The Interface Between Dangerous Offender Sentencing and Psychiatry
| Pages | 20-23 |
| Date | 15 May 2009 |
| Published date | 15 May 2009 |
| DOI | https://doi.org/10.1108/13619322200900004 |
| Author | Andy Bickle |
| Subject Matter | Health & social care |
Mental Health Review Journal Volume 14 Issue 1 March 2009 © Pavilion Journals (Brighton) Ltd
20
PRACTICE
Dr Andy Bickle
Consultant Forensic Psychiatrist, St. Andrew’s Healthcare, Northampton, UK
The Interface Between Dangerous
Offender Sentencing and Psychiatry
Abstract
Many violent and sexual offenders are mentally disordered or will develop mental disorders while serving their
sentence. The Criminal Justice Act 2003 introduced major changes to the sentencing of ’dangerous offenders’. The
disposal given to these offenders has implications for subsequent clinical management in secure mental health units,
prison and, ultimately, in the community, particularly when it is an indeterminate sentence. This paper argues that
the Act also has implications for psychiatric evidence submitted to the courts in such cases. The changes appear to
carry significant resource implications too, especially for community forensic psychiatry.
Key words
Criminal Justice Act, dangerous offenders, prisons, sentencing
The type of sentences given to serious violent and
sexual offenders has a number of consequences for
psychiatry. Unsurprisingly, they are mostly felt by
those working in forensic mental health settings. The
nature of the disposal can impact upon the clinical
management by health professionals of mentally
disordered offenders (MDOs) in secure mental health
units, in prison and, eventually, in the community.
Mental health expert witnesses providing evidence to
criminal courts must also be mindful of sentencing
regimes, especially when addressing questions of
mitigation or aggravation.
A striking trend in sentencing in the UK over the
last 50 years has been the rise of indeterminate (’life’)
sentences. Before the mid-1960s, life sentences were
imposed rarely. Reasons for this included not only the
existence of capital punishment in severe cases, but
also the availability of determinate extended sentences
of between five and 14 years for dangerous recidivists.
In 1965, life imprisonment became the mandatory
sentence for murder, contributing to a sevenfold
increase in indeterminate sentences between 1960
and 1982 (Kinzig, 1997). Subsequent sentencing
policy supported the extension of this trend. The
Criminal Justice Act 1991 introduced new ’longer than
commensurate sentences’ for dangerous offenders and
the Crime (Sentences) Act 1997 brought in ’automatic
life sentences’ for a second very serious offence.
The Criminal Justice Act 2003 made further major
changes to the sentencing of dangerous offenders
(Ashworth, 2005; Bickle, 2008a). The Act created
new sentences for those found to be dangerous.
Among them is the indeterminate sentence for public
protection (IPP) for those convicted of such an offence
carrying a maximum sentence of 10 or more years.
Offenders receiving an IPP are given a tariff period,
after which they can apply to the Parole Board, which
may recommend their release if they are no longer
believed to be dangerous. Otherwise, they are detained
indefinitely. This sentence has proved controversial
and has been identified as contributing to prison
overcrowding (Thomas, 2007). By mid-July 2008, just
over three years after the legislation came into force,
there were 4,619 prisoners serving IPPs in England and
Wales (Rutherford et al, 2008).
The 2003 Act also introduced a ’statutory
assumption of dangerousness’, which meant that
defendants convicted of a second violent or sexual
offence carrying a maximum sentence of two or
more years were assumed to be dangerous unless this
assumption could be rebutted. Significantly, this shifted
the burden of proof so that perpetrators of a whole
range of offences (some as relatively modest as affray
and indecent exposure) had to prove to the court that
they were not dangerous. Very recently, the Criminal
Justice and Immigration Act 2008 amended some of
the more radical aspects of the 2003 Act, including
scrapping the statutory assumption of dangerousness
for all but the most serious crimes and reintroducing
greater judicial discretion in sentencing those identified
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