Consent and co-operation in community supervision – Denmark and Norway
| Author | Anette Storgaard,Berit Johnsen |
| DOI | 10.1177/2066220314549524 |
| Published date | 01 December 2014 |
| Date | 01 December 2014 |
| Subject Matter | Articles |
European Journal of Probation
2014, Vol. 6(3) 242 –259
© The Author(s) 2014
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DOI: 10.1177/2066220314549524
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Consent and co-operation
in community supervision –
Denmark and Norway
Berit Johnsen
Correctional Service of Norway Staff Academy, Norway
Anette Storgaard
Aarhus University, Denmark
Abstract
Neither Danish nor Norwegian legislation has explicit references to European Rules
on Community Sanctions and Measures (ERCSM), No. 31 or European Probation
Rules (EPR), No. 6, on consent and co-operation. Attention is drawn to similarities and
differences between Denmark and Norway in relation to legal regulations and practices
concerning consent and co-operation. The analyses focus upon community supervision
by the Probation Service and include the main forms of community sanctions in both
countries. It is found that in spite of legal differences between the countries, their
practices have a lot in common. The scope of discretionary power that is entrusted to
the Probation Service regarding judgement of the offender’s suitability for community
sanctions is debated; and the relationship between the rules on consent and co-
operation in the ERCSM and EPR and the European Convention on Human Rights on
the presumption of innocence and the prohibition of forced labour is questioned.
Keywords
Consent, co-operation, community supervision, community sanction
The article begins with a brief introduction, followed by a description of the scope and
the task of the Probation Services in Denmark and Norway. Immediately after follows a
brief overview of how the cross-national legal framework is understood in relation to
Corresponding author:
Berit Johnsen, Department of Research, the Correctional Service of Norway Staff Academy, Box 6138
Etterstad, 0602 Oslo, Norway.
Email: berit.johnsen@krus.no
549524EJP0010.1177/2066220314549524European Journal of ProbationJohnsen and Storgaard
2014
Article
Johnsen and Storgaard 243
national legal rules. In order to illustrate similarities and differences in community super-
vision a number of community sanctions and supervision tasks that are either essential in
both countries or special for one country in relation to consent and co-operation are
highlighted. Here, the legal regulations of community supervision and how they relate to
consent and co-operation is considered. Differences and similarities in legislation and
practice on consent and co-operation are discussed before we conclude.
Introduction
Offender involvement with regard to consent and co-operation is an indicator of the
degree to which a state observes the European Rules on Community Sanctions and
Measures (ERCSM) and the European Probation Rules (EPR), but it might also be
considered as an indicator of humanity in penal policy and practice. The extent of
offender involvement is nevertheless restricted by what punishment is supposed to
comprise and what purpose the punishment is supposed to serve. In Norway, punish-
ment is defined as to inflict an evil (or pain) that is supposed to be experienced as an
evil (or pain) (Rt. 1977 p. 1207 – High Court sentence; Ot.prp. nr. 90 (2003–2004) –
proposition of a new criminal code for the Parliament;1 Andenaes, 2004; Christie,
1981). While the evil/pain in imprisonment is deprivation of liberty, the pain in non-
custodial sentences is the limitation of liberty. According to Ot.prp. nr. 90 (2003–2004)
the official purpose of punishment in Norway, which legitimises the infliction of pain
by the state authority, is prevention. The purpose has a double meaning: To prevent
unwanted behaviour, and to prevent social disturbances in the wake of unwanted
behaviour. The Execution of Sentences Act in Norway, May 18th 2001 (ESA-N) section
2 states that the punishment shall be executed in a manner that takes the purpose of the
punishment into consideration.
In Denmark, punishment as an abstract phenomenon is understood as pain inflicted on
the offender by state authority. Regarding ‘mentally sane’ offenders, there is no codified
general purpose of the punishment. Mentally insane offenders are normally not sen-
tenced to a punishment but often sentenced to treatment and this treatment is expected to
‘serve the purpose’ of preventing new crime (the Criminal Law2 section 68). The most
general legal framework for punishment is laid down in the Criminal Law section 1 that
states that the only possibility for the state to legally impose a punishment (inflict pain)
is within the limits of the law (Nielsen, 2013: 20).3 Apart from legality the focus of the
Danish Criminal Law is on proportionality between crime and punishment as a first cri-
terion, and the personal situation of the offender as the secondary criterion (section 80).
Likewise, the Execution of Sentences Act in Denmark, May 31th 2000 (ESA-D) does not
define a purpose of punishment. However, it is emphasized that the sentence is not
allowed to include other limitations than those mentioned in the law or those that are
direct consequences of the sentence (section 4). It is underlined in the White Paper,
which was published before the law was passed (Report nr 1181: 33), that a purpose of
the ESA-D as such is to regulate the execution of sentences.
An indispensable principle in the Prison Services in Denmark and Norway is: ‘Going
to prison as punishment, not for punishment’. The principle has the same validity in rela-
tion to the Probation Services: ‘Going to probation as punishment, not for punishment’.
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