Select Committee on Home Affairs First Report



OPINION OF THE COMMITTEE

77. The consultation paper poses eleven questions on policy options, service provision, assessment procedures, outcomes and prevention.[75] They are perfectly reasonable questions to ask professionals, charities and interest groups operating in this field. The Home Office's subsequent memorandum to this Committee acknowledges that debate on the consultation paper has focussed on seven fundamental issues. It is these issues of civil liberty, resources and medical ethics which we have heard about in evidence. We set out below our response to the questions the Home Office has posed.

(a) Is it acceptable, as a matter of principle, for the detention of someone with severe personality disorder, for possibly an indefinite period, to be based on an assessment of the risk they present, rather than as a response to an offence they have committed? In particular, is it acceptable for someone who has never been convicted of an offence of any kind to be liable for detention under these proposals?

78. We understand that most dangerous people with a severe personality disorder will have been known, possibly over lengthy periods, to those working in the mental health field as well as to the police. Many will have either committed, or been convicted of, a serious criminal offence. The most effective way to reduce risk to the public is for an adequate investment in mental health provision to try to treat the condition before it becomes severe personality disorder.

79. When those with severe personality disorder are charged with a serious criminal offence, the court should order a proper assessment of the risk they present prior to sentence. At the end of their sentence, if they are assessed as continuing to present a serious risk to the public - a decision to be taken by a quasi-judicial body—they should not be released into the community. There may be extreme cases where someone never convicted of a serious offence is assessed to be sufficiently dangerous to justify detention. Nevertheless, in the absence of a previous conviction, we think it will prove exceptionally difficult in individual cases to establish that the necessary level of danger exists to justify further detention.

(b) Can procedures be devised which will ensure that detention powers are only applied to those who genuinely merit them and to the exclusion of those who in reality present no or little risk?

80. We note that the Government is devising legal and medical procedures for deciding on indefinite detention on the basis of assessed risk. Fears have been expressed that the law might race ahead of the science in these regards and it is imperative that this does not occur. The evidence we have seen in Utrecht suggest there is a sufficiently robust scientific foundation for action. Nevertheless we fear it is inevitable that such procedures will miss some dangerous people and detain some who present little risk. This will require continuing investment in research to improve and refine assessment methods.

(c) Why should such an approach apply only to those whose risk is caused by their personality disorder, and not to others, such as dangerous drivers?

81. We are satisfied that the Government's proposals for public protection in this area are directed solely at dangerous people with severe personality disorder who have been assessed as being dangerous.

(d) How is the group to which these powers should apply to be defined?

82. There is a recognisable medical diagnosis of anti-social or psychopathic personality disorder. Many people currently in prison or hospital who are dangerous do not yet have such a diagnosis. It will be much harder to tell which individuals with such a diagnosis are dangerous to the point they ought to be detained.

83. We recommend that the proposals should be applied to individuals only when an assessment predicts it is almost certain that they will commit a very serious criminal offence.

(e) How are those placed in detention ever to be able to establish that they are fit for discharge, given the difficulty of proving that they are no longer a serious risk?

84. We recommend that continued detention should be subject to regular review by a judicial body at stated intervals—on the basis of multi-disciplinary assessment and subject to independent medical opinion.

85. The onus of proof should always remain on the authorities to justify continued detention. The therapeutic environment in which individuals are detained should be designed to provide opportunities for suitability for release to be tested. This will need to be matched, in cases where person is released, by adequate and continuing rehabilitation and support.

(f) How are the group of people falling into the scope of these proposals and who are living in the community to be identified? What arrangements and safeguards are to be put in place to ensure that they receive fair treatment and are not drawn arbitrarily into detention?

86. Legal changes, described in paragraph 24 above, already coming into effect will mean that most of the people affected by these proposals will not be living in the community—they will already be in prison or hospital or be coming before the courts for sentencing. The recently established local panels will be the right bodies to identify individuals for assessment. We recognise the great difficulties in achieving an accurate and reliable assessment of risk. Where a well-founded assessment is corroborated by an independent medical opinion, a judicial—rather than governmental—body will be the appropriate forum for making a decision on detention and retention. We do not see a risk of people being drawn arbitrarily into detention. Some people who are not dangerous will be detained and some people who are dangerous will remain in the community.

(g) Is the Government certain that the kind of system it proposes will be compatible with the European Convention of Human Rights?

87. Courts do not make judgments under the Human Rights Act 1998 and the European Convention of Human Rights on hypothetical proposals. There are no past cases directly bearing on these proposals. There can be no guarantee that the proposals will not attract litigation under the ECHR. The risk of successful cases against the UK will be reduced if the most stringent safeguards are applied to these proposals.


75  Part 5, page 24. Back

 
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