Wednesday, 3 September 2014

The old news of sobriety orders

The rationale for the policy is explained clearly here, but its application to a wide range of offences initially made me feel uneasy.  In the US, from what I can tell, the schemes were run – in the first instance at least – to address drink driving offences.  Setting aside the thorny issue of fixing an exact ‘safe’ limit of alcohol, people are not allowed to ‘drink and drive’, and when they do the restriction has generally been of their driving rather than their drinking.

There’s actually no reason why this shouldn’t be reversed if it’s more effective.  It’s not necessarily true that these individuals are bad drivers when sober, just as they may hurt no-one when they drink unless they drive.  To fully forfeit one right is no more arbitrary than forfeiting the other, since the precise offence is the combination of drinking and driving, not either on its own.

The requirement to stay sober fits, though, because of the specific nature of the offence of drink driving: we have a specific, apparently ‘objective’ limit on blood alcohol concentration, over which a person is not allowed to drive.  Driving while ‘drunk’ is an offence in itself, banned on the basis that there is a direct physiological/pharmacological relationship between alcohol consumption and impaired driving.  Without the alcohol, there is, by definition, no drink driving.

We know this is not the case for violence and other crimes.  Not everyone in every culture is more likely to become violent or commit a crime when drunk; the way we behave when drunk is learned and more conscious than we might think (given that we react in similar ways when we’ve drunk a placebo).

Combined with the way the offences are defined, this means that we just can’t say for an individual who commits an offence while drunk – as we can for drink driving – that without the alcohol there is no offending (of this specific nature).

Of course the same sort of principle already underpins Drug Rehabilitation Requirements (DRRs) or Alcohol Treatment Requirements (ATRs), which are used as part of community sentences now, and which I’m very much in favour of.  These are handed out where the courts feel the offending is drug- or alcohol-related.  However, those should do far more than simply stopping an individual drinking; they should look at why they drink or use drugs and why they commit crime.

I agree with Keith Humphreys that people frequently recover from drug and alcohol use without accessing specialist services, and this new initiative offers them an incentive to kick start that process regardless of any related treatment requirement, but the relationship between drinking and offending more broadly isn’t quite so straightforward as drinking and driving.  It’s clear the scheme designers are aware of this, as they have excluded domestic violence offences from those listed as suitable for tagging.

I’m not against the scheme, but when it’s looked at in some detail – it will be supervised by probation and those on the programme will be offered alcohol advice and treatment – it’s apparent it’s not a huge innovation, but simply a technically more effective ATR, and almost identical to DRRs, which already involve drug testing.  To be fair to Humphreys, it’s the technical and procedural innovations he stresses, but it’s certainly far from the revolutionary or radical initiative some have painted it, whether in favour or opposed.

The key difference from DRRs is, of course, that those ‘drugs’ by that definition are illegal, and so it doesn’t seem so unreasonable to require someone not to be using a particular substance.  Although the argument of the Adam Smith Institute that the tags are a novel infringement of civil liberties falls down somewhat given that ATRs have been around for years, perhaps what’s really highlighted is this inconsistency: we really feel that it’s an Englishman’s right to drink beer.

And so we’re back to Virginia Berridge again: I wouldn’t start from here.  It’s maybe not helpful to have that feeling of a right to beer, if indeed that’s what’s going on.  Unfortunately, policy has to start from here.  A liberal argument can be made that action should be focused on the offences, not the alcohol, but the idea of limiting people’s access to certain factors that influence their offending behaviour if they tend to commit crime is pretty well established.  I’ll be interested to see not just the evaluation of the project, but whether whatever government is in power after next year’s election feels the scheme is something it should endorse nationally.

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