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Effectiveness Of The Post Sentence Supervision Provisions Criminology Essay

This essay will examine whether the effectiveness of the post sentence supervision provisions for dangerous offenders are adequate. The changing attitude towards the treatment of dangerous offenders will be explored showing that in the twenty first century, the term dangerous offender includes sexual and violent offenders. Most public attention is focused on those who commit sexual and predatory acts against children; hence paedophiles are often associated with such dangerous people.

It is a subject which has interested me particularly as the stakes are so high if things do not go to plan. My interest arose due to the adverse publicity surrounding high profile cases where dangerous offenders reoffend and it spurred me into examining whether the post sentence supervision orders worked.

The term “dangerous offender” can also be extended to include potential terrorists, the socially excluded as well as other violent and sexual offenders who carry out offences with a varying degree of seriousness. More controversially dangerousness is also applied to the mentally ill who commit grave offences. At one time the punishment had to fit the crime and although this is still true it has to be looked at in tandem with the risk to society of permitting an offender back into the community.

The Multi-Agency Public Protection Arrangements (MAPPA) arrangements were introduced to deal with those dangerous offenders who exist in the community, managing them so that they do not pose a threat to society. MAPPA is a multi agency approach consisting of the police, local authorities, schools, probation service and similar entities.

What is the main aim of MAPPA; is to reform the conduct of previous offenders so that through their treatment and rehabilitation they no longer wish to re-offend; or is their aim to merely be preventative and reactionary stopping any re-offending by close supervision?

The issue of releasing dangerous offenders into the community is highly controversial because the repercussions of re-offending can be horrendous. It only takes one case where another heinous crime is committed for a public outcry to ensue with the press claiming that the MAPPA system is not working. In addition the effects on the victims is acute with claims that the re-offender should not have been released early or at all, as clearly they still pose a great risk to society.

Carefully balanced against the public’s desire to be protected is the human rights aspect of the offender. In recent years there has been a tendency for home secretaries to get involved in what are perceived as lenient sentences given to dangerous offenders. In a couple of instances the respective home secretary has intervened to increase the recommended minimum sentence before an offender can be considered eligible for parole. The House of Lords, following an earlier decision, has recently ruled that such intervention by the home secretary is incompatible with the offender’s human rights.

I will use both qualitative sources with a lesser amount of quantitative material, some extracted at primary sources.

Proposed chapters at this juncture are:

Chapter 1

The concept of dangerousness will be explored to highlight the type of offenders under discussion. We will look at the controversial area of mentally incapable dangerous offenders and their treatment. An analysis of the legislation including relevant guidance and the views of some academic commentators will be undertaken.

Chapter 2

The functioning of the multi-agency public protection arrangements will be examined in detail including a look at one particular police force. Their methodology and data will be examined to ascertain if they are “successful” or “adequate” and what is meant by adequate. Government and academic commentaries will be considered

Chapter 3

Some high profile publicised cases causing concern will be examined which will lead the press and others to condemn the post supervision orders of dangerous offenders. The issue of dangerous foreign offenders committing serious offences in the UK will be examined.

Chapter 4

Analysis of MAPPA data will be examined which will highlight the successes and failures of post sentencing initiatives and suggest possible reforms. Dangerous offenders have human rights and the cases of Anderson and more recently, Whiting, will be explored looking at the aspect of political intervention in minimum recommended sentences. Conclusion will tie all material together with my thoughts on the adequacy of post supervision of dangerous offenders.

Literature Review

A wide range of literature has been examined including secondary sources comprising eminent academic commentators and also primary sources including court judgments and published reports of the managing agencies have been examined. Other original sources under scrutiny include newspaper articles and commentaries of various public sector personnel. There is an inherent bias built into the views of the MAPPA agencies and government ministers who seek to justify the effectiveness of their respective areas of work.

Chapter 1

The modern day criminal justice system in Britain is geared at the rehabilitation of offenders so the prison system is not only a means of incarceration to remove the offender from posing any danger to the public, but also a vehicle for preparing the offender for release and re-integration into society.

The Criminal Justice Act 2003 (which has been amended by the Criminal Justice and Immigration Act 2008) sets out the criteria for dealing with dangerous offenders and is important to the court for sentencing purposes. Dangerous offenders are identified by reference to the commission of specified violent and sexual offences set out in Schedule 15 of the Criminal Justice Act. That Act says that a court must determine whether there is a significant risk to members of the public of serious harm by the commission by him of further offences (Criminal Justice Act, S 229). In a recent case the Court of Appeal held that in determining dangerousness the court was not confined to considering only “admissible” evidence and could consider, as it did in the case, an alleged history of violence although the offender did not have convictions (R v Considine and Davis, 2007). Public protection was enhanced under the Criminal Justice Act by the introduction of a sentence of imprisonment for public protection which ensures that certain offenders are not released until the Parole Board determines that it is safe to do so.

Problems arise because although the term dangerous offender is used in a general way it is in fact extremely difficult to predict who is dangerous as individuals vary in their behaviour. Not only do individuals vary as between each other so that there are differing degrees and shades of dangerousness but also, on an individual basis, the scope for carrying out dangerous and violent acts may vary on a daily basis. The notion of dangerousness is therefore extremely complex in itself and is capable of shifting on an individual basis whereby assessing and predicting future behaviour can be compared to attempting to mould soft sand into a permanent form.

Human nature can be fundamentally and inherently unpredictable even among stable law abiding individuals, so when mentally unstable people are added to the melting pot, the decision as to assessing their dangerousness becomes more complex. In the UK, policies addressing those with dangerous and severe personality disorders (DSPD) has expanded considerably in recent years against a background that people with personality disorders should not be precluded from accessing services available to the rest of society. The DSPD programme deals with patients who have the most severe personality disorders. The DSPD programme offers an intensive multi disciplinary treatment programme based on individual need and comprising a cognitive-behavioural group-based intervention approach with opportunities for social interaction, in ward-based community meetings for example. Specific treatment includes offence-specific groups, such as sex offender group and violence reduction programmes. There has been a shift of policy from placing people with DSPD in prisons into secure hospitals with the National Health Service taking a more active role in providing treatment. A smaller number of medium secure and community places have been programmed, but so far the implementation has fallen behind target and the rehabilitation of DSPD patients back into the community remains extremely challenging. Evaluation of the DSPD programme is a work in progress and the impact of this policy on reoffending rates remains to be deduced. Persons assessed as having DSPD must be detained for treatment and discharge from detention is dependent upon a test of public safety as against favourable responsiveness to treatment. The link between dangerous behaviour and mental illness remains embedded in public opinion despite the attempts of mental health practitioners to highlight the absence of such a connection. A study of public opinion towards schizophrenia found that 70% of respondents view this group as dangerous (Crisp et al, 2001). Regarding treatment in the community following release from prison or hospital, Leung cites the European judgment of W v Sweden 1988, in which compulsory medication on discharge from hospital was not a deprivation of liberty and would not impinge Article 5 of the European Convention on Human Rights (Leung, 2002).

Prison population has increased dramatically over the last fifteen years from circa 43,000 at the start of the 1990s (Home Office, 2005a) to in excess of 80,000 today. Although there are numerous reasons given to explain this startling increase, the focus of the public on dangerousness is one such explanation. In 2006 a review was conducted which claimed that prison was the best place for dangerous offenders as it stopped them from re-offending (Home Office, 2006a, p. 32). In 2007 with the creation of the Ministry of Justice the preceding approach to detaining dangerous offenders for a long time did not change. On the contrary, the newly formed Ministry reiterated that “prison places are available to protect the public from dangerous offenders” (Ministry of Justice, 2007, p 4).

The 1990s preoccupation with public protection shaped the policies of protecting the public from the risk of serious harm arising from violent offenders and the aim of responding more effectively to the risk of paedophiles and the increase in child sex abuse (Grubin, 1998)

Within the UK the population is generally extremely fearful of the level of violent and sexual crime (Ditton & Farrell, 2002; Kemshall, 2003). The focus on this type of crime has been exacerbated by the media and even when crime rates are shown to be falling, the public perception is that they are living in a more violent society. Dangerousness has therefore been widely used to describe an increasing amount of offences and has been accompanied with an expectation of more punitive sentences to deal with the increase. Barbara Hudson asserts that “there has been a significant shift from doing justice to controlling risks as the goal of law and order and penal strategies” (Hudson, 2002; p 101). The modern society is characterised by the increasing scope and influence of the mass media. The far reaching scrutiny of the global mass media means that the negatives of modern society are reported and in terms of criminal justice, its failings can be exposed. Such exposure is accompanied by cynicism towards expert opinions and the positive effects of legislation (Garland, 2000).

Garland (2001, p178) has described the space between the community and prisons as having become more strictly enforced stating that “Those offenders who are released “into” the community are subject to much tighter control than previously and conditions that continue to restrict their freedom….the community into which they are released is actually a closely monitored terrain, a supervised space, lacking much of the liberty that one associates with “normal life”.

Commenting on a Panorama programme broadcast in 2006, HM Chief Inspector of Probation said he thought the programme made a fair point when he said that general talk of close supervision and monitoring of offenders” can give a misleading impression to the public of the extent of measures taken to prevent them (Bridges, 2007).

It is clear in the early stages of this essay that there are different views on the nature and extent of monitoring to which dangerous offenders are subjected on their release from prison. Academics like Garland above consider the measures stringent, tantamount to imprisonment within the community, whereas the enforcers of those measures, probation workers, maintain that it is unhelpful to make it sound as if community service is prison in the community which it plainly is not (Bridges, 2007 p 4).

Chapter 2

Violent sex offenders

Once prisoners reach the end of their sentence but are still considered dangerous, measures are put in place to manage them in the community. The Violent and Sex Offender Register (ViSOR) is managed by the National Policing Improvement Agency of the Home Office. It comprises records stored on a database of those obligated to register with the police in accordance with the Sexual Offences Act 2003; those jailed for more than 12 months for violent offences and people not convicted of any crimes but who are deemed to be at risk of offending. It was rolled out to every probation area and prison establishment in England and Wales in 2008 with police, probation and prison services using the same IT system for the first time. This co-ordination should ensure that the quality and synchronisation of risk assessments are improved leading to effective interventions to prevent re-offending.

In 2009 Greater Manchester Police responded to a freedom of information request under the Freedom of Information Act 2000. In complying with the request the police reported that of 16 people within their jurisdiction who were on the ViSOR since 2007, 4 had not been convicted. So 25% of those on the ViSOR had not yet been convicted of a crime in a court of law yet they were subjected to the reporting and other requirements placed on individuals who are so registered.

Sexual Offences Act

The notification periods for offenders are also contained within the Sexual Offences Act 2003. Where offenders are subject to imprisonment for life or for more than 30 months; imprisoned for public protection; admitted to hospital under a restriction order or subject to an order for lifelong restriction the notification period is indefinitely. The question of the legitimacy of lifelong registration has been subjected to challenge in recent years. It was successfully challenged in the High Court and the appeal against the decision was dismissed in the Supreme Court which stated that lifelong registration was incompatible with human rights (European Convention on Human Rights, Article 8).

Recent Challenge and human rights

The ViSOR database holds name and address records, photographs, risk assessment, offenders' modus operandi, and an audit trail. The Police National Computer is linked to ViSOR. According to the National Policing Improvement Agency 77,000 records of named individuals are maintained on the database. [7]

Sex offenders subject to the register must inform the Police within 3 days [8] of becoming subject to the notification requirements, or within 3 days of various changes occurring [9], including moving home, changing their name, changes of passport details. Offenders must confirm their registration annually [10]. Failure to comply is an offence, subject to a penalty of up to five years imprisonment.

The importance of the ViSOR is that providing registered offenders comply with its provisions, then they can be monitored by the appropriate agencies. Although failure to comply has a penalty of up to 5 years imprisonment, this is of little comfort or assistance to people who are subjected to attacks by offenders who have failed to comply with the notification requirements. In this respect the adequacy of the registration provisions are an end in themselves and do not prevent further offending. Generally speaking the public will derive some comfort from the fact that registered offenders are on the radar of the police and are or should be at certain addresses. Problems ensue when the registered offender is not where he should be so that the supervision and monitoring duty on the agencies breaks down. Of course it may be that the offender has forgotten to register a change of address or he cannot be bothered or he has a genuine reason for not complying and that he has no intention of re-offending. The problem is that with the genuine fear of violent crime within the community, the public are alarmed if they should become aware of such failures. Even worse, if a registered offender does re-offend, the public will see this as evidence of the inadequacy of the supervisory arrangements of the ViSOR. If the non compliant registered offender does not reoffend it may be that the public is kept in oblivious ignorance and it does not come to their attention.

Multi Agency Partnership Protection Agencies

The MAPPA measures were put in place nine years ago in an attempt to improve the effectiveness of the management of offenders who are in the community. MAPPA has statutory force as the arrangements were first set out in the Criminal Justice and Court Services Act 2000 and re-enacted and further strengthened in part 13 section 325 of the Criminal Justice Act 2003 imposing a legal duty on agencies. The measures mainly comprise information sharing and the views of professionals who come together pooling their expertise in order to ensure the public is protected from future offending of dangerous offenders. There are 3 levels of cases under MAPPA. Level 1 can be managed by one agency (usually probation service); level 2 requires more than 1 agency and level 3 requires co-ordination among various agencies.

The legal duties placed on the police, prison and probation services acting jointly as the “responsible authority” to establish arrangements for assessing and managing the risks posed by relevant sexual and violent offenders or other offenders who may cause serious harm to the public; to review and monitor those arrangements; and as part of the reviewing and monitoring arrangements, to prepare and publish an annual report on their operation.

Other agencies also under a legal duty to co-operate with the responsible authority include local authority social services, primary care trusts, jobcentre plus, youth offending teams. Local housing providers, local education authorities and electronic monitoring providers.

Thus MAPPA involves a wide range of bodies which in itself is good but the effectiveness of its measures lie in the ability to co-ordinate responses across all spectrums of the agencies by the responsible authority. In most cases the offender will be managed by the agency with supervisory responsibility but several offenders require multi-agency management and their risk management plans will be compiled and monitored at MAPPA meetings in which various agencies are present.

MAPPA is primarily concerned with managing risk. David Hanson, Minister for Justice said “Putting in place thorough systems to ensure high level vigilance of serious sexual and violent offenders on their release from prison is vital in our work protecting communities from crime” and he also acknowledges that the introduction of the MAPPA have been “successful in reducing risk” (Ministry of Justice, 2008).

Offenders released into the community following a period of imprisonment of 12 months or more will be subject to a licence with conditions (under the supervision of the probation service. If the offender does not comply with the set conditions, breach action will be taken whereby the offender may be sent back to prison. Sexual offences prevention orders can be made with a full order lasting for a minimum of 5 years and a requirement that the offender registers as a sexual offender. Conditions can be imposed restricting the offender from frequenting school playgrounds for example. Again if the offender breaches the order he can be taken back to court and may be imprisoned for up to 5 years. Foreign travel orders prevents offenders with convictions for sexual offences against children from travelling abroad so as to prevent children from the risk of sexual harm.

In 2008, the Home Office began pilots which increased the amount of information about certain child sex offenders which was available to the public. People were able to ask for information about a person who has contact with their children. The pilots took place throughout 4 police areas and were completed in September 2009. Although the pilots were to be evaluated with a view to being implemented nationwide, regardless of the outcome of that evaluation, there is already an obligation to consider during a case review, whether there is a need to disclose information about the offender as part of the risk management plan. This would appear to be duplication and there does seem to be a necessity for MAPPAS to be seen to be continuously evolving as the offender is always one step ahead.

Polygraph tests

In October 2009 the Ministry of Justice announced that it was piloting mandatory polygraph tests for sex offenders in the community. The polygraph test is being scrutinised to ascertain whether it might be another useful tool for the effective management of sex offenders. The governing legislation is the Offender Management Act 2007 which authorised the mandatory use of polygraphs on sex offenders who are subject to licence upon their entry into the community following their imprisonment. The polygraph test would be used together with, and not instead of, other management offender tools.

Castration

Chapter 3

As can be seen there are a wide variety of management tools available under the MAPPA arrangements but their effectiveness and adequacy will now be examined.

In October 2009 the Daily Telegraph reported that dangerous foreign criminals are remaining in Britain despite strenuous efforts by the Government to remove them. The paper reports that immigration judges have overturned attempts by the Home Office to remove at least 50 foreign criminals from the country in the past year with their defence lawyers arguing that deporting them would breach their human rights. Examples of such cases are Mark Cadle from Berlize, jailed for having sex with a 14 year old girl who judges said would have his human right to family life infringed if deported because his family lived in Britain. A Somali who had been convicted for manslaughter and robbery was allowed to remain in the country after the court said he would be at serious risk of persecution if deported as he was from a minority clan. Of the 50 cases involved 15 include criminals with convictions for serious violent crimes, 4 sex offenders and 13 with drug convictions. In most of the cases lawyers argued that deporting them would breach their human rights to a family life because many had families in Britain. In some instances like the Somali case, the issues were that the person would be subjected to torture if returned to his homeland in breach of Article 3 of the European Convention on Human Rights.

On the 2 November 2009 the bleak headlines of the Guardian newspaper read “probation service failing to learn lessons over murder of French students, inquiry finds” (Travis, 2009). In 2008 two French students were tortured and murdered in London by Dano Sonnex. He was found guilty of their murder and was a violent drug addict who was meant to be under supervision and should have been in jail as he had earlier breached his conditions for release. The case raised fresh anxiety and concerns over the manner in which dangerous offenders are monitored in the community. The parents of the two students were so infuriate that they were preparing to issue proceedings against the probation service and the police. The massive public outcry prompted the chief inspector of probation, Andrew Bridges to look at 276 cases across 10 London boroughs. The findings did not make palpable reading for the relevant MAPPA responsible bodies. Bridges said that the results were disappointing particularly when compared to 2008 and he deduced “that only 54% of the public protection work examined was of sufficiently high level of quality we were looking for”. ( ). In 2008 the figure was 63% for the “whole London” sample so this heralded a poignant deterioration.?????????????????????????????????????????????

Another high profile case was the murder of Naomi Bryant in Winchester by Anthony Rice. Rice had served 16 years in prison and had committed several sexual attacks including rape and attempted rape. At the time of the murder he was on life licence and was under the supervision of Hampshire Probation Area alongside numerous other agencies via MAPPA. Following the murder of Bryant an independent report was undertaken which concluded that there were serious shortcomings in the way Rice had been managed prior and since his release from prison. The report revealed that the failure to properly manage Rice’s risk of being a danger to the community was not the fault of one particular person or agency but was a collective failure of measures both within the prison and the community.

Upon his release there was no clear indication of who took the lead responsibility for Rice and there followed transfers of key responsibilities which made for inconsistencies and lack of co-ordination. The conditions on the Licence were vague; for example one condition stated that Rice should not misuse substances and the hostel staff where he was staying interpreted this as meaning that he could consume alcohol. The report criticised the MAPPA panel for allowing them to be distracted by human rights consideration at the expense of public protection. The report highlighted lack of communication and errors of judgment and reinforced the importance of the three responsible agencies having clarity and consistency in their practices and procedures.

The next notorious case concerns the murder of John Monckton and the attempted murder of his wife by 2 young men both under the supervision of London probation. When Hanson was 17 years old he received a sentence of 12 years for attempted murder and conspiracy to commit robbery, and it was during his licence period for this offence that he committed the murder of Monckton. Hanson ought to have been referred to MAPPA but he was not, despite being assessed as a high risk of causing harm. So despite being branded as a high risk he was not treated as such. The parole board failed to appreciate the relevance of Hanson’s predeliction for using instrumental violence and his recorded included utilising violence for financial advantage. Hanson was placed on a “CALM” programme which does not address this type of violence. After his release he was to report to an office which was within the exclusion zone from which he was banned; clearly a mistake. His residency was also an issue resulting in him living in a hostel which had not been approved by the parole board because the approved hostel in Essex had refused his application. The interpretation of licence conditions caused problems and the risk of harm posed was not assessed or managed adequately and there was a lack of co-ordination with the partnership arrangements. The inspectorate report concluded there was a “collective failure” to describe the failure in practices of all those managing Hanson and White and acknowledged the “considerable organisational constraints” in their management (HM Inspectorate of Probation, 2006)

Positive Aspects

There are however some positive aspects to the work of MAPPA (HM Inspectorate of Probation, 2006). The report decided that in the vast majority of cases MAPPA had been very effective and produced good work although there was still room for improvement. The report concluded that the risk of harm assessments had been accurate in a high proportion of cases. The probation and prison services worked closely in order to identify appropriate offender programmes and appropriate tools were activated to manage the risk of harm posed by particular offenders.

The public protection arrangements which existed in 2001 and found wanting (Maguire et al 2001) had greatly improved by 2005. In 2001 apart from the probation and police few of the other agencies bothered to attend meetings. The introduction of the Criminal Justice Court Services Act 2000 had made real and major improvements to the management of high risk cases. In 2005 most agencies were attending meetings and recording decisions and the evidence used to reach their conclusions with all areas having regular case reviews and information sharing protocols in place. Procedures were in place to manage offenders at all the levels including appropriate risk classification tools and gate keeping through the system. However resources were a problem as were the IT case management systems. But in the 4 years since 2001 a more structured and clear approach to managing high risk offenders was in place throughout England and Wales (Madoc-Jones, 2006)

The lifelong restrictions on sex offenders living and travel arrangements were recently judged to be a breach of human rights (R (JF(by his litigation friend OF) ) & Anor v SSHD). Section 82 Sexual Offences Act requires all persons sentenced to thirty months’ imprisonment or more for a sexual offence to tell the police where they reside and if they travel abroad for the rest of their lives. Importantly there is no right to review the operation of the requirement. Both respondents were sex offenders and they challenged the lifelong notification requirement on the basis that it was a disproportionate requirement and breached their human rights under Article 8

CONCLUSION

The important precis from which to start is that unless all dangerous offenders are imprisoned with maximum security so that escape is virtually impossible, it is impossible to guarantee that there is no risk to the public of harm from these offenders. As such measures are impractical, too costly and in breach of human rights legislation, then the present system is the one which exists and in which improvements can be made. In fact the present MAPPA system is a way of protecting the public with measures which do not affront human rights legislation.

Unfortunately government policy has in the past been influenced by public outcry with the press wielding influence with its sometimes sensational headlines. The fact remains that the MAPPA and other arrangements involve many people who are capable of making errors of judgments which can have tragic consequences for victims should offenders reoffend. Every time one person is subjected to a sexual or violent attack, there is a public outcry and a condemnation of the release into the community of dangerous offenders and that the measures are inadequate. However MAPPA in itself does comply with the requirements of the human rights legislation

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Cases

R (JF (by his litigation friend OF)) & Anor v SSHD [2010] UKSC 17

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