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Risk Assessment and Management of Serious Violent and Sexual Offenders: A review of current issues

CHAPTER TWO: LEGISLATIVE PROVISIONS, ROLES AND RESPONSIBILITIES

2.1 This chapter briefly reviews the legislative provisions in respect of high-risk offenders in Scotland, the background and key aims of the legislation, and the practical implications of the legislation, particularly for the personnel involved.

BACKGROUND

2.2 The 1990s saw a growing policy preoccupation with public protection and community safety, with policy and subsequent legislation shaped by:

• a desire to protect the public from high-risk offenders, usually defined as serious violent and sexual offenders;
• and a growing acceptance that special measures were justified for such offenders.

2.3 Both concerns have given rise to legislative change and policy initiatives that have directly impacted upon the work of police, prison and social workers working with offenders. The key aims of legislation have been:

• selective incapacitation for high-risk offenders (Feeley and Simon 1994; MacLean 2000); and,
• special measures for sex offenders, in particular paedophiles, including treatment programmes in custody and in the community, special attention to release arrangements, and intensive risk management measures for those in the community (Cosgrove, 2001; SWSIS 1997, 2000; Hebenton and Thomas 1996a, 1996b, 1997).

2.4 Specific legislative change has been paralleled by the development of internal policies and tools to identify and assess risky offenders, most notably in the Scottish Prison Service, police and social work departments, and to a lesser extent voluntary organisations providing services to offenders and health personnel working with high-risk mentally disordered offenders.

PROVISIONS FOR SEX OFFENDERS

2.5 Sex offenders, and most particularly paedophiles, have been identified as requiring special provision. The Cosgrove report Reducing the Risk (2001) built upon the initial work of A Commitment to Protect (SWSIS 1997) by providing a framework and series of recommendations to improve the management of sex offenders. The report's recommendations are extensive (see Appendix 3 of Cosgrove) and are made in 6 key areas:

• Community and personal safety and prevention.
• Risk assessment.
• Access to personal change programmes (for children and adults).
• Monitoring of sex offenders.
• Housing provision for sex offenders.
• Information management.
  (p. 6).

2.6 The recommendations of the Cosgrove Committee were largely accepted by the Scottish Executive in its analysis of the external consultation on the report (Scottish Executive at www.scotland.gov.uk/library5/accr.pdf).

2.7 The MacLean Committee noted in Annex 7 the range of sentencing options for high-risk offenders. These included:

• Mandatory and discretionary life sentences.
• Determinate sentences and the use of parole conditions upon release.
• The use of extended sentences under sections 86-88 of the Crime and Disorder Act 1998.
• Registration of sex offenders under the 1997 Sex Offenders Act. (The offences triggering a duty to register and the relevant registration periods are summarised in Appendix 1).
• Sex Offender Orders under section 20 of the Crime and Disorder Act 1998. (These Orders came into force on 1 December 1998, and the conditions are summarised in Appendix 2).
• Provisions for mentally disordered offenders under the Mental Health (Scotland) Act 1984.

PROVISIONS FOR VIOLENT OFFENDERS

2.8 Violent offenders have also attracted the concerns of policy makers. Mandatory life sentences must be imposed for murder, and discretionary life sentences can be imposed for all 'common law crimes and certain statutory offences' (MacLean 2000: 159) with a 'designated part' for punishment and release based upon risk and public protection. Subsequent parole recall is based upon public protection. In addition, section 1 of the Crime and Punishment (Scotland) Act 1997 provides for mandatory life sentences where a person is convicted of two or more serious offences, however the MacLean Committee noted that this section had not been implemented. Extended sentences under the Crime and Disorder Act 1998 enable extended periods of post-release supervision on the grounds of protecting the public from serious harm and can be used for sex offenders who have received a determinate custodial sentence of any length; and for violent offenders who have received a custodial sentence of four years or more. The maximum extension period is 10 years for sex offenders, and five years for violent offenders. In addition, where the sentence is imposed by a sheriff sitting with a jury the maximum extension is three years; and the maximum length may not exceed the statutory maximum for that offence (MacLean 2000: 161). Such offenders can be recalled to prison on the grounds of presenting a serious risk of harm to the public.

CURRENT LEGISLATIVE PROPOSALS

2.9 The MacLean Committee was however concerned with the 'unstructured way' decisions about risk were taken by sentencers and that 'more needs to be done to make the assessment of risk an overt and transparent part of the system.' (p. 28).

The Committee also concluded that the use of mandatory life sentences in non-murder cases was a 'blunt instrument' (p. 29). The Committee was particularly concerned to balance public protection with fairness to offenders, and to reduce costly over-intrusion in those cases where the level of risk does not warrant it. In addition, the Committee addressed the issue of appropriate risk management both in custody and in the community, expressing this as attention to how sentences are served rather than a focus on mere length.

2.10 The MacLean Committee proposed a new sentence encompassing all high-risk offenders, subsequently introduced as the Criminal Justice (Scotland) Bill on March 26 ^th 2002. For the purposes of this review the key points are:

• The establishment of clear risk criteria for sentencing (section 210B) (as presented above).
• A Risk Management Authority with responsibility for 'ensuring the effective assessment and minimisation of risk' is proposed (Section 3 (1)). Importantly the Risk Management Authority is also tasked with the provision of guidance on risk assessment and risk management, and to set standards against which risk assessment and risk management can be judged.
• The legal establishment of procedures for transparent risk assessment through the use of a Risk Assessment Order (section 210B). This order allows for a remand period of up to 90 days during which time a risk assessment report must be prepared by a person 'accredited' for this purpose by the Risk Management Authority. Such orders are not subject to appeal.
• Section 210C defines the scope and remit of the risk assessment report, allowing allegations as well as convictions to be considered and enabling the assessor to express an opinion on the level of risk: low, medium or high. ³ Reports are subject to challenge by counsel and an alternative report may be commissioned by the defendant.
• An Order for Lifelong Restriction (OLR) may be made if 'on a balance of probabilities, the risk criteria are met' (section 210F (1) (d)). An OLR is in effect, an indeterminate sentence of imprisonment or detention.
• Risk Management plans are required for all offenders subject to an OLR. Risk management plans must 'set out an assessment of risk', and 'set out the measures to be taken for the minimisation of risk, and how such measures are to be co-ordinated' (section 6 (3) (a) (b)). In addition, such plans are subject to the approval of the RMA and the RMA can give direction as to the risk management plan to the lead authority and personnel involved in the case. Plans are subject to annual review and amendments can be proposed by the RMA if necessary.
• The RMA also has a broader remit for accreditation, education, training and the commissioning of research.

MENTALLY DISORDERED OFFENDERS

2.11 The MacLean Committee and the subsequent Bill also made recommendations for 'high-risk offenders who have a mental disorder, including those with a personality disorder' (CJ(S) Bill Policy Memorandum, 2002: 5). As stated in the policy memorandum:

The intention is to try and identify more accurately and at an early stage, the risk posed by such offenders, whether and the extent to which it is related to the offender's mental disorder and consequently how the offender should be dealt with-either by a mental health disposal or other criminal justice disposal. (p. 5).

2.12 The provisions in the Bill are intended to supplement rather than replace those within the Mental Health (Scotland) Act 1984, and take into consideration the work of the Millan Committee, the general framework for mental health provision in Scotland, and the emergency legislation of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999. The Bill enables a dual approach to mentally disordered offenders, with a choice of either criminal justice or mental health routes depending on whether the offender meets the risk criteria and the criteria for detention in a hospital. Where an offender has committed either a sexual or violent offence and meets the OLR risk criteria and the criteria for an Interim Hospital Order (IHO) the court will use the IHO to commission a risk assessment report. The report will both assess risk and assist the court in determining the most appropriate disposal for the offender.

However, the court is not required to take this interim step if it is satisfied that the offender satisfies the criteria for compulsory detention in hospital and there is treatment available for the mental disorder which is likely to minimise the offender's risk. In such circumstances the court will make a hospital order with a restriction order under its powers in the 1984 Act. (Policy Memorandum, 2002: 6).

2.13 Defining severe personality disorder has proved contentious (Home Office 1999; MacLean 2000) although ICD-10 and DSM 1V have been developed to identify and assess anti-social personality disorder. In England and Wales the focus has been on dangerous severe personality disorder (DSPD), that is the small group who pose a high-risk to the public (Home Office 1999). The Home Office document categories the 'overwhelming majority' of such persons as 'people who have committed serious offences such as murder, manslaughter, arson, serious sex offences, or grievous bodily harm' (p. 9). The impetus behind such proposals has been the recognition that people with DSPD have been released from prison or hospital whilst still posing a high-risk to public safety. The proposals aim to introduce preventative detention for those suffering DSPD and who pose a high-risk of harm but who are deemed untreatable under Mental Health legislation. The subsequent Draft Mental Health Bill in England and Wales (DOH 2002a) proposes retention of those sentences used for dangerous mentally disordered offenders, and adds a restriction order where the court concludes that 'the offender poses a risk of serious harm to others and needs detention in hospital' (DOH 2002b: 22). Whilst there is no separate provision for DSPD it is proposed to deal with this group under the same compulsory powers as used for other mentally disordered persons, and the treatability test will be removed. The legislation will allow for indeterminate detention 'for as long as they pose a significant risk of serious harm to others' (DOH 2002b: 23).

2.14 In Scotland the emphasis has also been on the small group likely to present a high-risk of serious harm to the public, although the perjorative term 'dangerous' has been avoided. In addition, the MacLean Committee concluded:

It is not known how many serious violent or sexual offenders have personality disorder. Personality disorder alone is very rarely the diagnostic criterion for compulsory admission either under civil or criminal health legislation. Approximately 50 per cent of male sentenced prisoners in Scotland have an antisocial personality disorder, and this is severe in up to 8 per cent as measured by current research instruments. In 1997 there were 13 patients at the State Hospital with a principal clinical diagnosis of personality disorder. (p. 66).

2.15 The Committee also sought to avoid the simplistic linkage of personality disorder with sexual offending, stating that:

The presence or absence of a personality disorder in itself is not a reliable indicator of any propensity for committing sexual offences. (p. 67).

2.16 This enabled the MacLean Committee and the subsequent legislative proposals to take risk (in this case the OLR risk criteria) as the starting point rather than personality disorder per se. Those offenders with severe personality disorder who do not meet the mental health criteria for an IHO can be dealt with by a RAO, thus closing a loophole for those who are high-risk but are untreatable. The Bill also strengthens the disposals for those high-risk offenders who are acquitted on the grounds of insanity, but where 'the risk of his being at liberty presents to the safety of the public at large are high' (section 2) by allowing the court to make an Interim Hospital Order. Where the risk assessment report following the IHO indicates that the 'offender poses a high risk to the public and meets the criteria for compulsory detention then the court must make a hospital order with a restriction order' (paras 33 and 34 of the Criminal Justice (Scotland) Bill Policy Memorandum).

2.17 The case of Ruddle ⁴ also raised the issue of preventive detention for those patients deemed to present a serious risk to public safety but who are deemed untreatable (or for whom treatment has finished). The situation of such patients is covered by the provisions of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999.

IMPLICATIONS OF LEGISLATIVE PROVISIONS AND POLICY DEVELOPMENTS

2.18 The 1990s have seen the establishment of public protection as a key objective of penal policy and legislation. The cumulative impact of the legislation reviewed here has been to identify those responsible for a wide range of serious violent offending, sexual offending, or those whose antecedents, behavioural patterns and personal characteristics indicate potential for such offending as offenders for whom special measures of selective incarceration or community surveillance are both required and justified. This has been reflected by increased restriction, surveillance and monitoring of such offenders in the community, with additional provisions for sex offenders. Connelly and Williamson (2000) characterise this approach to sexual and violent offenders as a 'community protection model' in which legislation prioritises public protection, partly through provisions for mandatory, indeterminate and preventative sentencing.

2.19 These provisions have important implications for the work of the police, the prison service and social work personnel, not only in terms of the requirement to identify and assess those offenders who present a significant risk of harm to the public, but also in terms of increased co-operation to both assess and manage these offenders.

ROLES AND RESPONSIBILITIES IN RISK ASSESSMENT

2.20 The proposals in the Criminal Justice (Scotland) Bill are likely to place the following obligations on criminal justice and social work staff:

• The completion of risk assessments based upon the most accurate and reliable tools available.
• The thorough collection and evaluation of relevant material within the 90 day remand period, including appropriate liaison with other agencies, and the presentation of reports that can withstand robust challenge in court.
• The preparation and implementation of appropriate risk management plans.
• The appropriate custodial management of high-risk offenders, including appropriate treatment programmes.
• The appropriate community supervision of high-risk offenders, including appropriate use of monitoring and surveillance systems, behaviour change programmes, and resettlement.
• Appropriate levels of education and training for staff engaged in high-risk work, including appropriate systems for staff supervision and case review.
• Co-operation with and proposed system of accreditation.

2.21 Staff most likely to be affected by such responsibilities are:

• Accredited staff (for example prison staff accredited by the RMA) contributing to risk assessment during remands.
• Non-accredited staff who have significant information and observations to contribute to the assessment process.
• Police personnel engaged in registration and monitoring of sex offenders in the community (registration requirements are presented in Appendix One).
• Social work staff working with offenders tasked with report preparation, contribution to reports and community management of high-risk offenders.
• Mental health staff involved in the risk assessment and risk management of mentally disordered offenders and those with severe personality who meet the risk criteria.

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