Dangerousness, Rights and Criminal Justice

AuthorEstella Baker
Publication Date01 Jul 1993
DOIhttp://doi.org/10.1111/j.1468-2230.1993.tb01883.x
Dangerousness, Rights and Criminal Justice
Estellu
Baker*
Introduction
Dangerousness, an individual’s ‘propensity to cause serious physical injury or lasting
psychological harm,” is a highly influential factor in decision-making in the arena
of mental health law and, to a more limited extent, the criminal justice system. It
is a concept which is fraught with difficulty, particularly in the legal context.2 Use
of the exact term in legislation is rare.3 However,
this
has not prevented the courts
from applying dangerousness as a criterion for decision making.4 This is not as
surprising as it might appear. Although no definitive definition exists, at the heart
of the concept lies the assessment of future risk of serious harm. Courts are required
to make just such an assessment when deciding to impose protectionist disposals
following conviction. For example, both the Mental Health Act
1983,
which enables
an individual to be hospitalised as a ‘restricted patient,” and the criteria for
imposing a discretionary life sentence involve a predictive judgment of this type.6
Similarly, once these orders have been made, predictive judgments are an integral
component of decisions to discharge from hospital or to release from prison. There-
fore, in reviewing such decisions the courts are again confronted by the issue of
dangerousness. The aim of this article is to analyse the adverse implications for
the rights of individuals who have been labelled as dangerous, either as a result
of hospitalisation as a restricted patient, or through the imposition of a discretionary
life sentence.
Clearly, the principal infringements of the rights of individuals flow from the
imposition of the incarcerating orders. However, two recent decisions suggest that
the courts are prepared to go further. It appears that the attribution of dangerousness
can be cited in justification of the denial or limitation of a more extensive set of
rights than those affected by the Mental Health Act or the law applying to prisoners.
This is a serious development because research studies have pointed consistently
to the twin conclusions that assessments of dangerousness are more likely to be
wrong than right, and that errors largely result from the exercise of excessive
caution.7 In other words, there is a tendency to over-prediction. Although the
*Lecturer in Law, Faculty of Law, University of Leicester.
The author wishes to thank Malcolm Ross and Richard Stone for their helpful comments on drafts of this
article.
1
Home OEcelDHSS,
Report
ofthe Cornmitfee
on
Mentally Disordered o$endes
(the Butler Committee)
(1975)
Cmnd
6244,
para
4.10.
2
See
Floud and Young,
Dangerousness and Criminal Justice
(London: Heinemann Educational Books,
1981)
chap
2;
Prins, ‘Dangerousness: A Review’ in Bluglass and Bowden (eds),
Principles andPractice
of
Forensic Psychiatry
(Edinburgh: Churchill Livingstone,
1990)
pp
499-500.
3
But
see
National Health Service Act
1977,
s
4.
4
See,
for example,
R
v
Parole Board,
exp
Bradley
[1990] 3
All ER
828;
R
v
Blackbum
(1979)
1
Cr
App R
(S)
205.
5
Mental Health Act
1983,
s
79.
6
The Criminal Justice Act
1991
has added a further category: offenders sentenced to longer protectionist
determinate sentences under
ss
1(2)(b)
and
2(2)@).
This article is only concerned incidentally with
these
provisions.
7
For reviews of the literature,
see
Prins,
op
cit
n
2;
Pollack and Webster, ‘The Clinical Assessment
of Dangerousness’ in Bluglass and Bowden,
op
cit
n
2;
Prins,
Dangerous Behaviour, the
Law
and
528
0
The Modem Law Review Limited
1993
(MLR
56:4,
July). Published by Blackwell
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and
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Main Street, Cambridge,
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USA.
July
19931
Dangerousness, Rights and Criminal Justice
research evidence does not relate directly to the orders under consideration in this
article, it is based on studies conducted on a variety of disparate subject groups,
across a number of jurisdictions.8 Clearly therefore, the findings give rise to
questions about the integrity of dangerousness as the basis of legal decisions which
reduce the rights of individuals. These questions seem even more apposite when
the criteria for imposing protectionist disposals are examined in the light of the effects
of
the orders once made. When subjected to scrutiny the criteria appear vague and
elusive. It is argued, therefore, that there is a need for greater transparency in this
area of the law. Further, that this need is given added impetus by the bifurcatory
approach adopted by the Criminal Justice Act 1991, with its renewed emphasis on
protectionism as a tenet of penal policy.
A
The Direct Consequences
of
Being Labelled as Dangerous
In passing a discretionary life sentence or ordering an individual’s compulsory
detention in hospital as a restricted patient under the Mental Health Act 1983, a
court simultaneously makes the assessment that the individual is dangerous, labels
them as such and makes them subject to a protectionist disposal. In other words,
the predictive judgment that the individual is dangerous provides the justification
for interfering with the individual’s rights. Obviously all prisoners and compulsory
patients suffer a reduction in civil liberties; however, for those detained under
protectionist measures the erosion is generally greater. In this section both the
‘ordinary’ deprivations and those specific to dangerous detainees will be examined.
Restricted Patients
A main feature of the approach of the Mental Health Act 1983 to restricted patients
is that the power to exercise managerial decisions regarding detention is concentrated
in the hands of the Home Secretary, subject to review by the Mental Health Review
Tribunal. In practical terms, this means that the powers which for ‘unrestricted
patients’ are available to the patient’s responsible medical
office^,^
the hospital
authorities and, to a lesser extent, the patient’s ‘nearest relative,’’O
are
either made
subject to the minister’s consent” or, in the latter case, removed altogether.I2 For
Mental Disorder
(London: Tavistock Publications, 1986); Bowden, ‘Psychiatry and Dangerousness:
A Counter Renaissance?’ in Gostin (ed),
Secure Provision
(London: Tavistock Publications, 1985);
Walker,
Sentencing
-
Theory,
Law
and Practice
(London: Butterworths, 1985) chap 22; Floud and
Young,
op
cit
n 2, chap 2; Home OfficelDHSS,
op
cit
n
1,
chap 4.
8
See,
for example, Brody and Tarling,
Taking
Offenders Out
of
Circulation,
Home Office Research
Study No
64
(London: HMSO, 1980); Hafner and Boker, ‘Mentally Disordered Violent Offenders’
(1973) 8
Social Psychiatry
220-229; Steadman and Cocozza,
Careers
of
the Criminally Insane
(Lexington: Lexington Books, 1974). It should be noted that some studies have been criticised as
having serious methodological weaknesses.
See,
for example, Prins,
op
cit
n
7,
p 88 criticising the
work by Steadman and Cocozza. The thrust of the criticism is that, although
still
of significant inaccuracy,
assessments of dangerousness may be more accurate than the studies appear to show.
See
generally
Walker,
op
cit
n 7, p 368
etseq.
See
also Brody, ‘Prediction of Dangerousness in Different Contexts’
in Rosner and Weinstock (eds),
Ethical Practice in Psychiatry
and
the
Law
(New York Plenum Press,
1990).
9 Mental Health Act 1983,
s
34(l)(a): ‘the registered medical practitioner in charge of treatment of
the patient.’
10
ibid
s
26(1).
11
ibid
s
41(3)(c).
12
ibid
s
41(3)(b).
0
The
Modern
Law Review Limited
1993
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