26. The dangerous offender provisions Flashcards
What is a specified offence for dangerousness?
If it is:
(a) A specified violent offence (in part 1 of schedule 18)
(b) A specified sexual offence (in part 2 of that schedule) or
(c) A specified terrorism offence (in part 3 of that schedule)
What sentences are available for dangerous offenders?
(a) The extended determinate sentence (for those in respect of offences listed in sch 18)
(b) Serious terrorism sentence (offences committed on or after 29 June 2021 and [are contained in part 1 of sch 17A] or [part 2 of sch 17A and deemed to have a have a terrorist connection])
(c) Life sentences (schedule 19 (committed on or after 4 april 2005))
For the purposes of dangerousness, what is “serious harm”?
Death or serious personal injury whether physical or psychological.
What other sentences are related to the dangerousness provisions?
(a) The life sentence for a second listed offence
(b) The required life sentence for manslaughter of an emergency worker
(c) The required custodial sentence for certain offenders of particular concern
However, none of these require the dangerousness be passed.
What is a ‘dangerous offender’?
An offender who poses a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences
The assessment of risk is made at the date of sentencing, rather than the risk at some future date but disregarding the fact that D is in custody.
What must the judge consider when making an assessment of dangerousness? What guidance is there on this?
The assessment of risk is made at the date of sentencing, rather than the risk at some future date but disregarding the fact that D is in custody.
The judge:
(a) Must take into account all the information available to it about the nature and circumstances of the offence
(b) may take into account all the information available to it about the nature and circumstances of any other offences for which the offender has been convicted by any other court
(c) may take into account any information about any pattern of behaviour of which the offences above forms part
(d) may take into account any information about the offender which is before it
‘significant’ risk means more than a possibility. It must be noteworthy, of considerable amount or importance.
A PSR should usually be obtained.
The court will rely upon the facts of the offence (especially where these have emerged in some detail during the course of a contested trial), upon the pre-sentence report, and the details of the offender’s previous convictions, where relevant.
In a multi-handed case, each offender should be individually assessed.
A finding of dangerousness without a PSR is rare but could potentially be justifiable if there is, for example, an extensive history.
If the court wishes to depart from a PSR, they should give advance warning. It is a rare case for a judge to permit XX of an author of a report about dangerousness.
If there is doubt about the facts of a previous offence, a more detailed investigation may be necessary, but it may be possible to proceed on the information available to the court or to infer seriousness of past offences from the sentences which had been imposed.
The court can have regard to non-specified offences, especially if they are of a pattern of escalating seriousness.
Indeed, a first offender might qualify.
Actual harm may not be needed for dangerousness, especially if the avoidance of such harm was down to luck more than anything else.
The test should not be reduced to a numerical probability. Each case must be determined on its own facts.
Sentencers should be careful when finding dangerousness in relation to young people, especially where there is no patter of offending. Young people are more likely to act impulsively, to be responsive to any sentence imposed, and more likely to change. Therefore, the young age and prospect of maturation may be relevant to the assessment of risk, and might change whether a determinate rather than extended sentence should apply.
Low level offending at a minor level without any higher incidents will almost certainly not be ‘a risk of serious harm’.
Members of the public is a wide term, and should not be construed so as to exclude any particular group, such as prison officers, or staff in mental hospitals. A risk can be to a small group of individuals, or even to one person.
Members of the public can include non uk citizens who would not be within the uk at the time of the anticipated risk.
TICs can be relevant, or previous summaries on applications for ASBOs.
The information to be relied upon is not just ‘evidence’, it can include everything except fort unproven and disputed allegations of offending.
Reasons should be given for all conclusions, with reference to the information taken into account.
Will the court of appeal interfere with a finding of dangerousness?
Usually no unless it can be shown the sentencer has failed to apply to correct principles or has come to a conclusion not available on the evidence.
It would be a rare case for this.
However, the court of appeal has increased or found dangerousness in opposition to the judge even without finding an error.
