The Dangerous offender provisions.docx

***[The Dangerous offender provisions -- 1 Q's]*** **Measures for the sentencing of 'dangerous offenders', principally the required life sentence, the extended sentence, and the serious terrorism sentence**. **These sentences require, inter alia, a finding by the court that the offender is 'dangero...

***[The Dangerous offender provisions -- 1 Q's]*** **Measures for the sentencing of 'dangerous offenders', principally the required life sentence, the extended sentence, and the serious terrorism sentence**. **These sentences require, inter alia, a finding by the court that the offender is 'dangerous'**, in that the offender poses a 'significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences'. **There are three other closely related sentences, the 'life sentence for the second listed offence' (SA 2020, ss. 273 and 283), the life sentence for manslaughter of an emergency worker (as from a date to be appointed, ss. 258A, 274A and 285A) and the custodial sentence for 'certain offenders of particular concern'** (ss. 252A, 265 and 278), although for none of these three sentences must the 'dangerousness test' be passed. The practical operation of all these sentences requires an understanding of the criteria of eligibility for each, as well as an appreciation of the different early release provisions which apply. It should be noted that early release provisions have been subject to significant recent change and, as from 28 June 2022, the PCSCA 2022 has made important changes to the rules in relation to fixing the minimum term to be served within a life sentence. **'Specified offences' are those violent, sexual, or terrorism offences which are listed in sch. 18. All the offences listed in sch. 18 carry a maximum penalty of two years' imprisonment or more.** In the Sentencing Code a 'schedule 19 offence' means a specified offence listed in that schedule which carries a maximum sentence of imprisonment for life (s. 307). 'Serious harm' means death or serious personal injury, whether physical or psychological. (SA 2020, s. 308) **deals with the necessary evidence base for the assessment of dangerousness required for the court to establish whether the offender poses a 'significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.** The section is not relevant where the court is considering the application of s. 283 (life sentence for the second listed offence) This section applies **where it falls to a court to assess under any of the following provisions (which apply where an offender has committed a specified offence, however described) whether there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences---** a. section 255, 267 or 280 (**extended sentence for certain violent, sexual or terrorism offences**); b. section 268B or 282B (**serious terrorism sentence**); c. section 258, 274 or 285 (**required life sentence for Schedule 19 offence**). In making that assessment, the court--- a. **must take into account all the information that is available to it about the nature and circumstances of the offence,** b. **may take into account all the information that is available to it about the nature and circumstances of any other offences of which the offender has been convicted by a court anywhere in the world,** c. **may take into account any information which is before it about any pattern of behaviour of which any of the offences mentioned in paragraph (a) or (b) forms part, and** d. **may take into account any information about the offender which is before it.** requirement that a risk be 'significant' means more than a possibility --- it must be 'noteworthy, of considerable amount or importance'. The **Court of Appeal said that it was normal, or usual, to obtain a pre-sentence** report to assist in the determination of the issue of dangerousness. In a multi-handed case the sentencer must consider the issue of dangerousness in respect of each offender separately, and information in a pre-sentence report will often be of assistance in determining that question. **Court of Appeal said that to make a finding of dangerousness without the benefit of a pre-sentence report requires 'careful justification'** **There are occasionally cases where an extensive history of criminality together with the facts of the offence can justify a conclusion of dangerousness without requiring a pre-sentence report**. A psychiatric report would be appropriate in some cases but should be clearly directed to the issue of dangerousness. a case of reckless arson which had caused serious burn injuries to two people. **The Court of Appeal said that prosecutors and judges must ensure that the issue of dangerousness is considered where appropriate, and that it is not dismissed without proper consideration of a pre-sentence report addressing that issue.** **the Court of Appeal commented that reports before the courts were not binding on the sentencer but, if the judge was minded to depart from the conclusion set out in a report, counsel should be warned in advance.** It would only rarely be appropriate for a judge to permit cross-examination of the author of a pre-sentence report on the assessment of risk. **Wherever possible the prosecution should be in a position to describe to the court the facts of any previous specified offences on the record. If there is doubt over the accuracy of the facts or circumstances of previous convictions of the offender, it may be necessary, according to Samuels (1995) 16 Cr App R (S) 856, to adjourn to investigate the context of an earlier offence, but it may be possible to proceed on the information before the court or to infer the seriousness of past offences from the sentences** which had been imposed for them. **It is clear that in the assessment of dangerousness it is not just previous specified offences which are relevant**. The **court may have regard to offences on the record which are not specified offences, especially where they indicate an escalating pattern of seriousness**. Indeed, it is **not a prerequisite to a finding of dangerousness that the offender has any previous convictions. A first offender might qualify.** **Court of Appeal confirmed that there was nothing wrong in principle with the judge finding that dangerousness was established on the basis of a single incident**. **Nor is it necessary that serious harm (or indeed any harm) has been caused by the offender in the course of past offences, since that may have been simply a matter of good fortune** --- a public protection sentence may properly be imposed where there is a significant risk of serious harm from such offences in the future. **There was no justification for trying to redefine the 'significant risk of serious harm' test in terms of numerical probability**. Each case must be determined on its own facts, but that did not mean that the sentence was too uncertain to comply with the ECHR, Article 5(1). Sentencers should be careful when reaching a finding of dangerousness in relation to young people, especially where there is no pattern of offending. Young people are more likely to act impulsively, more likely to be responsive to any sentence imposed, and more likely to change. since the CJA 2003 defines 'serious harm' as 'death or serious personal injury, whether physical or psychological', and that was a phrase familiar to courts from earlier legislation, earlier guidance might be helpful. repetitive violent offending at a relatively low level did not of itself give rise to a significant risk of serious harm in the future. D had pleaded guilty before the magistrates to making indecent photographs of a child and had been committed to the Crown Court for sentence, the Court of Appeal said that, although there was a clear risk that D might reoffend in a similar way in future, there was no evidence that his offending would escalate to photographing children, or to child abuse. It could not therefore be shown that D represented a 'significant risk... of serious harm', where 'serious harm' meant death or serious personal injury, the latter phrase being deliberately coloured by the associated word 'death'. Court of Appeal in Lang confirmed that risk to **'members of the public' was a general term, and should not be construed so as to exclude any particular group, such as prison officers or staff in mental hospitals. Such a risk can properly be made out where the risk is specific to a small group of individuals, or perhaps just to one potential victim** In the context of an offence of engaging in conduct in preparation for acts of terrorism, contrary to the TA 2006, s. 5(1), the Court of Appeal confirmed, that 'members of the public' can include non-UK citizens who would not be within the UK at a time when the anticipated risk might materialise. **Sentencer was entitled to have regard to offences which D had asked to have taken into consideration.** where the judge properly had **regard to a synopsis of material prepared by the prosecution containing details of earlier alleged misconduct by D which had resulted in the making of an anti-social behaviour order against him**. The Court of Appeal said that although the incidents referred to in the synopsis had not been tested in adversarial judicial proceedings, they could be regarded as 'hard information' and could be relied upon. Court of Appeal confirmed that **the word 'information' in s. 308 was not restricted in its meaning to 'evidence', and that relevant information bearing on the offender's dangerousness in a particular case might include material adverse to the offender but which had not been proved by criminal conviction.** Court of Appeal said that **the sentencer should be careful to give reasons for all conclusions, particularly for the finding of whether there is a significant risk**. Reasons should **include reference to the information which has been taken into account. If the sentencer is minded to come to a different conclusion from the report(s) presented, it would be wise to alert counsel so that representations can be made on the issue**. the **Court of Appeal said that it will not normally interfere with a finding of dangerousness unless it can be shown that the sentencer has failed to apply the correct principles, or has reached a conclusion to which he or she was not entitled to come on the evidence**. '**it will be a rare case in which an appellate court, which has not conducted the trial and seen the offender, would overturn on sentence an exercise of judicial discretion in relation to an assessment of dangerousness'**. on an application by the **A-G arguing that the judge had erred in not making a finding of dangerousness, the Court of Appeal said that it was for the applicant to show that the judge's decision could not properly have been reached had he identified the relevant principles and applied his mind to the facts.** Court of Appeal, without finding that the judge had erred in the manner set out in Johnson, **increased a determinate sentence to an extended sentence on the basis of commission of a very serious sexual offence by an offender of otherwise good character for reasons that 'simply cannot be fathomed \[which\] suggests something dangerous and unpredictable within this offender \[and\] there cannot be confidence that another serious event might not occur in the future'**