The MacLean Committee on Serious Violent and Sexual Offenders, hereafter referred to as our Committee, 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.'
The terms of the remit of our Committee indicate to us a concern on the part of government about certain types of offender: and it must be stressed that, in making recommendations concerning sentencing disposals, our Committee is concerned only with those who have offended but have yet to be sentenced or otherwise disposed of by the court. These offenders are those who have committed serious violent and sexual crimes. Later in this report we consider what may properly be regarded as serious violent and serious sexual crimes. As we see it, there is an apprehension that courts, when imposing sentences, have not always recognised the potential for some offenders seriously to recidivate. Or, if we may express it in another way, the risk of committing further serious violent or sexual offences, at least in some cases, has not been identified satisfactorily. Further, the question of imposing discretionary life sentences for such offences has not been considered by judges in any structured or systematic way.
There is also a further, but separate problem raised in our remit. Following the House of Lords decision in the case of Alexander Reid1 the understanding was that some offenders within this group, who were made the subject of hospital and restriction orders by the court, and who may still present a danger to the public, could no longer continue to be detained within hospital because they were no longer susceptible to medical treatment. These are offenders, who are not suffering from mental illness, but who may have a personality disorder and who were made the subject of a hospital order before it was possible by law to make them subject to a hospital direction. We consider later in this report how this problem may be avoided in the future.
We were asked by Ministers to report within a year and have tried, as far as possible, to keep to this timescale. During the past year we have undertaken the following pieces of work:
Our proposals may be summarised as follows. First, we consider that a new sentence should be introduced, to provide for lifelong control of the offenders with whom we are concerned. This sentence would largely replace the use of the current discretionary life sentence, and would be based on a thorough risk assessment.
The principles of risk assessment and risk management would continue to be important throughout the duration of the sentence. We propose the creation of a new body, the Risk Management Authority. This would establish, promulgate and continuously update best practice in risk assessment and risk management. It would also have operational responsibility for ensuring that an individualised risk management plan is developed and implemented for those offenders upon whom the new sentence is imposed.
In relation to those serious and violent offenders who have mental disorders, we propose a more systematic use of existing mental health disposals, particularly the interim hospital order and hospital direction. These would be integrated with the assessment procedures for the new sentence.
It is a fundamental aspect of the new sentence that the offenders should not be released into the community until they have served an adequate period of time in prison to meet the requirements of punishment, and do not present an unacceptable risk to public safety. At the same time, the period spent in the community should be regarded as being an integral part of the sentence. Our proposals envisage that community services for offenders serving this sentence would involve a greater degree of intensive supervision than is the current norm.
We believe that these proposals, taken as a whole, provide a comprehensive framework for dealing with this difficult group of offenders. They are intended to meet the requirements of public safety, while respecting human rights.