1. The MacLean Committee on Serious Violent and Sexual Offenders was established in March 1999 by the UK Government, with the following remit:
'To consider experience in Scotland and elsewhere and to make proposals for the sentencing disposals for, and the future management and treatment of serious sexual and violent offenders who may present a continuing danger to the public, in particular:
- to consider whether the current legislative framework matches the present level of knowledge of the subject, provides the courts with an appropriate range of options and affords the general public adequate protection from these offenders;
- to compare practice, diagnosis and treatment with that elsewhere, to build on current expertise and research to inform the development of a medical protocol to respond to the needs of personality disordered offenders;
- to specify the services required by this group of offenders and the means of delivery;
- to consider the question of release/discharge into the community and service needs in the community for supervising those offenders.'
2. The concern of the Committee is reducing the continuing risk to the public from serious violent and sexual offenders. Such offenders are not best identified solely in terms of the particular offence for which they are convicted, or a particular characteristic such as personality disorder. It is possible to identify, by structured assessment, offenders who present particularly high risks to the safety of the public. Such offenders are referred to as 'high risk offenders' throughout the report.
3. Assessment of risk is important in reaching many decisions about the sentencing and management of offenders, but is often done in an unstructured manner. Formalised risk assessment should be used to a greater degree throughout the criminal justice process, based on best available evidence.
4. Risk assessment methods have become available in recent years which have improved our ability to predict risk of future violence.
5. Structured clinical judgement is the approach which presently shows the greatest promise in a Scottish context for predicting future violence, in a way which is of practical use in the criminal justice system. This is an approach which takes account of historical factors shown empirically to have a bearing on risk, together with individual clinically significant factors. However, techniques will continue to develop, and this should be reflected in developments in best practice.
A Risk Management Authority
6. There are a number of difficulties faced by agencies in ensuring that information is shared appropriately and that effective, consistent risk management is carried out throughout an offender's contact with the criminal justice system.
7. There is a need for a body to develop best practice in risk assessment and oversee the management of high-risk offenders. We call this body the Risk Management Authority (RMA).
8. The Risk Management Authority would operate within a policy framework set by Ministers, but would be operationally autonomous. It would have an independent board, made up of demonstrably expert people from a variety of disciplines. The Authority would have a budget with which to commission such work as it considers necessary over and above the work being done by the existing agencies.
9. The Authority would have three roles in relation to risk assessment and risk management: policy, standard-setting and operational.
Policy
10. The Authority would keep abreast of current research and best practice and would disseminate best practice, in the form of guidance and protocols, to practitioners in Scotland and the Scottish Executive. It would also commission research when appropriate.
Standard-setting
11. The Authority would accredit the methods of risk assessment and management used throughout the criminal justice system. It would also set standards of competence of practitioners.
Operational
12. The Authority would have responsibility for the maintenance and delivery of a systematic risk management plan for high risk offenders. It would do this by commissioning services as most appropriate from existing agencies.
13. Under our recommendations the Authority would have operational responsibility for high-risk offenders only. However, it is possible that its role could be extended to serious offenders in general, and to those people detained under mental health legislation who are subject to restriction orders.
14. The range of current sentencing options is adequate for the majority of offenders.
15. However, a new sentence, based on risk, is required for high risk offenders. The sentence would remain in force for the offender's entire life. We call this new sentence an Order for Lifelong Restriction (OLR).
16. This sentence would:
Information
17. Risk assessment depends on having full information regarding the antecedents of the offender, particularly the circumstances of any previous offences. Currently, adequate information is not always available to sentencers or those assessing risk.
18. At the time of sentencing for any offence prosecuted on indictment of a violent or sexual nature, the judge or sheriff should prepare a report setting out the circumstances of the offence.
19. The Crown Office should develop a system of recording information regarding offences committed by offenders who are thought likely to commit further violent or sexual offences.
Imposing the Order for Lifelong Restriction
20. The option to impose an OLR would only be available in the High Court. In cases of conviction on indictment in the sheriff court, the sheriff could remit the case with a view to the imposition of an OLR.
21. An OLR could only be imposed if:
22. Following conviction, a Risk Assessment Order could be made by the High Court where there are reasonable grounds for believing that the offender may present a risk such as to render him liable to an OLR.
23. The Risk Assessment Order would normally be made following a Crown motion, intimated to the accused prior to the close of the Crown case, although the Court could also make the Order of its own volition.
24. On the Court making a Risk Assessment Order, a risk assessment would be undertaken for a period of 90 days (extendable on cause shown to 180 days) at a facility accredited by the Risk Management Authority.
25. On completion of the assessment, and its presentation to the Court, it would then be for the Crown to establish, on a balance of probability, that the statutory criteria for the imposition of an OLR are met.
26. The Court, if satisfied the statutory criteria are met, would impose an OLR and would also set a designated period of time in custody to reflect the concerns of punishment and deterrence. If not satisfied that the statutory criteria are met, the Court could adopt any other competent disposal except a discretionary life sentence. The Crown and the accused would be entitled to appeal against the decision of the Court with respect to the imposition of the OLR.
27. Some high risk offenders suffer from mental disorders. Their offending may, wholly or in part, or may not be related to their mental disorder.
28. As with non-mentally disordered offenders, a thorough assessment of risk is required in the case of potentially high risk offenders. However, there is also a need thoroughly to assess mental state over a period of months to decide on the most appropriate disposal.
29. An interim hospital order, lasting, a maximum of 12 months, should be imposed in all cases where:
30. During that interim hospital order, assessments of mental state and risk would be undertaken. Risk assessments should be undertaken by persons accredited by the Risk Management Authority.
31. If an offender is high risk and suffers from a mental disorder that meets the criteria for compulsory hospital detention, the sentence should be an OLR together with a hospital direction. If an offender is high risk but does not meet the statutory criteria for such detention, the sentence should be an OLR.
32. If a person who is mentally disordered is found insane in bar of trial or acquitted on the grounds of insanity and is found to be a high risk offender, the disposal should be a hospital order with restrictions.
Preparation of a Risk Management Plan
33. Once an OLR has been imposed on an offender, a risk assessment and management plan would be prepared by the Scottish Prison Service (SPS) and other agencies, and approved by the RMA. Management of the offender, including interventions and questions of security classification and placement, would be determined by the risk assessment and management plan. The RMA would formally review the risk assessment and management plan, in collaboration with other agencies, at regular intervals.
34. Before the completion of the designated minimum custodial period set by the sentencing court, the RMA would prepare a report to the Designated Life Tribunal (DLT) on the risk assessment and management plan and progress against that plan.
Decisions on release and recall
35. Decisions on release and recall to prison of high risk offenders serving OLRs would be the responsibility of the Parole Board, operating through a Designated Life Tribunal. Such decisions would be informed by the risk assessment and management plan. The Parole Board will have all its present powers, including the setting and varying of licence conditions. The Designated Life Tribunal should have a new power to order a future release date, dependent on progress.
Supervision of High Risk Offenders
36. Once the Parole Board is satisfied that the level of risk posed by an offender serving an OLR can be managed safely in the community, and the offender has served at least the period of minimum custody for punishment purposes, they should be released, subject to strict supervision. The RMA would continue its oversight of the offender's case, and the risk management plan would continue to be the basis upon which needs are assessed and co-ordinated.
37. The level of supervision of high risk offenders should be more intensive than is currently the norm, including strict licence conditions and arrangements for surveillance, including electronic monitoring. Return to conditions of greater security should be rapid and predictable if there is non-compliance with licence conditions.
38. The range of services must include appropriate residential accommodation with different levels of supervision and security.
39. National standards should be developed for the supervision of high risk offenders by social work services. These would be developed by the Scottish Executive, in consultation with the RMA.
40. It is understood that social work criminal justice services are to be reorganised round groupings of local authorities. There should be specialist services relating to high risk offenders within each proposed local authority grouping.
41. The Committee's recommendations are based on the importance of the identification and management of high risk offenders, whether personality disordered or not. It has, however, considered the issue of personality disorder, particularly severe antisocial personality disorder, its relationship with serious offending, and its management and treatment.
42. There are many types of personality disorder, the majority of which are not related to an increased likelihood of offending.
43. The type and degree of personality disorder most closely linked to offending is severe antisocial personality disorder. It is not known how many serious violent or sexual offenders have severe antisocial personality disorder. However, amongst Scotland's total sentenced male prison population it has been estimated that 6-8% have severe antisocial personality disorder.
'Medical protocol'
44. It is not appropriate to develop a 'medical protocol' for serious offenders with personality disorder. Consideration should be given to the development of national clinical guidelines for personality disorder in general by the Scottish Inter-collegiate Guidelines Network.
45. There is a variety of interventions which may at times be effective in addressing the behaviours manifested by offenders with personality disorder. However, these are generally psychological rather than medical in their approach, and depend for their effect upon the person being prepared to address his/her behaviour.
46. Modern mental health models of care sit uneasily with the management of challenging, manipulative offenders with severe antisocial personality disorder.
47. Present understanding does not support compulsory hospitalisation and medical treatment for severe anti-social personality disorder. Compulsory admissions to hospital based on personality disorder are presently extremely rare in Scotland. Serious violent or sexual offenders with personality disorders and no other mental disorders should continue, in the main, to serve prison sentences rather than be sent to hospital.
48. Appropriate behavioural interventions for high risk offenders with personality disorders should be made available to them as part of their risk management plan. Pilot projects based on the long-term management of personality disordered offenders should be established and rigorously evaluated.
Preventative work
49. There are difficulties with 'treating' personality disorder. It may be, therefore, that scarce resources would best be used in trying to find ways to avoid the occurrence of personality disorder in young people. The Scottish Executive should give consideration to ways in which the prevention of personality disorder could be included within its broader strategies, including those on public health and social inclusion.
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