CJA 2003: Dangerous offenders Kevin Kerrigan

A new regime for sentencing dangerous offenders For offences committed on or after 4 April 2005 the following provisions are abolished: Mandatory life for second serious offence (s.109 PCCSA) Longer than commensurate sentence (s.79(2)(b)/80(2)(b) PCCSA) Extended licence for violent or sexual offences (s.85 PCCSA)

Dangerous offenders – Chapter 5 CJA and Schedules 15-18 Any schedule 15 offence committed after 4 April 2005 – court must conduct a risk assessment If the court finds significant risk to members of the public of serious harm from the offender, through further specified offences then it must impose: Life sentence (if available and justified) or Indeterminate imprisonment for public protection if it is a ‘serious’ offence (10 year + maximum) Extended sentence if it is not a ‘serious’ offence (less than 10 year maximum)

Examples of Sch 15 specified offences Violent False imprisonment Threats to kill ABH GBH/Wounding (+ with intent) Assault with intent to resist arrest Cruelty to children Burglary with intent to cause GBH / crim damage Aggravated burglary Riot / Violent disorder / Affray Causing death by dang driving Putting people in fear of violence Sexual Rape Sexual assault Sexual activity with a child Sexual grooming Abuse of trust offences Administering a substance with intent to commit a sexual offence Trespass with intent to commit a sexual offence Incest by penetration Exposure / Voyeurism Keeping a brothel

What is an indeterminate sentence? The court sets the ‘tariff’ for punishment After expiry of tariff D may apply to Parole Board for release Parole Board can order release if satisfied detention no longer required for public protection. If not, D stays in prison indefinitely D must serve minimum of 10 years on licence D remains liable to recall throughout the licence D may then apply annually for discharge of the licence conditions Early release and HDC provisions do not apply

What is an extended sentence? Minimum 12 month custodial period (discount cannot bring this below 12 months) Plus extended licence period of up to 5 years for a violent offence and up to 8 years for a sexual offence Liable to conditions and recall for duration of licence Overall sentence cannot exceed the statutory maximum Early release after half custodial period only if Parole Board is satisfied detention is no longer necessary for public protection. Otherwise serve full custodial period No release on HDC

How does the court assess risk? Serious harm = death or serious physical/psych injury The court must consider: Nature and circumstances of the offence Any pattern of behaviour of which it forms part Any information about the offender Two strikes: If D is over 18 and has previously committed a schedule 15 offence (at any time) the court must assume significant risk of serious harm unless it would be unreasonable to do so. But see R v Lang, below.

R v Lang and assessment of risk “15 there is a rebuttable assumption of dangerousness in relation to adults with a previous specified offence conviction. In our judgment, when sections 229 and 224 are read together, unless the information about offences, pattern of behaviour and the offender (to which regard must be paid under section 229(3)) show a significant risk of serious harm (defined by section 224 as death or serious injury) from further offences, it will usually be unreasonable to conclude that the assumption applies.

Example 1 Brian is convicted of trespass with intent to commit a sexual offence (max 10 years) The court considers that he poses a significant risk of causing serious harm to the public It must impose an indeterminate sentence (due to the offence being a ‘serious’ offence) The court will set a tariff for punishment and the parole board will assess risk thereafter

Example 2 Janine is convicted of Actual bodily harm (max 5 years) She has a previous conviction from 2 years ago for affray (another Schedule 15 offence) The court must assume she poses a substantial risk of serious harm to the public unless ‘unreasonable’ She must receive an extended sentence due to the offence not being ‘serious’ Min 12 months custody – up to 4 years extended licence (cannot go beyond statutory maximum)

Impact of dangerous offender provisions Speaking during Prime Minister's Questions, Tony Blair said that other options such as prison ships and army camps could be considered. "All options, of course, are kept under consideration all of the time but the very reason we have an issue to do with prison places at the moment is because... there are currently 40% more dangerous, violent and persistent offenders in prison than in 1997 despite crime having fallen rather than risen. "And secondly... we now have 2,000 prisoners in prison with indeterminate sentences precisely because of the seriousness of the offence." www.bbc.co.uk/news 24/01/07

Mental disorder and dangerousness (iv) We considered arguments based on the inadequacy, suggestibility, or vulnerability of the offender, and how these and similar characteristics may bear on dangerousness. Such characteristics may serve to mitigate the offender's culpability. In the final analysis however they may also serve to produce or reinforce the conclusion that the offender is dangerous. In one of the instant cases it was suggested that the sentence was wrong because an inadequate offender had suffered what was described as an "aberrant moment". But, as experience shows, aberrant moments may be productive of catastrophe. The sentencer is right to be alert to such risks of aberrant moments in the future, and their consequences. R v Johnson para. 10.

The role of the psychiatrist? The psychiatrist … concluded that there were signs of severe conduct disorder and numerous negative prognostic factors were identified. The psychiatrist's view was that there was a high risk of re-offending and it appeared that the appellant had exhausted the community options available. R v S and others para. 26 … It is, however, noteworthy that that report does not address the risk of serious harm presented by this appellant. As we said in Lang, the cases in which a psychiatric report will be necessary when assessing risk are comparatively few. But in those cases where such a report is thought to be necessary, it will generally be essential for the psychiatrist to make an assessment with regard to seriousness for the guidance of the sentencing judge. R v S and others para 101.

Example of psychiatric input 1 In relation to risk, the psychiatrist spoke of the increased risk of violence to those with whom he was in a relationship, and noted the use of violence on previous occasions. The criteria for detention under the Mental Health Act were not established, but there were clear indications of emotionally unstable personality disorder. R v Johnson para. 72. … it was submitted that the psychiatric evidence suggested that although there may have been an ongoing risk that the offender would harm himself, that risk did not extend to others. Ibid. para. 74.

Example of psychiatric input 2 A report from a consultant forensic scientist addressed the issue of risk. It observed that the enduring consideration in the assessment of risk factors was the appellant's mental impairment, which affected his judgment and reasoning. The writer continued that the major factor in the assessment of risk was the appellant's "extremely heavy drinking". He ended "It could therefore be said that Jamie Lawton continues to pose some risk to the public, although, looking at arsonists as a whole, he would not be in the highest risk group of that sub-set of the population“ R v Johnson para. 52

Public protection sentence or hospital order? CJA Sch 32 para 38 – power to impose a hospital order is unaffected by the new regime When an offender meets the criteria for a hospital order but there are also concerns about the risk s/he poses to the public which regime should be invoked: health care or prison?

Criteria comparison Public protection sentence No need for mental health diagnosis; No need for medical evidence Consider: nature and circumstances of the offence; any pattern of behaviour; Any information about the offender The test: significant risk to members of the public of serious harm from the offender, through further specified offences Serious harm = death/serious bodily/psychiatric injury Restriction order Hospital order criteria must be met – no independent existence Consider: nature of the offence; antecedents of the offender; risk of further offences The test: It is necessary for the protection of the public from serious harm Serious harm is not defined but includes psychiatric injury