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The principle of the 'dangerous' individual has been recognised since biblical times. However the term was not officially defined until Elizabethan times and included; begging scholars, jugglers, petty chapman and labourers refusing to work for the common wage (Statute of the Realm, 1597-8, cited by Harrison, 2011). Dinitz and Conrad (1978) described a shift in societal attitudes as the poor such as beggars, vagabonds and gypsies who were once just a social nuisance were now seen as the dangerous underclass due to their lack of power (Rennie, 1978). In the 19th century 'Dangerousness' was now reference to the 'dangerous classes'. These consisted of deprived agricultural workers, political agitators and criminals (Pratt, 2000). Although such affiliation with the dangerous classes was due to level of wealth rather than behaviour, Rennie (1978) noted that membership would inevitably lead to dishonest criminal activity due to the environment. In the latter half of the 19th century the focused changed from dangerous classes to the penal concept of the dangerous offender (Harrison, 2011) and risk was no longer a fear factor just to the wealthy, but society as a whole. Developments through the 20th century led to who we may class as a dangerous offender today. Sexual crimes and crimes against women and children were at the forefront specifically repeat offenders of such acts. Rennie (1978) explained that a "dangerous offender is a protean concept, changing its colour and shape to suit the fear, interests, needs and prejudices of a society"(Rennie,1978).
In the present society 'Dangerous offenders' often defined as offenders who repeatedly commit crimes of a serious nature which put the community at risk (Pratt, 2000), and are managed by legislation and organisations in order to protect the public. The Criminal Justice Act 2003 defines a dangerous offender as someone who has previously been convicted of a specific offence (this can include one of 88 sexual offences and 65 violent offences) and is considered by the courts to be of significant risk to the public as they are likely to recommit such offences (CJA, 2003). Over recent years there has been another shift in who the public consider as dangerous offenders. Whereas the once collective view would pick out; rapists, murderers, child-abusers, the term has now come to incorporate those who commit acts of drunk driving, corporate crime, arson, terrorism and child neglect (Harrison, 2011). Scott (1977) explained that although low-level criminal acts are not necessarily classed as 'dangerous', continuously repeating these acts becomes 'dangerous' as it threatens the rule of law. Since the 20th century the criminal justice system has evolved to concentrate on managing the 'risk' of offenders this concept is recognised as the 'new penology'. It is through systems of control and management of such risk that has sculpted the methods of punishment and rehabilitation, and in the modern approach to crime there has been a shift away from rehabilitation (focus of old penology) and progression in methods to effectively manage offenders.
Ulrich Beck - Risk society thesis
In terms of penal practice there is a reliance on risk and risk factors when determining whether someone is dangerous and likely to reoffend. This progression sees attention move from dangerousness to risk. The risk society thesis developed by Ulrich Beck (1992) is based on the concept of natural hazards and manufactured risks. Beck pin-pointed the industrial revolution as the integral period where the mass production of goods and services brought greater 'manufactured risk' to society. Risk was defined as "a systematic way of dealing with hazards and insecurities inducedâ€¦ by modernization itself. Risks, as opposed to older dangers, are consequences which relate to the threatening force of modernization and to its globalization of doubt" (Beck, 1992). In the early centuries Beck noted that the only risk posed to human beings was that of natural risks i.e. natural disasters however since industrialisation manufactured risks have been created such as pollution and nuclear power. In his work Beck attempted to understand progression in social attitudes and fears, and to examine the relationship between technology, science, political and social institutions (Jarvis, 2007) which influences how risk (i.e. offenders) is dealt with. Beck's work has shaped how society manages risk and how threats are controlled. In contemporary terms, risk is a result of human activity and needs to be effectively managed in order to alleviate it.
The Sexual Offences Act 2003 clearly defines sexual acts prohibited in law. These include; rape, assault by penetration, and a range of child sex offences; sexual activity with a child, and sexual grooming of a child. It was recorded in the Multi Agency Public Protection Arrangements (MAPPA) annual report of 2010 that in London alone there are over 4000 category 1 registered sex offenders (MAPPA report, 2010). In recent years there has also been an increase in female sex offenders with 78 in 2009 rising to 193 in 2012 (National Policing Improvement Agency, 2012). There was also an increase in male sex offenders over the same period with 3655 registered in 2009 and 6122 in 2012 (National Policing Improvement Agency, 2012). With such an increase in offending rates, it is essential from the criminal justice system to implement an effective system to manage offenders and protect the public.
In 2000 Sarah Payne was abducted and murdered by Roy Whiting who had previous criminal convictions having abducted and seriously sexually assaulted an 8 year old in 1995. Since Sarah's murder, her mother Sara has been campaigning for 'Sarah's Law' a British version of 'Megan's Law' which was introduced in the United States after the rape and murder of 7 year old Megan Kanka. Similarly to Roy Whiting, Megan Kanka's killer Jessie Timmendequas, also had previous convictions for child sex offences and it later emerged Whiting had been on the Sex Offenders register from his previous convictions. Under campaigning from 'Sarah's Law' the Child Sex Offender Disclosure Scheme (CSODS) was introduced.
Sarah's Law & the Child Sex Offender Disclosure Scheme
This scheme would allow parents contact the police and enquire if someone who has access to their child has been convicted or suspected of child abuse to which officers respond by checking the background and conviction history of that person. Any information which police believe to be in the best interests of the child, they will reveal confidentially to the child's parent/guardian (BBC, 2010). The scheme is based on the principles of disclosure and risk management and defines 'child sex offence' as any offence committed against children under schedule 34A of the Criminal Justice Act 2003 (Kent Police, 2012).Â In 2008 the Home Office launched a pilot of the CSODS which was undertaken by 4 police forces across the country for a 12 month period (Humberside Police, 2009). The purpose of the scheme is to protect children and to give access to the child's parent/guardian/care-giver regarding any information that will help protect the child (Humberside Police, 2009). During the pilot course in the 4 regional police forces a total of 585 enquires were made (Sally Lipscombe, 2012). This was preceded by 315 applications made with led to 21 disclosures (Sally Lipscombe, 2012). The pilot scheme also resulted in 43 (Sally Lipscombe, 2012) of the applications requested subsequent monitoring and referral of a child to services and organisations (i.e. social services). The success of the scheme on a small scale prompted the Home Office to consider implementing CSODS nationally from August 2010. The Home Office recorded that in its first year (2010-2011) the scheme had protected over 200 children at risk of harm. This resulted from over 900 applications of disclosure and 160 disclosures relating to child sex offences (Home Office, 2012).
The process of the CSODS scheme goes through several stages before disclosure is granted. The scheme allocates a maximum of 45 days from the date of initial contact to completion of the enquiry. The first stage is the initial enquiry made by a person concerned about an individual's behaviour. A risk assessment will then take place, if initial checks find there is an immediate risk action will be taken instantly. Following this a face to face meeting is arranged with the applicant to discuss concerns and to make guidelines clear that the information shared is not to be passed on. An 'empowerment pack' is then given to the applicant explaining the scheme further and a final risk assessment is carried out prior to disclosure. Finally a decision is made whether it is in the child's best interests to disclose the information with appropriate actions taken and the application is closed.
Despite the reported success of the CSODS critics have raised several concerns. Spokeswoman for the NSPCC Dianna Sutton approved the disclosure scheme admitting it had helped protect child, however she also pointed out that local child protection arrangements and communities need to be closely monitored in order to measure the impact of the scheme. Such monitoring is necessary in case of vigilante attacks driving "sex offenders going underground. All new local schemes need close management and proper resourcing to avoid this" (Sutton, 2010).
When protecting the vulnerable (children) from sex offenders, society feels the best way to do this is by knowing exactly who is a sex offender and removing any children from their care or access, therefore alleviating any risk this person poses to the child. The media has a significant influence over the views of the general public, particularly when there are policy issues or a high profile case of a violent offender. This can be seen in a number of cases such as; Sarah Payne, Milly Dowler and recently April Jones. The media has such power that it can portray events to cause a moral panic and in some cases publicly shame individuals. In 2000 when young Sarah Payne was abducted and killed by Roy Whiting, the News of the World (newspaper) launched a 'named and shamed' campaign with the support of Sara Payne (Sarah's mother). The newspaper published the names and photographs of child sex offenders as it claimed that in a poll of the British public 88% want to know if a convicted paedophile lives nearby (BBC, 2000). However, the campaign was met with much criticism and was not supported by the police or law enforcement authorities. There was a fear that if such names and photographs were released, offenders would flee the country fearing for their own safety as there is a great risk of vigilante attacks. This was seen to happen in the case of Stephen Featherstone a swimming instructor suspected of sexually assaulting girls, fled the country whilst awaiting conviction after he was named in the media. Police claim it is now unlikely he will ever return (BBC 2000a). Allen Levy (a specialist in child law) said he felt the campaign was dangerous and likely to more harm than good, innocent people may be targeted in a case of mistaken identity and offenders may be forced 'underground' fearing for their safety which would mean not "receiving treatment or supervision from probation officers which may be controlling or suppressing their liability to reoffend" (Allen Levy, 2000). As a result of vigilante attacks on innocent people, the campaign was consequently suspended.
Management of sex offenders according to Beck
In terms of Ulrich Beck's 'risk society' thesis, when managing sex offenders it is essential to consider the risk they pose to the public. The level of risk will determine how they are managed both whilst serving punishment and their release back into the community. In order to regulate whether an offender poses risk of reoffending an assessment is carried out. According to Hanson (2000) sex offenders who are considered 'high risk' are often subject to restrictions including indeterminate sentences and long term community supervision. Whereas sex offenders considered 'low risk' may be monitored by probation officers and possibly released early if imprisoned (Hanson, 2000). Using risk assessment however has been criticised due to limited validity as the accuracy of judgement by professionals to predict sex offender reoffending is only slightly better than chance (Hanson & Bussière, 1998). Supporting this criticism Janus & Meehl (1997) suggested some argue that the accuracy of prediction is so low that it questions the basis of risk on which legal sanctions are formulated. Such critique demonstrates that risk assessment of offenders cannot be solely relied upon. Hanson (2000) suggested combining 3 methods when evaluating risk: empirically guided clinical evaluation, pure actuarial predictions, and clinically adjusted actuarial predictions are said to produce the most accurate evaluation when used in conjunction with each other. Empirically guided clinical evaluation adjusts the risk level by allowing for factors that have been empirically associated with recidivism (Hollin, 2002). Beforehand using a pure actuarial approach risk levels would be calculated by arithmetic procedures requiring a minimum of judgement. However when using the adjusted collaborative approach it begins by the pure approach although raises or lowers risk depending on consideration of relevant factors not included in the actuarial method (Hollin, 2002). Due to the development of research actuarial methods generally provide more precise clinical predictions; however both actuarial and guided assessments provide moderate levels of accuracy in risk assessment (Hanson, 2000).In today's society protection of the public has become the central focus of legislation and policy and on many occasions changes in law have been the result of media campaigns. This was the case in the 'News of the World' campaign of naming and shaming offenders. Although it did not result in 'Sarah's Law', the Multi Agency Public Protection Arrangements was introduced.
Multi Agency Public Protection Arrangements
The Multi Agency Public Protection Arrangements organisation (MAPPA) supports the aim of pubic protection by supervising and monitoring offenders who are released back into the community. The agency operates by working with other organisations that are in contact with the offender in question and sharing information regarding any risk factors between each other to enable effective management once released back into the community. The police, probation service and prison service are 3 organisations which hold statutory responsibility in the involvement of MAPPAs (MAPPA, 2009). However a duty to cooperate also applies to agencies such as health care services and job centres. MAPPA deals with offenders who are high-risk to the public and who are likely to reoffend once released. Offenders who are subject to MAPPA include: registered sex offenders, people convicted of a violent or other sexual offence (who are not registered sex offenders) - this includes individuals with a minimum 12 month prison sentence or hospital order. Finally MAPPA also includes offenders who do not fall into either categories, but who authorities consider to pose an 'on-going risk' of serious harm to the public (MAPPA, 2009). There are 3 level of management for offenders which is determined not by the risk the pose but the level of intervention required in order to effectively manage an individual. The level one category (normal offender management) manages offenders deemed low or medium risk of serious harm to the public. Level 2 manages those assessed as high or very high risk offenders (local inter-risk management) and level 3 (multi-agency public protection meetings) deals with offenders who pose the highest most serious risk of harm and requires cooperation of all agencies and resources, (2011/2012 only 1% of offenders were recorded to be managed at this level) (London probation trust, 2013).
Whilst a report by Maguire et al (2001) found MAPPA to be a positive step forward in terms of managing offender risk, there were significant variations in the system depending on area. Numerous agencies also tended to lack cooperation when sharing information between organisations and some found they were unable to cope with the caseloads due to lack of funding and resources (Probation journal, 2006). Since this initial report a follow-up in 2005 found significant changes had been made. A framework was implemented in each area which consisted of a 'Strategic Management Board' who applied a 'three-tiered system' directing which agencies deal with particular cases. For example level 1 cases are dealt with by one agency alone whereas level 3 cases requires a range of organisations working together effectively (London probation trust, 2013). However despite improvements Kemshall et al (2005) found several issues which needed further attention. These included: an improvement in the effectiveness of allocating offenders risk management, thorough use of risk assessment tools in each case, and necessary resources set aside for administration of MAPPA (Kemshall et al, 2005). Due to the managerial process of MAPPA it could be accused of being an approach of 'new penology' as the system is attempting to make crime 'tolerable' through systematic coordination (Feeley & Simon, 2003).
The Community Protection Model
The MAPPA policy is based on the same principles as the 'community protection model' (Connelly & Williamson, 2000). The model prioritises protection of the public and uses methods of restriction, surveillance, and monitoring to control, offenders. Management plans are devised and risk assessments used to protect the public form harm. Although the model bases its management of offenders on risk assessment which is an actuarial method, assessments also use instruments such as the Offender Assessment System (OASys) or MATRIX 2000 (Kemshall & Wood, 2007). However it is disputed by Connelly and Williamson (2000) that in fact the community protection model is a hybrid as it contains features of new penology such as identifying and managing disorderly groups and making crime 'manageable' (Feeley & Simon, 2003).
In terms of the sex offender, the community protection model views the offender as a 'rational choice actor' who takes responsibility for their actions (Kemshall & Wood, 2007). The concept is based on a utilitarian stance which sees the offender deterred from crime if the costs are greater than the benefits (Garland, 1996). Using cognitive behavioural programmes the offender is encouraged by 'corrective thinking' to make rational choices about offending (Kemshall & Wood, 2007). According to O'Malley (1999) offenders who do not appear possible to change or do not displays corrected thinking, are considered a bad risk and are not safe to those in the community. As new penology moves away from reform and rehabilitation, offenders incapable of corrected thinking are labelled 'untreatable' and methods of management such as incarceration are considered in order to restrict access to potential victims (Kemshall & Wood, 2007). Connelly and Williamson (2000) reviewed the community protection model and claimed although the approach made public protection the integral focus, sentencing was found to often be disproportionate to the crime as the assessments are based on the possibility of future risk (Kemshall, 2008).
Balancing the rights of offenders with public protection
In order to protect the community there needs to be a suitable balance between the rights of sex offenders and protection of the public. The public have a right to life and to the right for protection life under article 2 of the ECHR. Therefore the responsibility lies with authority such as the police force and law enforcement to protect the lives of the public. The public also have the right to protection from torture under article 3. This could be interpreted to include molestation by sex offenders or any other form of sexual abuse. In contrast these rights of the public need to be balanced against those of the sex offender/ criminal offender. In context of the sex offender, they are entitled to the right to life (article 2) which is argued to be contradicted in the United States of America as many states still advocate the use of capital punishment for convicted sex offenders and those who commit serious crimes. Also, under article 5 (ECHR) sex offenders have the right to liberty and security which means they may only be detained by conviction of a competent court if done so lawfully. Under article 6 the ECHR states the offender has the right to a fair trial and if charged has several rights including; adequate time and facilities for the preparation of his defence and the right to examine or have examined witnesses against him (ECHR). Finally, article 8 of the convention states that everyone has the right to privacy and due to the CSODS some may argue that this right is breached. However perhaps even more so in America due to 'Megan's Law' which as previously discussed, allows any member of the neighbourhood to search for child sex offenders living near-by providing information such as their name, address and even photographs of the offender.
It is essential that the authorities ensure the balance of rights between the victim, offender and the public. Failure to do so could result in a severe breach of human rights or a sexual offender who poses great risk to the public being released and consequently reoffending.
Indeterminate sentencing and the human rights of offenders
Although the public focus is on the rights of the victim and the support they receive, it must not be forgotten that even violent offenders have rights too and are able to exercise them. As it stands the court can issue a serious sexual/ violent offender an 'indeterminate sentence'. Indeterminate sentencing was introduced under public protection measures in the Criminal Justice Act 2003 (in force from 2005) and gives the judge the option of sentencing the offender to a minimum tariff of incarceration on the conditions of only being released back into the community when the individual has satisfied authorities that they do not pose a risk to the public (BBC, 2005). Offenders must prove they are 'fit' to re-enter the community by intensive supervision and attending classes which monitor and scrutinize their behaviour. They are only able this once they have served their minimum sentence. In essence this process means that prisoners have to prove they have changed and been reformed in order to be considered for release and those who have failed to do so will remain incarcerated (BBC, 2005a).
There is much debate surrounding indeterminate sentencing with many critics arguing that it breaches the Human Rights of offenders. The European Court of Human Rights argued that the sentence violated article 5 of the European Convention on Human rights (1950) which entitles every individual to the right of liberty and security. The indeterminate sentence was said to breach these rights on the grounds that they would remain detained following the expiry of their minimum tariff.
In 2012 the European Court of Human Rights in Strasbourg ruled that indeterminate sentences were unlawful and ineffective. The ruling states that there were delays in offender progress in their sentences which was largely due to a lack of resources and unrealistic planning and consideration when the scheme was originally introduced in 2005 (Travis, 2012). The ruling continued to state that those serving an indeterminate sentence had no realistic opportunity of progressing towards reducing or eliminating the risk they posed by the time their tariff would finish.
In addition, indeterminate sentences were originally only to be used for the most dangerous serious and violent offenders serving long tariffs. However they became widely used by criminals serving very short tariff (some just months) (BBC, 2012) which put a strain on resources as the system was not prepared to cater for a very large number of offenders.
As a result of the European Court of Human Rights ruling, indeterminate sentencing has now ceased to exist and instead has been replaced by a regime of the 'two-strikes rule' and 'extended determinate sentences'. The amendments to sentencing were brought in under the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The act introduced the new 'two-strikes' sentencing system, meaning only the most serious sexual and violent offenders will go to prison for longer (offences commanding a 10 year sentence minimum) (Grayling, 2012).
This essay has examined and analysed the management of sexual offenders and methods of community protection. Under examination, legislation and policy introduced such as the Child Sex Offender Disclosure scheme demonstrates how the government is now making protection of the vulnerable an integral matter in society and legislation. Management schemes such as the Multi Agency Protection Arrangements appear to have been implemented effectively in controlling offenders, monitoring their behaviour and assessing any possible risk they pose to the community. Although this research and analysis has focused primarily on sex offenders, MAPPA and other methods of managing dangerous offenders (such as 'two-strike' and extended determinate sentencing) can be applied to violent offenders of all crimes including serious female offenders.
It is reasonable to conclude that the success of risk management policies can be associated with the work of Ulrich Beck and the risk society thesis. Beck's work demonstrated the importance of considering risk and how to determine the level or risk which will decide how sex offenders are managed whilst incarcerated and upon their release back into the community. The concept of the new penology is also becoming visible through the implementation of new systems. Policy such as MAPPA and even the CSODS scheme demonstrates the shift from recidivism to management.
However the implementation of protection schemes has not been met without scepticism. Power (2003) argues that although such developments regarding public protection have been made, critics such as Thomas (2008) feel that it encourages a 'punitive approach' focusing on rehabilitation with little regard for community safety.
When managing risk it is important to consider that agencies are attempting to measure future risk, behaviour which has not yet been committed. Therefore this questions whether the accuracy of measuring 'risk' is consistent and reliable enough not to bring about injustice. Thomas (2005) points-out that "some people will inevitably be wrongly assessed and punished or constrained for crimes they never would have committed in the future, and we have to ask if this does not conflict with our notion of justice" (Thomas, 2005).