With whom are we concerned?
1.1 Our terms of reference require us to consider how society should respond to 'serious violent and sexual offenders who may present a continuing danger to the public,' including those with personality disorder. This is a complex set of terms, and our Committee spent some considerable time discussing which offenders might properly be regarded as coming within them.
1.2 One possibility would have been to define the target group of offenders by reference to a list of 'serious' sexual offences and a list of 'serious' offences of violence. Examples of such lists can be found in legislation2 and these could have been drawn upon to identify, at least in part, the range of offenders with which we are concerned. It became clear, however, that this would not be a satisfactory approach, for a variety of reasons.
1.3 First, such lists are likely to be both over-inclusive and under-inclusive. While one might find general agreement that rape and assault to the danger of life are 'serious' offences, most offences against the person vary significantly in their severity according to the circumstances. This is particularly so for certain categories of sexual offending. So, for example, while unlawful sexual intercourse with a fifteen year old girl is an offence3, irrespective of the age of the offender and the nature of the relationship between the parties, the gravity of this offence clearly does vary according to the context in which it is committed. Society would view the case of a seventeen year old youth who has sexual intercourse with his fifteen year old girlfriend in quite a different light from the case of a thirty-five year old teacher who has intercourse with his fifteen year old pupil. A further problem arises from the fact that some types of offending, which might fairly be described as 'serious', and which have a significant sexual motivation, would not necessarily be included in any list of 'sexual offences'. For example, sexually-motivated conduct which does not involve any overt sexual act, or any physical interference with the victim, may only be charged under some other category of offence - typically breach of the peace.
1.4 Second, many people who commit the most serious offences do not present a continuing risk to the public. The most significant example of this is the case of murder. While some persons convicted of murder undoubtedly present a risk of re-offending, a great many murderers do not. Simply to include all cases of murder in our target group would not reflect the characteristics of many persons convicted of murder.
1.5 Finally, attempting to define our target group by reference to a list of offences takes attention away from the offender. We felt that the focus of our attention - as reflected in the language adopted in the terms of reference - should be on the offender who presents a 'continuing danger to the public'. While some persons who commit serious offences of violence or serious sexual offences will fall within this group, not all who do so will. At the same time, it is our view that some persons appearing before the court for sentencing may be regarded as 'serious' offenders, although they have not yet been convicted of a serious act of violence or a serious sexual offence4.
1.6 The emphasis on serious sexual or violent offending means that we excluded from our consideration the large number of intractable recidivists who repeatedly commit minor offences against the person or property. These people are a considerable problem to society. Many may have personality difficulties, often combined with substance abuse. They may fail to respond to, or be deterred by, punishment, yet not be easily managed within existing mental health services. It may well be that more needs to be done for this group, but that was not a matter we could consider. However, the existence of this wider group may put into context the difficulty of accommodating the needs of the more serious offender, who may well be even more resistant to any attempt to modify his/her behaviour.
1.7 We have largely, although not entirely, excluded from our consideration those who are involved in organised crime, such as large-scale drug dealing. Such criminals may well commit, or have some involvement in, acts of serious violence, and often present continuing danger to the public over many years. However, it seemed to us that the main problems in relation to organised crime relate to the investigation and prosecution of such offenders, rather than the sentencing or treatment options available to the courts and prisons.
1.8 Any person who has committed a serious offence may be at risk of committing further offences, although in some cases the risk may be no higher than the risk that others who have not yet offended will do so in the future. We felt that the focus of our attention should be on those who may present a particularly high risk.
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RECOMMENDATION 1 Special sentencing considerations are necessary for persons convicted on indictment of a violent or sexual offence, or exceptionally another category of crime, whose offence(s) or antecedents or personal characteristics indicate that they are likely to present particularly high risks to the safety of the public. We refer to them henceforward, in the context of this report, as 'high risk offenders'. |
1.9 The underlying supposition in the terms of reference is that something special may need to be done for this group, over and above what is currently available in the criminal justice system. As will be seen, our view is that new arrangements are desirable for the identification and sentencing of this group, although they should build on the long-standing traditions of Scots criminal law.
1.10 Even within the relatively narrow terms of our remit, it is clear that we are not considering a homogenous group. There are many different ways in which people commit violent and sexual offences, and many different reasons why they may pose a continuing risk. What is needed is a sentencing framework which is sufficiently robust to take account of these multiple factors, and a service response which is flexible enough to address the needs of individual offenders in a way which offers proper protection to the public.
1.11 This heterogeneity manifests itself in the different problems experienced at different stages in the criminal justice system, which can, in turn, lead to the risks and needs of an offender being imperfectly recognised.
1.12 For example, many of those who spend time in special prison units are likely to fall within our terms of reference. However there are others, notably paedophiles, who present no problems whatsoever in prison but who would be highly dangerous on release. This may be because their criminal behaviour is manifested in ways which would not be possible in prison. There is also a particularly worrying group of prisoners who may present as 'model prisoners' but will quickly resume their criminal behaviour when the opportunity presents itself.
The size of the problem
1.13 There is undoubtedly considerable public concern about the danger posed by high risk offenders. While this concern is quite understandable and legitimate, we feel it is important to place the danger in context.
1.14 The focus of concern tends to be on those who, following release from custody for a serious violent or sexual crime, go on to commit a further crime of similar kind. In 1998, 50 people were imprisoned for four years or more for a sexual or violent crime, having previously (since 1989) received a similarly serious sentence for a sexual or violent crime.
1.15 Although these crimes are serious, and should be prevented if at all possible, it should be borne in mind that members of the public face a greater likelihood of suffering violent crime at the hands of people who consume too much alcohol or illegal drugs, than as a result of the actions of any identifiable and separate group of high risk offenders with a propensity for acting violently. While it is right to reduce the risk to the public from this second group, so far as this can be achieved, this will only make a relatively small difference to overall violent crime.
The context of this report
1.16 Our terms of reference relate to the sentencing framework and the service needs of this group of offenders. We have not, therefore, considered other methods of risk reduction - for example the issues of police checks and job screening covered in the Cullen enquiry into the shootings at Dunblane5. Nor were we able to give detailed consideration to the needs of victims of violent crime.
1.17 Our Committee's work overlaps with that of two other important committees: the committee which is reviewing the Mental Health (Scotland) Act 1984, chaired by the Rt Hon Bruce Millan, and the Expert Panel on Sex Offending, chaired by the Hon Lady Cosgrove.
1.18 The Millan Committee is due to report later this year, and its terms of reference require it to take account of the report of this Committee. We understand that it will give thorough consideration to those aspects of the Mental Health (Scotland) Act 1984 which concern offenders. We have shared our emerging views with the Millan Committee and we hope that they will feel able to incorporate our mental health recommendations into their broader proposals.
1.19 Lady Cosgrove's Panel was established to take forward the recommendations of A Commitment to Protect, the report published by the Social Work Services Inspectorate into Sex Offending6. It is due to conclude its work next year.
1.20 Although the focus of the Expert Panel is different from ours, there are areas of mutual concern, notably those of risk assessment and information sharing. We have had several helpful meetings with representatives of the Expert Panel, which have helped us to clarify our thinking in these areas. On some issues of overlap, such as the operation of the Sex Offenders Act 1997, we have agreed that the Expert Panel should take the lead role in making recommendations to the Scottish Executive.
1.21 The offenders with whom we are concerned are predominantly male. On a visit to Durham prison, members of the committee heard of the very difficult problems that can be presented by some women offenders with severe personality disorders - particularly in relation to self-harming behaviour. This is a very troubling issue, but one which falls outwith our terms of reference, which are largely concerned with issues of public safety. These issues are, we understand, being addressed by the Inter-Agency Group on Women Offenders, which is chaired by Professor Sheila McLean, and was established following the publication of Women Offenders - A Safer Way7. We have attempted to ensure that our proposals take account of offenders regardless of gender and age.