Chapter 1: Definitions and Context
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'.
Chapter 2: Risk
2. Systems of risk assessment should be based on the best available research. Current evidence suggests that the structured clinical approach to risk assessment should be seen as the most helpful approach in relation to risk assessment for forensic purposes, and this should be reflected in guidance and training.
3. There is a need for research on risk assessment issues relating to serious violent and sexual offenders, and in particular research on:
The Committee recommend that national grant-giving bodies are encouraged to include such aims in their research agendas.
4. All agencies operating in the criminal justice system should ensure that professionals who evaluate risk, or make decisions based on risk, are appropriately trained.
Chapter 3: A Risk Management Authority
5. A new authority, to be called the Risk Management Authority, should be created with a view to securing the protection of the public from seriously violent and sexual offenders while restricting their freedoms no more than is necessary in the public interest.
6. The Risk Management Authority should:
7. The Risk Management Authority's policy work should fall into three main areas:
8. The Authority's standard setting work should fall into three main areas:
9. The operational role of the Risk Management Authority is to manage the risks presented by serious violent and sexual offenders, by agreeing a risk management plan for each and by commissioning appropriate risk management services from the agencies it considers give best value for money in protecting the public.
Chapter 4: Sentencing Options
10. Section 1 of the Crime and Punishment (Scotland) Act 1997 should be repealed.
11. The maximum competent extension period of an extended sentence should be ten years in the case of both a sexual offence and a violent offence prosecuted at common law.
Chapter 5: The New Sentence
12. Legislative provision should he made for a new sentence called 'An Order for Lifelong Restriction (OLR)' for the lifetime control of serious violent and sexual offenders who present a high and continuing risk to the public.
13. In all cases of a violent or sexual nature (including, where appropriate, breach of the peace) prosecuted on indictment, the judge should prepare promptly a report setting out the circumstances of the offence as narrated in court, which report should be preserved with the case papers for later use if required.
14. The Crown Office should develop a system of recording information about offences committed which would be relevant in future decision making on the question of ordering risk assessment in serious violent and sexual cases.
15. The sentencing of serious violent and sexual offenders should be informed by a formalised, multi-disciplinary risk assessment based on the circumstances of the current case and much fuller information regarding the antecedents of the offender and the nature of any previous offences, including unproven allegations of criminality.
Chapter 6: Procedures for Imposing the New Sentence
16. The option of imposing an OLR should be available only in the High Court. The Court should have the power to impose an OLR where the offender has been convicted on indictment of (a) an offence of violence, (b) a sexual offence, or (c) any other offence which is closely related to, or reflects an offender's propensity for violent, sexual or life-endangering offending.
17. An OLR would be available only in cases where the High Court was satisfied that there are reasonable grounds for believing that the offender presents a substantial and continuing risk to the safety of the public such as requires his lifelong restriction. If the Court is so satisfied, it must make the Order.
18. Before an OLR can be imposed a formal risk assessment must be carried out in accordance with statutory procedures.
19. The Court shall make an order for a risk assessment where there are reasonable grounds for believing that the offender may present a substantial and continuing risk to the public.
20. A risk assessment should normally be ordered following a Crown motion intimated to the accused prior to the close of the Crown case. Such a motion could be opposed and would be determined after conviction. The decision of the Court thereon would be final. Exceptionally, a risk assessment could be ordered by the Court of its own volition, but only after hearing submissions from both sides.
21. A Risk Assessment Order would be authority for the detention of the accused for up to 90 days, or up to 180 days on cause shown, at a centre accredited by the Risk Management Authority for the purpose of a multi-disciplinary risk assessment.
22. The risk assessment and its component parts should be lodged with the Clerk of Justiciary. The accused will have the right to challenge it by obtaining a contrary assessment. Procedural provision will be required for the mutual disclosure of reports and the names of potential witnesses, and the conduct of the sentencing hearing.
23. It will be for the Crown to establish, on a balance of probability, that the statutory criteria for the imposition of an OLR are met.
24. If the High Court was satisfied that the statutory criteria were met, it would impose on the offender an OLR, setting at the same time a designated period of time which the offender would serve in custody to reflect the concerns of punishment and deterrence
25. If the High Court was not satisfied that the statutory criteria for the imposition of an Order for Lifelong Restriction were met, it would be able to adopt any other competent disposal other than to pass a discretionary life sentence.
26. The accused should have a right of appeal against the making of an OLR on the ground that to adopt this disposal was excessive; and the Crown should have a right of appeal against a refusal to make such an order, on the ground that the refusal was inappropriate because the statutory test was in fact met.
Chapter 7: High Risk Offenders with a Mental Disorder
27. A high risk offender who also suffers from a mental disorder that meets the criteria for compulsory detention in hospital should receive an OLR together with a hospital direction. This should be the only sentence permitted in respect of such offenders
28. The provisions of Section 1 of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 should not apply to offenders subject to an OLR together with a hospital direction.
29. An interim hospital order should be imposed in all cases where the offender is one who would otherwise be assessed to determine whether he/she fits the statutory criteria for the imposition of an OLR, but where there is also evidence that he/she may be suffering from a mental disorder for which treatment is appropriate.
30. The time limit for renewal of the interim hospital order, where the assessment is for the purpose of determining whether the offender should ultimately be made the subject of an OLR coupled with a hospital direction, should be increased from 28 to 90 days.
31. Where a psychiatric report in respect of a person convicted of a serious violent or sexual offence recommends the imposition of a hospital order with restrictions, the psychiatrist shall be required to address in the report the question of why an interim hospital order is not appropriate.
32. Section 57 of the Criminal Procedure (Scotland) Act 1995 should be amended to enable an interim hospital order to be made for mentally disordered offenders who are found insane following proceedings taken on indictment and who may be a high risk to the public.
33. A hospital order with restrictions should be the mandatory disposal for a mentally disordered offender found insane following proceedings taken on indictment who, after assessment, is considered to be a high risk to the public.
34. A person detained in hospital under an OLR with a hospital direction should be entitled to apply to a Designated Life Tribunal for his/her release if, at the time the designated part of his/her sentence has been completed, he/she is still in hospital
35. Decision making in relation to the management and care of high risk offenders with a mental disorder should be informed by a multi-disciplinary risk assessment and risk management process in accordance with the standards that apply for sentencing and sentence management as outlined in Chapters 6 and 8.
36. We recommend that the standards of supervision and aftercare for high risk offenders with a mental disorder who are discharged from hospital, or released from prison, should be the same as those for other high risk offenders.
Chapter 8: The Operation of the New Sentence
37. Upon beginning an OLR, a risk management plan should be prepared, drawing on the pre-sentence assessment, and approved by the Risk Management Authority.
38. The supply of interventions to high risk offenders in prison, and decisions concerning security categorisation and placement, should be determined by the risk management plan.
39. Review of the sentence, and any decision to release the offender from, or to recall the offender to prison, should be the responsibility of the Parole Board, operating through a Designated Life Tribunal (DLT).
40. The risk assessment and management plan should be reviewed formally on a regular basis under the supervision of the Risk Management Authority. Procedures for consideration of release by the DLT should operate in the same way as current arrangements for discretionary life prisoners, but any decision as to release should be informed by the risk assessment and risk management plan.
41. The Parole Board operating through a DLT would have similar powers to those it has in relation to discretionary life prisoners, including the power to set and vary licence conditions. In addition, it would have the power to order release from prison, at a specified future date, and with a requirement that provision be made for supervision and risk management in the community.
42. Legal Aid should be available to a prisoner appearing before a DLT.
Chapter 9: Supervision of High Risk Offenders
43. National standards for the supervision of high risk offenders should be developed by the Scottish Executive, in consultation with the Risk Management Authority
44. Each of the proposed local authority groupings should have access to a specialist services for high risk offenders which can supplement and support the work of individual supervising social workers.
45. Community services for high risk offenders should develop techniques for intensive supervision and surveillance. Components of this service would include:
46. The Scottish Executive should ensure that there is an appropriate range of accommodation, including hostels and other forms of supported accommodation, which can facilitate the discharge of high risk offenders from custody and ensure their appropriate supervision in the community.
Chapter 10: Personality Disorder
47. The Scottish Executive should consider measures that might be taken to include the prevention of personality disorder within its broader strategies, including those on education, social inclusion, public health and substance misuse.
Chapter 11: Services for Offenders with Personality Disorder
48. The Scottish Executive should consider whether or not the condition of personality disorder generally should be referred to SIGN with a view to the development of national clinical guidelines.
49. Services for serious offenders with a personality disorder should focus on long-term risk management according to standards promulgated by the Risk Management Authority.
50. Pilot services should be developed, with the support of the Risk Management Authority, in relation to the long-term management and, where appropriate, treatment of personality disordered offenders. These should be co-ordinated between relevant agencies, draw on the experience of similar pilot projects elsewhere, and should be subject to rigorous evaluation over a period of years.
Chapter 12: High Risk Offenders with Personality Disorder
51. For patients whose continued detention at the State Hospital arises solely from the need to protect the public from serious harm, the procedures for assessing the risk they present should be consistent with those recommended elsewhere in this report for the assessment and management of risk.
52. The sentencing options for a high risk offender who suffers from a personality disorder should be either an OLR simpliciter (recommendation 24) or such an order combined with a hospital direction (recommendation 27) according to the individual circumstances of the case.