The dangerous offender provisions of the Criminal Justice Act 2003 and their implications for psychiatric evidence in sentencing violent and sexual offenders

Abstract

Psychiatric evidence is used to assist in the sentencing of a significant minority of violent and sexual offenders. Historically, indeterminate sentences have been reserved for those offenders demonstrating mental instability. The Criminal Justice Act 2003 (‘the Act’) introduces a range of new sentences for dangerous offenders and a statutory test of ‘dangerousness’. It extends indeterminate sentences to a broader group of offenders and removes much judicial discretion in sentencing violent and sexual offenders. However, in early cases the courts have been disinclined to follow more radical interpretations of the Act. It is contended that in many future cases expert psychiatric evidence will be used to support or undermine the new assumption of dangerousness. It appears that expert psychiatric evidence needs to address risk within the framework and terminology of the Act. This paper will summarise the Act and review the emerging case law relevant to psychiatric evidence before considering the information from which an expert witness will benefit in such cases.

Keywords:

• dangerous offenders
• dangerousness
• psychiatric evidence
• expert witness
• criminal justice act
• sentencing

Acknowledgements

I would like to offer my sincere gratitude to Kevin Kerrigan, Reader in Law at Northumbria University, who has provided generous advice and supervision during my studies in this area of law. This article originates from part of my Master of Laws dissertation, which formed part of a body of work awarded the Sweet & Maxwell Prize 2007 by Northumbria University School of Law.

Notes

1. The problem of persistent dangerous offenders has attracted special legislative attention for almost a century. As outlined by Kinzig (1997), in 1908 a ‘double track’ system was introduced to the UK by the Prevention of Crime Act. Under this Act, repeat offenders could be sentenced to an additional five to ten years preventative detention which would be Sewed immediately following the standard prison sentence. This regime remained in place for forty years, but declined in popularity and was used in only in a handful of cases towards the end of its existence. The Criminal Justice Act 1948 moved away from a double track system of sentencing for petty recidivists who were brought back to a ‘single-track’ system of justice. The Act did provide, however, for dangerous recidivists a preventative detention with a duration fixed between 5 and 14 years and which was a substitute to a prison sentence that would otherwise have been imposed. This proved similarly unpopular with the Courts and was revoked by the Criminal Justice Act 1967.

2. A sexual or violent offence with a maximum sentence of two or more years.

3. A sexual or violent offence with a maximum sentence of ten or more years. It can be seen that all serious offences are also specified offences.

4. Meaning simply a specified offence for which the defendant has previously been convicted, thus making them potentially liable to the new statutory assumption of dangerousness.

5. The definition of ‘serious harm’ provided by the Act echoes the definition which had developed in the case law flowing from the Criminal Justice Act 1991.

6. Several sentencing mistakes have been made at trial following the introduction of this complex legislation. In R v Cain [2007] EWCA Crim 3233 it was established that legal counsel on both sides had a duty to advise the court of the impact of Dangerous Offender Provisions on their case. Presumably this should extend to their calling on expert testimony.