SCOTTISH EXECUTIVE

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Report of the Committee on Serious Violent and Sexual Offenders

CHAPTER 5: THE NEW SENTENCE

Our Committee's proposals for a new sentence

5.1 In our consultation paper we asked for views on whether courts had available to them an adequate range of custodial disposals to deal with those offenders within our remit. Having considered the responses we have received, we have come to the view that while for many such offenders the present range is satisfactory, for a small number of others the current sentencing provisions are deficient since they do not require the courts to impose on exceptional individuals an exceptional sentence which both marks the gravity of what they have done and provides an appropriate level of public protection, having regard to the risk that such individuals pose. For this latter group of offenders we believe that new and separate provision requires to be made so that so that they are subject to the control of the State for the remainder of their lives. The risk that they pose should be assessed pre-sentence. State control over them should initially be of a custodial nature, only becoming non-custodial when, following a further comprehensive assessment of risk, it is thought that the offender can be released with safety to live in the community under appropriate measures of supervision. For adult offenders such custodial control will be in prison; henceforth in this report we assume that the majority of the offenders with whom we are concerned will be adult, but the principles behind our recommendations apply irrespective of the age or gender of the offender.

5.2 We have already reviewed in the context of imprisonment the law and practice in relation to the imposition of a mandatory life sentence for murder and a discretionary life sentence for other crimes. Of its very nature, the latter species of life sentence need not be passed in any particular case, depending on the overall view taken by the sentencing judge. We believe there is a need for a lifelong sentence for certain individuals who commit crimes other than murder, which sentence would be passed only if strict legal criteria were met. We suggest that the new sentence should be called: 'An Order for Lifelong Restriction (OLR)' in order to distinguish it from (1) a sentence of life imprisonment, whether mandatory or discretionary; and (2) an extended sentence.

The current information deficit

(i) Inadequate structure

5.3 We discussed at paragraphs 2.46 and 2.47 the general issue of the provision of information as being crucial to proper risk assessment. Nowhere is this more significant than at the sentencing stage and yet, in our view, its importance is not reflected in current legislation or practice. There is no proper structure for bringing forward all the relevant issues of concern to sentencers: and the sources of information are seriously deficient. There are several factors which contribute to this.

5.4 First, it has not hitherto been regarded as one of the functions of the Crown to address sentencing issues beyond laying before the court a list of any previous convictions recorded against the offender and indicating the length of any pre-trial period of remand in custody. Meanwhile, those acting for the defence will seek to highlight mitigating factors in the case, rather than those indicating continuing risk.

5.5 Second, while for those who appear to have a mental disorder a psychiatric assessment may be obtained, a large number of the most dangerous offenders will not be acutely mentally ill, and so a mental health disposal is unlikely to be recommended. If it is not, any psychiatric opinion may not address other risk issues, based on factors such as the personal characteristics of the offender.

5.6 Third, there is the current legislative provision and practice in relation to Social Enquiry Reports (SERs) prepared by the relevant local authority. The National Objectives and Standards for Social Work Services in the Criminal Justice System provide detailed guidance on the nature and content of SERs and current practice reflects, or ought to reflect, that guidance.

5.7 As matters stand, it is not a requirement of law that an SER must be obtained before imposing a custodial sentence on an offender who has committed a serious violent or sexual offence, other than in cases where a first custodial sentence is being considered or where the accused is under twenty-one years of age.¹⁵ Even in relation to the latter classes of case, it is a feature of sentencing in the High Court (but not in the sheriff court) that a report which is prepared pre-conviction is regarded as adequate compliance with the law. Such a report will disclose nothing about the offender's attitude to the offence, his/her state of remorse (if any) and a host of other relevant information. While it is always open to the High Court to continue a case for a full SER to be prepared, this does not always happen.

5.8 In our view the quality of SERs has improved in recent years but it is still too variable. In particular a report prepared on a pre-trial basis can make little useful contribution to the assessment of future risk. In the context of our other recommendations, the only contribution which may usefully be made by a pre-trial SER would be to provide information which would assist the Court to decide whether a further comprehensive multi-disciplinary risk assessment is required.

5.9 In responding to our Consultation, several local authorities and the Association of Directors of Social Work stressed that the authors of SERs require (and do not currently have) access to all appropriate information. This would include information regarding antecedents and previous offences, as well as the circumstances of the current offence. Particular information which would be relevant includes that obtained from police reports and evaluations from psychiatrists and other experts.

5.10 The final contributory factor to the problem of lack of adequate structure is the time limit for the preparation of an SER. This is typically two weeks if the offender has been remanded in custody and at least three if he/she is on bail, although in some cases these periods can be extended. We believe this is generally inadequate to allow for a comprehensive risk assessment.

(ii) Details of past offences

5.11 Quite apart from the foregoing considerations, we believe that further steps are necessary to improve the quality of information regarding previous offences. We understand that our concern is shared by the Criminal Courts Rules Council, which has separately set up a working party to look at this issue. Detailed and accurate information about a person's offending behaviour is vital to the process both of risk assessment and risk management. We have already noted that past behaviour is the best predictor of future behaviour. It is essential therefore that those involved in making decisions in relation to risk assessment should be in a position to base those decisions on reliable information about the offender's previous offences.

5.12 If, as we go on to propose, the Crown should have power to apply in certain cases to the Court for a full risk assessment to be carried out with a view to determining whether the offender is a continuing danger to the public, the prosecutor will require to base that application on information about the offender's antecedents and past criminal behaviour. The circumstances of the offence for which the offender is to be sentenced may be sufficiently serious in themselves to justify making such an application. However, in many cases it will be necessary to establish whether there is a pattern of behaviour which justifies ordering a full risk assessment. It is essential therefore that the prosecutor has access to information about previous sexual offences or offences involving the use of violence. This information will also assist the sentencer in deciding whether to order a risk assessment. In turn, the psychiatrist or psychologist who conducts the assessment on behalf of the Court will require all available background information on the offender, including personal and family history, criminal record, and any previous psychiatric or psychological assessment.

5.13 One reason for the paucity of information about previous offences is, no doubt, an assumption that such information is only of limited relevance, in that the punishment imposed by the Court should relate to the current offence. Certainly it would be wrong that a person should be sentenced twice for an earlier crime. That is not our aim.

5.14 As we have said at paragraphs 4.2 to 4.3, minimising risk and protecting public safety should be key sentencing aims when dealing with serious violent and sexual offenders. That being so, the value of information about previous offences, including (in the case of a young person) even that gleaned from reports to a Children's Hearing, is that it tells us much about the risk presented by the offender at the time of being sentenced for the index offence. It is right, then, that as much of this historical information as possible should be available to the Court when it has to deal with an offender within our subject group.

5.15 Some changes can be made without difficulty, in relation to the information which is collected when an offender is convicted. At present, details of the offender's previous convictions will be available from the record of criminal history kept by the Scottish Criminal Record Office. However, that record will only disclose the date of conviction, type of offence and sentence. No record is generally kept of the details of the way in which the crime was committed, for example in relation to the nature, degree and results of the violence used, or to any sexual deviance not apparent from the words of the charge. In a case of assault to severe injury and permanent disfigurement of the victim, those words may not disclose that, for instance, there was present a degree of ritual or sadistic mutilation. The exception to the general rule that detailed information is not recorded is in cases where the offender is given a determinate sentence of four years or more, or where an extended sentence is passed. In such cases the sentencing judge provides (or ought to provide) a report on the case for the benefit of the Parole Board.

5.16 In order to meet at least some of the foregoing concerns about the lack of accurate information on the details of past offences, we think that a report should be prepared by the sentencing judge or sheriff in all cases of a violent or sexual nature (including, where appropriate, cases of breach of the peace) which are prosecuted on indictment, whether or not such a report is later required for parole purposes. Such a report should contain an outline of the circumstances of the commission of the offence and will thus constitute a contemporaneous record of those circumstances as presented to the court when dealing with that case. The report should be produced as soon as possible after sentence has been passed and should remain with the case papers in the custody of the Clerk of Court so that it is available on future occasions when the offender requires to be sentenced.

(iii) Collating information on potential risk

5.17 We are convinced that all the available pointers to the potential risk displayed by an offender should be centrally collated. Our Committee was attracted to the arrangements in British Columbia where the Attorney General's Office has a system of 'flagging' potential candidates for dangerous offender status under the relative provisions of the Canadian Criminal Code. The goal of the 'flagging' system is to provide Crown Counsel with the necessary information to decide whether to make an application to the Court to seek an assessment report to determine whether the offender is a dangerous offender on whom a sentence for an indeterminate period should be imposed. When prosecutors in British Columbia identify an offender who might at some future point be made the subject of a risk assessment, they send information on the circumstances of the offence to an official in the Attorney General's Office.

5.18 We think that a similar 'flagging' system should be introduced in Scotland and that the Crown Office should take on this role. It should do so because of its national role as the prosecuting authority for Scotland and its unique status in our system of public prosecution. Furthermore, since we later recommend that it should normally be the Crown which applies to the court for a risk assessment to be carried out on high risk offenders, that application will be facilitated if it is the Crown which has previously gathered the necessary information on the past offences committed by that group.

5.19 While one of the primary sources of information available to the Crown about past offences would be the contemporaneous report prepared by the sentencing judge or sheriff, the Crown would of course have access to all the additional information contained in the police report and precognitions relating to those past cases and to any other cases proceeded with by way of summary complaint.

5.20 Those whose task it is to assess risk of future offending must have regard to previous problems of behaviour and apply any known predictors of risk. They will require to obtain and consider information about the offender's personal and family relationships, employment history, financial circumstances, personality traits and characteristics, physical and mental health and any history of substance abuse. Much of this information will come from the offender. Information will also have to be gathered from documentary sources, as well as from the family and friends of the offender, employers, health professionals who have had contact with the offender, and others who may possess relevant information.

5.21 However, it may be necessary to go further. We have discussed above the need for more detailed information about the circumstances of the offender's previous convictions. There may also be a need to have regard to allegations of criminality which have not, for one reason or another, resulted in prosecution. This controversial issue gave us great difficulty and we now summarise the arguments on both sides.

Unprosecuted allegations

5.22 On the one hand, it might be thought highly relevant to a risk assessment that the offender has in the past repeatedly placed him/herself in a situation which has led others to feel alarmed or in danger, even although no criminal charges have been brought. This is the approach taken in Canada, where the person assessing the risk of re-offending may have regard to the circumstances of allegations of criminal behaviour for which the offender was not prosecuted. Details of these allegations would be disclosed in the report prepared by the assessor. If the offender denies any part of the report, the prosecutor has to lead evidence in support of the allegation.

5.23 On the other hand, it is obvious that to found on unproved allegations may be to afford them a status which is not supported by the facts surrounding them. There may always be an innocent explanation which the offender cannot be prevented from advancing. There is a risk that sentencing decisions may be taken (at least in part) on the basis of information which is misleading, irrelevant or borne of malice. There is also the practical difficulty of proof to an adequate standard for the purpose required.

5.24 On balance, the relevance of these allegations to the process of risk assessment is such that we have come to the view that it is legitimate for unproven allegations of criminal behaviour to be taken into account, so long as these allegations are admitted by the offender or, if challenged, established by the leading of evidence.

Prior acquittals

5.25 It would be quite wrong, however, in assessing the risk of future danger, to have regard to previous allegations which have been made the subject of prosecution but which have not been established and which have resulted in acquittal. There may, nevertheless, be aspects of the offender's behaviour in relation to the alleged offence which resulted in acquittal, which are matters of legitimate concern to the assessor of risk. The assessor should be entitled to take these into account on the same basis as unprosecuted allegations.

5.26 In reaching this view, we have kept at the forefront of our minds the purpose to which this information is to be put. It is solely for the purposes of assessing future risk. We stress that the nature of the evidence to be taken into account and the standard of proof to be applied in conducting risk assessment is different from that required to obtain a conviction in a criminal court on a particular charge. But it seems to us that if, for example, an offender is prepared to recognise that his/her past behaviour on particular occasions in fact provided a justification for fears expressed at the time that recognition is significant in assessing future risk.

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