Dr Lorraine Johnstone RMA Best Practice Seminar January 2009 Acknowledgements: Dr Rajan Darjee, Prof. David J Cooke, and Innes Walsh

Lifelong Sentences: Challenges Offender Rights Public Safety

Key Debates Compromise of due legal process Violation of Offender’s Human Rights The prediction problem Community versus Individual Offender Rights “Indefinite sentencing legislation must be transparent with the appropriate checks and balances in place to ensure that all offenders are afforded a just process. In addition to ensuring an offender’s access to review and appeal, strong procedural guidelines and safe- guards must be built into any legislation that allows for...indefinite detention” Ronken & Johnston, (Feb 2008)

CRIMINAL JUSTICE (SCOTLAND) ACT 2003 Part 1 PROTECTION OF THE PUBLIC AT LARGE Risk assessment and order for lifelong restriction 1 Risk assessment and order for lifelong restriction (1) In Part XI of the 1995 Act (sentencing), after section 210AA (which is inserted into that Act by section 20 of this Act) there is inserted— “Risk assessment 210B Risk assessment order (1) This subsection applies where it falls to the High Court to impose sentence on a person convicted of an offence other than murder and that offence— (a) is (any or all)— (i) a sexual offence (as defined in section 210A(10) of this Act); (ii) a violent offence (as so defined); (iii) an offence which endangers life; or (b) is an offence the nature of which, or circumstances of the. The Order of Lifelong Restriction (OLR) Legislative Intent: protect the public and promote offender management and rehabilitation Legislative Intent: protect the public and promote offender management and rehabilitation

For the purposes of the relevant sections of the Criminal Justice (Scotland) Act 2003, the risk criteria are Criminal Justice (Scotland) Act 2003 "that the nature of, or the circumstances of the commission of, the offence of which the convicted person has been found guilty either in themselves or as part of a pattern of behaviour are such as to demonstrate that there is a likelihood that he, if at liberty, will seriously endanger the lives, or physical or psychological well-being, of members of the public at large.“ For the purposes of the relevant sections of the Criminal Justice (Scotland) Act 2003, the risk criteria are Criminal Justice (Scotland) Act 2003 "that the nature of, or the circumstances of the commission of, the offence of which the convicted person has been found guilty either in themselves or as part of a pattern of behaviour are such as to demonstrate that there is a likelihood that he, if at liberty, will seriously endanger the lives, or physical or psychological well-being, of members of the public at large.“

Risk Assessment Order: Process

Risk Assessment: Standards Assessments conducted under the auspices of an Risk Assessment Order or Interim Compulsion Order where an OLR is being considered Accredited Manner  Structured Clinical Judgement Accredited Assessor Competencies, skills, knowledge and experience to undertake the task

Formulation Linked Collaborative Multi-level Multi-systems Good lives Monitoring Supervision Treatment Victim-Safety Monitored and approved by RMA Scotland Risk Management Detailed and Documented Plan as per Standards & Guidelines issued by RMA Risk Management: Process and Standards

Current Status 33 Risk Assessment Orders 23 cases concluded at Court 19 offenders given an OLR

Comparison with Other Jurisdictions

Legislative Intent Risk Criteria Risk Assessment Risk Management

England: Imprisonment for public protection Source: Dr Rajan Darjee

Adjusted Source: Dr Rajan Darjee

Ethical and Professional Issues Limitations in RA; Human Rights; Legal Process, etc. Implementing Therapeutic Risk Management Robust risk assessment is the exception rather than the norm

A common picture... Personality Disorder Addiction Psychosis Abuse, Trauma and Self-Harm Cognitive Impairment Sexual Deviance Criminogenic Attitudes

Implementing Risk Management Plans “Different aspects of effective risk management require different competencies”

A common picture... Personality Disorder Addiction Psychotic sxs. Abuse, Trauma and Self-Harm Cognitive Impairment Sexual Deviance Criminogenic Attitudes

Are OLR offenders able to access appropriate treatments or are we heading for another Ruddell? Q1. Are OLR offenders able to access appropriate treatments or are we heading for another Ruddell? Implementing Risk Management Plans

Ethical and Professional Issues Limitations in RA; Human Rights; Legal Process, etc. Implementing Therapeutic Risk Management Robust risk assessment is the exception rather than the norm

Access to a robust risk assessment and management plan for violent offenders appears the exception rather than the norm

Mandatory Life Sentences In R v Howe Lord Hailsham of St Marylebone said: "Murder, as every practitioner of the law knows, though often described as one of the utmost heinousness, is not in fact necessarily so, but consists in a whole bundle of offences of vastly differing degrees of culpability, ranging from brutal, cynical and repeated offences like the so-called Moors murders to the almost venial, if objectively immoral, "mercy killing" of a beloved partner” Lord Bingham of Cornhill, Lord Chief Justice of England Newsam Memorial Lecture: "The Mandatory Life Sentence for Murder” Police Staff College, Bramshill Hook, Hampshire, 13 March 1998

Risk Assessment Not mandatory at conviction Inconsistent approach through sentence Inconsistent approach through sentence Inconsistent approach at Parole Inconsistent approach at Parole

Sex Offenders: Section 21 CRIMINAL JUSTICE (SCOTLAND) ACT 2003 Part 3 Sexual offences etc 21 Sexual and certain other offences: reports (1) This section applies to any case where a person is convicted of— (a) a sexual offence (as defined in section 210A(10) of the 1995 Act); or (b) an offence the nature and circumstances of which disclose, in the opinion of the court, that there was a significant sexual aspect to the person’s behaviour in committing it. (2) In a case to which this section applies, the court must, before passing sentence— (a) obtain from a relevant officer a report concerning the person’s circumstances and character; and (b) if the conviction is on indictment, obtain from a chartered clinical psychologist or chartered forensic psychologist (that is to say from a person for the time being so described in the British Psychological Society’s Register of Chartered Psychologists) a psychological assessment of the person, and it must also take into account any information before it concerning the person’s physical and mental condition. (3) The Scottish Ministers may by order amend paragraph (b) of subsection (2) by adding, to the persons for the time being specified there as persons from one of whom a psychological assessment is to be obtained, such description of psychologist as they think fit.

Mental Health Mental Health... Formal risk assessment is not mandatory or standard for an assessment for suitability for assessment and/or detention in in-patient forensic mental health settings To date, zero Risk Assessment Orders made alongside Interim Compulsion Orders

Medical Ethics

Risk Assessment: Standards Risk Assessment demands highly complex assessment, diagnostic and formulation skills e.g. Mental disorder (personality disorder, mental illness, sexual deviance) requires many years training and supervised practice to develop expertise in developmental psychopathology and differential diagnosis

Q2. How do we ensure that robust risk assessment and management practices is the norm for all areas of the judicial making process for violent and sexually violent offenders? Q3. How do we make sure that mentally disordered (mentally ill) offenders who need an Order of Lifelong Restriction get an Order of Lifelong Restriction? Q4. How do we ensure best practice and competencies in risk assessment ? Q5. How do we get espoused theory into practice? Questions for discussion