DANGEROUSNESS

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DANGEROUSNESS

• Medico-legal Update
• Wallace Brink

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The Acts

• Chapter 5 Part 12 Criminal Justice Act 2003
• Section 17 of the Criminal Justice and
  Immigrations Act 2008 amends Section 229 of the
  Criminal Justice Act 2003
• Sexual Offences Act 2003 section 104(1) (b)

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Definitions

• "the court is of the opinion that there is a
  significant risk to members of the public of
  serious harm occasioned by the commission by him
  of further specified offences".

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Definitions

• Specified Offences
• These are defined in section 224(1) and listed in
  Schedule 15 to the Criminal Justice Act 2003.
  Part One contains specified violent offences
  including (since s.138 of the Coroners and
  Justice Act 2009 came into force on the 12
  January 2010) terrorist-related offences, and
  Part Two contains specified sexual offences. The
  schedule is extensive, listing every indictable
  only and either way offence of sex or violence,
  ranging from actual bodily harm and exposure
  through to manslaughter and rape.

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Definitions

• Serious Offences
• These are defined in section s 224(2) as
  specified offences that are punishable with
  either life imprisonment or with imprisonment for
  ten years or more.

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Definitions

• Significant risk
• not defined in the legislation
• for the court to assess in each case
• R v Lang 2005 EWCA Crim 2864
• noteworthy, of considerable amount or importance.
  
• Risk must be to members of the public.
• can include the offender, particular groups of
  members of the public such as co-habitees or
  abused children, and individuals

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Definitions

• Pedley, Martin and Hamadi 2009 EWCA Crim 840
• confirmed the indication given in Lang 2005
  EWCA Crim 2864
• "significant risk" presented a higher threshold
  than a mere possibility of occurrence.
• R v Johnson 2006 EWCA Crim 2486,
• following the judgement in Lang, held that the
  sentence of IPP was concerned with future risk
  and the future protection of the public, and not
  with punishing the present offending.

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Definitions

• Serious harm
• means death or serious personal injury, whether
  physical or psychological
• R v Owen
• some risk of serious harm is not enough
• The test is the existence of a significant risk,
  enough to warrant a sentence which may never end

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Definitions

• non-serious specified offences - few cases where
  the significant risk of serious harm will be
  present.
• Repetitive sexual or violent offending at low
  level without serious harm is not dangerous R v
  Lang R v Terrell 2008 Cr App R (S) 49 R v
  Hicks 2009 EWCA Crim 733.
• The definition of serious harm is case specific
  minor offences of gradually escalating
  seriousness might be significant in the
  assessment of future risk R v Johnson.

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Definitions

• R v Johnson
• Does not automatically follow from the absence of
  actual harm caused, that the risk that he would
  cause serious harm in the future was negligible
• R v Shaffi 2006 2 Cr. App. R. (S) 92
• was not authority for the proposition that as a
  matter of law, offences which did not result in
  harm to the victim should be treated as
  irrelevant in the assessment of dangerousness.

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Assessing Dangerousness (Courts)

• The court in making the assessment referred to in
  subsection (1)(b)
• (a) must take into account all such information
  as is available to it about the nature and
  circumstances of the offence
• (aa) may take into account all such information
  as 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
• (b) 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 (aa) forms part, and
• (c) may take into account any information about
  the offender which is before it.

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Assessing Dangerousness (Courts)

• "Pattern of behaviour" and "information about the
  offender"
• not defined in the Act
• for the court to assess
• Include previous acquittals, complaints not
  prosecuted, and police intelligence about
  behaviour
• R v Considine and Davis 2007 EWCA Crim 1166
• could take account of an alleged history of
  violence not marked by previous convictions -
  "information (section 229(3))

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Assessing Dangerousness (Psychiatrists)

• Significant risk
• Serious harm
• pattern of behaviour
• information about the offender

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Defence Solicitors Strategies

• Reports can and should be challenged where
  appropriate.
• Note the level and experience of the author
• Check for accuracy in analysis of the facts of
  the case and the circumstance of the offender?
• Has the author properly assessed the level of
  seriousness of previous convictions?
• seek access to previous pre-sentence reports for
  consistency of approach.
• Do not shirk asking for a further report by a
  more experienced and/or impartial probation
  officer.
• Where appropriate, consider obtaining independent
  reports from psychologists or psychiatrists.
• Where an IPP is imposed on the basis of
  information contained in a PSR, or indeed in the
  absence of a PSR, it may be appropriate to seek
  an independent psychological report and updates
  from the prison probation service in support of
  any appeal See R v Lawrie 2007 EWCA Crim 2159

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Sexual Offences Prevention Orders

• protecting the public or any particular members
  of the public from serious sexual harm from the
  defendant"
• protecting the public in the United Kingdom
• from serious physical or psychological harm

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Definitions

• R v Rampley 2006 EWCA Crim 2203
• "serious harm" in the Criminal Justice Act 2003
  and "serious sexual harm" under the Sexual
  Offences Act 2003.
• CJA2003 mean death or serious personal injury,
  whether physical or psychological
• SOA 2003 including serious physical or
  psychological harm

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Definitions

• The Queen on the Application of the Commissioner
  for the Metropolis v Croydon Crown Court 2007
  EWHC 1792
• 1. level of risk of recurrence
• 2. level of risk of harm if recurrence there be
• assessing how much harm is likely to be done
• it can properly be called serious or not
• if only a small number of people would be likely
  to suffer such harm that would be a relevant
  factor in assessing the risk.

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Useful Websites

• http//www.bailii.org
• http//www.cps.gov.uk
• http//www.opsi.gov.uk
• http//www.yjb.gov.uk/en-gb
• http//www.justice.gov.uk
• http//www.statutelaw.gov.uk
• http//www.venables.co.uk/caselaw.htm
• http//www.gardencourtchambers.co.uk
• http//www.westlaw.co.uk