SCOTTISH EXECUTIVE

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Report of the Committee on Serious Violent and Sexual Offenders

CHAPTER 6: PROCEDURES FOR IMPOSING THE NEW SENTENCE

Sentencing procedures

(i) The legal test

6.1 It will be necessary for any legislation providing for the imposition of an OLR to define the conditions under which such a sentence can be imposed. In our view, an OLR should only be imposed by the High Court, either following conviction in that Court or following remit by the sheriff after conviction on indictment in the sheriff court. Restricting the imposition of an OLR to cases where the offender has been convicted on indictment is intended to ensure that the OLR is only imposed in cases of serious offending.

6.2 It would be possible to restrict the imposition of the OLR to cases in which the accused has been convicted of a serious offence of violence or a serious sexual offence. However, as indicated above, our concern has been with serious violent or sexual offenders as opposed to offences of that nature. Clearly, the option of imposing an OLR should be available to the Court where an accused has been convicted of a serious offence of violence or a serious sexual offence, but in our opinion it should also be available where an offender with a history of violent or sexual offending is convicted on indictment of an offence which, while not in itself inferring violence or having a sexual content, is closely related to, or reflects, the offender's previous history of violent or sexual offending. Two examples of this type of case can be envisaged.

6.3 Suppose an accused has previously been convicted of raping a woman in her home. On a subsequent occasion he obtains access to another woman's home by means of fraud. It would be possible, under our proposals, for such an offender in the subsequent case to be made subject to an OLR if he were to be convicted on indictment of obtaining access to a woman's home or place of work by fraud, even in the absence of any evidence of a sexual assault on that occasion.

6.4 In like manner, an offender who has a history of sexual assault or lewd practices with children might find himself subject to an OLR on conviction on indictment on a charge of breach of the peace, which consists in causing alarm or upset to a child by inviting her/him to enter a car, or some other place.

6.5 The fact that an offender has been convicted of such an offence, while necessary for the imposition on an OLR, is not of itself sufficient to allow the Court to impose this form of sentence. The OLR is intended for cases where the offender presents a serious risk to the public, and the Court should only impose this sentence if it is satisfied that there are reasonable grounds for believing that the offender presents a substantial and continuing risk. We deal later with the situation where this test is not met.

(ii) The need for a risk assessment

6.6 Any decision to make an OLR involves a very substantial interference with the liberty of the offender and must therefore be made only where there is clear and convincing evidence that the offender presents a substantial risk to the public. It is therefore necessary that before any such order is imposed the Court should have before it information concerning the offender and the degree of risk which the offender presents to the community. This can only be done following a formal risk assessment, in a secure setting, the purpose of which is to inform the court of the likely risks which the offender may present to the community, and to enable it to determine whether or not the test set out in Recommendation 17 is satisfied.

(iii) Conditions for ordering a risk assessment

6.7 As indicated above, we think that the Court should only have the power to impose an OLR where there are reasonable grounds for believing that the offender presents a substantial and continuing risk to the public. A similar test should be satisfied before the Court makes an order for a formal risk assessment, but it is clearly not possible for the Court to determine in advance of the assessment whether or not the offender does present such a risk. It should therefore be open to the Court to order an assessment where, having heard submissions, it is satisfied that there are reasonable grounds for believing that the offender may present a substantial and continuing risk to the public.

6.8 In all cases in which it is thought that an OLR might be an appropriate disposal, the normal mode by which the necessary risk assessment should be requested will be by Crown motion to the Court, made immediately upon the conviction of the accused and after the motion for sentence is made. Intimation that the Crown intend to make such a motion must be given to the accused prior to the close of the Crown case, so that the accused has proper notice that, if convicted, the Crown intend to adopt this stance. There may, however, be cases where the evidence at the trial is of such a character to suggest that an assessment should be ordered irrespective of the wishes of the Crown; in such cases the Court should retain the power to order such an assessment of its own accord, after hearing submissions.

6.9 On the assumption that the necessary motion for a risk assessment is made by the Crown, the accused will have the right to oppose the motion by making contrary submissions. The decision of the Court on the motion will be final and not subject to appeal.

6.10 We have already referred to the need for all agencies operating in the criminal justice system to ensure that those of their staff who take decisions based on risk are appropriately trained. This is especially important in the case of the prosecution service.

6.11 Decisions relating to the level at which proceedings are taken have always been influenced by assessments of the risk of offending. The decision whether to take proceedings and the nature of any proceedings will be determined by the prosecutor's assessment of the public interest. In deciding whether to take proceedings on indictment, the Crown will have regard to the whole circumstances of the case, including the gravity of the offence, the record of the accused and the penalty considered to be appropriate.

6.12 It is essential that prosecutors have a clear understanding of those factors which have a bearing on risk. In the case of a serious violent or sexual offence, it is almost inevitable that proceedings will be taken on indictment because of the gravity of the offence. There may be other cases, however, involving violent or sexual behaviour where the latest offence is not of itself sufficiently serious to merit solemn proceedings, but the offender's history of criminality and his/her past behaviour indicate that he/she may present a continuing danger to the public. As the new sentencing option which we propose would be available only if the offender is prosecuted on indictment, prosecutors must be in a position to identify those who may present a continuing danger so that this can be taken into account when deciding the form of prosecution.

(iv) Procedure once a risk assessment has been ordered

6.13 If a risk assessment is ordered, a Risk Assessment Order would be pronounced and would constitute authority for the accused to be detained for up to 90 days for the assessment to be carried out. This period, if thought to be insufficient, might be extended by the Court on cause shown for a further period of not more than 90 days. The order would specify the primary location at which the assessment would be carried out, being a centre accredited for the purpose by the Risk Management Authority.

(v) Procedure on completion of risk assessment

6.14 Once the accredited assessor has completed the task of co-ordinating all the elements of the multi-disciplinary risk assessment, he/she should be required to lodge all written reports with the Clerk of Court so that they are available to the judge and all parties. It is of course essential that the defence should have a proper opportunity to challenge the basis of the assessment and to lead contrary evidence if they wish. Procedural provision will therefore require to be made for these purposes and for the disclosure of any defence reports to the Crown. In cases where the facts and/or conclusions are in dispute, it may be necessary for oral evidence to be led at the sentencing hearing.

6.15 At the sentencing hearing, it will be for the Crown to satisfy the Court, on a balance of probability, that the statutory criteria for an OLR have been met. In order to discharge this burden of proof the Crown might well elect in the public interest to call evidence, even if there is no defence challenge to the assessment. We see the function of the Crown at this point as actively assisting the court, rather than adopting its traditional passive role in sentence matters. In any event a sentencing hearing may take some time, with obvious implications for Court programming.

6.16 If the Crown discharge the burden of proof, the High Court would pronounce the Order. The Court would also set, at that time, a period of time to be served by the offender in prison to meet the concerns of punishment and deterrence. The formula presently applied to compute the designated part of a discretionary life sentence should likewise apply to an OLR (see O'Neill v HM Advocate (1999) SCCR 300).

(vi) What if the statutory test for the imposition of an OLR is not met?

6.17 It may of course be that the Crown fail to discharge the necessary burden of proof, in which case the High Court could not impose an OLR. In such a case we think that the Court should generally be free to impose any other competent penalty or make a mental health disposal if the statutory tests relative thereto are met, but it should not be free to impose a discretionary life sentence. We would expect that in many cases the option selected would be an extended sentence, the extension period of which might be lengthy and in some cases the maximum competent for the offence in question; and the risk assessment should be regarded as an adequate substitute for the statutory pre-sentence report required for the imposition of such a sentence. In that way the decision to pass an extended sentence in these cases will be much better informed and the length of the appropriate extension period more accurately assessed.

6.18 It is because of our belief that most offenders who presently receive a discretionary life sentence would 'qualify' for an OLR that we see no place for discretionary life as a competent disposal in the event that the statutory tests for an OLR are not met. We do not, however, recommend the complete abolition of the discretionary life sentence since Parliament has prescribed it as a competent penalty for certain statutory offences of a non- violent or sexual nature.

(vii) Appeals

6.19 The decision on whether or not to make an OLR should be amenable to appeal, both by the accused (if an Order was made) and by the Crown (if an Order was not made). The normal appeal provisions would apply.

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