DANGEROUSNESS Medico-legal Update Wallace Brink

The Acts ► Chapter 5 Part 12 Criminal Justice Act 2003 ► Section 17 of the Criminal Justice and Immigrations Act 2008 amends Section 229 of the Criminal Justice Act 2003 ► Sexual Offences Act 2003 section 104(1) (b)

Definitions ► "the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences".

Definitions ► Specified Offences ► These are defined in section 224(1) and listed in Schedule 15 to the Criminal Justice Act Part One contains specified violent offences including (since s.138 of the Coroners and Justice Act 2009 came into force on the 12 January 2010) terrorist- related offences, and Part Two contains specified sexual offences. The schedule is extensive, listing every indictable only and either way offence of sex or violence, ranging from actual bodily harm and exposure through to manslaughter and rape.

Definitions ► Serious Offences ► These are defined in section s 224(2) as specified offences that are punishable with either life imprisonment or with imprisonment for ten years or more.

Definitions ► Significant risk ► not defined in the legislation ► for the court to assess in each case ► R v Lang [2005] EWCA Crim 2864  noteworthy, of considerable amount or importance.  Risk must be to members of the public.  can include the offender, particular groups of members of the public such as co-habitees or abused children, and individuals

Definitions ► Pedley, Martin and Hamadi [2009] EWCA Crim 840  confirmed the indication given in Lang [2005] EWCA Crim 2864  "significant risk" presented a higher threshold than a mere possibility of occurrence. ► R v Johnson [2006] EWCA Crim 2486,  following the judgement in Lang, held that the sentence of IPP was concerned with future risk and the future protection of the public, and not with punishing the present offending.

Definitions ► Serious harm ► means death or serious personal injury, whether physical or psychological ► R v Owen  some risk of serious harm is not enough  The test is the existence of a significant risk, enough to warrant a sentence which may never end

Definitions ► non-serious specified offences - few cases where the significant risk of serious harm will be present. ► Repetitive sexual or violent offending at low level without serious harm is not dangerous: R v Lang; R v Terrell [2008] Cr App R (S) 49; R v Hicks [2009] EWCA Crim 733. ► The definition of serious harm is case specific: minor offences of gradually escalating seriousness might be significant in the assessment of future risk R v Johnson.

Definitions ► R v Johnson  Does not automatically follow from the absence of actual harm caused, that the risk that he would cause serious harm in the future was negligible ► R v Shaffi [2006] 2 Cr. App. R. (S) 92  was not authority for the proposition that as a matter of law, offences which did not result in harm to the victim should be treated as irrelevant in the assessment of dangerousness.

Assessing Dangerousness (Courts) The court in making the assessment referred to in subsection (1)(b) ► (a) must take into account all such information as is available to it about the nature and circumstances of the offence ► (aa) may take into account all such information as is available to it about the nature and circumstances of any other offences of which the offender has been convicted by a court anywhere in the world ► (b) may take into account any information which is before it about any pattern of behaviour of which any of the offences mentioned in paragraph (a) or (aa) forms part, and ► (c) may take into account any information about the offender which is before it.

Assessing Dangerousness (Courts) ► "Pattern of behaviour" and "information about the offender"  not defined in the Act  for the court to assess  Include: previous acquittals, complaints not prosecuted, and police intelligence about behaviour ► R v Considine and Davis [2007] EWCA Crim 1166  could take account of an alleged history of violence not marked by previous convictions - "information” (section 229(3))

Assessing Dangerousness (Psychiatrists) ► Significant risk ► Serious harm ► “pattern of behaviour” ► “information about the offender”

Defence Solicitors Strategies ► Reports can and should be challenged where appropriate. –  Note the level and experience of the author  Check for accuracy in analysis of the facts of the case and the circumstance of the offender?  Has the author properly assessed the level of seriousness of previous convictions?  seek access to previous pre-sentence reports for consistency of approach.  Do not shirk asking for a further report by a more experienced and/or impartial probation officer.  Where appropriate, consider obtaining independent reports from psychologists or psychiatrists.  Where an IPP is imposed on the basis of information contained in a PSR, or indeed in the absence of a PSR, it may be appropriate to seek an independent psychological report and updates from the prison probation service in support of any appeal [See R v Lawrie [2007] EWCA Crim 2159]

Sexual Offences Prevention Orders ► “protecting the public or any particular members of the public from serious sexual harm from the defendant"  protecting the public in the United Kingdom  from serious physical or psychological harm

Definitions ► R v Rampley [2006] EWCA Crim 2203 ► "serious harm" in the Criminal Justice Act 2003 and "serious sexual harm" under the Sexual Offences Act  CJA2003 = mean death or serious personal injury, whether physical or psychological  SOA 2003 = including serious physical or psychological harm

Definitions ► The Queen on the Application of the Commissioner for the Metropolis v Croydon Crown Court [2007] EWHC 1792 ► 1. level of risk of recurrence ► 2. level of risk of harm if recurrence there be  assessing how much harm is likely to be done  it can properly be called serious or not  if only a small number of people would be likely to suffer such harm that would be a relevant factor in assessing the risk.

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