APPENDIX 8
Memorandum by the Association of Chief
Officers of Probation
MANAGING DANGEROUS PEOPLE WITH SEVERE PERSONALITY
DISORDERS
The Association of Chief Officers of Probation
consists of all chief probation officers, deputy and assistant
chief probation officers and other senior managers of probation
services in the United Kingdom.
The Association exists to:
— develop good practice and effective
responses to crime, and to ensure the protection of children's
welfare in cases of family separation;
— consult and negotiate with government
departments on behalf of local probation services;
— establish and maintain links with
other organisations and bodies working in criminal justice and
family court welfare;
— encourage co-operative and collaborative
endeavours between services in order to improve service delivery
and achieve value for money; and
— promote equal opportunities.
IN SUMMARY
(a) The Association welcomes the fact that
the Government is seeking to address a gap in provision which
has become increasingly apparent to Probation Services in their
work with offenders at high risk of committing further serious
offences.
(b) The powers implied by the proposals
represent a serious and substantial intrusion into the freedom
of the individual and must therefore be restricted to those for
whom no other, less intrusive, management is appropriate.
(c) The group to whom such sanctions may
apply will need to be clearly defined using the best available
assessment processes.
(d) It is felt that an imprisonable criminal
charge (whether substantive or breach of a Sex Offender Order)
should be the trigger which may start the assessment process.
(e) On balance it is felt that a court-based
route will better safeguard the rights of the individual than
a tribunal route.
(f) The regime in any establishment holding
individuals detained under the proposals must provide a range
of treatment in its broadest sense in order to maximise opportunities
for individuals to learn and develop towards their eventual safe
release.
(g) The review process must be robust.
(h) Release should be conditional and should
be supervised by a community based service such as the Probation
Service.
(i) The current state of knowledge and expertise
in relation to DSPD is impressive, but is developing all the time.
An investment in continuing research and evaluation will be essential
so that practice can be updated regularly and based on the best
available evidence. Preventative measures should be available
at earlier stages so that individuals do not progress into the
DSPD category.
1. BACKGROUND
1.1 Probation Services have a statutory
responsibility to supervise offenders subject to a community sentence
or on release from custody. Whilst the vast majority of offenders
under supervision do not pose a serious risk of harm to the public,
a small minority are assessed as potentially dangerous and likely
to commit serious violent or sexual crime. Even within this group,
many can be managed in the community using the combined resources
of Probation, Police, Housing, Health, Social Services and the
voluntary sector.Multi-agency risk management or public protection
panels have been established at local level across England and
Wales in order to co-ordinate the case management of high risk
individuals and thus protect the public.
1.2 As this work has developed, it has become
apparent that there is a small number of particularly difficult
cases where no adequate plan to protect the public can be established
under existing legislation. Typically, an individual in this category
will have a history of violent or sexual convictions and will
have served substantial prison sentences. There has often been
referral for psychiatric assessment which has identifiedanti-social
or dis-social personality disorder, but which has concluded that
the individual does not fall within the terms of the Mental Health
Act, and no treatment is offered. These individuals are not granted
early release from prison because the Parole Board assesses their
risk as too high to allow release. Nevertheless, because they
typically serve determinate sentences, they have to be released
on the due date even when every assessment concurs that there
is a high risk of further serious violent or sexual crime. Local
agencies are then faced with trying to secure appropriate accommodation,
oversight and monitoring systems in order to prevent future crime
and further victims. Such offenders are rarely welcomed anywhere,
may be hostile and unco-operative, and may be impossible to place
safely, leading to less than satisfactory arrangements which are
of concern to all involved. If the media focusses on one of these
individuals then difficulties are often exacerbated due to the
"notoriety factor".
1.3 The Association therefore welcomes the
fact that the Government is seeking to address this issue and
has accorded it policy time.
2. THE EXTENT
OF THE
PROBLEM
2.1 As yet there is no commonly agreed definition
of the catchment group for these proposals. It will be a pre-requisite
that both the definition of "dangerousness" and of "severe
personality disorder" is as clear as possible, and applied
consistently. A common and robust assessment process, based on
the best available research in these areas will be required.
2.2 Probation Services, working with the
Police and others, use a variety of assessment tools to establish
the level of "risk of harm" which an offender poses.
In relation to sex offenders, the Thornton scale is now widely
used in prisons, by the Police and Probation Services. In relation
to violent offenders there is less consistency. Nevertheless,
each Probation Service will hold a central register of cases assessed
as being of high risk.
2.3 Probation Services rely on diagnosis
by psychiatrists and psychologists to confirm severe personality
disorder (SPD). There may well be undiagnosed individuals within
the caseload of the Probation Service and also those diagnosed
with SPD where treatment is not available.
2.4 Those with the dual assessment of "dangerousness"
and "SPD" are not currently quantified by the Probation
Service. The numbers involved will depend on the tightness of
the criteria applied. The Association views with caution any calculation
of possible numbers falling within the DSPD category until definitions
and criteria are established and used consistently across all
settings. Further work is urgently required on this.
3. THE CIVIL
LIBERTIES IMPLICATIONS
3.1 The proposals involve the possible indeterminate
detention (subject to review) of those assessed as falling within
the category of DSPD. Clearly such restriction of liberty should
only be imposed where no other less restrictive option is appropriate.
Indeterminate detention is currently available within the Criminal
Justice system via a life sentence (mandatory or discretionary).
In principle, the Association supports the use of indeterminate
reviewable detention in particular DSPD cases provided that robust,
authoritative and credible processes are developed at all stages
of proceedings.
3.2 The Association believes that the commission
of an imprisonable criminal offence should be the "trigger"
which may activate assessment for the DSPD order. The Association
cannot see how an individual's detention for assessment could
be achieved if no criminal offence has been alleged and if there
are no grounds for "sectioning" under the Mental Health
Act. By adopting this stance the Association recognises that,
as at present, some DSPD individuals currently in prisons, hospitals
and the community will not commit an offence and will not therefore
be able to be assessed for a DSPD order. During a transitional
phase, this may well prove frustrating and unhelpful. However,
there would be unacceptable intrusions into civil liberties for
a power to be created to compulsorily detain for assessment someone
who has not committed an imprisonable offence, notwithstanding
that the agencies involved are unanimous in assessing the level
of dangerousness as high. In relation to sex offenders who may
fall into the DSPD category, existing legislation allows for the
making of a "Sex Offender Order", the individually tailored
conditions of which are necessary to protect the public. Breach
of these conditions does constitute a criminal offence and could
therefore be used to trigger a DSPD assessment. The Association
is aware of discussions about extending the remit of Sex Offender
Orders to include violent offenders and will examine the usefulness
of such a suggestion within the framework of the Government's
proposals. At this stage, though, the Association does not believe
that it is right or proper to detain an individual for assessment
unless there is a current criminal charge against them.
3.3 It is anticipated that local public
protection committees/risk management panels could be used for
the early identification of individuals who may be assessed as
DSPD. Such inter-agency meetings are already established and are
currently overseeing the highest risk offenders in (or about to
return to) the community. If such a mechanism is used for "first
sift" of the DSPD group, then the Association strongly believes
that the constitution and modus operandi of local panels
will need to be subject to regulation and oversight at national
level. At present panels operate according to locally agreed protocols.
There is considerable variation across the country in both membership
and practice. Best practice should be identified and national
standards produced in order to ensure effectiveness and consistency.
The Association would welcome the opportunity of working with
the Home Office on this.
3.4 The Association believes that a court
rather than tribunal based route to the making of a DSPD order
is probably preferable. Although there are dangers in proceedings
being public (not least to the individual, whose safety may be
compromised) this must be balanced against the need for openness
and transparency.
3.5 Where an individual is detained for
assessment, then there must be suitably qualified and experienced
staff to undertake the assessment and a consistent methodology
which commands confidence. The Association is concerned that the
current state of knowledge/expertise in this field, while impressive,
is not infallible. There will be the potential for "false
positives", where someone is subsequently detained as a DSPD
when they are not in that category. There will therefore need
to be mechanisms for challenging the assessments made when an
individual returns to court and prior to an order being made.
The Association feels that the adjudication of such cases will
require a level of expertise such that cases should be heard in
the Crown Court and decided upon by a senior judge.
3.6 Where indeterminate reviewable detention
is ordered then the Association believes that the regime of the
establishment to which DSPD individuals are sent must combine
security and control with a therapeutic environment which provides
opportunities for the individual to learn and develop as a responsible
person. The issue of "treatability" has provoked debate
in medical circles. The Association would wish to see "treatment"
in a wider context than the specifically medical. Cognitive behavioural
approaches may be helpful as well as social skills development
etc. The aim of the regime should be to provide all available
opportunities to reduce the risk posed by the individual while
holding him in secure conditions.
3.7 Finally, regular and comprehensive reviews
must occur in order to ensure that individuals are not detained
for longer than is necessary. Following release, the Association
anticipates that there will need to be some form of conditional
licence (possibly similar to a life licence) both to monitor the
progress of the individual as they re-enter society and to aid
their rehabilitation. The Association believes that the Probation
Service is well placed to take responsibility for individuals
released under licence from a DSPD order.
November 1999
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