati singers: surgery for religion and art’ (2014) 119(2) Italian Journal of Anatomy and Embryology 106, 107 Charles G. Roland, ‘The Nazi Doctors: Medical Killing and the Psychology of Genocide’ (1989) 80(3) A Journal of the History of Science Society 1, 17 Voislav Stojanovski, ‘Surgical castration of Sex Offenders and its Legality: The Case of the Czech Republic’ (2011) Journal on Legal and Economic issues in Central Europe 2, 4

Klaus van Eickels, ‘Gendered Violence: Castration and Blinding as Punishment for Treason in Normandy and Anglo-Norman England’ (2004) 16(3) Gender and History 588, 591

Ibid 588

penalty remained a prominent punishment, blinding and castrating offenders also became a common penalty faced by those who dared to ‘break the king’s peace’.19 SC continued to be used as a punishment for treason until the 12th century, until King William Rufus, an enthusiastic proponent of capital punishment, re-instated hanging as the primary penalty.20 Whilst the death penalty remained a popular punishment until the 19th century, over the years societal opinion began to change around punishments that were seen as excessive and cruel, and there is little literature to suggest SC was used from then on in E&W.21 The Bill of Rights 1688 prohibited cruel and unusual punishment, re-affirming the fact that SC would not be tolerated under English law.22 Whilst there is no specific legislation outlawing SC, the practice remains unlawful. Since 1861, Section 20 of the Offences Against the Person Act has confirmed that wounding or inflicting any grievous bodily harm on another person is a criminal offence.23 Given the severity and permanent nature of SC, it would undoubtedly satisfy this legislation. This has led to the current law in E&W today. The criminal law states that harm to a person, regardless of its purpose, is treated as an offence unless it is legally sanctioned or falls into consent to harm. However, as the case of DPP v Smith demonstrates, the level of harm inflicted to be treated as an offence is relatively low.24 As such, SC is acceptable only as a lifesaving medical procedure with the patient’s consent, and as there is no specific legislation which authorizes it as a punishment, it is deemed illegal within E&W. 2.2.2 Chemical castration The use of CC in the context of criminal justice began in the United States in 1996, when psychologist John Hopkins used the drug Medroxyprogesterone acetate (MPA) in an attempt to treat sex offenders, as society took a more rehabilitative approach to criminal justice.25 Owing to its success, a similar programme was established in 1997 in Texas which then led to it

Ibid 589

Julian B. Knowles, ‘The Abolition of the Death Penalty in the United Kingdom’ The Death Penalty Project (London 2015) 4, 7

Ibid

The Bill of Rights [1688] c.2 (Regnal. 1_Will_Mar_Sess_2)

Offences Against the Persons Act 1861 s47

[2006] EWHC 94

Samantha Vaillancourt, ‘Chemical castration: How a medical therapy became a punishment and the bioethical imperative to return to a rehabilitative model for sex offenders’ (Wake Forest University Graduate school of Arts and Sciences, 2012) 1,9

2. Context

becoming widespread throughout the US.26 In 2007, E&W introduced CC as a method of treatment for sex offenders as part of a three-year pilot study at HMP Whatton using Cyproterone Acetate (CPA) and Selective Serotonin Re-uptake Inhibitors (SSRI).27 Since then, CC has been allowed to be administered on sex offenders at that prison who have freely consented.28 The way society views castration, either as a punishment or a treatment, will likely impact upon its appropriateness as a procedure. If it is delivered as a treatment, any negative implications of castration could be justified if it is established to be a useful treatment which can positively impact an offender’s life and also protect society. On the other hand, if it is performed in a punitive nature with the sole aim to punish the offender, it might arguably lose widespread public support and be regarded as immoral and barbaric. However, it should be noted that there would likely be some support for castration being carried out as a punishment for sex offenders.29 Due to the intrusive nature of castration, it remains a particularly contentious issue which is frequently debated by academics and has provided a great amount of literature for this dissertation.30 2.3 How sex offenders are viewed today and why it is a significant issue In modern society, the term ‘sex offender’ often attracts a mixture of outrage, discomfort and disgust.31 Sex offenders are seen as some of the worst people in society and this anger only increases when the victim is vulnerable in some way, such as a child, which is often the case.32 A modern example is the abduction and murder of Sarah Payne which provoked great media and public interest.33

Ibid

Lievesley (n 6) 18

Ibid

Charlotte Lyton, ‘Should paedophiles be chemically castrated?’ The Telegraph. (London, 19 May 2016)

However, there are a number of reasons why society has a duty to address sex offending behaviour beyond the expression of public vilification. Firstly, because these crimes have a great public interest, it is imperative that offenders are, and are seen to be, dealt with efficiently and securely.34 Secondly, sex offenders can cause significant harm to the public, as it is an offence which is likely to be repeated.35 For example, statistics have suggested that the average sex offender may commit up to 400 sex crimes.36 Thirdly, the overall cost inflicted upon society by sex offences is extortionate, with the estimated cost of child sexual abuse alone to be £3.2 billion annually.37 Finally, evidence has consistently shown that prisons are ineffective in addressing criminal behaviour generally, as 45% of offenders re-offend upon release.38. While statistics suggest a lower figure of 14% of sex offenders who re-offend after release,39 it must be acknowledged that sex crimes often go unreported due to the sensitive nature of them, and if they are, many witnesses are unable to testify.40 There are also additional costs in protecting sex offenders in prison, as they tend to revoke repulsion from others prisoners and are therefore considered to be ‘at risk’.41 A report by the Prison Reform Trust estimated the cost of segregation units to be around £100,000 per prisoner per year, which demonstrates the substantial amount of money involved in protecting sex offenders.42 With around 84,000 individuals currently in prison, they are overcrowded, lack funding and in urgent need of reform.43 Given all the reasons above, this dissertation aims to explore castration as an alternative to incarceration, evaluating it in terms of their effectiveness and appropriateness.

Ministry of Justice, ‘How the measure of proven re-offending has changed and the effect of these changes’ (2017) < https://www.gov.uk/government/ uploads/system/uploads/attachment_data/file/658380/how-themeasure-of-reoffending-has-changed-and-the-effect-of-these-changes. pdf> [Accessed 17th February 2018]

Ministry of Justice, ‘Proven Re-offending Statistics Quarterly Bulletin’ (2014) < https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/276104/proven-reoffending-apr11-mar12.pdf> [Accessed 4th March 2018]

Harrison (n 7)

Gordon (n 1)

Jessica Duncan, ‘Public Perceptions Regarding Sex Offenders and Sex Offender Management’ (2012) (Electronic Theses and Dissertations, Paper 1507) 2,31

Suzanne Hill and Tara C. Marshall, ‘Beliefs about Sexual Assault in India and Britain are Explained by Attitudes Toward Women and Hostile Sexism’ (2018) 1(1) Sex roles 1, 1

Karen Harrison and Bernadette Rainey, ‘Suppressing human rights? A rights-based approach to the use of pharmacotherapy with sex offenders’ (2009) 29(10) The Society of Legal Scholars 47, 56

Dr Sharon Shalev and Kimmett Edgar, ‘Deep Custody: Segregation units and Close Supervision Centres in England and Wales’ (2015) The Prison Reform Trust 1, 12

Ibid

Lystra Batchoo, ‘Voluntary Surgical Castration of Sex Offenders: Waiving the Eighth Amendment Protection from Cruel and Unusual Punishment’ (2007) 72(2) Brooklyn Law Review 689, 697

ome office, ‘Population bulletin: monthly December 2017’ (2018) H < https://www.gov.uk/government/statistics/prison-populationfigures-2017> [Accessed 26th February 2018]

Ibid 712

liya Saied-Tessier, ‘Estimating the costs of child sexual abuse in the A UK’ (2014) NSPCC < https://www.nspcc.org.uk/globalassets/documents/ research-reports/estimating-costs-child-sexual-abuse-uk.pdf> [Accessed 17th February 2018]

2. Context

3. Is surgical castration an appropriate treatment for sex offenders? Surgical castration (SC) has been used as a means of controlling sexually deviant behaviour for centuries. However, due to the legal, ethical and moral implications that are associated with the procedure, there is an argument that it is an inappropriate treatment for sex offenders in E&W. This chapter will examine human rights issues, the subject of consent, as well as the irreversible nature of the treatment in an attempt to determine whether SC should be considered an appropriate option for sex offenders within the 21st century. 3.1 Human rights Research into the legality of castration has consistently examined whether the practice of SC infringes any rights described in the European Convention on Human Rights (ECHR). Human rights law dictates that every single person, regardless of who they are, are fundamentally entitled to basic human rights.44 This chapter will look at three in particular, Article 3 which prohibits inhumane or degrading treatment or punishment, Article 8 which protects the right to private and family life and, finally, Article 12 which represents the right to marry and raise a family.45

Article 3 is an absolute right, which means that it cannot be reduced or amended in any way, at any time, for any reason.46 There has been no British case law regarding the legality of SC under this article as it is not practiced in the United Kingdom, however, it has been challenged within case law in the United States. For example, in State v Brown 47 the courts held that the procedure was a ‘form of mutilation’ and subsequently breached the Eighth Amendment of the US constitution, which is very similar to Article 3.48 Mutilation is defined as ‘injuring, disfiguring or making something imperfect by removing or irreparably damaging parts’.49 If we compare this definition to the

3.1.2 Article 8 It can also be contended that SC breaches Article 8, which provides a right to respect for an individual’s ‘private and family life’.54 However, unlike Article 3, it is a qualified right and can therefore be lawfully restricted in certain circumstances.55 Proponents of SC state that the procedure would seriously interfere with bodily integrity, as the offender will have no control over how their bodies may react to the procedure.56 Harrison supports this view, going further to claim that the

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR)

Ibid

atasa Mavronicola, ‘What is an ‘absolute right’? Deciphering Absoluteness N in the Context of Article 3 of the European Convention of Human Rights’ (2012) 12(4) Human Rights Law Review 723, 724

284 S.C 407 (1985) 410, para. 2

Harrison (n 12)

Stojanovski (n 16) 18

Another case which demonstrates the unethical nature of SC is Davis v Berry ,50 where the court put forward an alternative argument as to why the procedure equates to inhuman treatment or punishment.51 The suggestion is that ‘the physical suffering may not be so great, but that is not the only test of cruel punishment, the humiliation, the degradation, the mental suffering is always present and known by all the public’.52 This declaration claims that even if the physical procedure does not amount to ‘inhumane or degrading treatment’, the subsequent treatment an individual will suffer because of the procedure will meet the requirements needed to infringe Article 3. The courts go on to acknowledge that this burden ‘will follow him wheresoever he may go’ further underlying the difficulty that is associated with having the procedure done, as well as the finality of it.53 These legal cases suggest that SC does in fact breach Article 3, and because of this, implies that it is not a suitable treatment. However, it should be acknowledged that the cases provided are historical and therefore may not be strictly applicable to a modern society.

3.1.1 Article 3

physical act of castration, it undeniably satisfies it. This raises the question as to whether a procedure that has been established to involve mutilation and breach Article 3, is an appropriate treatment to be performed in a modernised 21st century society, in which respect for basic human rights are considered fundamental.

242 U.S 468 (1917) 216 para. 3

Ibid

Convention for the Protection of Human Rights and Fundamental Freedoms (n 44)

Ibid

Mavronicola (n 46) 724

3. Is surgical castration an appropriate treatment for sex offenders?

procedure will undeniably impair an individual’s ability to have sexual relations, and therefore in sequence affect his capacity to develop his personality.57 This will directly conflict with an individual’s right to a ‘private life’ and subsequently can be seen to be a breach of Article 8.

supports this line of argument, stating that the unlawful actions of sex offenders have resulted in them being placed outside the protection zone of human rights policies.66

Voluntariness is a key issue in relation to whether SC is ethically acceptable. In the case of Storck v Germany 58 the ECHR stated that ‘even a minor interference with the physical integrity of an individual must be regarded as an interference with the right to respect for private life under Article 8 if it is carried out against the individual’s will.59 As SC has previously been performed without an offender’s acquiescence, it would suggest that it is in fact an infringement of Article 8. However, this case implies that it would not breach this article were the individual to agree, which is a fundamental requirement in many countries still practicing SC.60 3.1.3 Article 12 Article 12 provides ‘the right to marry and/or found a family’; it is also a qualified right and therefore can be constrained in certain circumstances.61 SC involves the removal of the testicles. As the testicles are responsible for creating and storing sperm, the essential component of procreation, it is apparent that carrying out this procedure will limit this article.62 As the majority of individuals would be unable to explore other avenues due to their convictions, such as adoption, it is evident that this article would be extremely restricted if SC were to occur.63 Nonetheless, some may question whether these dangerous individuals should even be allowed to marry and found a family. For example, it can be claimed that offenders forfeited this particular right when they engaged in the unlawful and damaging behaviour that they inflicted upon society.64 It is contended that the public deserve the most effective public protection, therefore it would be acceptable for the government to deny sex offenders these civil liberties.65 Lippke

However, the counter argument is that it is imperative of a democratic society that all individuals, regardless of who they are, are allowed human rights.67 Dostoevsky’s famous quote ‘the degree of civilisation in a society can be judged by entering its prisons’ emphasises that the way in which we treat the lowest in society directly reflects upon us.68 In terms of castration, denying these prisoners of human rights simply because they come under the term ‘sex offender’ would demonstrate a lack of civilisation and compassion. Ward et al support this view, stating that sex offenders should be restricted enough to prevent future criminal behaviour, but they should be allowed as much liberty as possible given these circumstances.69 Furthermore, one might argue that there is little point in ‘basic human rights’ existing, if it is deemed justifiable to ignore for particularly objectionable human beings.70 3.2 Consent It is clear that non-consensual SC would violate human rights. So, it might be questioned whether consensual SC would be appropriate. Proponents of castration argue that if the offender gives their informed consent of the procedure, then it should be considered as an option.71 This can be directly applicable to countries such as Germany and Poland, where castration is available to sex offenders who consent to it.72 The individuals should be fully informed of what the treatment involves, particularly that it is an irreversible procedure, in order to render their consent ‘informed’.73 McMillian takes a similar view, however, concludes that SC can only be morally and ethically acceptable so long as the offender freely requests it.74 This would eliminate the possibility that the offender is enticed into a coercive offer – that is, the offender may feel pressured or forced to consent, therefore limiting an individual’s freedom and autonomy.

Ibid

(61603/00) (2005) para. 4

Ibid

onvention for the Protection of Human Rights and Fundamental C Freedoms (n 44)

J ohn McMillan, ‘The Kindest cut? Surgical castration, sex offenders and coercive offers’ (2014) 40(9) Journal of Medical Ethics 583, 589

Erwin James, ‘Prisons must be a priority for Brown’ The Guardian (25 June 2007) 1

onvention for the Protection of Human Rights and Fundamental C Freedoms (n 44)

Tony Ward, Theresa A. Gannon and Astrid Birgden, ‘Human Rights and the Treatment of Sex Offenders’ (2007) 19(3) Sex Abuse 195, 203

Stojanovski (n 16) 7

United for Human rights (2017) Human Rights Violations

Stojanovski (n 16) 9

Ibid

Welcome to Gov.uk < https://www.gov.uk/child-adoption/adoptionassessment> [Accessed 7th March 2018] ichard L. Lippke, ‘Toward a Theory of Prisoner’s Rights’ (2002) 15(2) An R International Journal of Jurisprudence and Philosophy of Law 122, 127

Ibid

McMillan (n 60) 586

3. Is surgical castration an appropriate treatment for sex offenders?

An offender consenting to SC can be contentious as it may be seen to be a coercive offer.75 For example, an individual may only consent for SC, due to the attractive option of ‘early release into the community’ and the implicit threat that they will be detained for a longer period if they do not consent.76 Coercion is something that limits an individual’s freedom and autonomy.77 In relation to sex offender treatment, it would not be a verbal coercive offer, made as a threat; however, the offender would be aware that refusal to undergo the treatment would most likely mean a longer prison sentence.78 An example of this ‘coercive’ practice is represented in the case of State v Brown79 where the judge offered three defendants a 5-year reduction off their prison sentence, were they to consent to SC.80 This appealing offer may have encouraged and pressured the defendants to continue with a controversial procedure they did not understand, want or perhaps even need. McMillan supports this line of argument, as he claims giving an offender a choice between two undesirable options is not a choice at all, and should instantly render their consent invalid.81 A different line of argument is developed by Shaw, who states that castration should not be allowed to be permitted as an option that will result in an early release from prison, due to the conflicting moral values of prison and castration.82 Imprisonment is forced upon an individual for retributive, punitive purposes that ultimately aim to punish the offender; in contrast, castration is or should be a form of treatment intended to rehabilitate an individual and help them integrate back into a society that has rejected them.83

detrimental impact on his psychological and emotional wellbeing, and will most likely severely impact any future relationships he may have.85 Research has suggested that an offender is more likely to re-offend if he is ostracised by society and considers himself an outsider, demonstrated through one offender’s assertion ‘No one believes I can change, so why even try?’86 This was further confirmed by Edward and Hensley, who found that feeling alone, isolated, ashamed or embarrassed could trigger some offenders to relapse.87 Therefore, it may be suggested that SC and its irreversible nature could lead to social exclusion and therefore actually force an individual to re-offend, damaging society further. Given that the procedure cannot be reversed, it is essential that it is free from any influence or coercion which may occur, which the previous sub-chapter has explored. The irreversibility of SC can also lead to miscarriages of justice; the criminal justice system is not fallible and innocent citizens have been known to be convicted.88 As a result, an individual who has undergone SC may be exonerated at a later stage, and still have to live with the physical, emotional and psychological damage of the procedure.89 In this sense, SC presents similar problems to the death penalty. However, a contrasting view is put forward by proponents of the procedure, who argue that permanence is actually a positive thing, as once the treatment is completed it will inevitably last the rest of the individual’s life.90 They claim that this will save both time and money, as it will not require repeated appointments to ensure control over an individual’s sexual desire the way in which CC does.91 3.4 Power and control

3.3 Irreversible SC is an irreversible procedure that will permanently change the body and render the offender infertile.84 This can raise questions regarding its appropriateness as a treatment, as it cannot be reversed at a later stage if the offender regrets the procedure. This could have a

Ibid

Ibid 589

Ibid

836 S.W.2d 530 (1992)

It can also be argued that sex offenders do not commit sex offences for purely sexual purposes, but because they wish to exert control and dominance. MacFarland describes rape as ‘an act of power and control rather than a sexual act’, and goes on to state ‘it has to do with perpetrators desire to terrorize, dominate, to control, to

Richard Zevitz, J.D Crim and Mary Ann Farkas, ‘Sex offender community notification: managing high risk criminals and exacting further vengeance? (2000) 12(2-3) Behavioural sciences and the law 375, 379

William Edwards and Christopher Hensley, ‘Contextualizing Sex Offender Management Legislation and Policy: Evaluating the problem of Latent Consequences in Community Notification Laws (2001) 45(1) International Journal of Offender Therapy and Comparative Criminology 83, 88

Batchoo (n 35) 691

Michael Noughton, ‘The scales of Injustice’ The Guardian (28 July 2002)

McMillan (n 60) 587

Rice (n 5) 324

Elizabeth Shaw, ‘Offering castration to sex offenders: the significant of the state’s intentions’ (2014) 40(9) Journal of Medical Ethics 594, 597

Ibid

Stojanovski (n 16) 3

Ibid

Batchoo (n 35) 692

Ibid

3. Is surgical castration an appropriate treatment for sex offenders?

humiliate’.92 This is further supported in a publication by the World Health Organisation, who confirmed that the ‘motivating factor for sexual violence is not sexual desire’ and instead pointed to reasons such as anger, power, dominance.93 However, it does openly acknowledge that not all perpetrators have the same motivations for committing sexual violence, which subsequently makes it a complex matter to research.94 As there are other reasons why sex offenders may commit offences, excluding sexual desire, SC may not even be able to prevent some crimes from occurring. To summarise, this chapter has established that administering SC without consent would breach Article 3, 8 and 12. Whilst Article 8 and 12 are qualified rights which allow flexibility in certain circumstances, Article 3 cannot be compromised and is therefore highly significant. Whilst there is support for consensual SC, there is a strong argument to suggest that this consent should not be considered valid as it is motivated by an early release from prison. Given that SC is an irreversible procedure which will affect an offender’s life permanently, the decision to undergo it should be free from any form of coercion or influence. This leads to the conclusion that SC, with or without consent, is a disproportionate and excessive treatment for sex offenders in E&W.

Elizabeth Sheehy, ‘Sexual assault in Canada’ (2012) Law, legal practice and Women’s Activism (University of Ottawa Press: Canada) 1, 33

World Health Organisation, Sexual violence: prevalence, dynamics and consequences. Guidelines for Medico-legal care for victims of sexual abuse <http://www.who.int/violence_injury_prevention/resources/publications/ en/guidelines_chap2.pdf> [Accessed 12th March 2018]

Ibid

3. Is surgical castration an appropriate treatment for sex offenders?

4. Is surgical castration an effective treatment for sex offenders? The previous chapter explored the moral concerns of surgical castration (SC) and established that there are many ethical and practical complications with the procedure. This chapter will now discuss the effectiveness of SC, which can be determined through an offender’s loss of libido and recidivism rates, otherwise known as re-offending rates. The level of effectiveness is critical in evaluating SC as a treatment, as if the procedure is highly effective, then it may justify the ethical issues that arise. However, if not, it could be considered an excessive and unreasonable treatment. Within this chapter, the drug Medroxyprogesterone Acetate (MPA) can also be referred to under its brand name Depo-Provera, therefore these two will be used interchangeably throughout. 4.1 Effectiveness in relation to recidivism rates If we assume that the general principle of surgically castrating an offender is to prevent re-offending, then research evidence has consistently established its success. For example, Hansen and Lykee-Olsen reviewed the effectiveness of surgical castration (SC) on 21 male inmates in Denmark.95 They found that only 2 out of the 21 inmates who were surgically castrated re-offended, and they did so after a 15 year follow up period while being provided with testosterone.96 If we compare this to the control group of 22 sex offenders who refused castration and instead had extended time in prison, 8 had reoffended. Therefore, the comparative rates of sexual recidivism were 10% for the castrated group, and 36% for the non-castrated group, which implies a degree of effectiveness.97 However, there are several limitations with this study. Firstly, the follow up period for the non-castrated group is unknown, which causes difficulties in comparatively analysing the research evidence from both groups.98 Also, the sample size was small and therefore may not provide an accurate representation of its effectiveness.99 In summary, whilst this evidence implies the effectiveness

of the procedure in lowering recidivism rates, there are clear and substantial limitations which allow us to challenge the overall usefulness of the evidence. Further research that explores the effectiveness of SC on re-offending rates is provided by Sturup, who studied 900 patients and compared the recidivism rates of those offenders who had been surgically castrated to those who had not.100 He concluded that 23% of those who had not undergone the surgery had re-offended after a 30 year follow up period, in comparison to 2.2% who had been castrated.101 These statistics suggest that SC has a positive impact upon recidivism rates in the long-term and therefore insinuates it to be a highly effective treatment. Nonetheless, it is extremely difficult to determine the effectiveness of SC through recidivism rates, as it is uncertain whether those castrated have stopped offending or have simply not been caught. The results must also be treated with caution, as the effectiveness of the treatment may be influenced by many other external factors, such as motivation to change their behaviour.102 4.2 Effectiveness in relation to loss of libido Research into the reduction of libido is less definitive. This is represented by Heim and Hursch, who evaluated data from 157 males and found that 66% reported a loss of sexual interest after SC.103 Whilst this data can be interpreted positively as it is the majority, it can also be challenged as it leaves 34% to have not noticed a change in sexual interest, which is one of the primary aims of SC. Of the 66% to have reported a decrease in sexual desire, 72% of those claimed that asexualisation, which refers to the lack of sexual interest, occurred immediately after orchiectomy whilst the remaining 28% declared that it disappeared gradually over several months.104 Whilst this research evidence is in accordance with the previous study in establishing a decrease in libido following castration,

Heidi Hansen & Lise Lykee-Olesen, ‘Treatment of dangerous sexual offenders in Denmark’ (1997) 8(1) Journal of Forensic Psychiatry 195, 196

100

George K. Sturup, Treatment of sex offenders in Herstedvester, Denmark: The Rapists (Copenhagen, 1968) 64

Ibid

101

Ibid

102

Ibid

inda E. Weingberger et al, ‘The Impact of Surgical Castration on Sexual L Recidivism Risk Among Sexually Violent Predatory Offenders’ (2005) 33(1) Journal of the American Academy of Psychiatry and the Law Online 16, 19

103

ikolaus Heim and Carolyn J. Hursch, ‘Castrating for sex offenders: N Treatment or punishment? A review and critique of recent European Literature’ (1979) 8(3) Archives of Sexual Behaviour 281, 284

104

Ibid

4. Is surgical castration an effective treatment for sex offenders?

it represents the potentially wide range of individual responses to the procedure. This lack of a certain outcome in this regard could undermine arguments that it is effective. Another study that demonstrates the range of individual responses is provided by Wille and Beier. They found that 92% of males aged 45 years and older reported they had a ‘virtually extinct libido’ following the surgery, in comparison to 67% of those aged 45 and younger.105 These statistics suggest that the procedure is more effective in older men which must be considered when evaluating its overall effectiveness. As outlined earlier, the rehabilitation of sex offenders is a highly significant issue, and therefore a consistent and reliable treatment is needed to sufficiently address it. However, as research has demonstrated inconsistencies in individual responses, it’s clear that SC is not a straightforward cure for everyone. While research has shown that SC reduces sexual thoughts and feelings, they are not eliminated completely. This is demonstrated by Heim, who studied 35 sex offenders who had agreed to SC and found a reduction in masturbation, sexual thoughts and sexual intercourse.106 However, similar to the previous study discussed, these responses did not occur immediately after the treatment. This further contributes to the assertion that there are a variety of factors which influence a sex offender’s reaction to the procedure.107 Furthermore, 31% of subjects found that they could still engage in sexual intercourse.108 This high percentage may imply that SC is a relatively weak treatment, as the overall aim of castration is to near enough eliminate sexual desire and therefore reduce a key driver behind serious sexual offences. As the previous chapter discussed other reasons alongside sexual desire for this type of offending. However, this evidence regarding the reduction of libido allows us to challenge whether castration is an effective treatment, given that offences can still occur in some cases and that sexual desire may not have been adequately dampened.

105

Reinhard Wille and Klaus M. Beier, ‘Castration in Germany’ (1989) 2(2) Sexual Abuse: A Journal of Research and Treatment 103, 111

106

Nikolaus Heim, ‘Sexual behaviour of castrated sex offenders’ (1981) 10(1) Archives of Sexual Behaviour 11, 14

107

Ibid

108 109 110

Ibid Rice (n 5) 332 Bitna Kim, Peter J Benekos and Alida V. Merlo ‘Sex offender Recidivism Revisited: Review of Recent Meta-analyses on the Effects of Sex Offender Treatment’ (2016) 17(1) Trauma, Violence and Abuse 105, 107

Nonetheless, research into an offender’s libido must be treated with caution, as it relies upon the individuals openly and honestly telling the truth about their sexual level. Offenders may therefore distort the truth in order to appear less of a threat, or perhaps to maintain their personal integrity.109 4.3 A comparison to other treatments The overall effectiveness of SC as a treatment for sex offenders can be established through analysing the effectiveness of alternative or complementary treatments, such as Cognitive Behaviour Therapy (CBT) and Multi-systemic therapy (MST).110 In relation to sex offender treatment, CBT is a form of psychotherapy that is designed to address an offender’s excessive and intense sexual thoughts.111 As our thought processes impact on our behaviour, CBT aims to replace the dysfunctional thought process of sex offenders with calm and controlled ones which enable them to successfully function in society.112 Hunter and Santos studied 27 male paedophile sex offenders who participated in CBT.113 They measured an individual’s responses before and after the therapy using covert sensitisation, which is an imagery based procedure designed to make an individual imagine themselves engaging in sexual behaviour.114 The results show a significant decrease in sexual arousal when pre-and post-treatment results are compared, suggesting that CBT is a relatively effective treatment. However, this study specifically looks at paedophiles, therefore may not be directly applicable to all sex offenders. Furthermore, no scientifically reliable conclusions can be drawn from the sample as it is too small and unrepresentative of the population as a whole.115 MST is a community based programme that places great emphasis on individual’s family intervention through them monitoring and challenging an offender’s behaviour.116 The intervention is provided at home or in the community and is frequently used for juvenile sex offenders.117 Borduin et. al. used this treatment to establish the difference in recidivism rates between 8 males who had completed MST

111

Thibault et al, ‘The World Federation of Societies of Biological Psychiatry (WFSBP) guidelines for the treatment of adolescent sexual offenders with paraphilic disorders (2016) 17(1) The World Journal of Biological Psychiatry 3,10

112

Ibid

113

Ibid

114

Ibid

115

Ibid

116

Ibid

117

Ibid

4. Is surgical castration an effective treatment for sex offenders?

and 8 males who had not. After 4 months, 12.5% of males who had participated in MST had re-offended in comparison to 75% of those who had received no treatment.118 These statistics clearly suggest that MST can have a considerable impact upon the likelihood an individual will re-offend and as such, appears to be an effective treatment.119 However, similar to the previous studied discussed, the sample size was small and as such, may not be fully representative of MST as a treatment. Also, the follow up period was only 4 months, and therefore may not have been long enough to achieve an accurate representation.120 The alternative to therapeutic treatment whilst in prison is to allow offenders to complete their sentence and address rehabilitation post-release (either as a condition of license or as an option for the offender). How confident one can be about this is questionable. Convicted paedophile Larry Don McQuay described how prison did little to deter him from molesting

well as methodological criticisms, evidence repeatedly implies it to be an effective treatment. Despite the high level of effectiveness, the previous chapter determined that SC was intrusive, irreversible, and an unsuitable treatment for a civilised society. As such, the effectiveness does not justify using a treatment has been found to involve mutilation, and would therefore be a disproportionate and inappropriate treatment for sex offenders in E&W. Alternative methods of offender management have also been discussed, including CBT and MST, which both appear to have a high success rate. Furthermore, these treatments are not as intrusive nor permanent as SC, which implies that SC may not be the most effective treatment available for sex offenders.

children in the future and strongly called for SC as an option.121 In his article, he repeatedly noted that the threat of spending many years in prison and being ostracized by society was still not enough to prevent him re-offending.122 On the contrary, he even went as far as to say that prison intensified sex offender’s behaviour as they ‘emerge out of prison with a fresh appetite for violence and a new plan to stay out of prison’.123 Due to the nature of SC, it generally considered inappropriate and ineffective for all but the most serious sex offenders, such as paedophiles. This is demonstrated through legislative measures in the United States, which explicitly authorize SC for specified sex offences involving child victims.124 For example, the California Assembly Bill 3339, which came into law in 1996 and the Florida House Bill 83, which became effective in 1997.125 Having discussed SC extensively, it is evident that the procedure can have a significant impact on an individual’s recidivism rate and their libido. Whilst it was noted that there was a range of differing results, as

118

119

Charles M Borduin, Scott W. Henggeler, David Blaske and Risa J. Stein, ‘Multisystemic Treatment of Adolescent Sexual Offenders’ (1990) 3(1) International Journal of Offender Therapy and Comparative Criminology 105, 110

123

Ibid 27

124

Winslade (n3) 376

125

Ibid

120

Ibid

121

arry Don McQuay, ‘The case for Castration, Part 1’ (The Washington L Monthly, 1994) 26, 26

122

Ibid

4. Is surgical castration an effective treatment for sex offenders?

5. Is chemical castration an appropriate treatment for sex offenders? The previous chapters have established that surgical castration (SC), despite not being the most ethical treatment, has a relatively high level of effectiveness. This chapter will discuss chemical castration (CC) and the issue of consent, whether the procedure breach’s any rights protected by the ECHR, and the undesirable and dangerous side effects which may render it an inappropriate and disproportionate treatment. 5.1 Consent Consent is an essential issue when discussing the suitability of CC. The case of Janiga v Czech Republic confirmed that free and informed consent must occur for the procedure to be considered lawful.126 However, similar to SC, some academics have questioned the validity of it, stating that an individual’s freedom of choice is compromised when there is incitement for a lesser sentence, or perhaps even immediate release.127 Some academics have gone as far as calling it acquiescing (or submitting) rather than consenting, as an individual will endure many unpleasant experiences in order to retain their freedom.128 This line of argument is further supported by Vanderzyl who describes the choice between castration and incarceration as having an ‘inherently coercive nature’.129 However, a conflicting line of argument is that CC can actually increase a person’s autonomy, as it can liberate the offender of their excessive sexual desires which will enable them to successfully integrate back into society.130 The level of autonomy CC provides, which will also contribute to its appropriateness of a treatment, can be assessed by the opinion of offenders who have undergone the treatment. Navon and Morag carried out 15 in-depth interviews with patients who had been receiving anti-androgens from 6 months to 3 years.131 One patient described the treatment extremely positively, saying ‘in the past, my wife was suffering because of my sexual demands,

we had many arguments about it. Now, the quarrels are over and my wife’s happy’.132 This experience suggests that CC can provide an individual with more autonomy and have a direct and positive impact upon an individual’s emotional wellbeing (and that of their immediate family). The patient went on to acknowledge, ‘when I compare the situation now with that it used to be, it’s clear that, at the end of the day, this change in our relationship has improved something in my personality’, which further reiterates the positive outcomes from CC.133 However, not all personal experiences were described positively. Novan and Morag also found evidence to suggest that CC is restrictive and undesirable, which directly opposes the line of argument that suggests it provides a high level of autonomy. Demonstrated through one individual’s experience, ‘without sex, my world has grown boring, grey and mechanical. I lost the capacity to enjoy trips, music, food, even the fragrance of spring’.134 This evidence represents the negative impact that the treatment has inflicted upon this offender’s life, and certainly opposes the idea that CC actually increases an individual’s autonomy. Furthermore, it is questionable whether the ‘increased level of autonomy’ an offender will experience really justifies non-consensual castration, given that it will breach rights that are fundamentally important to our society.135 Another reason why consent is so significant is because research has shown CC is more effective when an individual has consented, as they are more motivated to change their behaviour.136 Harrison argues that success is only achieved by those who have the desire to change, and that motivation is the most important factor to achieving maximum effectiveness.137 Similarly, Meyer and Cole concluded that individuals who explicitly expressed a desire to change were more likely to achieve positive results.138 This evidence reinstates the importance of consent, and why it is essential that it is required in E&W.

126

[2011] EWHC 553 (Admin) 2011 WL 579007

132

Rice (n 5) 322

127

Ibid 508

133

Ibid

128

Ibid

134

Navon (b 133) 1383

129

ari Vanderzyl, ‘Castration as an alternative to incarceration: An K impotent approach to the punishment of sex offenders’ (1994) 15(1) Northern Illinois University Law Review 107, 118

135

onvention for the Protection of Human Rights and Fundamental C Freedoms (n 44)

130

Ibid

131

Navon L and Morag A, ‘Advanced prostate cancer patient’s ways of coping with the hormonal therapy’s effect on body, sexuality and spousal ties’ (2003) 13(1) National Library of Medicine National Institutes of Health 1378, 1381

136

Harrison (n 7) 26

137

Ibid

138

Walter J Meyer III, Collier Cole and Evangeline Meyer, ‘Depo-Provera Treatment for Sex Offending Behavior: An Evaluation of Outcome’ (1992) 20(3) Bull Am Acad Psychiatry Law 249, 258

5. Is chemical castration an appropriate treatment for sex offenders?

5.2 Human rights 5.2.1 Article 3 Similar to SC, there is debate concerning whether CC violates any rights protected by the (ECHR). The issue of consent is particularly relevant to this discussion. As previously mentioned, Article 3 prohibits ‘torture, inhumane or degrading treatment’ and is an absolute right that cannot be compromised under any circumstances.139 In the case of Ireland v UK degrading treatment was described as ‘treatment which arouses in the victim feelings of fear, anguish and inferiority capable of humiliation and debasement and possibly breaking physical or moral resistance’.140 In order for a violation to occur in the context of castration, punishment and treatment must extend to a certain level of severity.141 When determining this, the courts will assess; the nature and duration of the punishment or treatment, the age, sex and health of the victim, as well as the physical and mental impact upon a victim.142 If this is directly applied to CC, it would suggest that carrying out the procedure would not breach Article 3, as it a relatively non-intrusive procedure which requires full consent and is designed to benefit the offender. The case of Antzcak is particularly relevant to this discussion, where the courts concluded that CC is not in itself a breach, unless it is enforced without free and informed consent.143 To summarise, consent must be established in order to prevent a breach of this sacred article. 5.2.2 Article 8 Another article which will be considered is Article 8, which provides a right to respect for ones ‘private and family life’.144 CC may interfere with this right as the hormones will decrease an offender’s libido which will directly impact their sexual relationship with others.145 This may therefore effect the ability of the offender to establish and maintain a functioning family life. This article may also be breached as the undesirable and unpleasant side effects, which will later be discussed,

139

140

Council of Europe, European Convention on Human Rights < https:// www.echr.coe.int/Documents/Convention_ENG.pdf> [Accessed 6th March 2018] (1979-1980) 2 EHRR 25 para 197

141

Harrison and Rainey (n 31) 63

142

Ibid

143

[2014] EWHC 1075 (Admin)

144

Council of Europe, European Convention on Human Rights < https:// www.echr.coe.int/Documents/Convention_ENG.pdf> [Accessed 6th March 2018]

145

Harrison (n 7) 26

may affect a person’s private life. One in particular, would be breast enlargement (or feminisation), which studies have found to occur in 15% of men146. This will undoubtedly have impact upon their self-esteem and relations and therefore would likely breach Article 8. However, this chapter also explored evidence which suggested that CC can actually improve an offender’s family life, by decreasing their sexual desires to a healthy level.147 It is therefore uncertain whether or not this article would be compromised through the application of CC. 5.2.3 Article 12 Article 12 provides the ‘right to marry and found a family’. As previously mentioned, the effects of CC include a reduction in libido which has the potential to seriously impair an individual’s desire to procreate. If CC were irreversible, it would most certainly limit this right, however, as it is relatively short-term treatment which still enables the individual to engage in sexual intercourse, it does not appear to do so. The case of Antzcak can be referred to when discussing whether CC is in violation of any rights protected by the ECHR.148 This case involved an offender who appealed against the court’s decision to extradite him to Poland, declaring that it would be unlawful as CC would be forced upon him and threaten Article 3 and 12.149 The courts rejected this appeal, stating that a breach would only occur if the authorities forced him to undergo CC, which they believed would not occur.150 This case confirms that Article 3 is only breached if it is carried out without consent. As consent is a necessary requirement in E&W, demonstrated through the trials at HMP Whatton and its expansion since, it implies that is it an appropriate treatment. However, this chapter has explored the argument that an individual’s consent should not be considered valid, which creates uncertainties when trying to establish whether CC is violating any human rights.

146

Rice (n 5) 322

147

Ibid

148

v Poland [2014] EWHC 1075 (Admin)

149

Ibid

150

Ibid

5. Is chemical castration an appropriate treatment for sex offenders?

5.3 Mandatory chemical castration

5.4 Side effects

Despite the issues discussed, there is an ongoing argument that all convicted sex offenders must undergo CC in order to prevent future victimisation. In February 2018, the Turkish government announced they will be considering mandatory CC for individuals convicted of sex offences against children.151

This chapter will now discuss the potential side effects which can arise from administering CC to sex offenders. The side effects are fundamentally important when evaluating the appropriateness of CC, as their level of severity will have an impact in determining the overall appropriateness of the treatment.

The number of sexual assaults each year are extremely alarming, with 138, 045 sexual offences being reported in E&W from October 2016 to September 2017.152 The level of recidivism for these types of offences is also distressing. Lisak and Miller studied 1,882 men and found 63% of those who had committed rape had committed it more than once, with an average of 5.8 rapes each.153 Due to the severity of sexual offences and the high recidivism rate of crimes such as rape, it can subsequently be argued that CC should be compulsory for some convicted sex offenders upon release. In Australia, the minister for police and emergency services has advocated for mandatory CC for both rapists and child molesters.154 Similarly in Russia, a law was passed which made CC compulsory for child molesters.155 However, this chapter has established that the procedure without consent would be a direct violation of our human rights. Given the importance of these articles and what they represent for a civilised democratic society, this argument appears to have little significance. As previously mentioned, research has demonstrated that CC is most effective when administered to individuals who have consented, as they are more motivated to change their sexual behaviour. Therefore, if mandatory castration was introduced in E&W, it would most likely be unsuccessful to a large proportion of offenders. As this chapter will later discuss the high cost involved in the treatment, it would be neither worthwhile nor cost effective to administer mandatory CC to all offenders. As such, there is little applicability to E&W.

151

Constanze Letsch, ‘Turkey Considering Chemical Castration of Sex Offenders’ Human Rights Watch (27 February 2018)

152

O ffice for National Statistics, ‘Crime in England and Wales: year ending September 2017’ (2017) < https://www.ons.gov.uk/ peoplepopulationandcommunity/crimeandjustice/bulletins/ crimeinenglandandwales/yearendingseptember2017> [Accessed 12th March 2018]

153

avid Lisak and Paul M. Miller, ‘Repeat Rape and Multiple Offending D Among Undetected Rapists’ (2002) 17(1) Violence and Victims 73 ,78

154

Z achary Edmonds Oswald, ‘”Off with his ____” Analzying the Sex Disparity in Chemical Castration Sentences’ (2013) 19(2) Michigan Journal of Gender and Law 471, 484

155

Institute for Criminal Justice Reform, ‘Review of Laws Providing for Chemical Castration in Criminal Justice’ (2016) < http://icjr.or.id/data/ wp-content/uploads/2016/06/paper-ICJR_ResearchNote_CC_CM.pdf> [Accessed 2nd March 2018]

Studies have shown that CC carries harmful side effects. Bretts, Roberts and Wassersug studied 92 males who volunteered for the treatment and found that 63% experienced hot flushes, 55% noticed genitalia shrinkage and 35% reported depressive symptoms.156 Further evidence of side effects is provided in Bradford’s article, which include depression, weight gain, fatigue, insomnia, loss of body hair and migraines.157 These side effects are all radical, severe and significantly detrimental to an individual’s everyday life. Given that there is a debate concerning the effectiveness of CC as a treatment, which will be explored in the next chapter, it is questionable whether these side effects can be justified. In E&W, CC is currently a treatment designed to help sex offenders. Given its purpose, in theory one might argue that inflicting these side effects upon offenders is neither ethical nor proportionate, and can be seen as a second punishment.158 The dangerous side effects of CC are also demonstrated by Koo et al., as they studied 38 males who had undergone the procedure and found 29% experienced a weight gain, 45% experienced hot flashes and 21% reported a depressive mood.159 These side effects are all serious and could subsequently lead to further problems, such as diabetes and suicide.160 If the side effects were uncommon, it may not be a significant issue taking all things into consideration. However, as side effects were determined in 68% of subjects, this allows us to question whether it is acceptable to allow sex offenders to undergo castration, given that the

156

Michelle Brett, Lesley F. Roberts, Thomas W. Johnson and Richard J. Wassersug, ‘Eunuchs in Contemporary Society: Expectations, consequences, and Adjustments to Castration (Part II) (2007) 4(4) Journal of Sexual Medicine 946, 946

157

John Bradford, ‘The Hormonal treatment of Sexual Offenders’ (1983) The Academy of Psychiatry 11(2) 159, 163

158

Robert D. Miller, ‘Chemical Castration of Sex Offenders: Treatment or Punishment?’ In B.J Winick and J.Q Ford (Eds) Law and public policy. Protecting society from sexually dangerous offenders: Law, Justice and Therapy (American Psychological Association, 2003) 249, 257

159

Kyo Chul Koo, Hyoun Hee Park, Young Deuk Choi, Sung Joon Hong, Geum Sook Shim, Koon Ho Rha, Byung Ha Chung and Jae Woo Lee, ‘Treatment outcomes of chemical castration on Korean sex offenders’ (2013) 20(6) Journal of Forensic and Legal Medicine 563, 571

160

Ibid

5. Is chemical castration an appropriate treatment for sex offenders?

majority will experience side effects in doing so.161 While most side effects diminish after the treatment is discontinued, Harrison’s article notes that 17 out of 178 males who underwent CC had to have operations to remove breast tissue after receiving the treatment.162 This particular side effect is therefore extremely contentious as it leaves an offender with the decision to undergo surgery, or to display an excessive amount of breast tissue for the foreseeable future. A famous case which demonstrates the negative side effects of CC involves war hero Alan Turing.163 Having admitted to being in a homosexual relationship, Turing was forced to choose between a long prison sentence or CC (raising issues about consent as mentioned above).164 Having chosen the latter, Turing experienced many of the horrific side effects previously discussed, such as depression and suicidal thoughts, and went on to take his own life 1954.165 However, conflicting evidence suggests that CC, in particular MPA, actually decreases the likelihood of depression and suicidal thoughts.166 This is demonstrated through interviews of sex offenders who have undergone the treatment in HMP Whatton, as Joshua claimed ‘I used to get depressed quite a bit…but now… hardly at all’.167 Further evidence is provided by ‘Nathan’ who notes that ‘I don’t get down as much now and I’m always having a laugh and a joke’, he also felt that the medication had enabled him to become more sociable and communicative.168 This evidence directly contradicts the previous studies which implies the negative and severe side effects of CC. It may therefore be noted that each offender may react differently and as such, evidence is inconsistent within this area. This inconsistent evidence in itself undermines arguments for CC being suitable for sex offenders, as the range of conflicting evidence demonstrates that the exact appropriateness is unknown. As such, if we cannot be confident about a treatment, then perhaps we should not be administering it to sex offenders in E&W.

161

Ibid

162

Harrison (n 7) 22

163

Hallie Liberto, ‘Chemical castration and the Violation of Sexual Rights’ (University of Connecticut, 2016)

5.5 Cost Another factor which must be taken into consideration when reviewing CC is its cost. As CC will be available for some offenders after they are released, it will be an additional cost to the £35,000 it is estimated to cost prisoners per a year in prison.169 Daley’s article describes Depo-Provera injections as costing ‘hundreds of dollars a month’.170 In E&W, the cost of Depo-Provera is also estimated to cost £35-75 per single injection.171 These figures, combined with the paid professional time it requires to administer the injection, as well as routine examinations, will undoubtedly accumulate to a large amount of money. Given that CC in E&W is a National Health Service procedure and therefore paid by tax payers’ money, this large cost may be particularly controversial to those who would rather offenders served longer prison sentences.172 To summarise, evidence has demonstrated that administering CC is a procedure that requires both time and money. As it is an additional cost that will be paid post-release, it is a factor which must be considered when determining the appropriateness of CC. 5.6 Comparison of surgical and chemical castration Whilst CC carries several issues that need addressing, such as human rights issues, the issue of consent, and the damaging side effects, it is not as offensive or intrusive as SC, perhaps making it a more appropriate treatment. Although Depo-Provera remains in the bloodstream for 6-8 weeks, the overall effects of the drugs will significantly fall within a few days and the treatment can be discontinued at any time, compared to SC which is irreversible.173 However, the damaging side effects are a particularly contentious factor, which can be seen as an unfair way of managing offenders who have already served their prison sentence.

170

Matthew V Daley, ‘A flawed solution to the Sex Offender Situation in the United States: The Legality of Chemical Castration for Sex Offenders’ (2008) 5(87) Indiana Law Review 88, 116

171

Elizabeth Pitula, ‘An Ethical Analysis of the Use of Medroyprogesterone Acetate and Cyproterone Acetate to treat Repeat Sex Offenders’ (2010) (1)1 Journal of Psychology and Ethics 1, 14

164

Ibid

165

Ibid

172

Lievesley (n 6)

166

Lievesley (n 6) 18

173

Harrison (n 7) 21

167

Ibid 22

168

Ibid

169

Ministry of Justice, ‘Costs per place and costs per prisoner by individual prison’ (2017) < https://www.gov.uk/government/uploads/system/ uploads/attachment_data/file/653972/costs-per-place-per-prisoner2016-2017-summary.pdf> [Accessed 23rd March 2018]

5. Is chemical castration an appropriate treatment for sex offenders?

Because of the radical side effects discussed within this chapter, CC must demonstrate to be highly effective in its aim of reducing sexual desire and re-offending. If not, it could be argued to be disproportionate and unethical to administer a drug that carries such high risks. It is therefore imperative that the effectiveness of CC justifies the use of this treatment, which the next chapter will go on to explore.

5. Is chemical castration an appropriate treatment for sex offenders?

6. I s chemical castration an effective treatment for sex offenders? Having explored surgical castration (SC) in great detail, as well as the moral and ethical issues surrounding chemical castration (CC), this chapter will go on to discuss the effectiveness of CC. CC is actually a catch-all term for the use of a variety of drugs to affect libido and consequently sexual offending. These include Androgen Deprivation Therapy (ADT), Cyproterone Acetate (CPA) and Medroxyprogesterone Acetate (MPA), which will all be discussed within this chapter to determine its overall effectiveness. It should be noted that evidence suggests effectiveness varies between the different types of treatment and therefore, unlike SC, there is no universal type of CC. As previously mentioned, the aim of CC is to lower testosterone levels, to decrease sexual urges, in order to reduce sex offending. 6.1 Effectiveness in relation to loss of libido ADT is a treatment designed to suppress the creation of male hormones, in particular testosterone.174 The effectiveness of ADT was explored by Koo et al., who studied 61 voluntary sex offenders at a national forensic hospital.175 After three months of the treatment, 34 chose not to continue, and another 4 were advised not to for health reasons.176 The remaining 38 then completed questionnaires regarding the intensity and frequency of their sexual thoughts and desires both before and after the treatment. The results indicated that CC, in particular ADT, is an effective treatment, as 76% experienced a reduction in frequency of sexual thoughts, 71% stated a reduction in intensity, and 74% reported a reduction in masturbation.177 These statistics clearly imply that ADT treatment is effective in reducing sexual urges in the majority of individuals, however, this research simply measured individual’s sexual desire, and not their level of re-offending, which is its ultimate goal. Despite these percentages, it should be noted that CC, ADT in this instance, does not fully extinguish sexual thoughts and desires.178

174

Rice (n 5) 324

175

Chul Koo (n 160) 568

176

Ibid

177

Ibid

178

Ibid 569

179

Ibid

180

Ibid

A limitation of this study was the short duration period, as ADT was only assessed 3 months after administering the treatment which may explain why the treatment did not reduce the libido of all individuals.179 The high rate of response to ADT may also be credited to a placebo response, which refers to an influence from the treatment psychologically not physically, as this study did not include a control group.180.These are both factors which must be taken into account when determining the credibility and usefulness of this particular evidence. Therefore, whilst this study clearly implies ADT may be an effective treatment, there are several issues concerning it which make it difficult to decipher the true effectiveness of ADT as a treatment. The positive results demonstrate that ADT is relatively effective in reducing libido in South Korea. This may suggest that it has applicability to E&W, as it could be beneficial in treating sex offenders. Whilst research into ADT implies that it is a relatively effective in reducing libido, research into CPA, another form of CC, suggests conflicting results. Bradford and Pawlak compared 19 male sex offenders who had undergone CPA to a control group.181 After three months, the subjects were then randomly and double-blindly assigned to placebo or CPA.182 Whilst CPA was found to lower Androgen levels, the study found no difference in the self-reported sexual behaviour and sexual arousal between the two groups.183 Unlike the study by Koo et al., this evidence involves a control group which means it has a higher validity as it eliminates the placebo effect. However, the low sample size of the study may mean its results are not representative of CPA as a treatment as a whole. These findings therefore suggest that there is insufficient evidence to suggest that CPA is an effective treatment for sex offenders and clarifies that CPA cannot guarantee against sexual recidivism. To summarise, while research had concluded ADT to be effective in reducing libido, there are substantial

181

John M.W Bradford and Anne Pawlak, ‘Double-blinded placebo crossover study of Cyproterone Acetate in the treatment of paraphilias’ (1993) 22(5) Archives of Sexual Behaviour 383, 383

183

Ibid

6. Is chemical castration an effective treatment for sex offenders?

limitations which allow us to question the exact effectiveness of it. Research into CPA has also demonstrated difficulties, as subjects assigned to CPA and the control group found no difference in their overall sexual behaviour. It is therefore relatively difficult to establish the effectiveness of these drugs in reducing libido.

appear to suggest that MPA is extremely valuable and effective in preventing re-offending alongside psychological treatment for certain offenders. However, several limitations have been noted which may question the overall validity of these results.

Research into the recidivism of sex offenders has also produced conflicting results. In 2000, Hanson and Harris compared 208 sex offender recidivists to 201 non-recidivists and found that those who re-offended were significantly more likely to have previously received ADT as a treatment.184 This evidence directly contradicts the previous studies discussed, as it actually implies that ADT can increase the likelihood that an individual will re-offend therefore defeating one of the primary purposes of CC. However, similar

Further evidence to demonstrate the effectiveness of MPA is provided by Meyer, Cole and Emory, who treated 40 men aged between 16 and 78 with MPA over the course of 6 months to 12 years.189 The men were then assessed and compared with a control group who refused MPA but had similar offending behaviour.190 Of the 40 men examined, 18% of those given MPA had re-offended compared to 58% of the control group not receiving MPA.191 Whilst these results suggest the effectiveness of MPA in treating sex offenders, it also reiterates that CC cannot fully extinguish sexual desires. After discontinuing the treatment, a further 35% went on to re-offend.192 This links into another issue with the treatment; that it

to the previous study this evidence reiterates that ADT cannot guarantee against sexual recidivism and is only a treatment, not a cure.

is relatively short term and offending behaviour can simply return when the offender discontinues the treatment.

More positive results were found in the Oregon DepoProvera study, which evaluated 275 males between 2000 and 2004.185 This study assessed three groups; those who were judged to need MPA and received it, those who were judged to need MPA but did not receive it for whatever reason, and those who were not deemed to need MPA.186 The treatment was combined with cognitive and behavioural treatment programmes in order to achieve the greatest impact. After a 4 year follow up period, those who had received MPA had committed fewer offences, parole violations, and were more likely to be seen by their parole officers as ‘doing well’.187 Despite the positive results, there were some limitations with the study. Firstly, the phrase ‘doing well’ is highly subjective and will therefore be interpreted differently by each parole officer, making comparisons difficult. Secondly, all individuals were also being treated with cognitive and behavioural treatments during this study, and therefore it may be hard to distinguish between the effectiveness of MPA, and the effectiveness of psychological treatments.188 To summarise, the results

To summarise, there are conflicting results when determining the effectiveness of CC in reducing recidivism rates. While ADT was found to actually increase the likelihood an individual will re-offend, the Oregon Depo-Provera study established that MPA was very effective in reducing recidivism rates, and other positive aspects alongside it. Additional research into MPA further confirms that it is effective in reducing re-offending rates, however, it has repeatedly been noted that it does not fully extinguish sexual desire.

6.2 Effectiveness in relation to recidivism rate

184

185

Karl Hanson and Andrew Harris, ‘Where should we intervene? Dynamic predictors of Sexual Offence Recidivism’ (2000) 27(1) Criminal Justice and Behaviour 6, 11 Barry M. Maletzky, Arthur Tolan and Bentson McFarland, ‘The Oregon Depo-Provera program: A Five-Year Follow-Up’ (2006) 18(3) A Journal of Research and Treatment 303, 306

186

Ibid

187

Ibid 310

188

Ibid

6.3 E&W: Examination of trials in E&W at HMP Whatton Her Majesty’s Prison (HMP) Whatton is based in Nottingham, it is the biggest sex offender treatment prison in Europe which focuses on prisoner rehabilitation in an attempt to reduce recidivism.193 In 2007, a three-year pilot study was introduced to determine the effectiveness of Selective Serotonin Reuptake Inhibitors (SSRI)’s and anti-androgens such

189

Meyer III (n 140) 249

190

Ibid 250

191

Ibid

192

Ibid

193

Lievesley (n 6) 18

6. Is chemical castration an effective treatment for sex offenders?

as CPA.194 While CPA is aimed to reduce all sexual thoughts and desires, SSRI’s are designed only to reduce sexual interests to a healthy level.195 Both treatments are relatively short term with the aim to restore an individual’s libido to a normal level which will enable them to successfully integrate back into society.196 It was available for convicted sexual offenders on a voluntary basis.197 In order for offenders to be considered for treatment, there must be evidence of a) hyper-arousal, such as frequent masturbation b) intrusive sexual fantasies or urges c) subjective reports of experiencing urges that are difficult to control or d) sexual sadism or other dangerous paraphilia’s such as necrophilia.198 127 adult males were referred for treatment, however, only 100 of these ended up receiving the treatment. It was administered alongside other psychological treatments in an attempt to achieve, in the shortterm, a reduction in sexual urges, and in the long-term, a reduction in recidivism. Research has determined the effectiveness of these two medications by comparing the sexual compulsivity of offenders before and after they had undergone the treatment. The results were extremely positive and consistent, showing that both CPA and SSRI’s significantly reduces hyper sexuality and sexual preoccupation in participants.199 However, there is no evidence around recidivism rates to date. The positive results of the trial led to a decision to allow CC to be available across the majority of prisons in E&W.200 Whilst results indicate CC to be successful in reducing sexual urges, research found that many of the staff at HMP Whatton were unaware which offenders were undergoing CC, demonstrated as one claimed she ‘found out by accident’.201 They felt that this lack of information inhibited them from being pro-active in their role of supporting offenders, which must be addressed in order to achieve the greatest level of effectiveness in E&W.202

194

Belinda Winder, Rebecca Lievesley, Helen Elliot, Karensa Hocken, Jessica Faulkner, Christine Norman and Adarsh Kaul, ‘Evaluation of the use of pharmacological treatment with prisoners experiencing high levels of hypersexual disorder’ (2017) 29(1) The Journal of Forensic Psychiatry & Psychology 53, 56

The effectiveness of CPA and SRRI’s is also demonstrated through the offender’s personal experiences, for example, ‘Joshua’ who reported that the treatment had ‘lessened [his sexual thoughts and desires] to almost nothing most of the time’.203 Further evidence is given by ‘Neil’ who claimed, ‘there was hardly [any sexual desire] there at all and sometimes there was nothing there at all’.204 Whilst this evidence is encouraging, it also reiterates that the treatment does not fully extinguish sexual desires and as such, should not be administered as a standalone treatment. These personal experiences not only demonstrate the effectiveness of CC, but also the suitability of CC as a treatment, which has been explored in the previous chapter. 6.4 Psychological treatment alongside CC Chapter 3 explored alternative psychological treatments to castration, and established that they were effective in decreasing excessive arousal and recidivism rates. This chapter will now examine the effectiveness of combining psychological treatments with CC. Evidence has demonstrated that providing psychological treatment alongside CC can be more effective in lowering recidivism rates, compared to a single stand-alone treatment.205 Song and Lieb reviewed studies concerning sex offender recidivism and concluded that CC, combined with psychological treatments such as CBT, is more effective in reducing recidivism rates than either treatment delivered individually.206 This is further reinforced through Marshall’s conclusion that ‘Comprehensive cognitive/ behavioural programmes and those programs which utilize antiandrogens in conjunction with psychological treatments, seem to offer the greatest hope for effectiveness and future development’.207 This evidence clearly implies that the use of psychological treatments alongside CC enhances its degree of effectiveness, which must be noted when evaluating its overall effectiveness.

of pharmacological treatment for sexual preoccupation and hyper sexuality”’ (2018) 20(1) Journal of Forensic Practice 20, 25 202

Ibid

203

Lievesley (n 6) 18

195

Ibid

204

Ibid

196

Ibid

205

197

Ibid

in Song and Roxanne Lieb, ‘Adult Sex Offender Recidivism: A review of L the Studies’ (1994) Washing State for Public Policy 1, 10

198

Ibid

199

Ibid 67

200

Ibid 68

201

elen Elliot, Belinda Wilder, Ellie Manby, Helen Edwards and Rebecca H Lievesley, ‘”I kind of find out by accident”: probation staff experiences

206

Ibid W.L Marshall, Robin Jones, Tony Ward, Peter Johnston, H.E Barbaree, ‘Treatment outcome with Sex Offenders’ (1991) 11(4) Clinical Psychology Review 465, 469

207

6. Is chemical castration an effective treatment for sex offenders?

6.5 Type of offenders Research has demonstrated that preferential paedophiles (those who are exclusively interested in children) are the most appropriate group for effective treatment.208 Paedophilia is driven biologically as they associate sexual excitement and desire to prepubescent children.209 As the source of paedophilia is biological, studies have found Depo-Provera to be very effective in reducing the testosterone levels that drive them.210 Fitzgerald’s research concluded that Depo-Provera is ‘extremely effective in decreasing deviant sexual behaviour’ of paedophiles, as long as the offender consents.211 It should therefore be noted that CC is considered most effective, and subsequently most appr0iate, for the most dangerous category of offenders. This chapter has explored the effectiveness of CC through a variety of studies, as well as the current trial at HMP Whatton. While research studies indicate that ADT, CPA and MPA are all reasonably effective in reducing recidivism rates and loss of libido, the limitations of the studies –particularly long-term information on reduced re-offending - make it difficult to establish the true impact that CC has upon sexual thoughts and desires and consequently sexual offending. While the examination of HMP Whatton, including the offender’s personal experiences, provides further evidence regarding the effectiveness of CC as a method of combating hyper-sexuality, there has been no evidence to date concerning the impact it has upon recidivism rates and therefore we can only draw limited conclusions.

208

Jennifer M Bund, ‘Did you say Chemical Castration?’ (1997) 59 U. PITT. L. REV. 157, 177

209

Ibid

210

Ibid

211

dward A. Fitzgerald, ‘Chemical castration: MPA Treatment of the E Sexual Offender’ (1990) 18(1) American Journal of Criminal Law 1, 9

6. Is chemical castration an effective treatment for sex offenders?

7. Conclusion This final chapter will provide a brief summary of the significant findings discussed in this dissertation and the resulting conclusions, in the context of the aims and objectives identified in the introduction. It will go on to recognise any gaps within the literature, before identifying how this dissertation has contributed to the academic literature within this field and the future of castration within E&W. 7.1 A summary of the findings and the resulting conclusions When discussing castration (both surgical and chemical), this dissertation has evaluated them in terms of its effectiveness and appropriateness. These two terms were specifically chosen as they undoubtedly interlink. The effectiveness of these procedures will undeniably have an impact upon their overall appropriateness as a treatment for sex offenders, particularly whether such treatments are proportionate. Equally, if castration is considered unethical or immoral, this will affect how easily one can justify it (even if it is considered to be effective in reducing sexual offending). When examining SC and human rights, it became apparent that Articles 3, 8 and 12 were breached if the procedure was carried out, without consent, in the form of either a punishment or treatment. Whilst there is academic support for SC to be allowed as a treatment for offenders who freely consent, there is a strong argument that many forms of consent can be seen as coerced. Furthermore, the procedure is irreversible which is fundamentally important when assessing its appropriateness. Having noted that our criminal justice system is not infallible and that mistakes are made (parallels might be drawn with the death penalty), it would be unreasonable, excessive, and disproportionate to allow a treatment with such permanence. Despite the persuasive arguments against SC, academic literature consistently suggests that it is effective, in its overall aim, at reducing recidivism rates and an individual’s libido. However, Cognitive Behavioural Therapy and Multi-Systemic Therapy were also discussed, which have high success rates in treating sex offenders without the legal and moral restrictions that come with SC. This implies that there are less controversial, and intrusive treatments

212

available which are equally successful in treating sex offenders, undermining arguments in favour of SC significantly. When evaluating how appropriate CC is as a treatment for sex offenders, case law demonstrates that free and informed consent must be present to avoid a violation of any rights protected by the ECHR. However, similar to SC, there was also an argument that CC could be part of a coercive offer from authorities to sex offenders, undermining the freedom of any consent. Nevertheless, an alternative argument suggested CC actually increases an individual’s autonomy, as it liberates them of their excessive sexual desires and enables them to live contently. This was supported by powerful statements from the offenders themselves. That being said, it might be questioned whether it is ethical to ‘force’ a treatment on someone in the hope they come to accept and embrace it post-treatment. CC has also been shown to involve undesirable and harmful side effects such as weight gain, insomnia, and depression which might be considered a form of disguised punishment. This chapter also established that CC is more effective and appropriate for the most dangerous category of sex offenders, for example, paedophiles. The cost of the treatment was also discussed, and it was proved to be an expensive additional measure. This leads to the effectiveness of CC, and evidence suggests that ADT, CPA and MPA are all reasonably effective in reducing an offender’s libido. Similarly, research into the recidivism rates of offenders who have been chemically castrated implies it can be a highly effective treatment. This is further confirmed through an examination of CC at HMP Whatton in Nottingham, as CPA was found to reduce sexual interests to a healthy level in the vast majority of offenders. The combination of CC alongside psychological treatment was also examined, and it was established to achieve a greater level of effectiveness compared to a stand-alone treatment. In E&W, CC is only administered to those offenders who consent to the treatment.212 A limit is therefore placed upon on how widely we can castration offenders, as perhaps the offenders who may benefit most from it, will not consent and therefore not receive the treatment.

Winder (n 195) 56

Conclusion

7.2 Comparison of CC and SC

7.4 Contributions to knowledge

This dissertation has involved comparing and contrasting SC and CC in order to assess effectiveness and appropriateness. Having done so, there are clear issues which separate the two treatments. Firstly, unlike SC, CC carried out with consent does not violate any human rights protected by the ECHR. This is extremely significant in arguing that it is an appropriate treatment for sex offenders, as it does not directly violate any aspects which we hold fundamentally and legally important within our society. Secondly, CC is reversible and can be immediately stopped if the offender decides to discontinue the treatment, compared to SC which is irreversible and renders the offender infertile and stigmatized. Thirdly, CC is not as intrusive, offensive, or radical as SC, which involves the surgical removal of the testicles. Finally, SC is associated with historical connotations of punishment, such as shaming,

The issue of sex offenders and how to treat them is an important and developing issue which requires an effective and appropriate solution. This dissertation sought to provide insight into the two treatments, through a balanced and thorough analysis. The discussion of the trial of CC at HMP Whatton has demonstrated the effectiveness of CC as a treatment for sex offenders, which supports the decision to expand the practice to other prisons in E&W. This dissertation has also connected comparative knowledge about castration with domestic practice, as it has included a broad input of knowledge in order to determine whether our practice is to the highest standard it can be.

whereas the administration of CC is given solely as a treatment. In summary, the use of drugs is inherently different from the irreversible and intrusive nature of SC, and therefore the more acceptable treatment (if not necessarily the more effective). 7.3 Gaps within the knowledge There were several gaps within the research which should be addressed. Firstly, there were a small number of participants in the studies provided, which directly impact the representativeness and therefore generalisation of the conclusions found. Secondly, there have been no large-scale studies concerning the effectiveness of MPA and CPA upon recidivism rates. Given these two are the most commonly administered drugs, it is an area which lacks research and should be properly addressed. Thirdly, there is a lack of long-term studies that focuses on reoffending in E&W, as HMP Whatton includes only 100 offenders over a three-year period, who are still in prison.213

213

7.5 The future of castration within E&W Even after conviction, sex offenders retain human rights. Therefore, due to the legal and ethical reasons discussed, this dissertation concludes that the effectiveness of SC does not sufficiently justify affecting human rights that are fundamentally important to a democratic society. As such, it would be a disproportionate treatment and therefore has no place in the treatment of sex offenders in E&W. However, as CC appears to strike a balance as an effective and appropriate treatment, it should be an available option for offenders who freely consent to the treatment. Given that our prison system is already full and rising (and has limited utility as a method of treating sex offenders), CC could be substantially important in treating and monitoring some offenders within society. This would help them to successfully integrate back into society whilst taking pressure off our over-crowded prison system.

Ibid

Conclusion

HUMAN TRAFFICKING: IS THE IDENTIFICATION, PROTECTION, SUPPORT AND TREATMENT OF VICTIMS AN ISSUE FOR THE UK? Georja Boag LLB (Hons) Law University of the West of England Faculty of Business and Law

Law Journal

ABSTRACT This dissertation examines the phenomenon of human trafficking in the United Kingdom, a major destination country for women, men and children trafficked for all kinds of exploitation. In 2015, England and Wales, Scotland and Northern Ireland introduced new Acts consolidating and updating previous Acts. The introduction of these Acts led to longer sentences for offenders, transparency in supply chains of businesses, a statutory defence for victims and the implementation of trafficking and risk orders. These changes were positive and a step in the right direction for the United Kingdom. This dissertation focuses on the identification, protection, support and treatment of victims within the United Kingdom, and when analysing whether the law and polices in place are effective, several flaws were highlighted. Conclusively, something the United Kingdom struggles with is the identification of victims. Identifying a victim of trafficking is their gateway to freedom and security. The lack of support provided to victims who have been identified as a victim of trafficking is inadequate. The lack of support and protection puts victims back in state of vulnerability, subject to danger. This dissertation recommends way to overcome the issues identified. It recommends that better training regimes need to be implemented and that the United Kingdom would benefit from adopting an approach similar to that of Italy. Italy demonstrates a progressive, victim-centred approach to human trafficking, offering a stronger support system for victims than the United Kingdom.

Abstract

1. Introduction Human trafficking, often referred to as modern day slavery,1 is a major global threat to the most vulnerable men, women and children. This serious crime affects millions of people worldwide every year. On a daily basis people fall into the hands of traffickers, resulting in a serious violation of their human rights, physical and mental well-being. The International Labour Organisation estimated than that there are 21 million victims of modern slavery globally,2 however, the precise scale of human trafficking goes unknown. For the purpose of this dissertation, human trafficking is defined by Article 3, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational (the UN Trafficking Protocol). Article 3 states: “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”.3

The aim of this thesis is to analyse the effectiveness of the law and policy regarding human trafficking on identification, protection, support and treatment of victims in the UK. In order to achieve this, this dissertation will analyse the current and old law and subsequently, identify any gaps in the law which prevent the law from being as effective as possible. It will then go on to show how far the legislation has come, and produce potential suggestions to improve and strengthen the law to combat human trafficking. The methodology used to carry out the research for this dissertation is a socio-legal approach that looks at the relationship between law and society. It allows the research to look at the relationship between law and policy regarding human trafficking and the impact on society. Additionally, it explores why trafficking exists and ask questions such as whether changing the law would be enough to combat trafficking. Chapter 2 will look at the history and development of the law and policy in place regarding human trafficking. Furthermore, it will examine the effect of any changes that taken place. Chapter 3 will identify the weaker areas the UK has and any remaining problems with the law and policy, showing the consequences that follow from this. Chapter 4 will suggest recommendations to overcome these issues. The latter of the chapter will set out the approach taken in Italy to combating trafficking and how the UK would be benefit from adopting a similar approach.

Academic scholars and professionals have argued that when it comes to human trafficking, the focus had predominantly centred on the perpetrators, rather than the victims. For example, it appears the central aim was initially on prosecuting traffickers rather than providing adequate support and protection to victims.4 This dissertation will analyse whether the focus on the traffickers has shifted and to become more victim-centred.

Jennifer K. Lobasz, ‘Beyond Border Security: Feminist Approaches to Human Trafficking’ (2009) 18 (2) Security Studies 319

Stop The Traffik ‘The Scale of the Issue’ (Stop The Traffik) <https:// www.stopthetraffik.org/about-human-trafficking/the-scale-of-humantrafficking/> accessed 10 January 2018

Article 3 of Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational (adopted November 2000 by United Nations General Assembly Resolution A/RES/55/25, entered into force 25 December 2003)

Matilde Vantrella, The Control of People Smuggling and Trafficking in the EU: Experiences in the EU (Law and Migration, Routlege, 2010) 188

1.Introduction

2. H istory and Development of the Law on Human Trafficking for the Purposes of Identification, Protection, Support and Treatment of Victims 2.1 Chapter Aims

2.3 Nature of the Problem

This chapter outlines the history of human trafficking and the developments of the Law. There is a focus on identification, protection, support, and treatment of victims and whether the development of the law has impacted on these areas. It outlines what has been achieved any discusses any changes that have developed to combat trafficking and their effectiveness. This chapter also explains the bodies in place for identifying victims, and indicates the number of potential victims identified each year. Furthermore, the differences between human trafficking and migrant smuggling will be established.

Human trafficking is a clandestine activity, meaning that it is hard to get accurate and realistic statistic due to the sheer hidden nature of the crime.8 The Global Report on Trafficking in Persons 2016 estimates that from 2012-2014, in Western and Sothern Europe, covering 16 Countries, 12,775 victims were identified. Of whom, 67% were reported for sexual exploitation and 30% for forced labour.9 Of these, 3,805 potential victims were identified and referred in the UK.10 The UK is a major destination country, thriving with thousands of traffickers and victims of such a crime. In 2013, it was estimated

2.2 Human Trafficking There are three elements to human trafficking; the first is the act done, which involves recruiting, moving or harbouring a person. The second part is the means; how it is done. Whether by: coercion, abduction, abuse of vulnerability or power, or deception. However, this element does not have to be present for children as they cannot consent to being exploited.5 The third element is that it done for the purpose of exploitation.6 Different forms of exploitation include sexual exploitation, forced labour, domestic servitude, criminal exploitation and organ harvesting. For example, a person may consent to being brought to the UK for the purposes of engaging in work, but might not consent to how the work is to be undertaken or indeed the conditions they were required to participate in.7

N ational Crime Agency ‘Modern Slavery and Human Trafficking’ (National Crime Agency) <http://www.nationalcrimeagency.gov.uk/ crime-threats/human-trafficking> accessed 02 January

that there were 10,000 to 13,000 victims of modern slavery in the UK.11 Presently, the largest proportion of victims in the UK come from Albania, Nigeria, Vietnam, UK, Romania and Slovakia.12 Approximately 51% of victims in the UK are women, and 48% are men (<1% transsexual).13 2.4 Trafficking v Smuggling The United Nations Convention against Transnational Organised Crime14 contains the Protocol against the Smuggling of Migrants by Land, Sea and Air15 whereby Article 3(a) states: ‘“Smuggling of migrants” shall mean the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or permanent resident.’

Council of Europe Convention on Action Against Trafficking in Human Beings (adopted 3 May 2005, entered into force 1 February 2008) art 4

EK (Art 4 ECHR: Anti-Trafficking Convention) Tanzania UKUT 00313 (IAC) the Upper Tribunal held that there was no distinction between a domestic worker who was trafficked by way of forced labour or who came to the UK voluntarily and was then trafficked

I nter Departmental Ministerial Group on Human Trafficking, Home Office, First Annual Report of Inter-Departmental Ministerial Group on Human Trafficking’ (2012) U nited Nations Office on Drugs and Crime ‘Global Report on Trafficking in Persons’ (2016) <https://www.state.gov/documents/ organization/271339.pdf> accessed 08 November 2017 Home Office, ‘Modern Slavery training: resource page’ (GOV.UK 12 January 2018) <https://www.gov.uk/government/publications/modernslavery-training-resource-page/modern-slavery-training-resource-page> Accessed 20 January 2018

H ome Office’ Circular 025/2015: duty to notify the Home Office of suspected victims of modern slavery’ (GOV.UK 2 November 2015) <https://www.gov.uk/government/publications/circular-025-2015-dutyto-notify-the-home-office-of-suspected-victims-of-modern-slavery/ circular-025-2015-duty-to-notify-the-home-office-of-suspected-victimsof-modern-slavery> Accessed 24 March 2018 ‘Country Study: 52 of 167 Prevalence Index Rank United Kingdom’ (The Global Slavery Index 2016) <https://www.globalslaveryindex.org/country/ united-kingdom/> Accessed 5 February 2018

‘ Modern Slavery/ Facts and Figures’ (Unseen) <https://www.unseenuk. org/modern-slavery/facts-and-figures> accessed 12 March 2018

U nited Nations Convention against Transnational Organised Crime (adopted 15 November 2000, entered into force 29 September 2003)

Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organised Crime (adopted November 2000 by United Nations General Assembly Resolution A/RES/55/25, entered into force 28 January 2004), art 3(a)

2. History and Development of the Law on Human Trafficking for the Purposes of Identification, Protection, Support and Treatment of Victims

The distinctions between trafficking and smuggling are often subtle with many overlapping elements. This causes confusion when it comes to identifying whether a case is one of human trafficking or migrant smuggling and often results in the criminalisation of trafficked victims.16 The most important and the hardest element to distinguish is consent. Often migrants consent to being smuggled, or consent to the agreement of a new job after the smuggling process; however, that initial consent is negated once the trafficker has used threats, coercion etc. to exploit them. Additionally, people who are often trafficked across borders –much like those who are smuggled;therefore, it can be hard to determine whether a situation amounts to trafficking if the exploitation has not yet occurred. The case of R v N and R v Le17 shows the difficulty in establishing whether a person is a victim of trafficking or smuggling. This case involved two Vietnamese minors, N and Le, who pleaded guilty to offences regarding the production of cannabis: where they had both worked as gardeners in cannabis factories. Here, N was arrested and sentenced to an 18-month detention and training order and Le was sentenced to 20 months detention. The UK Border Agency accepted that they may have both been smuggled or trafficked into the UK. This case demonstrates the difficultly that arises in many cases of distinguishing between whether a person had been trafficked or smuggled. The key difference between the two is that once the smuggling process has ended and the migrant pays a fee to the smuggler, their relationship normally ends and the migrant is free. Whereas with trafficking, they are not free and are subject to exploitation.18 Smuggling can be argued to be abuse committed against the state and trafficking being an abuse committed against the human rights of the victims.19 This confusion can cause vital problems; if someone is deemed ”another smuggled migrant” (e.g. because they did not have a valid passport) as opposed to a victim of human trafficking, then they may not receive the protection, support services or legal redress which they are entitled to, consequently, leaving them vulnerable to further exploitation or the potential of being re-trafficked.

2.5 National Laws The Modern Slavery Act 2015 is the current legislation applied in England and Wales regarding human trafficking, which came into force on 29th October 2015. The Act consolidates existing offences of human trafficking for all forms of exploitation. Prior to this, legislation in place included the Sexual Offences Act 2003, by which section 59A20 criminalised sex trafficking into, within and out of the UK (as amended by the Protection of Freedoms Act).21 As this only covered sex trafficking, a separate offence, Section 4 of the Asylum and Immigration Act 2004 22 covered trafficking for forced labour (as amended by the Protection of Freedoms Act).23 The Modern Slavery Act created the offence of modern slavery as well as an offence of trafficking, so that situations that do not involve movement can still be caught and charged as modern slavery. Without a doubt, the Modern Slavery Act has increased the awareness of human trafficking and has seen the implementation of many positive changes. The continuing fight against modern slavery and human trafficking has led to increased sentences for offences. The new Act increased the maximum custodial sentence to life;24 prior to this, the maximum penalty provided for a trafficking offence was 14 years. Another measure the Act introduced to enhance protection of victims of modern slavery and trafficking is transparency of supply chains. Section 5425 of the Act introduces an obligation on certain commercial organisations within UK operations to produce and publish ‘a slavery and human trafficking statement for each financial year of the organisation’.26 This requires them to set out the steps they have taken to prevent modern slavery in their business and supply chains. Modern slavery is one way businesses maximise their profits and this Act is one way of preventing that happening. This transparency is an attempt to protect vulnerable workers and helps prevent and remedy severe human rights violations.27

Elspeth Guild, Paul Minderhound (eds), ‘Immigration and Criminal Law in the European Union: The Legal Measures and Social Consequences of Criminal Law in Member States on Trafficking and Smuggling in Human Beings’ (2006 Martinus Nihjhoff Publishers) 231

Protection of Freedoms Act 2012, s 109

Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, s 4

Protection of Freedoms Act 2012, s 110

[2012] EWCA Crim 189

Modern Slavery Act s 5(1)

‘Defining Trafficking and Smuggling’ (Unodc) <http://www.unodc.org/ doc/e-lectures/trafficking-persons/Compilation_of_questions_to_ panellists.pdf> accessed 20 February 2018

Modern Slavery Act 2015, s 54

Modern Slavery Act 2015, s 52(1)

‘ Transparency in Supply Chains etc. A Practical Guide’ (Gov.UK 2015) <https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/649906/Transparency_in_Supply_Chains_A_ Practical_Guide_2017.pdf> accessed 10 February 2018

‘ Trafficked Yes, Victim No: An Analysis of public perceptions versus embodied experiences of trafficking in women in Colombia’ (Faculty of Law, University of Oslo)

Sexual Offences Act 2003, s 59A

2. History and Development of the Law on Human Trafficking for the Purposes of Identification, Protection, Support and Treatment of Victims

The Modern Slavery Act now provides further protection for victims of trafficking as it has addressed the issue of the non-punishment principle for victims who were compelled to commit crimes because of their exploitation, strengthening the protection for victims.28 This overcomes the issue presented by Article 26 of the Council of Europe Convention on Action Against Trafficking in Human Beings 2005 (CoE Trafficking Convention),29 which states: ‘Each Part shall, in accordance with the basic principle of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so’ This provision fails to provide that trafficked victims should not be prosecuted when the offence is in some way connected with, or arising out of trafficking, such as drug production. Prior to the Modern Slavery Act coming into effect, the Courts in England and Wales were heavily criticised for narrowly constructing the guidance on suspects in a criminal case who might be victims of trafficking or slavery provided by the Crown Prosecution Service (CPS)30 on the question of non-punishment of trafficked victims.31 This resulted in a number of trafficked victims being criminalised. In R v HTB ,32 a Vietnamese girl was trafficked into the UK and exploited for the purposes of cannabis cultivation, resulting in her conviction. The Court of Appeal quashed the conviction on the grounds that, at the relevant time, the victim was compelled to commit the offence because she was trafficked. In this case, the victim had already served a period of six months of the original twenty months sentence. All of this was for a crime that she was not willing to commit. The introduction of the defence does not nullify or erase the CPS guidance and prosecutorial discretion

Modern Slavery Act, s 45

D irective 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA [2001] L101/1 (EU Directive), art 26

in cases of trafficking, however Section 45 of the Act is a welcome improvement on what England and Wales previously obtained. It provides the non-punishment principle laid out on a statutory footing, issuing a statutory defence. The Act lays out clearly the principles the Courts are expected to be guided by and follow as to when the defence applies. The outcome of the Act also puts emphasis on the positive obligation that police forces should look for signs as to whether those that have committed the offence are a victim of trafficking or not. Because indeed if they are, then they should be entitled to support straight away rather than imprisonment.33 The Modern Slavery Act shows a positive change towards identifying and supporting victims as Section 49 places a requirement on the Secretary of State to issue guidance to public authorities.34 This guidance provides detailed information on how frontline staff should identify, assist and handle potential victims of trafficking. The Act has been praised by the Parliament of Australia who have previously suggested that Australia should enact an Australian Modern Slavery Act based on the successful provision of the English and Welsh Modern Slavery Act 2015.35 In the same year, the Human Trafficking and Exploitation (Scotland) Act 36 was passed by the Scottish parliament on 1st October 2015. Prior to this was Section 22 Criminal Justice (Scotland) Act 2003,37 as amended by Section 46 of the Criminal Justice and Licensing (Scotland) Act 2010. An important aspect of the new Act is that it places a duty on Scottish Ministers to secure provision of immediate support and recovery services for victims of human trafficking and exploitation.38 The Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) was also implemented in 2015,39 with the intention of strengthening the protection from traffickers and providing improved

(a) the sorts of things which indicate that a person may be a victim of slavery or human trafficking; (b) arrangements for providing assistance and support to persons who they are reasonable grounds to believe may be a victim of slavery or human trafficking; (c) arrangements for determining whether there are reasonable grounds to believe that a person may be a victim of slavery or human trafficking

Derived from Article 26 of the CoE Trafficking Convention

C PS ‘Human Trafficking, Smuggling and Slavery’ (CPS) <https://www.cps. gov.uk/legal-guidance/human-trafficking-smuggling-and-slavery#a19> accessed 20 February 2018

EWCA Crim 211 (2012)

Human Trafficking and Exploitation (Scotland) Act 2015

Depending on the crime committed. Some crimes, such as murder, will lead to imprisonment

Criminal Justice (Scotland) Act 2003

M odern Slavery Act 2015 s49 Guidance about identifying and supporting victims (1) The Secretary of State must issue guidance to such public authorities and other persons as the Secretary of State considers appropriate about –

R efugee Council of Australia, ‘Submission to the inquiry into a modern slavery act’ (Joint Standing Committee on Foreign Affairs, Defence and Trade, Refugee Council of Australia 2017)

Human Trafficking and Exploitation (Scotland) Act 2015, s9(1)

uman Trafficking and Exploitation (Criminal Justice and Support for H Victims) Act (Northern Ireland) 2015

2. History and Development of the Law on Human Trafficking for the Purposes of Identification, Protection, Support and Treatment of Victims

support mechanisms and services for the victims of trafficking. All of these Acts allow for trafficking prevention orders falling under Part 2 of the Modern Slavery Act 2015, Schedule 3 to the Human Trafficking and Exploitation Act (Northern Ireland) 2015 (both England and Wales and Northern Ireland consider slavery and trafficking prevention orders) and Part 2 of Human Trafficking and Exploitation (Scotland) Act 2015 (which considers trafficking and exploitation orders). These trafficking prevention orders are civil orders in place to protect the public or specific persons from human trafficking offences being committed by someone who has already committed such offences, or to prevent persons who may be likely to commit this type of offence from doing so. The rationale behind the creation of these orders is to enable law enforcement bodies and the courts to take tougher action against those involved in trafficking and slavery and those whom are likely to be involved. This is done by placing prohibitions or requirements on the activities and behaviours of victims of a slavery or human trafficking offender, as a matter for the court to determine. A few examples of prohibitions that may take place include preventing someone from visiting a certain place, working with certain people, working in a certain type of business or visiting particular countries.40 All Acts also provide slavery (England, Wales and Northern Ireland) and trafficking risk orders. These are orders that can be made by courts in respect of an individual who has not been convicted of trafficking or slavery offence, but is thought to pose a risk of harm and therefore it is necessary to protect others against the risk of harm. The court must be satisfied that the defendant has acted in a way which means there is a risk that they may commit a slavery or human trafficking offence. Both of these orders reiterate the importance of protecting the public and certain individuals against trafficking and re-trafficking. Additionally, all three acts; England and Wales, Scottish and the Northern Ireland Act concerning

human trafficking establishes a system of independent guardianship or advocacy for child victims of trafficking or children who are separated. The guardians and advocates should have the capacity and expertise to promote their welfare and guide them through social care systems. Without guardians, many separated children do not experience the safety and support to which they are entitled.41 This introduction shows movement towards establishing a better protection and support system for children. Each of the Acts and the changes of legislation made and introduced, including much more than has been mentioned here, strive towards achieving a more predominant victim-centred approach to human trafficking than is currently in place. 2.6 International Frameworks In 2006, the UK ratified the UN Trafficking Protocol.42 Often, there is confusion between someone who is trafficked, and someone who is smuggled; this Protocol and the smuggling Protocol43 helps to clarify the difference between the two. Additionally, the objectives of the Protocol included the commitment to prevent and combat trafficking, and protect and assist victims. The UK Government also signed the Council of Europe Convention on Action Against Trafficking in Human Beings44 (the CoE Trafficking Convention) 45 on the 23rd March 2007, which then entered into force in the UK on the 1st April 2009. This Convention requires the implementation of the minimum standard of care relating to identification, protection and support of trafficking victims. This includes the granting of a recovery and reflection period of a minimum of 30 days for identified victims, an essential part in allowing the recovery of any victim.46 Regarding the Directive of the European Parliament and of the Council on Preventing and Combating Trafficking in Human Beings and Protecting its Victims (2011), the UK originally exercised its ability

Explanatory Notes to the Modern Slavery Act 2015, paras 69-100

U nicef United Kingdom, The Children’s Society, ‘Protecting Children Through Guardianship: The cost and benefits of guardianship for unaccompanied and separated migrant children’ (UNICEF UK 2014)

C ouncil of Europe Convention on Action Against Trafficking in Human Beings (adopted 3 May 2005, entered into force 1 February 2008)

P rotocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational (adopted November 2000 by United Nations General Assembly Resolution A/RES/55/25, entered into force 28 January 2004)

A rticle 13(1) of Council of Europe Convention on Action against Trafficking in Human Beings (adopted 3 May 2005, entered into force 1 February 2008)

A rticle 3(a) of Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organised Crime (adopted November 2000 by United Nations General Assembly Resolution A/RES/55/25, entered into force 28 January 2004)

2. History and Development of the Law on Human Trafficking for the Purposes of Identification, Protection, Support and Treatment of Victims

to opt-out of the Directive on the view that the UK complies with most of the provisions contained in the Directive. However, in October 2011, the UK made the decision to opt into the Directive. Protection of the victims’ rights were one of many objectives of the Directive.47 2.7 National Referral Mechanism In 2009, the National Referral Mechanism was introduced in order for the UK to meet the obligations under the CoE Trafficking Convention48 and specifically: • Article 10 –Identification of the Victims • Article 12 –Assistance to victims • Article 13 –Recovery and reflection period • Article 16 –Repatriation and return of victims 49 The NRM is the framework in the UK for identifying potential victims of human trafficking and also referring them to the appropriate authorities, ensuring victims receive the support they need. The NRM is also the mechanism through which the Modern Slavery Human Trafficking Unit (MSHTU) collects data about victims. The information collected helps provide a picture and understanding of the scale of trafficking within the UK.50 The first part of the NRM process starts with the First Responders. First Responders are those who have a responsibility to identify and interview a potential victim of trafficking, and are the first to encounter a potential victim. This includes the likes of police forces, the Home Office immigration and visas, Non-Governmental Organisations (NGO) and local authorities.51 Once a First Responder identifies a potential victim, they must refer them to the NRM by completing a referral form to be considered by a competent authority (CA). In the case of an adult, completing the referral form is voluntary on behalf 52

C ouncil of Europe Convention on Action Against Trafficking in Human Beings (adopted 3 May 2005, entered into force 1 February 2008)

H ome Office, ‘Review of the National Referral Mechanism for victims of Human Trafficking’ (2014) 13

N ational Crime Agency ‘National Referral Mechanism’ (National Crime Agency) <http://www.nationalcrimeagency.gov.uk/about-us/what-wedo/specialist-capabilities/uk-human-trafficking-centre/national-referralmechanism> accessed 02 January 2018 C ollege of Policing ‘First Response and the National Referral Mechanism’ (Authorised Professional Police) <https://www.app.college. police.uk/app-content/major-investigation-and-public-protection/ modern-slavery/national-referral-mechanism/> Accessed 15 December 2017

on the potential victim. There needs to be consent before doing so. If the potential victim is a child 53 then no consent is required. Completed NRM forms are then sent to the MSHTU where it is decided which CA will deal with the case.54 In the UK, there are two main CAs: The UK Human Trafficking Centre within the National Crime Agency and the Home Office Visas and Immigration (UKVI). The difference between the two is the MSHTU deals with referrals where the person is a UK or a European Economic Area National (except where there is a live immigration status), whereas the UKVI deals with referrals where trafficking is raised as part of an asylum claim or in the context of another immigration process.55 The CA will then make the reasonable grounds decision which is based upon ‘suspect but cannot prove’ that a person is a victim of trafficking. In the situation of an adult who is a potential victim, if they reach a positive reasonable grounds decision then they can begin to access support. Support includes a 45-day recovery and reflection period during which they have access to medical care, safe accommodation, and other facilities. In England and Wales, the Salvation Army is contracted by the Government to facilitate the delivery of this support through a network of providers.56 The last stage of the NRM is the conclusive grounds decision. During the 45-day period, further information on the case will be gathered by the CA whom will then go on to make a conclusive decision as quick as possible as to whether the individual who was referred to the NRM is a victim of human trafficking or modern day slavery or not. The threshold for this decision is on the probability that they are ‘more likely than not’ a victim. For children, if they are identified as potential victim of trafficking by a first responder who is not part of a Children’s Services department, should then ensure a

H ome Office, National Referral Mechanism: guidance for child first responders (Version 2 2016) 11

T he United Nations Convention on the Rights of the Child (Adopted 20 November 1989, entered into force 2 September 1990), art 1 provides the definition of a child to be ‘a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier’

H ome Office, National Referral Mechanism: guidance for child first responders (Version 2 2016) 11

N icola Ellis, Christine Cooper, Stephen Reo ‘An evaluation of the National Referral Mechanism Pilot’ (Home Office Research Report 94 2017)

2. History and Development of the Law on Human Trafficking for the Purposes of Identification, Protection, Support and Treatment of Victims

referral is made immediately to their Local Authority Children’s Services.57 The idea behind this is to ensure any necessary measures to safeguard the minor are put into place.58 In specific relation to the NRM, Section 52 of the Modern Slavery Act 59 places a statutory duty upon specific public authorities 60 to notify the Secretary of State about suspected victims of slavery or human trafficking. The duty to notify was introduced with the intention of improving victim identification and developing understanding of modern slavery by gathering statistics and building a more comprehensive picture of the nature of modern slavery. This new duty to notify will mean that adult potential victims who make the decision not to be referred to the NRM will be referred for data purposes, helping to understand why victims refuse to enter. 2.8 National Referral Mechanism Statistics Year-on-year the number of potential victims that are submitted to the NRM has increased. From 1 April 2009, when the NRM was first established, to 30 June 2011, there were 1664 referrals to the NRM.61 In 2015 alone, 3266 potential victims were referred to the NRM, which was a 40% increase on 2014.62 In 2016, there was yet another increase in the potential victims submitted into the NRM. This time there were 3805 potential victims; this is a 17% increase on 2015.63 These statistics only show the potential victims submitted to the NRM and therefore these figures are not a true representation of the amount of trafficked victims. However, these statistics do show the positive impact that the NRM has had, identifying more and more victims each year. The introduction of the NRM has had a huge positive impact on the identification of victims and the support they can access.

T his is because responsibility for the care, protection and accommodation of child trafficking victims from the UK and abroad falls to local authorities under the 1989 and 2004 Children Acts

H ome Office, National Referral Mechanism: guidance for child first responders (Version 2 2016) 12

Modern Slavery Act 2015, s52

Modern Slavery Act 2015, s52(5)

M yriam Cherti, Jenny Pennington, Eliza Galos, ‘The UK’s Response to Human Trafficking: Fit for Purpose?’ (IPPR 2012)

N ational Crime Agency ‘National Referral Mechanism Statistics – End of Year Summary 2015’ (2016) <http://www.nationalcrimeagency.gov. uk/publications/national-referral-mechanism-statistics/2015-nrmstatistics/676-national-referral-mechanism-statistics-end-of-yearsummary-2015/file> Accessed January 2018

2.9 Summary Human Trafficking is a serious matter that can have drastic, long-lasting impacts on a victims’ life. This is why adequate protection, support and treatment provided to victims is vital. Gradually over the years, many positive changes have come about regarding identification, protection, support and treatment for victims. These changes are a step in the right direction for the UK and demonstrate the importance of the victim and their well-being. Although the NRM is not enshrined in law and does not have statutory footing, it is an important aspect; this has been a huge breakthrough for the UK as prior to the NRM there was no means of formally identifying trafficked victims. Each year the number of potential victims that are referred to the NRM has increased. Although it is hard to tell whether this is down to a higher number of people being trafficked, it still demonstrates the gradual increase of the awareness of trafficking and the NRM and its functioning amongst frontline staff. Despite these positives and the changes in the law, there is always room for improvement. Much needs to be done to respond to the threat of human trafficking. The following chapters will explore the current problematic areas in the UK, followed by suggestions and recommendations to overcome these issues.

N ational Crime Agency ‘National Referral Mechanism Statistics – End of Year Summary 2016’ (2017) <http://www.nationalcrimeagency.gov. uk/publications/national-referral-mechanism-statistics/2016-nrmstatistics/788-national-referral-mechanism-statistics-end-of-yearsummary-2016/file> Accessed January 2018

2. History and Development of the Law on Human Trafficking for the Purposes of Identification, Protection, Support and Treatment of Victims

3. Problems with the Law on Human Trafficking regarding Identification, Protection, Support and Treatment of Victims 3.1 Chapter Aims This chapter will identify current problems with the law that still stand in relation to identification, protection, support and treatment of victims. It is clear from Chapter 2 that there have been many developments in the law and there have been many positive changes. There are, however, a number of gaps. A human rights barrister and UN (United Nations) expert on trafficking reiterated this claiming that ‘the bill is very poor on victim protection’64 when referring to the Modern Slavery Act.65 This chapter will explore factors which may contribute to the above statement, including the lack of victim identification amongst adults and children stemming from a lack of training and knowledge. It will look at different frontline staff and their competencies and the adequacy of support provided to victims both within the 45-day period and after. There will be a section paying particular focus on children due to the devastating number who go missing from care. 3. 2 The Importance of Identification, Protection, Support and Treatment of Victims If there are any gaps in the law, then this will prevent the full effectiveness of protecting victims of trafficking. Protection not only refers to the protection of victims, but also protection of their families and the public. Protection also refers to being able to identify victims; this is the starting point –we need to be able to identify victims in order to protect them from it happening again, and provide them with the support and treatment they need. Support and treatment of victims refers to the aftercare to which victims have access. Support and treatment provided to victims is paramount to their rehabilitation and recovery.66 This is why it is so crucial that it is provided at a high-quality standard. All too often,

G ravett B ‘Countering Human Trafficking: The UK’s Efforts’ (Migration and the Security Sector Paper Series, 2015) 31

M odern Slavery Act 2015

H er Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, ‘Stolen Freedom: The Policing Response to Modern Slavery and Human Trafficking’ (HMICFRS 2017)

U nited Nations Office on Drugs and Crime ‘Trafficking in Persons Report’ (2015) 351

victims go through these traumatic experiences, yet fail to get the support they need afterwards. The 2015 US Trafficking in Persons report supports this noting that government did not provide sufficient care for victims following the 45-day reflection period and as result ‘NGOs reported cases of victims returning to prostitution or being re-trafficked due to lack of longterm support’.67 The Guardian published an article of a woman named Katya, a vulnerable 18-year-old from Moldova who had been trafficked for the purposes of prostitution. She was first forced to work in several places, including the UK. The brothel she was in (located in the UK) was raided; as a result, she was detained. They recognised that she was a victim of trafficking; however, instead of providing her with the support and assistance she needed, she was sent to Moldova on the decision of immigration officials, proposing that there were no real risks to her safety by doing so. Unsurprisingly, Katya was re-trafficked. Again, she was trafficked into the UK and was detained for a second time by immigration officials, who considered returning her to Moldova before granting her refugee status.68 This example expresses the importance of responding to trafficking cases and providing the protection, support and treatment needed rather than turning your back on them and ignoring it. Trafficking is serious and can have devastating impacts on people’s lives. 3.3 Victim Identification In order to ensure the effective protection of trafficked victims and their rights, it is essential that they be correctly identified. As identified in Chapter 2, each year there has been an increase in the number of potential victims identified, despite this, the number is still considerably low in relation to the estimated number of people trafficked in

A melia Gentleman ‘Katya’s story: trafficked to the UK, sent home to torture’ The Guardian (19 April 2011) <https://www.theguardian.com/ law/2011/apr/19/sex-trafficking-uk-legal-reform> accessed 10 February 2018

3. Problems with the Law on Human Trafficking regarding Identification, Protection, Support and Treatment of Victims

the UK.69 Concerns have been raised regarding victim identification, or the lack off.70 Victim identification came into concern of the Anti-Slavery Commissioner 71 and in 2015, he set several aims to be achieved between 2015 and 2017. One aim was to see an increase of victims of modern slavery that are identified and referred for appropriate support.72 To see an increase in victim identification, reform are needed; but first, barriers to identification need to be addressed. As seen in Chapter 2,73 the victim identification process is that of the NRM.74 There are several problems with the NRM, which inevitably leads to victims not being identified correctly or unfortunately, not being identified at all. Explanatory notes to the Trafficking Convention75 explain that ‘failure to identify a trafficking victim correctly will probably mean that victim’s continuing to be denied his or her fundamental rights’.76 The cases of L, H v N, THN, and T v R 77 demonstrates the importance of victim identification.78 This case involved three children who all came to the UK from Vietnam and were forced to work in cannabis factories by their traffickers. All three were arrested at the age of 16 and were prosecuted and convicted of the offence of producing cannabis. It was only after they were prosecuted that they were identified and treated as child victims of trafficking. If they were identified at an earlier stage, then based on the public interest of trafficked children, there would have been no prosecution.79

3.4 The National Referral Mechanism One of the main issues with the NRM which leads to the failure of identifying trafficked victims is the lack of adequate training provided to those whom are deemed responsible; the First Responders. The Anti-Trafficking Monitoring Group reported that not only do First Responders struggle to identify victims, the awareness they have of the NRM is often very low or non-existent.80 In 2014, a review of the NRM was undertaken and a report of the findings published. One of the findings supports previous comments, concluding: ‘We have heard from many people that awareness of the NRM and trafficking is less well established than it should be amongst frontline staff.’ 81 It is crucial that First Responders, otherwise known as frontline staff, have the knowledge to be able to identify potential victims in order to refer them to the NRM to enable them access to support. 3.5 Police and Victims Police officers are likely to come into contact with victims of human trafficking 82 and for that reason, it is crucial they have a sufficient amount of training enabling them to develop an adequate amount of knowledge to be able identify and handle situations of trafficking in the correct manner. However, on several occasions this has not been the case. There are inconsistent investigations and low understandings of signs and indicators of victim behaviour and the NRM. This problematic issue was raised by HM Inspectorate of Constabulary and Fire and Rescue Services, noting: ‘We found inconsistent, even ineffective, identification of victims and investigations closed prematurely. As a result, victims were being left unprotected, leaving perpetrators free to continue to exploit people as commodities.’83

K ate Roberts ‘Victims of human trafficking and Modern Slavery’ (College Police, Human Trafficking Foundation) <http://www.college.police.uk/ About/Documents/Conference/Vulnerablity-Modern_Slavery.pdf> accessed 20 January 2018 I ncluding Human Trafficking Foundation, ECPAT UK

K evin Hyland OBE

I ndependent Anti-Slavery Commissioner ‘Annual Report 2016 – 2017’ (Independent Anti-Slavery Commissioner 2017) 11

F ound at Chapter 2.7, page 19

C an be found at chapters 3.4, 3.8

C ouncil of Europe Convention on Action Against Trafficking in Human Beings (2005)

E xplanatory Notes to the Council of Europe Convention on Action Against Trafficking in Human Beings 2005, para 127

L , H v N, T.H.N, and T v R [2013] EWCA Crim 991

O ther cases similar include R v O [2008] EWCA Crim 2835 and R v N; R v LE [2012] Crim 189

L , H v N, T.H.N, and T v R [2013] EWCA Crim 991 para 45

T he Anti Trafficking Monitoring Group, Proposal for a revised National Referral Mechanism (NRM) For children (2014) 4

H ome Office, Review of the National Referral Mechanism for victims of Human Trafficking (2014) 17

U nited Nations Office on Drugs and Crime, Toolkit to Combat Trafficking in Persons (United Nations Publication 2008) 251

J amie Grierson, ‘Police force failing to tackle modern slavery in the UK, reports show’ (The Guardian 24 October 2017) <https://www. theguardian.com/world/2017/oct/24/police-forces-failing-to-tacklemodern-slavery-in-uk-report-shows> Accessed 28 January 2018

3. Problems with the Law on Human Trafficking regarding Identification, Protection, Support and Treatment of Victims

This was illustrated in the case of OOO et al v Commissioner of Metropolitan Police,84 in which the police failed investigate allegations of trafficking. The claimants argued that the failure to investigate their case constituted a violation of their rights under Articles 3 and 4 of the European Convention for the Protection for Human Rights and Fundamental Freedoms (ECHR).85 The little understanding of human trafficking many police officers have may result in officers arresting victims instead of protecting them. One police officer admitted to arresting a girl on the basis that she had no passport and was therefore likely to be an illegal immigrant; in fact, she had managed to escape from a brothel and flee to a police station and explained her trafficking situation.86 It is important to note the lack of awareness amongst police officers of the offence of trafficking for the purposes of criminal exploitation. This however, can be said for many other criminal justice professionals.87 A predominant example of this is in 2007, crime in London committed by Romanian children went up drastically. These children were estimated to make as much as £100,000 a year from begging and stealing on British streets.88 Police forces struggled determine why such a high number of children from the same area in Romania were repeatedly getting arrested for the same crimes. Due to the ever-growing numbers of criminal activity by Romanian children, the decision was made to set up ‘Operation Golf’. Operation golf was the investigation where the Metropolitan Police set up links with Romania in attempt to figure out the causal link. In 2010, the police eventually recognised that the children were trafficked and began to arrest the traffickers. Is it unsurprising to say that often police officers lack of awareness of the statutory section 45 defence;89 this poses a problem when attending crime scenes as they may fail to gather evidence as to whether

O OO et al v Commissioner of Metropolitan Police [2011] EWHC 2146 (QB)

E uropean Convention for the Protection for Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953)

T oby Helm, Mark Townsend ‘’Shameful’ failure to tackle slavery and human trafficking in the UK’ ( The Guardian, 9 March 2013) <https:// www.theguardian.com/law/2013/mar/09/shameful-failure-slaverytrafficking-uk Accessed> 20 February 2018 C arolina Villacampa, Nuria Torres ‘Human Trafficking for Criminal Exploitation: The Failure to Identify Victims’ (2017) 23 (3) Eur J Crim Policy Res 398 <https://link-springer-com.ezproxy.uwe.ac.uk/content/ pdf/10.1007%2Fs10610-017-9343-4.pdf> accessed 02 January 2018

a person has genuinely committed the offence, or whether they were forced into committing the offence. As a result, they may only be viewed as suspected offenders and therefore will not get the immediate support and treatment that they may need and are entitled to under the Modern Slavery Act 2015.90 3.6 Healthcare Providers and Victim Identification Healthcare providers, like the National Health Service (NHS), are one of many institutions that can play a crucial role in tackling human trafficking. Healthcare professionals often encounter potential victims of trafficking, whether they know it or not. Knowledge of human trafficking and the NRM is deemed inadequate amongst many of these professionals.91 If healthcare professionals have little knowledge on trafficking, then how are they supposed to identify victims? Moreover, if they have a lack of or no knowledge of the NRM and what it is and what it does, then how are they to be expected to have the knowledge to make appropriate referrals? These questions raise serious concerns as to the protection and safety of potential victims of trafficking. Identification and knowledge of the NRM is key to ensuring victims can access the support and treatment they need. From April 2013 to April 2014, a study was conducted to measure NHS professionals’ knowledge and confidence in responding to human trafficking (including identification, and referral). As part of the study, 782 healthcare professionals consented to take part. The study revealed shockingly low numbers towards knowledge of human trafficking and supports the notion that many frontline staff do not have sufficient and adequate training to identify and refer potential victims to the NRM. A low figure of only 7.8% (63 out of 782) professionals reported that they have previously attended training on human trafficking, consequently meaning that the majority did not feel confident in making referrals, or more

P adraic Flanagan ‘Romanian gypsy children sent to loot UK’ (Express, July 2010) <https://www.express.co.uk/news/uk/190247/Romaniangypsy-children-sent-to-loot-UK> accessed 28 March 2018

Modern Slavery Act 2015, s45

H er Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, ‘Stolen Freedom: The Policing Response to Modern Slavery and Human Trafficking’ (HMICFRS 2017) 43

F rances H. Recknor, ‘Health-care provider challenge to the identification of human trafficking in health-care settings: A qualitative study’ (2018) 4(3) Journal of Human Trafficking

3. Problems with the Law on Human Trafficking regarding Identification, Protection, Support and Treatment of Victims

importantly, did know how to, or when to refer a potential victim.92 All too often, the identification and protection of a victim depends on the member of staff they meet and whether they have the correct training and sufficient knowledge. This should not be the case; every frontline staff member should be fully trained in order to ensure full protection. 3.7 Failure to Self-identify Another barrier when it comes to identifying victims of trafficking is the failure to self-identify as a victim.93 This is owing to a number of reasons; they might not know that they have been trafficked, in fear of coming forward, fear juju or witchcraft rituals,94 or there may be linguistic barriers. A victims’ immigration background may lead to a victim not perceiving the circumstances which they are made to work in as worse than what they were used to in their country of origin; often they even regard it as an improvement.95 Likewise, a victim may suffer from Stockholm syndrome; this is when (due to unequal power) victims create a false emotional or psychological attachment to their controller. There are many reasons why victims fail to self-identify, reiterating the importance of not expecting a person to feel or behave as a ‘victim’ and come forward.96 This shows the importance of frontline staff knowing the ‘indicators’ of trafficking and being able to identify victims, even when they fail to self-identify. 3.8 Pilot of the National Referral Mechanism A number of limitations of the NRM process including the failure to identify potential victims because of lack of training - were highlighted in the 2014 review of the NRM. Several other problems were also highlighted including delays in decision-making and the lack of shared responsibility and provision

C laire Ross, Louise M Howard. Et al, ‘Human Trafficking and health: a cross – sectional survey of NHS professionals’ contact with victims of human trafficking’ (2015) BMJ Open 5 <http://bmjopen.bmj.com/ content/bmjopen/5/8/e008682.full.pdf> Accessed 29 January 2018

C arolina Villacampa, Nuria Torres ‘Human Trafficking for Criminal Exploitation: The Failure to Identify Victims’ (2017) 23 (3) Eur J Crim Policy Res 405 <https://link-springer-com.ezproxy.uwe.ac.uk/content/ pdf/10.1007%2Fs10610-017-9343-4.pdf> accessed 02 January 2018

A s in the case of R v Anthony Harrison at Woolwich Crown Court, July 2011

M asja Van Meeteren, ‘Are you a victim? The low self-identification of victims of labour exploitation’ (Leiden Law Blog, 28 September 2016) <http://leidenlawblog.nl/articles/are-you-a-victim-the-low-selfidentification-of-victims-of-labour-exploitat> accessed 20 March 2018

of relevant information for decision-making.97 One key recommendation the report suggested was to strengthen the first responder role –the point when potential victims are first identified and referred by creating new Slavery Safeguarding Leads (SSLs), supported by increasing training.98 Following this, a pilot was run from August 2015 to March 2017 in West Yorkshire and the South West of England where changes were implemented in order to see how it compares to the current existing NRM process in place, with the intention of improving the system. The first change introduced was the implementation of SSLs in order to raise awareness of the NRM process, encourage referrals that are more appropriate and to speed up the process of reasonable ground decisions. Secondly, the implementation of a Case Management Unit (CMU) in order for case working to streamline the case management process and to improve the consistency of case working. The last change implemented into the pilot areas were multidisciplinary panels (MDPs) whom receive cases and all the information necessary from the CMU and then make the conclusive grounds decision as to whether an individual is a victim or not within the NRM timeframes.99 In order for the pilot to run, training was delivered by Campaigning against child exploitation and trafficking (ECPAT UK)100 and Unseen101 to 188 professionals.102 In the Southwest there were separate training events for the MPDs and for the SSLs. MPD training sessions included polices forces, local authorities and councils, health professionals, NGOs and other governmental agencies. The SSL training sessions were very similar to that of the MPDs, except there was no NGO presence as per the NRM review the SSL role is to be hosted within statutory agencies and health organisations. As highlighted above, one critique of

E lliot J, Garbers K ‘The National Referral Mechanism Pilots: A Review of the Training’ (Unseen UK, 2016) 6

E lliot J, Garbers K ‘The National Referral Mechanism Pilots: A Review of the Training’ (Unseen UK, 2016) 24

N icola Ellis, Christine Cooper, Stephen Reo ‘An evaluation of the National Referral Mechanism Pilot’ (Home Office Research Report 94 2017) 3

100

A leading Children’s rights organisation campaigning to protect children from child trafficking and transnational child exploitation

101

A charity who work directly with survivors of modern slavery and trafficking

102

J essica Elliot, Garbers K ‘The National Referral Mechanism Pilots: A Review of the Training’ (Unseen UK, 2016) 35

H ome Office, Victims of Modern Slavery – Frontline Staff Guidance (Version 3.0, 18 March 2016) 22

3. Problems with the Law on Human Trafficking regarding Identification, Protection, Support and Treatment of Victims

the existing NRM is the inadequate training provided for professionals. However, a review of the training provided to professionals taking part in the pilot confirmed it was no better than that in place for the current NRM.103 During interviews conducted and from the questionnaires the participants (professionals) completed, much negative feedback of the pilot was given: ‘No (I do not feel well equipped/ trained to undertake this role), only one-day training and a quick pilot go live date so I have had little time to process new information and share this with other practitioners’ (SSL).104 Trainers who conducted the training package were also interviewed: ‘We don’t know if we did test their knowledge and understanding because all they had to do was turn to the next slide and there was the answer… there was no actually way of checking their understanding.’105 These comments show that the pilot fails to address the criticisms of the current NRM of there being a lack of adequate training of trafficking and the NRM. In particular, participants felt that length of the training received, which was conducted over one day, was not enough time to understand the role, nor feel sufficiently competent to perform it. Another problem, which the pilot identified, was delays in decision-making. Prior to the pilot, this was already a known problem. 3.9 Vulnerability of Children Children who are in the care system and unaccompanied migrant children are particularly vulnerable to trafficking.106 The number of children that go missing from care in the UK each year is exceptionally high. From September 2014 –

103

T raining for the NRM Pilot: Training materials were initially established and written by the Modern Slavery Unit. Subsequently Unseen and ECPAT were asked to assist in tailoring the packages

104

J essica Elliot, Garbers K ‘The National Referral Mechanism Pilots: A Review of the Training’ (Unseen UK, 2016) 42

105

Ibid 61

106

U .S. Department of State ‘United Kingdom: Office to Monitor and Combat Trafficking in Persons 2016 Trafficking in Persons Report’ (2016) < https://www.state.gov/j/tip/rls/tiprpt/countries/2016/258887. htm> Accessed 10 January 2018

107

108

T he United Nations Convention on the Rights of the Child 1989 defines an unaccompanied child to be a “child who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so”

September 2015, 28% of trafficked children (167 children) in care and 13% of unaccompanied107 children (593 children) in care went missing at least once. Of these, 207 missing trafficked or unaccompanied children had not been found.108 The risk of child going missing is particularly high within the first 48 hours of a child going into care.109 In 2016, ECPAT UK and Missing People110 partnered to conduct a study of trafficked and unaccompanied children going missing from care in the UK named ‘Heading Back to Harm’.111 This study raised some concerns about the identification of trafficked children and protection measures that are in place. The Group of Experts on Action against Trafficking in Human Beings (GRETA) expressed their concerns saying that ‘the inadequacy of child protection measures and the lack of coordination at national level as well as between countries increase the risk of unaccompanied children falling victim to trafficking. In most countries there is little or no information on the identification of trafficked persons among separated children.’ 112 Not being identified as a potential victim of trafficking has been found to be a key risk to children going missing from care.113 Not being able to identify a child that is a victim of trafficking is often due to the low awareness of child trafficking and the NRM that first responders in particular have. Subsequently, this leads to the problem of the child not being referred to the NRM for support.114 There is a lack of child-specific training amongst these and a lack of child protection specialism among case owners in the CA. This stems from there being a low conclusive grounds rate decision for children of just 31% from April 2009 – June 2012.115 If a child goes into care unrecognised as a victim of trafficking, then the likelihood of them being re-trafficked is much higher than if they were recognised as a victim. They are much more vulnerable to be contacted by traffickers. The

109

H ome Office, Review of the National Referral Mechanism for victims of Human Trafficking (2014) 65

110

A charity in the UK which is dedicated to bringing missing children and adults back together with their families

111

A ndrea Simon, Chloe Setter, Lucy Holmes ‘Heading Back to Harm: A study on trafficked and unaccompanied children going missing from care in the UK’ (2016 ECPAT UK & Missing People)

112

Ibid

113

Ibid 59

114

Ibid 55

115

T he Anti Trafficking Monitoring Group, Proposal for a revised National Referral Mechanism (NRM) For children (2014) 7

A ndrea Simon, Chloe Setter, Lucy Holmes ‘Heading Back to Harm: A study on trafficked and unaccompanied children going missing from care in the UK’ (2016 ECPAT UK & Missing People) 12

3. Problems with the Law on Human Trafficking regarding Identification, Protection, Support and Treatment of Victims

UK government are yet to come up with the most effective, appropriate method to address these loopholes in the system. However, children going missing from care not only results from failure to identify them as victims of trafficking, but also down to the level of support and security of the accommodation provided. 3.10 Support and Treatment of Victims The level of support and treatment provided to victims has been criticised on several accounts. As part of the NRM, the UK provides support to potential victims for a short 45-day recovery and reflection period (which can be extended in certain circumstances). Although the UK provides a period which is 15 days longer than required by the CoE Trafficking Convention,116 this is arguably long enough. This 45-day period has been criticised by law enforcement officers as ‘insufficient’.117 45 days only provides a short period of assistance to victims, which removes them from immediate harm and provides them access to any treatment needed. This does not however, allow the victim chance achieve a sufficient level of physical and mental stability. Shockingly, the US State Department’s Trafficking in Persons Report in 2016 notes that in the UK ‘Authorities have acknowledged NRM support is not intended to provide rehabilitation, and noted many victims were still profoundly vulnerable after 45 days’. In the explanatory report to the trafficking convention,118 paragraph 173, in relation to Article 13 provides that ‘One of the purposes of this period is to allow victims to recover and escape the influence of traffickers. Victims recovery implies, for example, healing of the wounds and recover from the physical assault which they have suffered. That also implies that they have recovered a minimum of psychological stability.119 45 days is an unreasonable period for the expectation of recovery.

On the one hand, the Government appear to put the time and resources in to find the victims and support them for a short period, yet however, they do not continue that support after the 45-day period is up. This is a failure in the system where the NRM has been said to be ‘a system that finds victims of modern day slavery, only to abandon them’.120 On the basis of Directive 2011/36/EU (recital 18),121 after the recovery and reflection period, if a victim is not considered eligible for a residence permit or does not have lawful residence in that Member State, or has left the territory of that Member State, the latter is not obliged to continue providing assistance and support.122 This undermines the human rights, victim-centred approach that should be taken on antitrafficking measures as it only provides unconditional support during the recovery and reflection period but nothing afterwards. The lack of support offered after the 45-day period is one reasons why victims decide not to be referred to the NRM. A safe-home support worker provided further explanation of this; ‘When they realise that what is on offer is a month’s support and then the unknown, they don’t come with us, and try and make it on their own… and usually end up being re-trafficked’ (Female legal adviser, first responder, NGO).123 An additional problem that victims may face due to a lack of support provided to them is regarding Leave to Remain and residence permits. The current UK provision follows that of the CoE Trafficking Convention, which provides that once a person is formally identified as a victim, then a temporary residence permit should be granted.124 This is only granted for a 12 month period where the competent authority considers that their stay is necessary owing to their personal situation;125 and/or where the CA considers that their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings; or where the competent authority considers that their stay is

116

C ouncil of Europe Convention on Action Against Trafficking in Human Beings (2005) art 13(1) ‘Each Party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe that the person concerned is a victim’

121

117

R achel Annison ‘In the Dock: Examining the UK’s Criminal Justice Response to Trafficking’ (Anti-Slavery International for The AntiTrafficking Monitoring Group June 2013)

122

E uropean Commission ‘Communication from the Commission to the Council and the European Parliament’ (2014) 325

123

118

E xplanatory Notes to the Council of Europe Convention on Action Against Trafficking in Human Beings (2005)

119

I bid, 28

120

H uman Trafficking Foundation ‘Day 46: Is there life after the Safe House for Survivors of Modern Slavery’ <http://www. humantraffickingfoundation.org/sites/default/files/Human%20 Trafficking%20Foundation%20Report%202016%20Day%2046.PDF> accessed 10 December 2017

T hanos Maroukis, ‘Keeping Up Appearances: The British Public Policy Response to the Trafficking of Domestic Workers in a Changing Regime of Social Protection’ (2017) 15 Journal of Immigrant and Refugee Studies 155 <http://www.tandfonline.com/doi/ pdf/10.1080/15562948.2017.1304602?needAccess=true>Accessed 04 January 2018

124

C ouncil of Europe Convention on Action Against Trafficking in Human Beings (2005)

125

C ouncil of Europe Convention on Action Against Trafficking in Human Beings (2005), art 14(1)(a)

3. Problems with the Law on Human Trafficking regarding Identification, Protection, Support and Treatment of Victims

necessary owing to their personal situation.126 This suggests that there is still a focus on prosecuting traffickers rather than supporting victims. This shows that a victim of trafficking who is recognised through the NRM carries no automatic right to remain. This is in contrast to the recognition as a refugee through the asylum system, which grants an initial five years of Leave to Remain in the UK. This is then followed by the opportunity for indefinite Leave to Remain. This has previously been criticised by NGOs in Northern Ireland, noting that legal representatives discourage potential victims from entering into the NRM simply because asylum would lead to better chances of remaining in Northern Ireland and other parts of the UK.127 This appears to provide more to asylum-seekers rather than victims of trafficking. To summarise, there is a lack of support provided after the 45-day recovery period is up, again leaving victims in a vulnerable position to be re-trafficked, undermining human rights law; freedom from slavery and forced labour.128 3.11 Support and Treatment Provided to Trafficked Children Gradually over the years, the failures of the NRM have been acknowledged and suggestions for reforms have been made.129 Notwithstanding this, no substantial changes for child victims have been included, or even acknowledged.130 The level of support and assistance currently provided to children is similar of an adult victim. More often than not, children need a much higher level of support and assistance. Children go through a lot mentally and physically, whether that is from sexual exploitation, forced labour, or any other form of trafficking. As a result of the trafficking experience, children often find it hard to put trust into their care worker (or any other professional) and therefore struggle to form a bond with them.

126

C ouncil of Europe Convention on Action Against Trafficking in Human Beings (2005), art 14(1)(a) U.S. Department of State ‘United Kingdom: Office to Monitor and Combat Trafficking in Persons 2016 Trafficking in Persons Report’ (2016) < https://www.state.gov/j/tip/rls/tiprpt/countries/2016/258887.htm> Accessed 10 January 2018

127

128

H uman Rights Act 1998, Schedule 1, Art 4

129

P ilot study

130

E xplanatory Notes to the Council of Europe Convention on Action Against Trafficking in Human Beings (2005).ECPAT UK argued that ‘the child protection system is failing’ – ‘Education Committee – the child protection system un England written evidence submitted by ECPAT UK’ (Parliament UK, October 2011) <https://publications.parliament. uk/pa/cm201213/cmselect/cmeduc/137/137we04.htm> Accessed 20 March 2018

3.12 Summary As drawn upon throughout this chapter, there are significantly weaker areas when it comes to the protection, support and treatment provided to victims. The staggering number of trafficked children that go missing from care is unimaginable and patently lays out lack of protection and preventative measures in place. The level of support provided to adults is also problematic; many are left in a state of vulnerability with the potential to be re-trafficked. This is owing to the short period in which victims are expected to recover, whilst failing to offer longterm support and reintegration programmes on the dismissal from the safe house. As demonstrated through case law, identifying victims of trafficking is complex and often difficult to address owing to a number of factors, including low awareness amongst frontline staff, the failure to self-identify, and the sheer hidden nature of the devastating crime. Low awareness of trafficking stems from a lack of tracking with no formal means of standardisation in place. Correctly identifying victims of trafficking is the key to the beginning of their recovery. It appears the UK are aware of some of the issues discussed and have previously made some efforts131 to address them. Notwithstanding this, these problems remain a serious issue. Victims are not being fully protected by the law and therefore, better anti-trafficking regimes need to be implemented.

131

E xplanatory Notes to the Council of Europe Convention on Action Against Trafficking in Human Beings (2005).For example, introducing the Modern Slavery Act and some of its provisions included for example, Modern Slavery Act 2015, s 49 requires the Secretary of State to issue guidance about identifying and supporting victims to pubic authorities considered appropriate, Part 2 – slavery and trafficking prevention orders

3. Problems with the Law on Human Trafficking regarding Identification, Protection, Support and Treatment of Victims

4. Suggested Reforms to Improve the Effectiveness of the Law on Human Trafficking for Identification, Protection, Support and Treatment of victims 4.1 Chapter Aims It is clear from the problems identified in Chapter 3 that there is room for the law to go further by providing more effective protection, support, and treatment for victims. This chapter will explore ideas for reform in order to make the law more effective. These reforms stem from the problems identified in chapter 3. The explanatory report to the CoE Trafficking Convention upholds the importance of correct identification, stating that ‘To protect and assist trafficking victims it is of paramount importance to identify them correctly. . . Failure to identify a trafficking victim correctly will probably mean that victim’s continuing to be denied his or her fundamental rights and the prosecution to be denied the necessary witness in criminal proceedings to gain a conviction of the perpetrator for trafficking in human beings.’132 Additionally, in January 2017, the UK independent anti-slavery commissioner133 expressed his concerning views on the NRM. He explained ‘In my opinion the current NRM support provisions are failing victims’.134 Changes and reforms need to be made in order to ensure the full protection, support and treatment of victims. 4.2 The need for better, more consistent training Accurate identification of trafficked victims remains a challenge for the UK and therefore, better training across all first responders and authorities in needed in order to ensure the adequate protection of victims and enable them access to any support and treatment needed. Many institutions need to development their basic knowledge of trafficking. The very basics of training is being able to know what human trafficking is and knowing what the signs of a trafficking victim are. However, training needs to go

even further than this; frontline staff need to have knowledge of the NRM and how it works. Additionally, having relevant training would allow first responders to learn how to make appropriate questions in a sensitive and respective manner.135 Currently, if training is run then there is no system for approval or standardisation. As human trafficking is a serious crime, the level of training should reflect this, with obligatory training and standardisation in place. Consistency in training amongst frontline staff is deemed necessary as previously, there have been inconsistencies between NGO’s and law enforcements as to whether a person was a victim or not. This is illustrated in the case of CN v UK,136 which concerned a woman (C.N), who was travelling to the UK in order to escape from sexual and physical violence. A relative (S), helped C.N to travel to the UK, but once there, took her passport and travel documents away from her. When in the UK, C.N began to work for an elderly couple, working twenty-four hours a day with very little time off. Her wages were sent to S, with C.N receiving a very small allowance of it. C.N got constant threats from S not to speak to anyone about this. A few years later C.N collapsed in bank and was taken to hospital, where she was diagnosed with HIV and psychosis. She then applied for asylum but was rejected. The police were alerted of the situation; after investigating the situation, the metropolitan human trafficking team concluded that there was no evidence of domestic servitude and that she had not been trafficked. Later on, C.N was assessed by the Poppy Project, a Government funded project providing housing and support for victims of trafficking, who concluded that she had been subject to forced labour and was a victim of trafficking, with obvious signs such as working constantly for very little money.

Explanatory Report to the Council of Europe Convention on Action Against Trafficking in Human Beings (2005) 45

132

Kevin Hyland

133 134

Letter from Kevin Hyland, Independent Anti-Slavery Commissioner to Sarah Newton (10 January 2018)

135

Nick Stanley, Sian Oram et al., ‘The health needs and healthcare experiences of young people trafficked into the UK’ (2016) 59 Child Abuse and Neglect: The International Journal 100 – 110

136

CN v UK, App no 4239/08 (ECHR, 13 November 2012)

4. Suggested Reforms to Improve the Effectiveness of the Law on Human Trafficking for Identification, Protection, Support and Treatment of victims

This shows how the level of knowledge can vary, and how important it is to have knowledge of trafficking and know what the ‘indicators’ are, as being identified a victim can have a huge, positive impact on a person’s life. This case reinforces the idea that police forces and other frontline staff members’ knowledge and level of training should also be to a high standard. It is not realistic to assume that each member of staff in large organisations should have in-depth expert knowledge required to make referrals. However, it would be more appropriate to have lead who has expertise knowledge and is able to train others. This approach has previously been taken in Northern Ireland to good effect.137 In order to address the issue of identification of children who are victims of trafficking and the high number of children going missing from care each year then changes need to made. It appears that the UK is currently lacking child-specific training in relation to trafficking. Including child specific training for professionals and carers (including guardians) could maximise the amount children being identified and minimise the number of children going missing from care. Notably, this including how to identify a child victim and how to work with them, enabling the child to gain trust of the person with whom they come into contact. For children especially, gaining trust and forming a bond is essential in order for them to feel safe and come forward to talk and tell their story. Children may feel intimidated by local authorities; some may even suffer from continuing intimidation by adults, and fear repercussions or reprisals (such as disclosing their history and what has happened to them).139 By understanding the dynamics of child trafficking, it will make it easier to identify victims. 138

4.3 Police and training Data140 shows that places where police forces have human trafficking investigation teams in place, more referrals to the NRM are made. In 2014, West Yorkshire Police made 122 referrals, Metropolitan

Police 103 and Police Scotland 48. All of these forces have human trafficking investigation units in place. Forces without investigation units in place made a considerably lower amount of referrals; West Midlands Police made 37, Greater Manchester 30 and Thames Valley Police with only 23.141 These were the highest number of referrals made in places without investigation units, others made much lower amount, for example, Merseyside whom only made 3 referrals in 2014. This appears a low figure on reasoning that Merseyside force includes Liverpool, which has one of the largest ports in England. There is a clear correlation between having investigation units and the amount of referrals submitted to the NRM. More Police Forces should include human trafficking investigation units into their forces. Having teams with higher levels of knowledge of trafficking can only be of benefit. Police also need to be aware and trained to know about the Modern Slavery Act 142 and the different sections involved, particularly s 59A which provides a defence for trafficked victims. If officers were highly trained to know the signs of victimisation and understanding of the defence, this could enable recognition and identification of potential victims earlier. This would allow victims to access support and any necessary treatment, rather than criminalisation – as in the case of R v N and R v LE ,143 where both victims were detained and not recognised as victims of trafficking until later on in the process. 4.4 Extending the 45-day Recovery and Reflection Period As earlier argued, the 45-day recovery and reflection period the UK provides is inadequate in order for the full recovery of victims and for them to be able to make considered decisions about their future. Therefore, there needs to be an extension of this period. Other countries provide a much longer recovery and reflection period, in which footsteps the UK should follow. Examples of this include Germany offering 90 days, Italy 90 days, Czech Republic 60

137

Home Office, Review of the National Referral Mechanism for victims of Human Trafficking (2014) 28

141

138

Andrea Simon, Chloe Setter, Lucy Holmes ‘Heading Back to Harm: A study on trafficked and unaccompanied children going missing from care in the UK’ (2016 ECPAT UK & Missing People) 77

142

2015

143

R v N and R v LE [2012] EWCA Crim 189 In the case they were identified as trafficked victims after serving time in prison

139

Parosha Chandran, Human Trafficking Handbook: Recognising Trafficking and Modern-Day Slavery in the UK (LexisNexis 2011) 93-94

140

NRM Data as shown in: Bernie Gravett ‘Countering Human Trafficking: The UK’s Efforts’ (Migration and the Security Sector Paper Series, 2015) 13

Bernie Gravett ‘Countering Human Trafficking: The UK’s Efforts’ (Migration and the Security Sector Paper Series, 2015) 13

4. Suggested Reforms to Improve the Effectiveness of the Law on Human Trafficking for Identification, Protection, Support and Treatment of victims

days and Canada and Norway offering 180 days.144 A more victim-centred, human rights-based approach to trafficking would see the UK adopting a minimum 90-day recovery and reflection period, recommended by Amnesty International UK145 and the Scottish Government. One key reason why the UK should adopt this 90-day period is due to the staggering number of victims that suffer metal and psychological health issues as a result of their trafficking experience. The psychological impact a trafficking experience may have on a person may be much more severe than the physical violence suffered.146

‘My wounds are inside. They are not visible.’ (Moldovan woman trafficked to Italy)147 This reiterates how much mentally, being trafficked can affect a person. Around 58% of women, entering post-trafficking services, show symptoms associated with post-traumatic stress disorder (PTSD).148 This is additional to any physical pain that they may be enduring. PTSD levels can vary; in the worstcase scenario, they are threat to others and as a result, are sectioned.149 Victims may experience a range of health problems as a result of exploitation. These include including infections or mutilations as a result of unsanitary and dangerous medical procedures from the traffickers so called ‘doctor’; malnourishment; and gynaecological health problems, ranging from sexually transmitted diseases, forced abortions,150 menstrual pain, and many more.151 Within the current 45-day period, victims are expected to decide whether they want to participate and cooperate with any criminal investigations into their traffickers, as well as stabilising their mental and physical health. This is a huge expectation for such a short time period. Adopting the 90-day recovery and reflection period would allow more time for mental health improvements, enabling victims to make more considered, well-minded decisions, both during the

144

Us State Department, ‘Trafficking in Persons Report’ (2102), 111 and 273

145

Amnesty International is a human rights organisation

146

Leah Kaylor ‘Psychological Impact of Human Trafficking and Sex Slavery Worldwide: Empowerment and Intervention’ <https://www.apa.org/ international/pi/2015/09/leah-kaylor.pdf accessed> 20 February 2018

1476

148

149

150

Cathy Zimmerman, Mazeda Hossian eta. ‘The Health of Trafficked Women: A survey of Women Entering Post Trafficking Services in Europe’ (2008) 98(1) Am J Public Health <https://www.ncbi.nlm.nih. gov/pmc/articles/PMC2156078/> Accessed 01 February 2018

Michelle Moore, trafficking work’ (SaME Research Online, LSHTM, 2015) <http://same.lshtm.ac.uk/2015/05/28/impact-of-same-traffickingwork/> Accessed 9 February 2018 James Nickerson ‘Slavery trafficking victims crippled by fear in UK’ (Feature/UK Jan 2017) < https://www.aljazeera.com/indepth/ features/2016/12/slavery-trafficking-victims-crippled-fearuk-161231111517043.html> accessed 8 March 2018

recovery period and afterwards. Extending the timeperiod could potentially, in-turn, see a lower number of people being re-trafficked as a result of physical and mental stability. 4.5 Adopting the Italian Approach The UK is lacking a victim-centred approach to dealing with victims of human trafficking and as expressed in the previous chapter, there is very little support provided to victims after the 45-day recovery and reflection period is over, particularly as there are conditions to Leave to Remain for trafficked persons. One way that the UK could become closer to overcoming this and achieving a more victimcentred approach is by adopting the Italian approach; a progressive approach to assist trafficked victims.152 Through comparative analysis, light will be shed on the success of the Italian approach and how it offers a higher level or protection and support. Article 13 of the Legislative Decree 286/1998 provides short-term assistance, including access to a threemonth residence permit to victims, which can later be extended for a further three months. Whereas what the UK should be looking to adopt is Article 18,153 which provides long-term support for victims for six months, which may then be renewed for an additional year, offering them the possibility of regularising their position in Italy.154 The permit allows them access to education, the labour market and health care. Furthermore, they have the chance of turning their permit into a student or work residence permit. All that is required for the permit it that they participate in and complete the ‘Article 18’ assistance programme.155 This programme offers the minimum of accommodation, medical and psychological treatment, legal aid, help to obtain the residence permit, and lastly, help with reintegration, this including access to education and assistance in finding a job.

are pregnant (The Anti Trafficking Monitoring Group, Time to Deliver: Considering pregnancy and parenthood in the UK’s response to human trafficking (2016) 5) 151

‘Human Trafficking – Medical effects on victims’ (Europa.eu) <https:// ec.europa.eu/anti-trafficking/sites/antitrafficking/files/forum_ magazine_on_medical_effects_1.pdf> accessed 20 February 2018

152

Matilde Vantrella ‘Protecting Victims of Trafficking in Human Beings in the UK: The Italian ‘Rimini Method’ That Could Influence the British Approach’ (2007) 3 Migration and Refugee Issues

153

Legislative Decree 286/1998, art 18 (Residence for reasons of social protection)

154

‘Article 18: Protection of Victims of Trafficking and Fight against Crime (Italy and the European Scenarios)’ (Research Report, On the Road Edizioni 2002) 18

155

‘European Commission ‘Together Against Trafficking in Human Beings <https://ec.europa.eu/anti-trafficking/content/nip/italy_en> accessed 29/11/2017

Research suggests that between 20-25% of trafficking victims in the UK

4. Suggested Reforms to Improve the Effectiveness of the Law on Human Trafficking for Identification, Protection, Support and Treatment of victims

As the UK does not allow a victim to stay in the country after the 45-day recovery period if there is no ‘legal basis’, then this can result in a victim being sent back home, even when there is still potential of them being in danger. The following passage further explains this idea. ‘A case of a victim who was re-trafficked a year after being referred to the NRM was presented at a Ministry of Justice and Salvation Army Conference... The service provider believed that the reason for the re-trafficking was because the victim had been returned to the country of origin too soon, there being no legal basis for the person to remain in the UK.’ [ATGM, 2013].156 The UK adopting the Italian approach would it many cases, prevent this from happening and prevent victims from being re-trafficked. It appreciates that victims are vulnerable and are still sometimes at risk of danger from the trafficker. The Italian approach to combating trafficking has been praised on several accounts; the Joint Committee on Human Rights have expressed how impressed they are, along with the Ministerial Report accompanying the decree which praised this measure taken by Italy claiming ‘This is a type of “rewarding measure”, aiming, above all, at ensuring the security and safety of the “collaborating” foreigner…’.157 The Italian approach provides a ‘safe haven’ for victims which allows time for their recovery and reserves their safety, of which is not dependent upon certain provisions, such as cooperating in legal proceedings that people in the UK have to rely participate in. This overcomes the current in the UK that people choose not to opt into the NRM as they are scared for the little protection and support provided after. In order to move forward and progress with victim protection and support, this approach needs to be taken in the UK. If the UK did see the adoption of the implementation of either the Italian approach or the long-term reintegration programme (which provide more support and protection than the UK currently offers), we may see a subsequent rise in the number of people choosing to cooperate in criminal proceedings. Victims are often reluctant to support criminal proceedings, as they might be frightened. Often traffickers come in the form of criminal gangs

156

‘Human Trafficking Foundation, Life Beyond the Safe House for Survivors of Modern Slavery in London (July 2015) 28

157

Elliot J, The Role of consent in human trafficking, (Routledge, 2014) 167

158

Matilde Vantrella, The Control of People Smuggling and Trafficking in the EU: Experiences in the EU (Law and Migration, Routlege, 2010) 198

etc. and therefore, may fear what will happen to them and their family if they go through with the proceedings. However, if the victim knows that they have the support they need around them, then they will feel safer and less at risk of putting themselves back into harm of the trafficker. After Italy saw the implementation of Article 18 of Legislative Decree 286/1998, Rimini, a city in Italy where police forces believed they had ‘defeated’ trafficking for the purposes of sexual exploitation by means of using the ‘Rimini method’. The Rimini method consisted of establishing a trust between victims and the police officers in order to persuade them to co-operate in legal proceedings to see the arrest and prosecution of the trafficker.158 Officers were able to gain their trust by letting know of their right to a permanent visa in Italy and the reintegration into Italian society. The relationship and trust formed gives the victim a sense of protection, and subsequently, the vast majority decide to co-operate in legal proceedings. This follow up support is necessary in order to ensure the full protection and support of victims; the participation in the criminal proceedings is an added benefit. 4.6 Long-term Reintegration Programme The absolute minimum that the UK should implement is a comprehensive long-term reintegration programme that provides postidentification support and reintegration of victims, particularly once the 45-day recovery and reflection period is up. During the programme, language, education and employability services should be offered to trafficked persons.159 It should also help them find their way back to their families if they voluntarily chose to do so; moreover, it should help in providing support and protection to their families to reduce the chance of putting them in danger. There is an appreciation that better international communications and relationships need to be made for this element and ensuring the safe return of the victim to their home country. This when victims tend to feel vulnerable and alone, with little support. If the UK did see the adoption of the implementation of such a programme with additional support and protection, then subsequently, we may see a rise in the number adult victims choosing to be referred to the NRM.

159

Focus on Labour Exploitation, Fairwork, ADPARE, Improving the Identification and Support of Victims of Trafficking for Labour Exploitation in the EU (Pro-Act Policy Paper 2016) 07

4. Suggested Reforms to Improve the Effectiveness of the Law on Human Trafficking for Identification, Protection, Support and Treatment of victims

4.7 Accommodation Not having secure accommodation is another reason why many children go missing from care. It is essential that the accommodation children are placed in is secure to prevent them from going missing, or/ and being re-trafficked. A criminal justice professional expressed the importance of safe accommodation noting ‘Secure accommodation is likely to provide the greatest protection from further exploitation and break the chain to the trafficker.’160 Furthermore, to improve victim services the Home Office should urgently put in place care standards and inspection regimes to ensure that the quality of care reaches a minimum standard and does not fall below it. 4.8 Bringing England and Wales in line with the legislation in place in Scotland and Northern Ireland When looking at each Act and what they each contain, it is clear provisions contained in Scotland and Northern Ireland Acts on human trafficking are significantly stronger regarding support for adult victims than the Modern Slavery Act. The fundamental differences making the Acts in Scotland and Northern Ireland stronger is that both Acts include all four of the key elements of the Trafficking Convention161 and directive;162 that is, key principles and safeguards for support provision, minimum standards of support and assistance, duration of support provision and duty on state to establish measures to support and identify victims. In contrast, the Modern Slavery Act does not. An example of this difference is that the Modern Slavery Act does not explicitly place a duty on the Sate to provide support and assistance to victims, nor does it provide what victims of trafficking are entitled to. All that it does provide is that the secretary of State must issue guidance163 about the sorts of things that indicate a person may be a victim164 and guidance on arrangements for providing support and assistance165 whereby the Secretary of State may, from ‘time to time’, revise the guidance.166 This is in comparison

160

Andrea Simon, Chloe Setter, Lucy Holmes ‘Heading Back to Harm: A study on trafficked and unaccompanied children going missing from care in the UK’ (2016 ECPAT UK & Missing People) 82

161

Council of Europe Convention on Action Against Trafficking in Human Beings (2005)

162

irective of the European Parliament and of the Council on preventing D and combating trafficking in human beings and protecting its victims (2011)

to Scotland and Northern Ireland where the Acts provide a for an actual duty on the State to establish measures to support and identify victims; Northern Ireland, for example, provides that ‘The Department must ensure that a person to whom this section applies is provided with assistance and support in accordance with this section.’167 To make the legislation in England and Wales stronger and in-line with Acts in Scotland and Northern Ireland regarding support for adults, it should offer (on a statutory basis) what assistance is available to potential victims of trafficking. Otherwise, unlike Scotland and Northern Ireland, victims in England and Wales cannot look to the Modern Slavery Act to claim their rights to support. 4.9 Summary The UK, like many countries worldwide is striving to combat trafficking. As set out in chapter 3, there are many flaws in the system and lack of regimes and policies in place achieve this. This chapter has offered many ways in which to overcome and address these issues. It is difficult to claim that these recommendations, if implemented, would abolish human trafficking; however, they would certainly see a more victim-centred approach to combating trafficking. A victim-centred approach takes into account the needs of the victim, their safety and security, which is what the UK is lacking. To overcome the issue of lack of knowledge of trafficking resulting in failure to identify victims, there should be compulsory training procedures in place for all organisations and authorities whom are likely to encounter potential victims. Another issue for the UK is the lack of support provided to victims post safe house. First, the UK needs to extend the 45-day recovery and reflection period and in addition, go that one step further by adopting a similar approach to Italy in assisting victims. These approaches will ensure the victim is protected and safe from their trafficker, allowing a longer, more appropriate period for the victims’ recovery and rehabilitation.

163

Modern Slavery Act 2015, s49

164

Modern Slavery Act 2015, s49(1)(a)

165

Modern Slavery Act 2015, s49(1)(b)

166

Modern Slavery Act 2015, s49(2)

167

uman Trafficking and Exploitation (Criminal Justice and Support for H Victims) Act (Northern Ireland) 2015, s18(1)

4. Suggested Reforms to Improve the Effectiveness of the Law on Human Trafficking for Identification, Protection, Support and Treatment of victims

5. Conclusion As established throughout this thesis, human trafficking is one of the greatest injustices on our planet today. This dissertation has examined the law and policies in place in the UK regarding human trafficking in relation to identification, protection, support and treatment of victims. It has explored and discussed the main issues, suggesting ways that they can be overcome. The legislation in place, both nationally and internationally has developed with the intention of providing better anti-trafficking regimes. The 2015 Acts in place in England, Wales, Scotland and Northern Ireland attempt to adopt a more victimcentred approach. They introduce measures to enhance the protection of victims, consolidate existing offences, introduces prevention and risk orders, increases sentences for offences and they also issue guidance on trafficking to authorities considered necessary. One of the greatest establishments is the NRM. It is the first formal identification system in place in the UK. Since the adoption of this framework, there has consistently been an increase in the number of potential victims identified. The implementation of these Acts and frameworks have had a positive impact, but they have not completely eradicated human trafficking. There are still problems that remain and weaker areas that need improvements. One of the biggest problems that remains within England and Wales is the identification of victims. This problematic issue has been shown through case law repeatedly, emphasising the need for compulsory training procedures with standardisation measures in place. Police officers are one of many authorities whom are likely to encounter victims of trafficking in their day-to-day jobs. As earlier discussed, the higher level of knowledge of trafficking, the NRM and legislative Acts police officers have, the more likely

168

Harriet Grant ‘Trafficking victims forced into crime are let down by police, report reveals’ (The Guardian, 2013) <https://www.theguardian. com/global-development/2013/dec/20/trafficking-victims-forcedcrime-let-down-police> accessed 20 March 2018

169

Focus on Labour Exploitation ‘Long term support is essential to ensure positive outcomes for victims of trafficking’ (FLEX 11 August 2016) <http://www.labourexploitation.org/news/long-term-support-essentialensure-positive-outcomes-victims-trafficking> accessed 1 April 2018

there are to notice someone who is a potential victim, rather than view them as ‘just another criminal’, protecting them rather than prosecuting them.168 The UK needs to expand efforts to provide training to authorities, particularly child-specific training. Just as importantly, the level of on-going support offered in the UK, is either limited or non-existent.169 The absence of specific legislative measures, such as re-integration measures and residence permits has left many victims in a state of vulnerability, subject to danger and re-trafficking. Many victims choose not to be referred into the NRM, as they are worried about the position they will be left in afterwards. Adopting the Italian approach –that is, granting the right remain on the completion of a reintegration programme –appears to be the only way to address these issues comprehensively. This approach offers safety and protection, and the potential to work, study, and reside in the UK. When analysing whether the identification, protection, support and treatment given to victims is an issue in the UK, undoubtedly the answer is yes. There will continue to be issues within the UK until formal training is made a requirement for front line staff members; the number of trafficked children who go missing from care significantly decreases; and a longer, higher level of support is provided to victims on the removal of the safe house. These suggestions for reform, which aim to improve the current system, look at the needs of victims and what more could be done for them. The UK is continuously opting to look at ways in which it can improve the anti-trafficking regimes in place, and there is confidence that in time, better measures to combat trafficking will be implemented.

5. Conclusion

CHILD SEX OFFENDERS: A CRITICAL ANALYSIS OF REGULATION, REINTEGRATION AND REHABILITATION Amber Rush Criminology and Law (BA Hons) University of the West of England Faculty of Business and Law

Law Journal

ABSTRACT The sexual abuse of children has become a widely recognised social problem within the last few decades. Attempts to reduce the number of these offences has resulted in an expansive set of punitive policies, laws and procedures that convicted sex offenders must follow in order to reduce their risk of re-offending. The protection of society has overwhelmingly become the priority over rehabilitating these offenders and there is little evidence that suggests these sanctions are preventing these crimes from happening. The aim of this dissertation is to critically analyse the plethora of legislation that has been enforced in England and Wales that regulates and manages the risk of convicted sex offenders. A comparative analysis of public disclosure in England and Wales (Sarahâ&#x20AC;&#x2122;s Law) and the United States (Meganâ&#x20AC;&#x2122;s Law) will be given in order to stress the differences and further demonstrate how reducing negative stigma and re-integrating offenders can act as a barrier to re-offending. A central objective of this dissertation is to conclude whether the current system in England and Wales is sufficient in tackling the sex offender problem whilst putting forward recommendations for integrating alternative restorative and rehabilitative methods in order to better protect children from sex offenders.

Abstract

1. Introduction The United Nations Convention on the Rights of the Child defines a child to be any person below the age of 18.1 Within the last 30 years, the prevalence of child sexual abuse has moved from an unspoken ‘taboo’ to one of the frontline issues in the social and political discourse.2 Statistics3 show that sexual offences against children have risen at a concerning rate. In 2005 the number of recorded sexual offences against children stood at around 15,000 and this increased to 38,575 in the year of 2015.4 The current number of offences for the year of 2018 however, stands at 64,667.5 It is important to acknowledge that this data does not reflect the total number of sexual offences committed against children as around 1 in 3 children do not report these crimes.6

increased improvement of police recording of these crimes11 and an increase in the media coverage for these cases.12 Part 1 of the Sexual Offences Act13 establishes a range of offences that covers male, female, adult and child victims or offenders. The offences listed in this Act can range from indecent exposure to more serious offences such as rape. More recently, the legislation has been constructed to recognise a vast range of offences against children by incorporating offences such as abuse of trust,14 child pornography15 and any sexual activity with a child.16

The term child sex offender is often confused and

Child sex offenders are probably the most loathed offenders within modern society.17 This can be evidenced in the way these offenders are treated by the criminal justice system and wider society in comparison to other offenders. For example, there

used interchangeably with the term paedophile. It is important to note that the latter is a clinical definition given to a specific group who are sexually attracted to children and therefore may or may not result in engaging in any sexual activity with a child.7 The former is a legal definition that recognises a group of offenders. Child sex offenders are those who have been sanctioned by the law for a sexual offence against a child who did not or could not legally give their consent.8 The recognition of child sexual abuse may be attributed to the success of the feminist and child protection activists in the late 1980’s who rigorously campaigned, challenged the legislation and uncovered statistics in order to politicise the problem.9 Moreover, this recognition may also be linked to the increase in the opportunity and encouragement to report these offences,10 an

are an exclusive set of policies and procedures18 that sex offenders must follow in addition to their prison sentences, which is unique to any other types of offender. Furthermore, members of the community ‘hunt’ these offenders through webpages such as ‘Noncewatch’ in order to publically shame them and to notify the police. Whilst this is not desired, it does illustrate the extent of how undesired these offenders truly are. This hatred may be attributed to the widespread belief in society that these offenders are highly recidivistic, arguably making them the most feared.19 Contrary to popular belief, academic research has found that sex offenders generally have lower rates of recidivism amongst any other types of offenders. It was found that sex offenders were reconvicted at around 24% over a twenty-one-year period,20 whereas reconviction rates for offenders

The United Nations Convention on the Rights of the Child, Article 1

ieran McCartan et al, ‘The Construction of Community Understandings K of Sexual Violence: Rethinking public, practitioner and policy discourses’ Journal of Sexual Aggression 101

Offender Therapy and Comparative Criminology at 501 11

Holly Bentley, et al, How Safe are Our Children? (NSPCC 2016) at 26

Holly Bentley, et al, How Safe are Our Children? (NSPCC 2016) at 26; NSPCC, Child Sex Offences Recorded on Average every 8 Minutes in the UK (NSPCC 2018); Lorraine Radford et al, Child Abuse and Neglect in the UK Today (NSPCC, 2011)

Jack O’Sullivan et al, ‘Understandings, Implications and Alternative Approaches to the Use of the Sex Offenders Register in the UK’ (2016) Irish Probation Journal at 84

Sexual Offences Act 2003, Part 1

Sexual Offences Act 2003, s.16 – s.24

Holly Bentley, et al, How Safe are Our Children? (NSPCC 2016) at 26

Criminal Justice and Public Order Act 1994, s.84-87

NSPCC, Child Sex Offences Recorded on Average every 8 Minutes in the UK (NSPCC 2018)

Sexual Offences Act 2003, s.9

aren Harrison, The Wiley Blackwell Handbook of Legal and Ethical K Aspects of Sex Offender Treatment and Management (Wiley Blackwell, 2013)

Registration; Community Notification; Sexual Offence Prevention Orders, Foreign Travel Orders; Extended prison Sentences; Electric Monitoring; Polygraph testing

Richard Tewksbury et al, ‘A Longitudinal Examination of Sex Offender Recidivism Prior to and Following the Implementation of SORN’ (2012) 309

Jenny Cann et al, ‘Sexual Offenders Discharged from Prison in England and Wales: A 21-year Reconviction Study’ (2004) Legal and Criminal Psychology at 5

Lorraine Radford et al, Child Abuse and Neglect in the UK Today (NSPCC, 2011)

Sarah Brown, Treating Sex Offenders: An Introduction to Sex Offender Treatment Programmes (Willian Publishing 2005) at 3

The legal age of consent is 16, however a child cannot legally consent under any circumstance if they are below the age of 13

teven Angelides, ‘Feminism, Child Sexual Abuse and the Erasure of S Child Sexuality’ (2004) Lesbian and Gay Studies at 141-142

ichael Petrunik and Linda Deutschmann, ‘The Exclusion-Inclusion M Spectrum in State and Community Response to Sex Offenders in Angle American and European Jurisdictions’ (2008) International Journal of

1. Introduction

in general stands at around 60% over a four-year period.21 However, it is difficult to truly know due to the amount of offences that are not reported. Therefore, this does not mean sex offenders do not re-offend because it is believed that actual recidivism rates of these offenders could be over five times higher than statistically proven.22

differences in rules adopted and use it as a source of approaching legal issues.27 Finally, the final method used is a socio-legal approach which considers the impact this legislation has on wider society. This method is an invaluable for highlighting gaps between the legislative goals and social reality, which enables us to see a true picture of the ‘law in action.’28

A common misconception about these offenders is who the real perpetrators are. The media often socially constructs child sex offenders as strangers which enforces the moral panic23 surrounding the myth of ‘stranger danger.’24 In reality, statistics show that over 90% of sexually abused children were abused by someone they know,25 usually within the family, the extended family or someone else known that has access to these children.

To achieve the aims of this dissertation, it is necessary to explore the abundance of legislation, policies and strategies that have been introduced to control and manage convicted sex offenders within England and Wales. This will begin in Chapter Two with historical and current legislation analysis in order to highlight the key policies and reasoning for their developments over time, with reference to relevant case law. Furthermore, explorations into the public’s anxieties regarding sexual offending will be given in order to demonstrate how the impact of society can encourage the introduction of new policies.29

The primary purpose of this dissertation is to critically analyse the current retributive system in England and Wales that regulates and manages the risk of convicted sex offenders, particularly those who have offended against children. Negative issues that may impede offender rehabilitation and reintegration as a consequence will be considered with reference to how these issues may be improved. The overall aim of this dissertation is to ascertain whether or not the current retributive approach is sufficient in tackling the sex offender problem and to explore the scope for integrating alternative restorative and rehabilitative approaches. The methodology of this dissertation will encompass a combination of approaches. The first method is the doctrinal approach which is found in primary sources such as case law and statutes. This approach was used in the legal research and through the delineation of legal sources. The purpose of the doctrinal approach is to present the importance of legal sources and to be able to analyse the meanings and implications of these rules with reference to how they are applied through case law.26 This paper has also incorporated a comparative analysis approach. By comparing the legislation and policies in two different jurisdictions on this subject matter, the author is able to stress

It is interesting to consider how the concerns of child sex offenders have been regulated and addressed in other jurisdictions. Therefore, Chapter Three will firstly provide a brief exploration into the legislative background that governs sex offenders within the United States. This chapter will then advance to give a comparative analysis of the public disclosure systems within England and Wales and the State of New Jersey with reference to how each system allows or impedes offender reintegration.30 In Chapter Four, an analysis of some of the key methods that are currently used to control the risk and rehabilitate post-release sex offenders will be given, in order to raise questions of shortcomings in the current system. An exploration of the potential for new approaches will then be proposed. This dissertation will conclude by revising the main ways in which child sex offenders are regulated in England and Wales, highlighting key issues and how they could possibly be remedied. A recommendation will be given for moving towards an integrated system of retribution and restoration in order to better protect children from sex offenders.

Anne-Marie McAlinden, The Shaming of Sexual Offenders (Hart Publishing 2006) at 80

Khushal Vibhute and Filipos Aynalem, ‘Legal Research Methods’ (2009) Justice and Legal Research Institute at 71

Louise Falshaw et al, Sexual Offenders – Measuring Reconviction, Reoffending and Recidivism (Home Office 2003) at 1

Ibid at 107

Ibid 93

News of the World ‘Name and Shame’ Campaign

John Braithwaite, Crime, Shame and Reintegration (Cambridge University Press 1989) at 100

tanley Cohen, Folk Devils and Moral Panics (3rd edn, Routledge 2002) S at 16

Kieran McCartan, ‘Media Constructions of, and Reactions to, Paedophilia in Society’ in Karen Harrison (eds) Managing High Risk Sex Offenders in the Community: Risk Management, Treatment and Social Responsibilities (Willian Publishing 2010) at 254

Lorraine Radford et al, Child Abuse and Neglect in the UK Today (NSPCC 2011) at 120

1. Introduction

2. L egislative Background and the Introduction of ‘Sarah’s Law’ 2.1 Developments in the Law There has been a growing recognition of sexual violence nationally and internationally, especially offences against children. This is evidenced in the media reporting of these cases31 and the overall increase in the recording of these crimes, which has demonstrated to be 15% higher in England and Wales within the last year alone.32 This recognition of child sexual abuse has been reflected in contemporary criminal justice discourses, resulting in changes to the legislative framework on regulating the behaviour of sex offenders, most notably those on release from custody.33 This chapter will briefly explore the history of legislation, offender management, and public disclosure that has been enforced to protect children against sexual offending in England and Wales. 2.1.1 The Sex Offenders Act 1997 Previously, sexual offences in England and Wales were recorded and were punishable by the Sexual Offences Act 1956.34 However, Part I of the Sex Offenders Act 1997 (hereafter SOA 1997) was the legal underpinning for sex offender management as it introduced sex offender registration,35 which will be referred to as the sex offenders ‘register’ or offender ‘notification requirements.’ The ‘register’ required those convicted of specified sexual offences involving children and of other serious sexual offences against adults to register with the police for a certain length of time, ranging from a year to a lifetime, depending on the severity of the sentence imposed. Offenders had to notify the police with their name, address and date of birth

Independent, ‘Police Knew Him for Years as a Violent Paedophile, yet no one Stopped him Stealing an Innocent life’ (18 July 1996) <https:// www.independent.co.uk/news/police-knew-him-for-years-as-aviolent-paedophile-yet-no-one-stopped-him-stealing-an-innocentlife-1329352.html> Accessed 07 March 2018 ; BBC News, ‘Snatched on a Summers Evening’ (12 December 2001) <http://news.bbc.co.uk/1/hi/ england/1656340.stm> Accessed 07 March 2018 ; BBC News, ‘Huntley Guilty of Soham Murders’ (17 December 2003) <http://news.bbc.co.uk/1/hi/ uk/3312551.stm> Accessed 07 March 2018

SPCC, Child Sex Offences Recorded on Average every 8 Minutes in the UK N (NSPCC 2018)

nne-Marie McAlinden, ‘Managing Risk: from regulation to the A reintegration of sexual offenders’ (2006) Criminology & Criminal Justice at 198

Sexual Offences Act 1956

Jacqueline Beard, Registration and Management of Sex Offenders (House of Commons Briefing Paper 5267, 2017) at 4

Ibid

The Sex Offenders Act 1997, Schedule 1

Joyce Plotnikoff and Richard Woolfson, Where are they now?: An evaluation

within fourteen days, with any further changes to these details so police records could maintain up to date.36 The offences to which the notification requirements applied were listed in Schedule 1 of the SOA 199737 but also applied to offenders who were found not guilty by reason of insanity or unfit to plead.38 The notification requirements were not enforced as a form of punishment.39 They aimed to assist professionals in offender management and investigative roles by enabling them to keep track of the whereabouts of Registered Sex Offenders (hereafter RSO) and know immediately which offenders lived nearby if a sexual offence was committed.40 Although this legislation did not cover any sex offenders that were prosecuted prior to the implementation of notification requirements in 1997; the ‘register’ was said to be one of the most successful sex offender registers internationally, with the offender compliance rate standing at 94.7%.41 Nevertheless, it was argued that the notification requirements, standing alone, were not sufficient enough as a child protection measure.42 There were attempts to strengthen the foundations of legislation that were set by the SOA 1997. The Crime and Disorder Act43 introduced the ability to supervise RSO’s for up to 10 years after their release in order to prevent any further offending. Police Offender Orders were also introduced under this Act44 which allowed the police to make restrictions to offenders in order to protect the public and as a result were regarded by the police as a positive step in helping contain and control offenders in the community.45 Despite this it was apparent that there were still loopholes in the legislation. Therefore, the SOA 1997 was repealed and

of sex offender registration in England and Wales (Home Office Police Research Series Paper 126, 2000) 1 39

Terry Thomas, ‘The Sex Offenders Register: A Case Study in Function Creep’ (2008) The Howard Journal at 228

Home Office, Review of the Protection of Children from Sex Offenders (2007) at 8

Kieran McCartan, ‘Current understandings of Paedophilia and the Resulting Crisis in Modern Society’ (2008) Psychological Sexual Dysfunctions at 25

Cathy Cobley, ‘Keeping Track of Sex Offenders – Part I of the Sex Offenders Act 1997’ (1997) Modern Law Review at 699

The Crime and Disorder Act 1998

Ibid, Chapter I, s.2

aty Knock, The Police Perspective on Sex Offender Orders: A preliminary K review of policy and practice (Home Office Police Research Series paper 155, 2002) at 19

2. Legislative Background and the Introduction of ‘Sarah’s Law’

replaced by the Sexual Offences Act 2003 (hereafter SOA 2003) in order to introduce much more stringent notification requirements and strengthen its provisions.46 2.1.2 Sexual Offences Act 2003, Part II The SOA 2003 provides a comprehensive new legislative framework for sexual offences and Part 2 of the SOA 2003 made stricter amendments to the sex offenders ‘register.’ This included reducing the number of days required for an offender to notify police with their details from 14 to 3 days and to notify police if they planned to travel abroad.47 Furthermore, if offenders failed to comply with the notification requirements the maximum penalty was increased from 6 months to 5 years.48 This arguably increased the registration compliance rate to 97%.49 The duration of time that an offender was subject to notification requirements was extended to a minimum of 5 years to a maximum of indeterminate lifetime registration, depending on the severity of the sentence.50 However, in 2010 the ‘register’ was legally challenged due to those subject to an indefinite period being unable to appeal against their continuing registration if they believed they were no longer a risk. Subsequently, in the case R and Thompson 51 the Supreme Court ruled that the absence of the ability to appeal against the notification period was a breach of Article 8,52 as there was no right of review to consider if continued registration was still required.53 An offender who is subject to an indefinite notification period may now apply after fifteen years to be withdrawn if they feel they are no longer a risk and the police will determine the application by reference to section 91D of the SOA 2003.54 Following the Soham murders in 2003, the Bichard inquiry55 was published and called upon the police to investigate failings in the management and background

Home Office, Consultation Paper on the Review of Part 1 of the Sex Offenders Act 1997 (2001) ome Office, Protecting the Public: strengthening protection against sex H offenders and reforming the law on sexual offences (2002) at 13

Sexual Offences Act 2003, Part 2 s.91 (2)

ome Office, Protecting the Public: strengthening protection against sex H offenders and reforming the law on sexual offences (2002) at 7

J acqueline Beard, Registration and Management of Sex Offenders (House of Commons Briefing Paper 5267, 2017) at 6

R (on the application of F (by his litigation friend F)) and Thompson (FC) v Secretary of State for the Home Department [2010] UKSC 17

European Convention on Human Rights, Article 8

erry Thomas and David Thompson, ‘Applications to Come off the UK Sex T Offenders Register: The Position After F and Thompson v. Home Office 2010’, (2012) Howard Journal of Crime and Justice at 280

Sexual Offences Act, s.91(d)

checking of sex offenders. The inquiry discovered that information held on the sex offenders ‘register’ was poorly connected throughout the Country, as different forces were inconsistently recording, storing and passing on information that was contained on the ‘register.’56 As a result the Violent and Sex Offenders’ Register (hereafter ViSOR), a new intelligence database, was developed. ViSOR extended the 1997 registration system by enabling the police and now also the probation service and the prison service to identify, track and efficiently share information about RSO’s in their area. Studies show that police and professionals believe that ViSOR is useful in terms of information sharing, collaborative working and accessing data,57 which benefits offender management. It has been argued that ViSOR isn’t completely reliable due to the system being incomplete but nevertheless, professionals believe that these issues are minor and could be solved by greater investment into the system to make it fit for purpose.58 More recently, Part 2 of the SOA 2003 has been further strengthened by the Anti-Social Behaviour, Crime and Policing Act 2014.59 This introduced a variety of civil orders that enable police forces in England and Wales to monitor and manage RSO’s that live in local communities. Sexual Offences Prevention Orders60 (hereafter SOPO) impose certain prohibitions and restrictions on RSO’s who pose a risk of serious sexual harm. These orders are enforced to protect the public by preventing convicted sex offenders from doing certain activities or communicating with certain individuals in order to prevent sexual offences.61 In addition to this, Sexual Risk Orders62 (hereafter SRO) were enforced for police to place certain restrictions on those who have not been convicted, cautioned or known to have committed a sex offence but are considered at risk of doing so.63 A person subject to a SRO does not have to comply with any requirements, only the specific restrictions that have been proscribed

Michael Bichard, The Bichard Inquiry Report (House of Commons 2004)

Ibid

ieran McCartan, ‘James Hoggett and Jack O’Sullivan, ‘Police officer K attitudes to the practicalities of the sex offenders register, ViSOR and Child Sexual Abuse Disclosure Scheme in England and Wales’, (2018) Journal of Sexual Aggression at 46

Ibid

Anti-Social Behaviour, Crime and Policing Act 2014, s113

Sexual Offences Act 2003 s.104, 106, 107, 108, 110 and 113

ome Office, Guidance on Part 2 of the Sexual Offences Act 2003 (2016) H at 35

Sexual Offences Act 2003 s.122A – 122K

Home Office, Guidance on Part 2 of the Sexual Offences Act 2003 (2016) at 44

2. Legislative Background and the Introduction of ‘Sarah’s Law’

in the order. However, they must provide the police with their name and home address. Finally, Notification Orders64 were introduced to protect the public in the UK from the risks posed by offenders who have been convicted, cautioned, warned or reprimanded for sexual offences that were committed overseas.65 These offenders are expected to comply with notification requirements, the same as if they have committed the offences within the UK. 2.1. 3 Multi-Agency Public Protection Arrangements Offenders that have been released from prison are far less likely to re-offend if they are managed adequately by professionals when released back into the community.66 Effective management means that all relevant authorities must collectively work together to make appropriate decisions about offenders and the level of risk they may pose. In 2001, the Criminal Justice and Court Services Act 67 changed the way sexual and violent offenders were managed in the community by introducing MultiAgency Public Protection Arrangements (hereafter MAPPA), which has since been strengthened by the Criminal Justice Act 2003.68 The prison, probation and police services have a legal obligation to share information and work in conjunction to assess and manage the risk posed by dangerous, violent and sexual offenders, in order to protect the public from serious harm.69 There are three levels at which offenders are managed. The first being ordinary agency management, whereby one agency will manage the offender; the second provides multi-agency management and the third is also multi-agency but often involves senior staff and additional resources due to the higher level of the offender’s risk.70 Offenders who are eligible for MAPPA will be assessed in terms of their risk posed to society and are placed into one of the following three broad categories. Category 1: includes RSO’s convicted of a specified violent offence and to whom the notification requirements apply. Category 2: includes violent offenders convicted

of a specified violent offence and sentenced to imprisonment for 12 months or more. Finally, category 3: includes other dangerous offenders who have been assessed as posing a serious risk of harm.71 When an offender is placed into a risk category, risk management plans are then set out to establish what risks there are and what action needs to be taken to minimise such risks. Some measures to be considered are suitable accommodation, placing controls on offenders through licence conditions, intensive supervision and ensuring that the offender attends programmes.72 It is difficult to determine whether or not MAPPA has been successful in protecting the public from sex offenders. However, research has shown that offenders who are referred to MAPPA are demonstrating lower rates of re-offending. For example, in 2016/17 there were 76,794 sexual and violent offenders that were referred to MAPPA in which only two-hundred category 1 offenders, sixteen category 2 offenders and one category 3 offender continued to commit further serious offences.73 2.2 Sentencing The Criminal Justice Act 2003 (as amended by the Criminal Justice and Immigration Act 2008 hereafter CJIA) introduced more punitive sentences to protect the public from violent and dangerous sex offenders. Indeterminate public protection sentences (hereafter IPP sentences) were introduced under this act.74 This means offenders would not be released from serving their prison sentence until their level of risk is said to be manageable in the community and they would be on licence for a minimum of ten years until the parole board agrees their licence may be removed.75 IPP’s for sex offenders have been criticised as being unconstitutional as they undermined the rights and dignity of the offender and provided an opportunity of failure for rehabilitation.76 Further criticisms of IPP sentences were that they were increasing the prison population’s which led to overcrowding. This resulted in a lack in the provision of accredited offending behaviour programmes which made it more difficult

Sexual Offences Act 2003, s.97-103

Ibid

ome Office, Guidance on Part 2 of the Sexual Offences Act 2003 (2016) H at 54

Ministry of Justice, MAPPA Guidance 2012 Version 4.2 (2017) at 61

Ministry of Justice Statistics Bulletin, Multi-Agency Public Protection Arrangements Annual Report 2016/17 (2017) at 5

ome Office, Review of the Protection of Children from Sex Offenders H (2007) at 20

The Criminal Justice and Court Services Act 2000

Criminal Justice Act 2003, s.225

The Criminal Justice Act 2003, hereafter CJA

Home Office, Review of the Protection of Children from Sex Offenders (2007) at 8

Home Office, Review of the Protection of Children from Sex Offenders (2007) at 15

Ministry of Justice Statistics Bulletin, Multi-Agency Public Protection Arrangements Annual Report 2016/17 (2017) at 2

Bernadette Rainey, ‘Human Rights and Sexual Offenders’ in Karen Harrison and Bernadette Rainey (eds) The Wiley Blackwell Handbook of Legal and Ethical Aspects of Sex Offender Treatment and Management, (Wiley Blackwell 2013) at 23

2. Legislative Background and the Introduction of ‘Sarah’s Law’

to see a reduction in the harmful risk of offenders.77 Eventually IPP sentences were replaced by extended sentences,78 meaning offenders now serve their usual term in prison but will also have an extended licence period of up to eight years. 2.3 The Abduction and Murder of Sarah Payne In modern society the sexual abuse of children generates a significant amount of social anxiety. When society becomes aware of threats to their children they often respond emotively, thus taking the law into their own hands to feel more confident and in control of situations.79 More so now than ever we have become increasingly aware of the risk and prevalence of child sexual abuse which has led to a number of ‘moral panics’80 in regard to child related issues. It is difficult to determine the precise origins of the “paedophile panic,” but the abduction and murder of Sarah Payne was a landmark case that sparked national concern. Sarah Payne was an eight-year-old girl who disappeared whilst playing near her grandparent’s home on the 1st of July 2000. Investigations into Sarah’s murder revealed that she was abducted, sexually assaulted and then murdered by Roy Whiting, who was subsequently convicted to a life sentence on the 12th of December 2001.81 Soon after Sarah’s murder it became public knowledge that Whiting had previous sex offence convictions, most notably against another eightyear-old girl five years prior to Sarah’s disappearance. Whiting pleaded guilty for his previous offences and only served two and a half years of his prison sentence for cooperating, despite his psychiatrist describing him as someone who was likely to reoffend when he was released.82 The reporting of this case evoked a strong public reaction and national debate which was centred on the controversial national campaign led by News of the World. The newspaper launched its name and shame campaign “For Sarah” and began to publish photographs and the whereabouts of convicted sex

Karen Harrison, ‘Dangerous offenders, indeterminate sentencing, and the rehabilitation revolution’ (2010) Journal of Social Welfare and Family Law at 429

Legal Aid, Sentencing and Punishment of Offenders Act 2012, s.124

Kieran McCartan, ‘Current understandings of Paedophilia and the Resulting Crisis in Modern Society’ (2008) Psychological Sexual Dysfunctions at 27

Stanley Cohen, Folk Devils and Moral Panics (3rd edn, Routledge 2002) at 19

Chris Baldwin, ‘The Vetting Epidemic in England and Wales’ (2017) Journal of Criminal Law at 440

Jeff Edwards, ‘Crimes That Shook Britain: The Murder of Sarah Payne’ Daily Mirror (10 May 2012) <http://www.mirror.co.uk/news/uk-news/the-murderof-sarah-payne---crimes-826938> Accessed 15 January 2018

Kieran McCartan, ‘Current understandings of Paedophilia and the Resulting Crisis in Modern Society’ (2008) Psychological Sexual Dysfunctions at 26

offenders believed to be throughout the UK. The purpose of this campaign was to bring to light the most dangerous paedophiles and child sex abusers in order for parents to appropriately protect their children from sexual abuse.83 This led to a spate of vigilante attacks on named offenders causing one man to commit suicide.84 Many other attacks were of mistaken identities on innocent people, most notably a paediatrician who was forced out of her own home after she was wrongly identified as being a paedophile.85 It must be recognised that the manner in attempting to remove, exclude and continue to punish these offenders has occurred in a way that finds no matching hostility for any other offending group. Eventually, political pressure forced the newspaper to abandon its campaign and the vigilantism subsequently declined. The intense media coverage of this case led society to believe that there were still significant flaws in the current legislation. The outpour of emotion and anxiety that accompanied this case encouraged the Government to further address the monitoring and management of convicted sex offenders in the community, particularly those who offend against children. 2.4 The Child Sex Offender Disclosure Scheme Initially, the government were extremely reluctant to enforce the Child Sex Offender Disclosure Scheme, which is often referred to as ‘Sarah’s Law’ as it was described as “unworkable”.86 A Home Office investigation examined the operation of ‘Megan’s Law’ in the United States, a system that notifies members of the community if a known sex offender lives in their area. The investigation concluded that if a similar scheme was introduced in England and Wales then it would encourage further vigilante activity and run the risk of forcing offenders underground, making it more difficult for authorities to monitor them.87 Around 90% of sexually abused children have been abused by someone they know,88 be it a family member, neighbour or family friend. The Government

Iain McDonald, ‘Current Developments’ (2001) Journal of Social Welfare & Family Law at 103

Rebecca Allison, ‘Doctor Driven out of Home by Vigilantes’ the Guardian (29 August 2000) <https://www.theguardian.com/uk/2000/aug/30/ childprotection.society> Accessed 10 January 2018

BBC News, ‘Sarah’s Law “unworkable”’, BBC News (13 December 2001) <http://news.bbc.co.uk/1/hi/england/1707659.stm> Accessed 11 January 2018

John Carvel, ‘Megan’s Law won’t work, Reid warned’, the Guardian (22 June 2006) <https://www.theguardian.com/politics/2006/jun/22/children. ukcrime> Accessed 14 January 2018

Lorraine Radford et al, Child Abuse and Neglect in the UK Today (NSPCC 2011) at 120

2. Legislative Background and the Introduction of ‘Sarah’s Law’

recognised this and did not want to detract from it89 and therefore introduced a pilot scheme where any person can formally ask the police if a named individual with access to a child has a record for sexual offences. Where this individual does have convictions for child sex offences and is considered a risk, there will be a presumption that this information will be disclosed to the relevant member of the public who can best protect the child.90 It must be understood however, that if this confidentially is breached by the person given the disclosure then legal action may be taken against them.91 The principle aim of ‘Sarah’s Law’ is to provide parents, guardians and carers with information, when necessary, that will allow them to better safeguard their children’s safety and welfare.92 In 2008 a twelve-month pilot of ‘Sarah’s Law’ was introduced into four police forces across the country. The volume of enquiries during the pilot were lower than anticipated with each force receiving around twelve enquiries a month, of which 7 proceeded resulting in 1 disclosure per month.93 After a year of the ‘Sarah’s Law’ pilot, De Montfort University94 carried out an independent evaluation assessing its effectiveness. Overall, the majority of applicants interviewed from the pilot were very satisfied with the scheme; understanding the restrictions, the confidentially and how it contributed to the protection of children.95 However, anxiety sometimes remained following applications and this highlighted the need for follow up support regardless of whether a disclosure was made or not. In terms of police and offender management professionals that were interviewed, it was found that the scheme provided greater clarity and enhanced child protection through tightening procedures and being explicit about what the public may expect.96 Furthermore, out of the small number of RSO’s interviewed, most initially expressed anxiety about negative reactions from communities but this later decreased as the pilot progressed. There were no changes in behaviour from the RSO’s interviewed and practitioners saw no changes in registration compliance and supervision.97

John Carvel, ‘Megan’s Law won’t work, Reid warned’, the Guardian (22 June 2006) <https://www.theguardian.com/politics/2006/jun/22/children. ukcrime> Accessed 14 January 2018

Home Office, Review of the Protection of Children from Sex Offenders (2007) at 11

NSPCC, Child Sex Offender Disclosure Scheme: An information service factsheet (2015)

Further research demonstrates that professions believe that if ‘Sarah’s Law’ is used effectively, it does enable individuals to better protect children by being more aware of RSO’s.98 The two-way disclosure can also prevent re-offending by raising awareness of a named individual to the police. However, there are concerns from professionals that the public does not have enough understanding about the scheme,99 which may be evidenced through the poor take up during the pilot and the following years after the rollout.100 It is important to note that ‘Sarah’s Law’ was built on existing procedures for public disclosure but was implemented to provide a clear access route for members of the public to raise child protection concerns.101 2.5 The Legal framework of Public Disclosure When a request for a disclosure is made then it is the MAPPA authorities’ duty to decide whether or not it is appropriate to give the disclosure if a child may be at risk. The disclosure process is focused on risk management, therefore previous convictions, cautions, reprimands and warnings of child sex offences will all be taken into consideration. Section 140 of the CJIA102 provides MAPPA authorities with statutory guidance that sets a test of whether or not information should be disclosed to members of the public. For a disclosure to be granted authorities must be satisfied that there is a) a serious risk of harm posed by the offender in question and b) that the disclosure will be necessary in preventing future harm. There is also guidance for professionals to follow under common law. The case of R v Thorpe103 set a threeframework test allowing information to be disclosed if all of the following criteria are met; 1) the disclosure is limited, 2) there is a pressing need to do so, 3) for the purposes of preventing crime. In this case the two convicted sex offenders were considered to be of a high risk to children and therefore the disclosure given to the owners of the family caravan park where these offenders intended to stay was justified. This

Ibid at 18

Kieran McCartan, James Hoggett and Jack O’Sullivan, ‘Police officer attitudes to the practicalities of the sex offenders register, ViSOR and Child Sexual Abuse Disclosure Scheme in England and Wales’, (2018) Journal of Sexual Aggression at 47

Ibid

100

Home Office, Child Sex Offender Disclosure Scheme Guidance Document (2010) at 1

ome Office, Child Sex Offender Disclosure Scheme Guidance Document H (2010) at 1

101

Ibid

Ibid at 3

102

azel Kemshall and Jason Wood, Child Sex Offender Review Public H Disclosure Pilots: a process evaluation (Home Office Research Report 32, 2010)

The Criminal Justice and Immigration Act 2008, s.140 (amending the Criminal Justice Act 2003 s.327A and 327B)

103

R v Chief Constable of the North Wales Police, ex parte Thorpe and another [1998] QB 396

Ibid at 14

Ibid at 15

2. Legislative Background and the Introduction of ‘Sarah’s Law’

case also highlighted the need to provide appropriate accommodation to RSO’s in order to ensure that their whereabouts are kept under control by the relevant agencies so that the risk of future re-offending is reduced. 2.6 Conclusion It is argued that England and Wales now have one of the most stringent systems for the governance of sexual offending within Western Europe.104 The majority of legislation and policies within England and Wales have shifted to focus primarily on public protection and punitive sentencing as a basis for risk management. By exploring the legislative background for sexual offences within England and Wales we learn that the treatment of sex offenders has become more and more punitive over time by developing and enforcing more restrictive policies.105 This has often been prompted by ‘populist punitiveness,’106 whereby public anxieties and emotions about the perceived risks posed by sex offenders drives legislation to be implemented. Despite its criticisms, it is argued that the system in England and Wales has moved from a system with no formalised arrangements for managing sex offenders after their release from prison, to a system that is regarded as one of the most effective in the world.107 It is difficult to determine whether or not ‘Sarah’s Law’ is more effectively protecting children from sex offences, since it has not long been enforced. The scheme has had a relatively low take-up since its implementation which suggests that the public needs greater information about the scheme and how it can better protect children. With more information given to the public it is possible more disclosures will be applied for, which in turn will protect more children and draw the police’s attention to dangerous offenders.

104

Anne-Marie McAlinden, ‘The Governance of sexual offending across Europe: Penal policies, political economies and the institutionalization of risk’ (2012) Punishment and Society 166

105

Ibid at 167

106

Tim Newburn and Trevor Jones, ‘Policy Convergence, Politics and Comparative Penal Reform: Sex offender notification schemes in the USA and UK’ (2013) Punishment and Society at 440

107

Home Office, Review of the Protection of Children from Sex Offenders (2007) at 8

2. Legislative Background and the Introduction of ‘Sarah’s Law’

3. A Comparative Analysis of the Public Disclosure in England and Wales with the United States 3.1 L egislative Background within the United States A series of high profile sex crimes against children108 in the United States (hereafter U.S) resulted in the implementation of a number of key pieces of federal legislation during the 1990’s. Although some individual States109 had already mandated some form of registration and community notification, the first piece of federal legislation was established following the abduction of 11-year-old Jacob Wetterling. This resulted in the enforcement of the Jacob Wetterling Act 110 1994 under the Violent Crime Control Act.111 The Jacob Wetterling Act introduced sex offender registration. Every state was required to maintain a register with its own discretion to organise information of offenders independently within the federal guidelines.112 Registration requirements applied to offenders who committed offences against children or a sexually violent offence, and these offenders had to confirm their name and place of residence annually for ten years after their release from prison.113 This legislation also established a more dangerous class of offenders, ‘Sexually Violent Predators,’ who had to register with their state every 90 days for an indefinite lifetime period. Information on the register was kept only for the purposes of law enforcement, however, agencies were entitled to release information when it was necessary to protect the public. The second key piece of legislation followed the murder of seven-year-old Megan Kanka who was sexually abused and murdered by her next-door neighbour.114 Megan’s family were unaware that their neighbour Jesse Timmendequas was a convicted sex offender with a history of violent assaults against children and they

108

J acob Wetterling; Megan Kanka; Adam Walsh; Jessica Lunsford

109

C alifornia; Minnesota; Washington; New Jersey

110

J acob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act of 1994 H.R. 324, hereafter Jacob Wetterling Act

111

V iolent Crime Control and Law Enforcement Act of 1994 H.R. 3355

112

argued that if they had access to such information then they could have taken steps to protect their daughter, but did not suggest how.115 Following Megan’s murder the public demanded more information regarding the identity and whereabouts of known sex offenders. Later the same year ‘Megan’s Law’ was introduced in the state of New Jersey,116 where information was given to the public if an offender posed a serious threat.117 Federal ‘Megan’s Law’118 was later enacted in 1996 as an amendment to the Wetterling Act. Legislators declared that the danger of recidivism of child sex offenders required a better system and therefore allowed public access to registration information. Following ‘Megan’s Law,’ there were various other pieces of legislation119 that made amendments to the Wetterling Act. Most notably the PROTECT Act 120 which required all States to maintain an online website that could be accessed by the public, containing the registry information of convicted sex offenders. The PROTECT Act was enforced to prevent child abduction and sexual exploitation by strengthening law enforcements ability to investigate and prosecute violent crimes against children and by allowing parents to safeguard their children.121 Despite the efforts of these laws, many RSO’s still failed to comply with the registration and community notification requirements.122 Therefore, the Wetterling Act was repealed and replaced by the Adam Walsh Act 2006 (hereafter AWA),123 which rewrote the federal standards for sex offender registration and community notification. This change to the legislation introduced risk categories of offenders through the Sex Offender Registration and Notification Act (hereafter SORNA), which enhanced the enforcement of state registration and notification policies.124 SORNA

Comparative Penal Reform: Sex offender notification schemes in the USA and UK’ (2013) Punishment and Society at 445 118

M egan’s Law of 1996 H.R. 2137 amending section 170101(d) Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14071(d))

119

T erry Thomas, ‘Sex Offender Community Notification: Experiences from America’ (2003) The Howard Journal at 219

P am Lynchner Sexual Offender Trafficking and Identification Act of 1996 s.1675; Protection of Children Against Sexual Predators Act of 1998 H.R. 3494

120

113

J acob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act of 1994

P rosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 s.151

121

R ose Corrigan, ‘Making meaning of Megan’s Law’ (2006) Law and Social Inquiry at 267

Ibid

114

122

B onnie Fisher, ‘Megan’s Law’ Encyclopaedia of Victimology and Crime Prevention (Sage, 2010) <http://dx.doi.org.ezproxy.uwe. ac.uk/10.4135/9781412979993.n180>

L eslie Hagen, Consultation: Adam Walsh Child Protection and Safety Act of 2006 (U.S. Department of Justice 2006) at 1

115

116

N ew Jersey was the State in which Megan was abducted

117

T im Newburn and Trevor Jones, ‘Policy Convergence, Politics and

123

A dam Walsh Child Protection and Safety Act of 2006 H.R. 4472

124

T im Newburn and Trevor Jones, ‘Policy Convergence, Politics and Comparative Penal Reform: Sex offender notification schemes in the USA and UK’ (2013) Punishment and Society at 445

3. A Comparative Analysis of the Public Disclosure in England and Wales with the United States

distinguished between tier 1 (low risk), tier 2 (medium risk) and tier 3 (high risk) offenders based on the type and number of sex offence convictions, which determined the duration of registration time and the type of community notification an offender is subject to. Registration and notification in the U.S were originally enforced as two distinct policies with two different purposes. However, since the introduction of internet access to information about sex offenders, they have become somewhat interchangeable.125 All States have now enacted sex offender registration and community notification laws. Nevertheless, each individual State has the ability to develop and enforce their own procedures regarding the release of such information which has resulted in different variations of how legislation is enforced State by State.126 3.2 ‘Megan’s Law’ vs. ‘Sarah’s Law’: A Comparative Analysis Owing to the complexity and variety of sex offender registration and community notification laws that reside within the U.S, the next part of this chapter aims to make a direct comparison between State of New Jersey and England and Wales. 3.2.1 Sex Offender ‘Registers’ The registration of convicted sex offenders is a policy that focuses on the interests of better public protection. The U.S set the template for sex offender registers internationally, with England and Wales and many other Countries such as Canada and Australia following more cautiously.127 The viability and efficacy of registers have been questioned within each jurisdiction and there have been a number of legal and ethical challenges raised as each register has become more sophisticated throughout the years.

125

J ill Levenson, David D’Amora and Andrea Hern, ‘Megan’s Law and its impact on Community Re-Entry for Sex Offenders’ (2007) Behavioral Sciences and the Law at 588

126

E lizabeth Lovell, Megan’s Law: Does it protect children? (NSPCC, 2001) at 1

127

M ichael Petrunik and Linda Deutschmann, ‘The Exclusion-Inclusion Spectrum in State and Community Response to Sex Offenders in AngloAmerican and European Jurisdictions’ (2008) International Journal of Offender Therapy and Comparative Criminology at 500

128

129

T im Newburn and Trevor Jones, ‘Policy Convergence, Politics and Comparative Penal Reform: Sex offender notification schemes in the USA and UK’ (2013) Punishment and Society at 357 S exual Offences Act 2003 Chapter 42; Attorney General Guidelines for Law Enforcement for the Implementation of Sex Offender Registration and Community Notification Laws (1998 rev. 2007)

130

J ohn La Fond, Preventing Sexual Violence: How Society Should Cope with Sex Offenders (American Psychological Association 2005) at 88

131

J enny Cann et al, ‘Sexual Offenders Discharged from Prison in England and

Registration is based on the belief that sex offenders are inevitably going to re-offend and become persistent serial offenders.128 Therefore, both jurisdictions claim that the purpose of their registers are to better protect the public from sex offenders by keeping track of their whereabouts and for investigative purposes.129 Both registers also further assume that registration would act as a deterrent by preventing RSO’s from committing further crimes if the police knew of them.130 Despite these claims, in practice it is found that many sex offenders who have already been apprehended do not carry out a huge amount of re-offending. Statistics show that in England and Wales, sex offenders have been re-convicted less frequently than most other offenders.131 Similarly, in the U.S it was found that sex offence recidivism rates are much lower than commonly believed.132 This may show that registers are somewhat flawed from the outset as although some sex offenders might re-offend, many will not. However, many of these crimes do go un-reported so this does not reflect the true amount of re-offences that may be committed and are therefore unknown. Following the enactment of the AWA 2006 in the U.S, SORNA distinguishes between 3 tiers of offender 1 (low risk), 2 (moderate risk) and 3 (high risk). This categorisation determined time periods for registration from fifteen years (tier 1), to twenty-five years (tier 2) and indefinite lifetime registration (tier 3). As discussed in chapter 2,133 the minimum time an offender may be subject to register in England and Wales is 5 years134 which is lower than the U.S but the maximum period is also indefinite. However, following the decision in R and Thompson135 offenders who have received an indefinite period in England and Wales may apply to come off the register after 15 years of registration. Failure to comply with registration requirements will result in a new offence of incarceration in both jurisdictions.136 In New Jersey, offences137 that require registration cover any sex offence in that State with all attempts to do so and are similar to the offences set in England and Wales.138

Wales: A 21-year Reconviction Study’ (2004) Legal and Criminal Psychology at 5; Anne-Marie McAlinden, The Shaming of Sexual Offenders (Hart Publishing 2006) at 80 132

A ssociation for the Treatment of Sexual Abusers, ‘Eight things Everyone should know about Sexual Abuse & Sexual Offending’ (2014) <www.atsa. com/pdfs/Policy/8ThingsEveryoneShouldKnow.pdf> accessed 1 March 2018

133

S ee page 16

134

S exual Offences Act 2003 Part 2, s.82

135

(on the application of F (by his litigation friend F)) and Thompson (FC) v R Secretary of State for the Home Department [2010] UKSC 17

136

S exual Offences Act 2003, Part 2 s.91 (2); Megan’s Law 1994 N.J.S.A. 2C:7-2

137

M egan’s Law 1994 N.J.S.A. 2C:7-2

138

S exual Offences Act 2003, Schedule 3

3. A Comparative Analysis of the Public Disclosure in England and Wales with the United States

Another similarity is the information that offenders need to provide to law enforcement,139 such as DNA samples, fingerprints, photographs, addresses and so forth. 3.2.2 Community Notification Although the sex offender registers in the U.S and England and Wales are similar, the way this information is shared with the public is very different. Information in New Jersey is publically available via community notification, however the information released is based on the SORNA tier levels of risk. Tier determination is decided through the Registrant Risk Assessment Scale (hereafter RRAS) which considers factors that help determine an offender into a tier via a points system ranging from 0-111. These factors consist of the type of offence, age of victim, amount of violence or contact, previous criminal history or offences and the existence of ties to the community i.e. residence, place of work or sites regularly visited.140 Tier 1 (low risk of re-offence) are offenders who received 0-36 points on the RRAS. These offenders’ registration information is not made public, but information can be shared with law enforcement, victims, witnesses and other individuals who legislators believe it may be relevant to.141 Tier 2 (moderate risk of re-offence) are offenders who received 37-73 points on the RRAS. Tier 2 offenders registration information is further shared with schools, child care centres and other organisations where children are concerned, and these offenders also appear on New Jerseys publicly accessible online internet registry.142 Finally tier 3 (high risk of re-offence) are offenders who received 74 or higher on the RRAS. Tier 3 offenders registration information is further distributed to members of the public through doorknock-service, community meetings or via leaflets and flyers that are distributed to neighbourhoods.143 This use of categorisation is not individualised and therefore it is not possible to credibly determine whether an

139

140

141

S exual Offences Act 2003, Part 2, s.83(5); N.J.S.A 2C:13-1, 2C:24-4, 2C:13-1 through 3, 2C:14-3b

Attorney General Guidelines for Law Enforcement for the Implementation of Sex Offender Registration and Community Notification Laws (1998 rev. 2007) at 13 K risten Zgoba et al, ‘The Adam Walsh Act: An Examination of Sex Offender Risk Classification Systems’ (2016) Sexual Abuse: A Journal of Research and Treatment at 724

142

Ibid

143

T im Newburn and Trevor Jones, ‘Policy Convergence, Politics and Comparative Penal Reform: Sex offender notification schemes in the USA and UK’ (2013) Punishment and Society at 446

144

J ohn La Fond, Preventing Sexual Violence: How Society Should Cope with Sex Offenders (American Psychological Association 2005) at 111

145

E lizabeth Lovell, Megan’s Law: Does it Protect Children (NSPCC 2001) at 35

accurate and objective tier of dangerousness has been placed on an offender or not.144 By contrast England and Wales do not allow any general public access to the sex offender register or any overt form of community notification similar to the U.S, as there was very little evidence to substantiate claims that these methods enhance child safety.145 What England and Wales do allow is a limited system of ‘discretionary disclosure’ carried out by law enforcement. As discussed in chapter 2,146 this allows any member of the public to apply to the police for information on a named individual and the police may give the information if they believe it will prevent a crime against a child.147 In every individual case that comes before the authorities, they must decide if the offender presents a serious risk of harm based on previous convictions and therefore there must be evidence demonstrating a child may be at risk. It is important to note that the public notification under ‘Sarah’s Law’ is subject to a relatively stringent set of checks148 and authorities have been criticised of not often acting on the information through not providing enough disclosures.149 Both of these factors may explain why the take-up of this scheme has been more limited than expected. It is argued that the style and substance of penal policy within England and Wales and the U.S have become increasingly similar in recent years with an emergence of a ‘culture of control.’150 As explored previously, both jurisdictions have developed numerous legal policies and special provisions for sex offenders, especially aimed at risk management for offenders on release from custody. Although England and Wales have adopted an approach that is more punitive than other Western European countries, it remains extremely less extensive and punitive than the policies that have been enforced within the U.S. Generally speaking, the U.S has developed an expansive set of policies that cover larger populations of sex offenders while England and Wales

146

S ee page 22

147

N SPCC, Child Sex Offender Disclosure Scheme: An information service factsheet (2015)

148

T im Newburn and Trevor Jones, ‘Policy Convergence, Politics and Comparative Penal Reform: Sex offender notification schemes in the USA and UK’ (2013) Punishment and Society at 455

149

T erry Thomas, ‘Sex Offender Registration in the United States and the United Kingdom’ in Karen Harrison and Bernadette Rainey (eds) The Wiley Blackwell Handbook of Legal and Ethical Aspects of Sex Offender Treatment and Management, (Wiley Blackwell 2013) at 368

150

D avid Garland, The Culture of Control: Crime and Social Order in Contemporary Society. (Oxford University Press 2001) at 167

3. A Comparative Analysis of the Public Disclosure in England and Wales with the United States

have developed their policies in a more individualised approach.151 Zimring152 linked the persistence of capital punishment in the U.S to a tradition of criminal justice punitiveness and vigilantism throughout many of their policies and communities, which is reflected in their notification system. There is a belief that in the U.S, community notification and registration information via the internet can be problematic as it can stigmatise offenders leaving many of them isolated. It is argued that a key indicator of success for public disclosure in any jurisdiction is the responses of the offender, for example a successful scheme would engage these offenders.153 However, an unsuccessful scheme would isolate and exclude the offender which may contribute to them re-offending without authorities knowing where they are.154 It is claimed that registration and community notification are not aimed to be another form of punishment for sex offenders. However, in the U.S the active dissemination of information shows that the community’s protection is in effect further punishment for sex offenders.155 3.2.3 Residency Restrictions In England and Wales, there is no specific legislation that restricts the residence of RSO’s. However, as aforementioned in Chapter 2,156 there are civil orders that were implemented under Part 2 of the SOA 2003. SOPO’s are intended to protect the public from sexually violent offenders by restricting their behaviour, thus if an individual is given a SOPO it can prevent them from being near certain areas or working in certain places. Therefore, restrictions are limited within England and Wales. Orders are only implemented when there is a serious risk of harm posed by an offender as they require high levels of police resources157 and may interfere with an offender’s right to privacy.158 Until recently RSO’s in New Jersey were not permitted to live within 2,500 feet of any school, park, playground

151

152

R oxanne Lieb, Hazel Kemshall and Terry Thomas. ‘Post-release Controls for Sex Offenders in the U.S and UK’ (2011) International Journal of Law and Psychiatry at 226 F ranklin Zimring, Contradictions of American Capital Punishment (Oxford University Press 2003)

153

B rian Stout, ‘Building Stakeholder Support for a Sex Offender Public Disclosure Scheme: Learning from the English Pilots’ (2011) Howard Journal of Criminal Justice at 413

154

Ibid

155

H azel Kemshall, Understanding the Community Management of High Risk Sex Offenders (Open University Press 2008) at 21

156

S ee page 16

157

H ome Office, Guidance on Part 2 of the Sexual Offences Act (2016) at 40

158

E uropean Convention on Human Rights, Article 8

or day-care centre or else they would risk receiving a fine, re-imprisonment or community service.159 This changed when New Jersey’s Superior court160 concluded that such restrictions were unconstitutional as they conflicted with the purpose of ‘Megan’s Law.’ The restrictions made many offenders homeless, making them harder to monitor, which also made access to rehabilitation services harder.161 These restrictions were therefore removed in New Jersey, but however are still being used in other States. 3.3 Privacy Rights and Constitutional Challenges Both the U.S and England and Wales have different values of privacy for sex offenders and this is reflected in each notification system. Sex offender legislation within England and Wales has greater value for the privacy of offenders as it needs to be compatible with Article 8.162 However, the offenders right to privacy is not absolute and therefore must be weighed against the interests of public protection. The judgement of R v Thorpe163 set the precedent to allow a limited disclosure of information to be released to specific individuals if there is a pressing need to do so for the purposes of preventing future harm. If there is no evidence of a risk of future harm or future offending, then the release of an offenders’ information will breach their right to privacy as per the case of A v B.164 By contrast, in the U.S the right to privacy has not been extended to sex offenders. The landmark case that challenged privacy rights was Doe v Poritz 165, in which the Supreme Court held that registration and community notification laws did not infringe on a sex offender’s rights to privacy. The court determined that an offender does have rights to privacy in regard to his residence.166 However, the State’s interest in protecting the public outweighed any infringement of rights and therefore such laws do not violate sex offenders equal protection rights.167 Thereafter, the Federal court further refined the decision in response to the appeals in E.B. v Verniero it was determined that a sex

159

G.H. v. Twp. Of Galloway 401 N.J. Super. 392 (2008)

160

Ibid

161

Ibid

162

E uropean Convention on Human Rights, Article 8

163

R v Chief Constable of the North Wales Police, ex parte Thorpe and another [1998] QB 396

164

A , R (on the application of) v B [2010] EWHC 2361

165

D oe v. Poritz, 142 N.J. 1 (1995)

166

K imberley Wilkins, ‘Sex Offender Registration and Community Notification Laws: Will These Laws Survive’ (2003) University of Richmond Law Review at 1254

167

Doe v. Poritz, 142 N.J. 1 (1995)

3. A Comparative Analysis of the Public Disclosure in England and Wales with the United States

offenders privacy rights are not violated, again despite the requirement of disclosing his home address.168 This demonstrates that in the U.S, public disclosure laws outweigh any privacy rights of RSO’s and these offenders are automatically forfeiting their rights to privacy when they commit a sex crime against a child. 3.4 Braithwaite’s Reintegrative Shaming Theory John Braithwaite distinguishes between reintegrative and disintegrative shaming. He believes that shaming is utilised by society and the criminal justice system as a form of social control.169 Reintegrative shaming occurs temporarily when an offender is being punished for their act but are welcomed back into society when their punishment is complete i.e. when their sentence is served.170 This form of shaming allows an offender to become a fully contributing member of society once again. By contrast, disintegrative shaming occurs when an offender is stigmatised and rejected from society even after completion of their initial punishment.171 According to Braithwaite, this treatment creates individuals who become habitual in a criminal lifestyle and therefore reinforces their deviant ‘label.’172 Furthermore, disintegrative shaming is considered to be detrimental to an offender’s self-esteem.173 Legal measures for managing and monitoring convicted sex offenders are heavily premised on public protection and levels of risk management. Public community notification can create a lifelong stigma on an offender which subsequently exposes them to risk of personal harm.174 As previously mentioned, the public notification system within the State of New Jersey (and the U.S in general) takes a more punitive approach compared to the system within England and Wales. A positive aspect of the notification system within England and Wales is that it considers the importance of public safety at the same time as acknowledging

168

E.B. v Verniero, 119 F.3d 1077 (3d Cir, 1997)

169

J ohn Braithwaite, Crime, Shame and Reintegration (Cambridge University Press 1989)

170

M onica Robbers, ‘Lifers on the Outside: Sex offenders and Disintegrative Shaming’ (2009) International Journal of Offender Therapy and Comparative Criminology at 7

171

Ibid

172

the rights of RSO’s. ‘Sarah’s Law’ enables individuals the access to relevant information if an offender is considered to be a serious risk, in order to protect themselves or their child.175 Furthermore, this scheme also aids the reintegration of offenders back into society by allowing them to remain anonymous as a RSO from the public. This can be argued not to have a detrimental effect on public safety because legal authorities have access to such information176 and are able to monitor offenders through MAPPA. England and Wales does however shame offenders who are noncompliant with registration and notification requirements by placing them on the “Most Wanted” website.177 Research that has been conducted on the desistance of sexual offending demonstrates that the key movement away from offending consists of a lifestyle with stable employment and relationships and also changes to an offenders self-identity,178 which is allowed through community reintegration. The public dissemination of information in the U.S through community notification can be seen to be a further form of punishment for offenders by stigmatising them, not allowing them to obtain housing or hold a job.179 Furthermore, it can cause members of the community to inflict their own sanctions such as vigilantism and ending social and personal relationships.180 The U.S Supreme Court181 acknowledged that shame can have a detrimental effect on offenders but concluded that the purpose of community notification was to improve public safety and not to shame or further punish sex offenders. Therefore, public safety outweighs offender humiliation and does not violate the ex post facto clause.182 A study in New Jersey examined the correlation of depression and hopelessness in sex offenders who are subject to community notification. The study found that offenders who experienced higher levels

176

K ate Hynes, ‘The Cost of Fear: An Analysis of Sex Offender Registration, Community Notification, and Civil Commitment Laws in the United States and the United Kingdom’ (2013) Penn State Journal of Law & International Affairs at 362

177

U K & Ireland Database, ‘Wanted for Child Sex Offences’ <www. theukdatabase.com/most-wanted> accessed 2 March 2018

178

J ohn Braithwaite, Crime, Shame and Reintegration (Cambridge University Press 1989) at 103

M ichiel Robbe et al, ‘An Exploration of Protective Factors Supporting Desistence from Sexual Offending’ (2014) Sexual Abuse: Journal of Research and Treatment at 30

179

173

R ebecca Katz, ‘Re-examining the integrative social capital theory of crime’ (2002) Western Criminology Review at 32

J ohn La Fond, Preventing Sexual Violence: How Society Should Cope with Sex Offenders (American Psychological Association 2005) at 88

180

174

A nne-Marie McAlinden, ‘Reintegrative and Disintegrative Shaming’ in Karen Harrison and Bernadette Rainey (eds) The Wiley Blackwell Handbook of Legal and Ethical Aspects of Sex Offender Treatment and Management, (Wiley Blackwell 2013) at 114

K ate Blacker and Lissa Griffin, ‘Megan’s Law and Sarah’s Law: A Comparative Study of Sex Offender Community Notification Schemes in the United States and the United Kingdom’ (2010) Criminal Law Bulletin at 1005

181

H ome Office, Child Sex Offender Disclosure Scheme Guidance Document (2010) at 1

Smith v. Doe, 538 U.S. 84 (2003)

175

182

Ibid

3. A Comparative Analysis of the Public Disclosure in England and Wales with the United States

of notification (tier 3 offenders) demonstrated more elevated levels of depression and hopelessness.183 This is evidence that one of the key tenants for rehabilitation of these offenders is appropriate reintegration and without this such offenders are at greater risk of reoffending.184 3.5 Conclusion ‘Megan’s Law’ had been in existence for over a decade before England and Wales introduced ‘Sarah’s Law’ giving them the opportunity to see how effective the public disclosure system was before implementing their own. A review conducted by the NSPCC185 concluded that there was very little evidence to suggest that community notification in the U.S enhances the safety of children. While the review did agree that the system was effective in tracking and monitoring sex offenders who comply with the requirements, it noted that the open access had the ability to push many offenders underground.186 Furthermore, England and Wales also relied on pilot projects that tested the feasibility and effectiveness before adopting their policy approach,187 whereas most policies in the U.S were enforced with no pilot testing.

offenders beyond their required sentence, thus creating many interpersonal problems by destabilising them and leaving them at greater risk of re-offending. Despite the enforcement of these two systems of public disclosure, there is little evidence that shows whether or not either make any difference in preventing sex offences at all. Nevertheless, by learning from the U.S, it is clear that there needs to be some sort of compromise between punishing offenders for their crimes at the same time as reintegrating and rehabilitating them efficiently.

Community notification laws in the U.S are designed to warn communities that a dangerous offender lives nearby by allowing people to take measures to protect themselves and their children.188 However, such laws have been criticised of being costly and ineffective subsequently causing more harm than good.189 Moreover, they have been criticised for giving communities a false sense of security as the majority of sex crimes are committed by people known to the victim, rather than strangers.190 The system is also over inclusive and includes many offenders who are not necessarily ‘dangerous’ enough to register, which distracts law enforcement from those who do pose a high risk.191 One of the main concerns however, is that community notification and online register websites in the U.S impedes offender rehabilitation by not allowing offenders to reintegrate into society. This punishes

183

E lizabeth Jeglic, Cynthia Mercado and Jill Levenson, ‘The Prevalence and Correlates of Depression and Hopelessness among Sex Offenders Subject to Community Notification and Residence Restriction Legislation’ (2012) at 54

184

Ibid

185

E lizabeth Lovell, Megan’s Law: Does it protect children? (NSPCC, 2001)

186

Ibid

187

R oxanne Lieb, Hazel Kemshall & Terry Thomas. ‘Post-release Controls for Sex Offenders in the U.S and UK’ (2011) at 226

188

J ohn La Fond, Preventing Sexual Violence: How Society Should Cope with Sex Offenders (American Psychological Association 2005) at 90

189

Ibid at 92

190

Ibid at 114

191

Ibid at 120

3. A Comparative Analysis of the Public Disclosure in England and Wales with the United States

4. Risk Management and Rehabilitation 4.1 Risk Society and the New Penology Contemporary responses to managing risks of convicted sex offenders have been largely punitive and retributive in nature and there is little evidence that demonstrates their effectiveness.192 The way sex offenders are dealt with in England and Wales today is widely attributed to the shift towards the new penology and the introduction of a risk society.193 The new penology is less concerned with responsibility, diagnosis, intervention and treatment of an individual offender. Rather it is concerned with techniques that identify, classify and manage groups of offenders and their levels of risk or dangerousness.194 In the old penology, crime was considered a result of human passion; but since the shift into the new penology, crime is now seen as a quantifiable passion that can be controlled down to a scientific risk.195 This has transformed the criminal justice approach to focus on the future possibility of risk of offending and not just the history of an offenders guilt, consequently increasing authorities intervention especially during the post-conviction stage. The concerns within a modern risk society sustain a set of moral panics that may have otherwise subsided, this transforms the nature of a moral panic.196 An offender is not just shunned as an outsider for committing their offence in a risk society, they are further labelled as someone that is likely to commit further offences based on their ‘risk’ which justifies increased monitoring and retribution.197 This subsequently leads to stigmatising these offenders and can be seen as a form of secondary punishment. The due process and protection of an offender’s rights or liberty is rarely considered in this model and therefore little consideration is given to their treatment and rehabilitation, which is integral in reducing recidivism and promoting reintegration.198 This does not mean that rehabilitation for offenders

192

A nne-Marie McAlinden, The Shaming of Sex Offenders (Hart Publishing 2007) at 215

193

Ibid at 18

194

M alcom Feeley and Jonathan Simon, ‘The New Penology: Notes on the Emerging Strategy of Corrections and its Implications’ (1992) Journal of Criminology at 452

195

B ela Walker, ‘Deciphering Risk: Sex Offender Statutes and Moral Panic in a Risk Society’ (2010) Baltimore Law Review at 209

196

Ibid at 187

197

B ela Walker, ‘Deciphering Risk: Sex Offender Statutes and Moral Panic in a Risk Society’ (2010) Baltimore Law Review at 210

198

J ames Vess, ‘Ethical Practice in Sex Offender Assessment: Consideration of Actuarial and Polygraph Methods’ (2011) Sexual Abuse: Journal of Research and Treatment at 382

has been completely eradicated, but it demonstrates that the safety of the public has become the priority. An example of risk assessment methods that are used in England and Wales is through the use of MAPPA. As aforementioned in chapter 2,199 offenders who have been released from incarceration in England and Wales are risk-assessed and placed into a category of risk in which they are managed by authorities. Risk assessment is assisted by a number of clinical and actuarial tools,200 but these methods are not 100% predictive and therefore assessment must be undertaken skilfully by practitioners. A Risk Management Plan (hereafter RMP) is the construction and intervention of a plan that addresses the risk factors of an offender in order to minimise their risk of harm. RMP’s consist of 3 interventions which are: restrictive, rehabilitative and protective interventions. Restrictive interventions are aimed at controlling the offender’s behaviour by restricting their access and ability to do things.201 These interventions include restrictive orders, disclosures to third parties, increased surveillance and electric monitoring, some of which have been mentioned previously in this dissertation as part of the punitive framework. Rehabilitative interventions focus on developing the offender’s own ability to avoid and manage risk through treatment programmes, integrative approaches and medical interventions.202 Finally, protective interventions are strength-based approaches that assume offenders want better lives and involves an encouragement of appropriate employment and voluntary work, active commitment to change and stable and intimate relationships.203 MAPPA advises that as a general principle, the human rights of an offender should not take priority over public protection.204 This was evidenced in practice from an inspection205 that revealed risk management

199

S ee page’s 18 and 19

200

O ffender Assessment System; Risk Matrix 2000; Structured Assessment of Risk; Asset

201

M inistry of Justice, MAPPA Guidance 2012 (2012) at 67

202

Ibid

203

Ibid at 68

204

M inistry of Justice, MAPPA Guidance 2012 (2012) at 66

205

H MI Probation and HMI Constabulary, Putting the Pieces Together: An Inspection of Multi-Agency Public Protection Arrangements (2011) 6

4. Risk Management and Rehabilitation

plans were very rarely given to an offender in a comprehensive way. In most cases, the inspection found that there was a significant use of restrictive interventions used such as curfews, restrictive orders and surveillance with very little use of rehabilitative and protective interventions.206 This is problematic as although restrictive interventions are necessary for public protection in the short term, they need to be balanced with rehabilitative and protective factors in order to reduce long term risks that offenders may pose. The following part of this chapter therefore aims to explore and evaluate the effectiveness of different interventions that are used currently in England and Wales and will then advance to explore the rehabilitative and protective methods that could be used more effectively in order to reintegrate offenders and reduce re-offending. 4.2 Cognitive Behavioural Programmes The Sex Offender Treatment Programme (hereafter SOTP) was established in England and Wales in 1991, it has since developed over time due to emerging research but still uses cognitive behavioural treatment at its core. The programme is used in approximately one-sixth of male prisons for individuals sentenced to twelve months or more.207 The aim of the SOTP is to reduce sexual re-offending by addressing and attempting to modify known criminogenic needs of an offender and is assessed against effective risk management, individual learning styles and targeting offender behaviour.208 This treatment requires a great deal of effort from both the provider and the receiver as it is not only designed to treat cognitive (sexual) impairment, but also teaches empathy, social skills, emotion management and anger management.209 The receiver must be engaged with the treatment and not be in denial of their offence, however it is important to note that it may not work for all offenders.210 Early research shows that sex offenders who received this treatment in both prison and community settings, have a lower re-conviction rate than those who do

206

Ibid

207

A idan Mews et al, Impact Evaluation of the Prison Based Core Sex Offender Treatment Programme (Ministry of Justice 2017) at 1

208

A viva Moster et al, ‘Cognitive Behavioural Therapy Interventions with Sex Offenders’ (2008) Correctional Health Care at 110

209

Ibid at 112

210

S arah Brown, Treating Sex Offenders (Willian Publishing 2005) at 41

211

M inistry of Justice, What Works with Sex Offenders? (2010) at 1

212

K arl Hansen et al, ‘First Report of the Collaborative Outcome Data Project on the Effectiveness of Psychological Treatment for Sex Offenders’ (2002) Sexual Abuse Research and Treatment

213

A idan Mews et al, Impact Evaluation of the Prison Based Core Sex Offender Treatment Programme (Ministry of Justice 2017) at 17

not receive the treatment.211 However, this has been criticised of being ‘modest.’ A study212 of reconviction rates from treated (12.3%) versus untreated (16.8%) sex offenders shows not much of a significant difference. More recently, a study measured re-offending from a large treatment group of sex offenders with a nontreatment comparison group that were released over an average of an 8.2 year follow up period. The study revealed that the group who received the SOTP reoffended at a slightly higher rate than those who did not.213 Although sexual recidivism is a problem that is impossible to completely eradicate; many of these high-risk offenders are likely to be released back into the community at some point, therefore it is imperative that the treatment received in prisons is effective. Despite there being evidence of small scale research that demonstrates that cognitive behavioural treatment can generally be successful in reducing sex offender recidivism.214 It is highly problematic that this recent evidence demonstrates that the core response programme to sexual offending in England and Wales is showing no evidence of success. 4.3 Polygraphs A restricted use of polygraph examinations is used in the post-conviction stage of a sex offenders process. The polygraph measures physiological arousal, which is hypothesised to be the product of deception – i.e. respiration, cardiovascular and sweat responses.215 These results are then used to assess the probable truthfulness or deceit of statements and answers an offender makes about their past and present offending behaviour. The Offender Management Act 2007216 provides that an offender on licence may be subject to participate in a polygraph examination for the purposes of monitoring and improved management. Disclosures made from offenders during polygraph examinations, as well as conclusions drawn from passed or failed examinations allow authorities the ability to intervene in order to reduce their risk of offending. This aims to

214

M ario Scalora and Calvin Garbin, ‘A Multivariate Analysis of Sex Offender Recidivism’ (2003) International Journal of Offender Therapy and Comparative Criminology; Robert McGrath et al, ‘Outcome of a Treatment Programme for Adult Sex Offenders’ (2003) Journal of Interpersonal Violence; Megan Schaffer et al, ‘Cognitive Behavioural Therapy in the Treatment and Management of Sex offenders’ (2010) Journal of Cognitive Psychotherapy: An International Quarterly at 95

215

T heresa Gannon et al, The Evaluation of the Mandatory Polygraph Pilot (Ministry of Justice 2012) at 1

216

O ffender Management Act 2007, s.28-30

4. Risk Management and Rehabilitation

enhance the co-operation of offenders with supervision management, allowing management to work and treat offenders in a more focused way”.217 In a study218 of offenders perceptions of the polygraph, 72% of the offenders reported that taking polygraphs was a helpful part of their treatment as it “not only forced them to be more truthful in the examinations but also with loved ones, which had a positive effect on their personal relationships.” This demonstrates that some of these high-risk offenders do want to change their behaviour in order to maintain better lifestyles. The imposition of a polygraph on an offender raises a number of concerns, most notably the reliability of such tests as the accuracy only stands at around 80%,219 and is not considered scientifically reliable. There is a safeguard in the statute220 that prohibits any statement made by an offender being used in criminal proceedings as this could potentially incriminate the offender by not allowing him his right to silence, which would therefore weaken his right to a fair trial.221 However, this is no longer reflected in the post-conviction stage. A pilot project introducing a compulsory polygraph in the post-conviction stage showed that 70% of polygraphed offenders disclosed relevant information about their treatment, behaviour or supervision in comparison to 14% of non-polygraphed offenders.222 This compulsory pilot was considered to be effective in offender treatment and management and so was implemented in 2014. The polygraph is used in this respect as a truth facilitator, meaning those who breach their licence conditions could face being re-called to custody as a consequence.223 It has been recently speculated that around 13% of sex offenders who were subject to compulsory polygraphs have since breached their licence conditions and have subsequently been sent back to prison.224 This demonstrates how public protection takes priority over rehabilitating offenders, as offenders are given extended punishments rather

217

M inistry of Justice, Sex Offenders Required to take Lie Detector Tests (Ministry of Justice 2009)

218

R on Kokish et al, ‘Post Conviction Sex Offender Polygraph Examination: Client Reported Perceptions of Utility and Accuracy’ (2005) Sexual Abuse a Journal of Research and Treatment at 216

219

D aniel Marshall and Terry Thomas, ‘Polygraphs and Sex Offenders: The Truth is Out there’ (2015) Probation Journal at 133

than alternative interventions that could otherwise be more effective in suppressing their offending desires and behaviours. 4.4 Chemical Castration Chemical castration is a pharmacotherapy drug treatment tool used to manage the risk of male RSO’s by controlling and reducing a man’s testosterone levels (sexual desire). This occurs through tricking the brain into believing the body has enough levels of testosterone, so it does not produce any more.225 There are two drugs that are used in chemical castration, the first Medroxyprogesterone Acetate (hereafter MPA) which is used in the U.S and the second Cypoterone Acetate (hereafter CPA) which is used in Europe and Canada. It is argued that MPA has a number of significant side effects and discontinuing it will result in re-offending.226 Whilst on the contrary, CPA has limited side effects and discontinuing it will not result in re-offending, however effective monitoring and management for offenders should follow.227 Therefore, CPA is considered the preferable drug as the side effects from MPA can be seen as another form of punishment; especially irreversible side effects such as depression. Research on the effectiveness of chemical castration shows that it appears to be effective in reducing re-offending. One study shows that out of 629 men who received this treatment only 8% continued to re-offend.228 This treatment is seen to be most effective in child sex offenders, especially those who engage in the treatment and want to control their behaviour.229 Furthermore, it is significantly cheaper than custody but it does not include the costs of counselling, supervision and any other costs for managing and monitoring offenders.230 The area of contention for chemical castration however, is whether or not an offender should be compelled to undertake the treatment, or whether

224

T im Ross, ’63 Sex Offenders Back in Jail After Lie Detector Tests’ (Telegraph.co.uk, 2018) < https://www.telegraph.co.uk/news/uknews/ crime/11818068/63-sex-offenders-back-in-jail-after-lie-detector-tests. html> accessed 15 March 2018

225

K aren Harrison, ‘The High-Risk Sex Offender Strategy in England and Wales: Is Chemical Castration an Option?’ (2007) The Howard Journal at 20

226

Ibid

220

O ffender Management Act 2007, s.30(2)(a)

227

Ibid

221

E d Johnston, ‘Brain Scanning and Lie Detectors: The Implications for Fundamental Defence Rights’ (2016) European Journal of Current Legal Issues at 17

228

F red Berlin, ‘The Case for Castration, Part 2’ (1994) Washington Monthly at 28

229

222

D on Grubin, Polygraph Pilot Study (Home Office 2006) at 4

K aren Harrison, ‘The High-Risk Sex Offender Strategy in England and Wales: Is Chemical Castration an Option?’ (2007) The Howard Journal at 26

223

T heresa Gannon et al, ‘An Evaluation of Mandatory Polygraph Testing for Sexual Offenders in the United Kingdom’ (2014) Sexual Abuse: A Journal of Research and Treatment at 182

230

Ibid

4. Risk Management and Rehabilitation

they should be able to give their consent. This issue was evidenced in the Divisional Court231 whereby chemical castration given without consent could amount to a breach of Article 3,232 however if there is full and informed consent then there is no breach. In some countries such as Belgium, chemical castration is offered as an alternative to further incarceration for some offenders.233 This can be problematic because some offenders will take the treatment without being engaged in it and therefore it may not be as effective.234 Arguably, the most ethical approach for this treatment follows a process that was developed in Texas. This approach is voluntary for offenders and is centred on using the castration as a form of treatment; completely separate from punishment or prolonged prison sentences.235 England and Wales are currently piloting this process which is on an opt-in basis.

capabilities and strengths in individuals rather than restrict their activities as a means to avoid offending. It is believed that rehabilitation for offenders should provide them with the ability, skills, resources and opportunities to satisfy their values in ways that do not harm others.238 It therefore provides a strength-based rehabilitative framework that focuses on offender’s interests, abilities and aspirations in order to allow practitioners to construct intervention plans. Building on these factors aims to encourage offenders in believing they can adopt offence-free lives at the same time as managing their risks.239 Rather than avoiding the desires of these offenders they are targeted indirectly through other means in the offender’s life, which increases their participation and motivation for change.240 4.6 Restorative Justice

4.5 The Good Lives Model The rehabilitation perspective contrasts with retributive responses and rests on assumptions about crime and the characteristics of individual offenders. Firstly, that crime is caused by a number of social and psychological factors in an offender which increases their chances of offending. Secondly, the ability to target these factors through rehabilitation will decrease re-offending rates and finally, that individual’s predisposition to re-offending will vary from person to person and this needs to be considered when planning rehabilitation.236 It is argued that the best way to reduce recidivism is to guide offenders in being able to manage aspects of their lives that elevate risks rather than using retributive punishment alone.237 The Good Lives Model of Offender Rehabilitation (hereafter GLM) is a theoretical framework that addresses the limitations of the current risk management approach. The GLM is based on the idea that in order to reduce re-offending we need to build

231

Janiga v. Usti Nad Labem Regional Court, Czech Republic [2011] EWHC 553

232

E uropean Convention on Human Rights, Article 3

233

T homas Douglas et al, ‘Coercion, Incarceration and Chemical Castration: An Argument from Autonomy’ (2013) Bioethical Inquiry at 396

234

Ibid at 403

235

K aren Harrison, ‘The High-Risk Sex Offender Strategy in England and Wales: Is Chemical Castration an Option?’ (2007) The Howard Journal at 23

236

T ony Ward and Claire Stewart, ‘Criminogenic Needs and Human Needs: A Theoretical Model’ (2003) Psychology, Crime and Law at 126

237

T ony Ward and Mark Brown, ‘The Good Lives Model and Conceptual Issues in Offender Rehabilitation’ (2004) Psychology, Crime and Law at 243

238

G ood Lives Model, ‘The Good Lives Model of Offender Rehabilitation’ (Goodlivesmodel.com) <https://www.goodlivesmodel.com/> accessed 9 March 2018

239

B ill Glaser, ‘Distinguishing Moral and Clinical Decisions in Sex Offender Programmes’ in in Karen Harrison and Bernadette Rainey (eds) The

Restorative justice falls under the umbrella of the GLM approach. It contrasts with the retributive measures that are used for offenders as it aims to reintegrate and rehabilitate them by informally sanctioning their deviance through measures of safety and support.241 Professionals argue that restorative justice is a more desirable way of responding as it reduces social isolation, holds offenders accountable for their actions and monitors their activities which is integral for rehabilitation and therefore successful in reducing reoffending.242 As mentioned in chapter 3, offending comes with the consequence of stigma and shame for sex offenders. Restorative justice is a form of reintegrative shaming243 whereby the offender is temporarily shamed for their actions through punishment. However, the offender is then given the ability to be reintegrated back into the community through effective rehabilitation and reconciliation.244 Undoubtedly, the most important concern in sex offending cases is the justice and

Wiley Blackwell Handbook of Legal and Ethical Aspects of Sex Offender Treatment and Management, (Wiley Blackwell 2013) at 287 240

G wenda Willis and Tony Ward, ‘Striving for a Good Life: The Good Lives Model Applied to Released Child Molesters’ (2011) Sexual Aggression at 292

241

242

S tephen Hanvey and Mechtild Hoing, ‘A More Ethical Way of Working’ in in Karen Harrison and Bernadette Rainey (eds) The Wiley Blackwell Handbook of Legal and Ethical Aspects of Sex Offender Treatment and Management, (Wiley Blackwell 2013) at 372

243

J ohn Braithwaite, Crime, Shame and Reintegration (Cambridge University Press 1989)

244

M ark Walters, Hate Crime and Restorative Justice (Oxford University Press 2014) 36

4. Risk Management and Rehabilitation

welfare of the victim. Victims of child sexual abuse are one of the most vulnerable and powerless types of victim and therefore the traditional use of restorative justice meetings for victims and offenders in these cases are highly controversial.245 Despite this, there are models such as Family Group Conferencing that can be employed in cases of child sexual abuse. These are more appropriate and inclusive for young people and more robust in considering the safeguarding and child protection concerns.246 One of the most established programmes of restorative justice is Circles of Support and Accountability (hereafter COSA), a model that was developed in Canada. COSA aims to build safer communities by working with sex offenders to minimise their alienation and support their reintegration in order to prevent re-offending.247 As discussed in chapter 3,248 social isolation and emotional loneliness are factors that increase an offenders risk of recidivism. There is growing evidence in Canada that demonstrates COSA does reduce re-offending and has a beneficial impact on the perceptions of the community in regard to their own safety.249 In England and Wales COSA is a relatively new concept. COSA members work with MAPPA and other professionals in offender risk management in order to prevent further child sexual abuse. Members of COSA meet with the offender for a duration of 2 phases. The first phase lasts 9-12 months and COSA supports the offender with suitable accommodation, joining appropriate clubs and societies and provides access to educational resources which enables them to engage in activities that can enhance their life.250 The second phase lasts 6-9 months and COSA members encourage the offender to become self-sufficient and carry out the functions for themselves in order to reduce long term offending.251 COSA does not deal directly with victims

245

Ibid

246

V ince Mercer and Karin Madsen, ‘Doing Restorative Justice in Cases of Sexual Violence’ (2011) Leuven Institute of Criminology at 31

247

C ircles UK, ‘About Circles’ (Circles-uk.org.uk, 2018) <htpp://www.circles-uk. org.uk/about-circles> accessed 10 March 2018

248

S ee page’s 38 and 39

249

R obin Wilson et al. Circles of Support and Accountability: An Evaluation of the Pilot Project in South Central Ontario (Research Report 168 Correctional Service of Canada 2005); Robin Wilson et al, ‘Evaluating the Effectiveness of Professionally Facilitated Volunteerism in the Community Based Management of High Risk Sexual Offenders. Part 2: Recidivism Rates’ (2007) Howard Journal of Criminal Justice

250

K ieran McCartan et al, Circles of Support and Accountability: A Case File Review of Two Pilots (Ministry of Justice 2014) at 3

251

Ibid

252

K ieran McCartan et al, Circles of Support and Accountability: A Case File Review of Two Pilots (Ministry of Justice 2014) at 9 ; Andrew Bates et al, ‘Circles South East’ (2013) International Journal of Offender Therapy and

and offenders together, so it can be seen as a more ethical approach of restorative justice. The restorative aspect of COSA is through the combination of the community’s temporary shaming and disapproval of the offending, then finding a positive route for the offender and holding the offender accountable for what they have done. There has been an expanding body of research that demonstrates COSA to be successful in reducing offending, supporting offenders, encouraging compliance with treatment programmes, encouraging a positive social network and through other means that has enabled offenders reintegration.252 Despite the positive research, restorative justice in sexual offending cases has been criticised of being a way to trivialise serious criminal offences as it fails to promote offender accountability and has the ability to re-traumatise the victim.253 Furthermore, this system often only deals with offenders who have already been apprehended for their offences, so in practice it only covers a small percentage of these criminals.254 On the contrary, advocates of restorative justice argue that as there is a joint societal consensus in the wrongfulness of sex offences against children, the ability to provide accurate information regarding the nature of these offences and dispel commonly held misconceptions can help to shift public opinion and promote social inclusion.255 By making use of alternative approaches to retribution it allows victims to deal with the harm that has been caused to them as well as helping offenders address the problems in their actions and effectively deal with the consequences. If both parties receive better care, than it is more likely that suffering will be reduced in the long term. It is therefore argued that restorative justice serves to enhance the traditional functions of criminal justice, such as retribution, rehabilitation, reintegration and public protection in a more effective256 and cost effective257 way.

Comparative Criminology at 875 ; Robin Wilson et al, ‘Circles of Support & Accountability: A Canadian National Replication of Outcome Findings’ (2009) Sexual Abuse: A Journal of Research and Treatment at 427 ; Martin Clarke et al, ‘Circles of Support and Accountability: The Characteristics of Core Members in England and Wales’ (2016) Criminal Behaviour and Mental Health ; 253

A nne-Marie McAlinden, ‘Restorative Justice as a Response to Sexual Offending – Addressing the Failings of Current Punitive Approaches’ (2008) Sexual Offender Treatment at 6

254

Ibid

255

Ibid

256

B arbara Hudson, ‘Restorative Justice and Gendered Violence – Diversion or Effective Justice?’ (2002) British Journal of Criminology at 626

257

I an Elliott and Anthony Beech, ‘A U.K Cost Benefit Analysis of Circles of Support and Accountability Interventions’ (2012) Sexual Abuse: A Journal of Research and Treatment at 225

4. Risk Management and Rehabilitation

4.7 Conclusion There has been a shift in criminal justice policy with the interest increasingly being focused on the protection of society rather than the rehabilitation for the offender. Public policy responses to sexual abuse are dominated by risk management and intervention and this approach is being increasingly used to manage convicted sex offenders in the community. The risk management approach that is dominantly used for sex offenders simply informs authorities that there is a risk or a problem, it does not properly address solutions for these problems.258 Current actuarial methods that attempt rehabilitation and re-offending reduction such as the SOTP are flawed and are not effective in preventing re-offending. Moreover, other actuarial methods such as polygraphs and castration can be considered as further punishments for these offenders, which not only questions their rights and due process, but has not demonstrated many significant long-term solutions for rehabilitating offenders. In order to reduce re-offending, it is argued that there needs to be a balance between the risk model that controls an offenders risk of harm and the GLM that helps and encourages offenders to live good offence free lives. A starting point towards a more effective model would be through sex offender risk assessment. The GLM believes that offenders are more responsive to treatment that is tailored to their own personal needs. Therefore, MAPPA needs to ensure their current risk assessment methods are collaborative of restrictive, rehabilitative and protective interventions. Risk assessment is an important process and if it is not completed properly in a way that is best suited to the offender it can conclude a certain outcome for the offender before treatment even begins.259 The GLM further believes that rehabilitative treatment for offenders must be used more frequently and should be based on the positives of what an offender can achieve or gain rather than what they will cease to do.260 There needs to be an effective balance of good lives for sex offenders at the same time as avoiding harm for society, which can be facilitated through the retributive methods and the restoration methods combined. This provides the opportunity for these offenders to reintegrate into society in order to live a better life.

258

T ony Ward and Ruth Mann, ‘Good Lives and the Rehabilitation of Offenders: A Positive Approach to Sex Offender Treatment’ in Alex Linley and Stephen Joseph (eds) Positive Psychology in Practice, (John Wiley & Sons 2004) at 603

259

260

Ibid 614

4. Risk Management and Rehabilitation

5. Conclusion Sexual abuse, particularly against children, has become a widely acknowledged social problem in England and Wales.261 The media has often prompted a demonised image of these offenders, providing the public with cues about how they should react, think and feel about these offenders and their crimes, resulting in ‘populist punitiveness.’262 This conceptualises the image of the child sex offender to be the ‘unknown paedophile’ that parents need to protect their children from. The misconception caused by the media has resulted in a moral panic263 and steers away from the real problem as although some strangers and members of the wider community do commit sex offences, the majority of offences occur within the family, the extended family and by other people that are often known to the victim.264 In response to this, it is recommended that education campaigns should raise awareness of the real issue whilst providing more information about how to keep children safe from all types of sexual abuse.265 This dissertation has demonstrated how the negative stigmatisation of convicted sex offenders has been reflected in the contemporary legislative framework that regulates and manages them in a ‘risk society.’266 The attempts to manage the risk of convicted sex offenders has resulted in a series of punitive and largely retributive responses, such as stricter legislation and policies, restrictive orders, electric tagging and increased prison sentences.267 Many of these responses are exclusive to child sex offenders over any other types of dangerous offenders, which has been rationalised by the government on the basis that children are the most vulnerable in society and that these offenders are highly recidivistic.268 Therefore such controls are enforced to prevent future crime, to identify and monitor these offenders and to protect children from harm. Fears of high rates of recidivism have continued

to fuel the public’s concern269 and it can be argued that this has been exaggerated and distorted and has fed into the misconception of ‘stranger danger.’ It can be argued that ‘Sarah’s Law’ has attempted to address the misconception of the ‘unknown paedophile’ by only allowing disclosures270 to be applied for of a known and named person that is suspected rather than any random person. By offering a comparative analysis of ‘Sarah’s Law’ and ‘Megan’s Law’ this dissertation has demonstrated how negatively labelling, stigmatising and socially excluding these offenders can create a lifelong stigma and can be considered to be a further punishment, often leading to them going off the radar and turning to re-offending as a coping mechanism.271 England and Wales were able to learn from the U.S experiences from ‘Megan’s Law’ and followed with registration requirements but resisted in adopting a system of community notification similar to the U.S as it was concluded it had shown no reduction in sexual offences and often pushed offenders underground.272 England and Wales were also able to learn from their own experiences with the News of the World ‘Name and Shame’ Campaign 273 that resulted in a number of vigilante attacks, and this subsequently provided evidence for concluding that a system of public community notification would not work. Instead, ‘Sarah’s Law’ has allowed England and Wales to develop a public disclosure system which has enabled a delicate balance between offender reintegration and public safety. This dissertation has demonstrated that ‘Sarah’s Law’ is far less restrictive and far more reintegrative for offenders than ‘Megan’s law’ which is important as reintegration has proven to be an integral part of an offender’s rehabilitation process and a barrier to re-offending.274 Owing to its recent implementation however, defining the effectiveness in these policies

261

K irsty Hudson, Offending Identities: Sex Offenders Perspectives of their Treatment and Management (Routledge 2011) at 1

268

A nne-Marie McAlinden, The Shaming of Sexual Offenders (Hart Publishing 2007) at 79

262

T im Newburn and Trevor Jones, ‘Policy Convergence, Politics and Comparative Penal Reform: Sex offender notification schemes in the USA and UK’ (2013) Punishment and Society at 440

269

Ibid at 78

270

T he Criminal Justice and Immigration Act 2008, s.140 (amending the Criminal Justice Act 2003 s.327A and 327B)

271

A nne-Marie McAlinden, ‘The Use of ‘Shame’ with Sexual Offenders’ (2005) British Journal of Criminology at 387

272

E lizabeth Lovell, Megan’s Law: Does it Protect Children? (NSPCC 2001) at 35

263

S tanley Cohen, Folk Devils and Moral Panics (3rd edn, Routledge 2002) at 19

264

M ary Corcoran and Samantha Weston, ‘The Third Sectors Role in Managing Serious Offenders: Partners Collaborations or Buffers’ in Kieran McCartan and Hazel Kemshall (eds) Contemporary Sex Offender Risk Management (Palgrave Volume I 2017) at 209

265

E lizabeth Lovell, Megan’s Law: Does it Protect Children? (NSPCC, 2001) at 37

266

A nne-Marie McAlinden, The Shaming of Sexual Offenders (Hart Publishing 2007) at 18

267

T revor Jones and Tim Newburn, ‘Policy Convergence, Politics and Comparative Penal Reform: Sex Offender Notification Schemes in the USA and UK’ (2013) Punishment and Society at 446

273

News of the World ‘Name and Shame’ Campaign

274

J ohn Braithwaite, Crime, Shame and Reintegration (Cambridge University Press 1989) at 106

5. Conclusion

can be difficult and there is currently little empirical evidence that shows ‘Sarah’s Law’ has been successful in preventing re-offending. There is no evidence that suggests whether or not the current retributive system in England and Wales is reducing sexual offences or not.275 Therefore questions that have been raised in this dissertation is whether or not punitive strategies are representative of a successful attempt to solve the problem of sexual offending or if they are just meeting the demands of politicians and public opinion. There has become a greater concern with removing offenders from society rather than attempting to properly rehabilitate and reform them.276 Even when rehabilitation is involved, such as the SOTP, evidence shows that it is not working.277 These failings demonstrate that there is a need for legislators and society to initiate a system that not only focuses on the short-term risk management of these offenders but also long-term rehabilitation and restoration approaches. A restorative and rehabilitative approach has now been adopted in Canada, whereby they use restorative justice not just as a programme, but as a way of looking at crime. Canada defines restorative justice as a response to crime that focuses on restoring the losses suffered by victims, holding offenders accountable for the harm they have caused and building peace within communities.278 The paradigm of the criminal justice system in Canada has shifted to focus on problem solving, removal of long-term stigma for offenders, encouraging forgiveness and seeks to provide effective rehabilitation for offenders by using the community as a facilitator to achieve this.279 Alternative rehabilitative approaches are now beginning to be recognised in England and Wales as an effective and more cost-effective way 280 to reduce re-offending rates in the long term. This does not mean that retributive and current actuarial methods should be reduced or prohibited but rather they should be integrated with restorative methods such as restorative justice and the GLM. It is argued that if there is a shift

275

K nut Hermstad, ‘Sexual Offences, Law and Morals’ in Karen Harrison and Bernadette Rainey (eds) The Wiley Blackwell Handbook of Legal and Ethical Aspects of Sex Offender Treatment and Management, (Wiley Blackwell 2013) at 10

into a more restorative paradigm that is accepted by legislators, offender managers, offenders and the wider community then all parties will receive better care and then it is more likely that suffering will be reduced in the long term.281 This could break the cycle of a system that is still currently trying to establish a ‘what works’ approach. It is impossible to think that this idea is going to completely eradicate the sex offender problem and it is also naïve to think that if restorative and rehabilitative methods are incorporated, that they are going to make immediate changes. This is a long-term process that needs to be integrated effectively with ‘quick fix’ solutions like sex offender registration, community notification and other retributive methods in order to reduce the long-term cycle of offending and reoffending by effectively re-integrating and rehabilitating offenders. Statistics indicate that recorded sexual offences against children have doubled within the last 15 years.282 However, this does not necessarily mean that these offences are being committed more often than in the past as we do not know the true statistics for these crimes, due to a lack of reporting.283 What these statistics do illustrate is the fact that these crimes are not reducing, which ultimately allows one to question the effectiveness of the current regime. One of the underlying facts of child sexual abuse is that it usually remains secret. Sex offenders are often manipulative and are sometimes members of the child’s family; both of these factors can be used in their favour against children.284 The nature of this type of offending demonstrates that we can only really deal with offenders who have already been apprehended and have come to the attention of the law. When comparing the number of sexual offences committed against children with the number of cases taken to court it demonstrates that the legal system actually plays a marginal role in the scope of the problem.285 Offenders often avoid conviction through the lack of reporting of these cases, by denying or minimising guilt

281

A nne-Marie McAlinden, The Shaming of Sexual Offenders (Hart Publishing 2007) at 222

282

N SPCC, Child Sex Offences Recorded on Average every 8 Minutes in the UK (NSPCC 2018)

276

A nne-Marie McAlinden, The Shaming of Sexual Offenders (Hart Publishing 2007) at 62

283

A idan Mews et al, Impact Evaluation of the Prison Based Core Sex Offender Treatment Programme (Ministry of Justice 2017) at 17

L orraine Radford et al, Child Abuse and Neglect in the UK Today (NSPCC, 2011)

277

284

C anadian Resource Centre for Victims of Crime, Restorative Justice in Canada: What Victims Should Know (2011) at 2

A nne-Marie McAlinden, The Shaming of Sexual Offenders (Hart Publishing 2007) at 4

278

285

279

Ibid at 3

280

I an Elliott and Anthony Beech, ‘A U.K Cost Benefit Analysis of Circles of Support and Accountability Interventions’ (2012) Sexual Abuse: A Journal of Research and Treatment at 225

5. Conclusion

due to shame or embarrassment286 or through a lack of evidence. Therefore, this dissertation recommends that a further requirement is necessary in focusing legislation to identify unknown offenders and attempt to bring them within the legislative framework.287 This can be achieved by encouraging more children to report these crimes, through mandatory reporting of child abuse, by working to reduce attrition and possibly by encouraging people who are sexually attracted to children to seek help. Prevention Project Dunkelfeld is a programme in Germany that has been introduced through a media campaign to try and prevent child sexual abuse. The media campaign aimed to target men who are sexually attracted to children and encouraged them to confidentially seek help without being mandated to do so.288 When individuals come forward, the project rehabilitates them through cognitive behavioural treatment, sexological tools and through optional medicinal options. In the first 18 months of the campaign launch, a total of 476 individuals made contact to the project,289 which demonstrates promising evidence for motivation for change when positive encouragement is involved. If a restorative paradigm shift in criminal justice is achieved, more paedophiles and child sex offenders may want to try and seek help and those who have already been apprehended will be given a greater chance to be effectively rehabilitated. All of these factors could help to prevent the number of children who are sexually abused each year.

286

J ames Freeman et al, ‘Sex Offenders in Denial: A Study into a Group of Forensic Psychologists’ Attitudes Regarding the Corresponding Impact upon Risk Assessment Calculations and Parole Eligibility’ (2010) Journal of Forensic Psychiatry & Psychology at 40

287

A nne-Marie McAlinden, The Shaming of Sexual Offenders (Hart Publishing 2007) at 70

288

K laus Beier et al, ‘Can Paedophiles be Reached for Primary Prevention of Child Sexual Abuse? First Results of the Berlin Prevention Project

Dunkelfeld (PPD)’ (2009) Journal of Forensic Psychiatry & Psychology at 854 289

Ibid at 859

5. Conclusion

Bristol Law School Faculty of Business and Law University of the West of England (UWE Bristol) Frenchay Campus Coldharbour Lane Bristol BS16 1QY UK

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