Current dangerous offender legislation allows for preventive sentencing, or the imposition of a sentence longer than can be justified by the offence for which a person had been found guilty, when the court is of the opinion that the defendant poses a threat to the community. Preventive sentencing provisions included in the 1991 Criminal Justice Act require that, in the case of an offender suffering from a mental illness who has been previously diagnosed, the court must obtain a medical report and consider the effect that incarceration would have on the defendant's psychological condition as well as the availability of treatment in custodial facilities. When an offender has not been diagnosed with a mental illness, however, the court is not required to consider a medical report or have a mental health expert testify at a hearing to determine the defendant's dangerousness. Further, the 1991 Criminal Justice Act repealed an earlier provision requiring a pre-sentence report, which would include information as to the offender's potential for rehabilitation and psychological characteristics, to be evaluated before a sentence was handed down In many cases, it is now left to the court without the guidance of mental health experts to determine whether the offender is dangerous (Henham, 1997).
The appropriateness of a custodial disposition is gauged by section 2(2)b of the Criminal Justice Act. This section provides that the length of a custodial sentence given for a violent or sexual offence, while not exceeding the maximum, can be as long as the court decides is necessary to protect the public. The court, in making its decision, must assess the likelihood that harm will be inflicted on members of the community if the offender is released from custody. Unfortunately, the Act does not facilitate the court's assessment of dangerousness because, as mentioned previously, it does not require a pre-sentence report.
The most recent piece of dangerous offender legislation, the Sex Offenders Act, was introduced on September 1, 1997. This legislation requires local police agencies to register sex offenders within their jurisdictions for a number of years after release. These offenders, many of whom have been convicted of rape, sexual assault and incest, would be registered for five years for a non-custodial disposition, seven and ten years for a custodial sentences of up to six and thirty months, respectively; sex offenders given custodial sentences of over thirty months would be registered for life (Solicitor General of Canada, 1997). Police are now authorized to notify community authorities (school officials, employers, youth workers, for example) when a sex offender takes up, or has already established residence in the area (Home Office Research Development and Statistics Directorate, 1998).
There have been many criticisms of the United Kingdom's dangerous offender laws of late. The protective sentencing provisions included in the Criminal Justice Act, it is argued, are in violation of the human rights of offenders as they are subject to periods of incarceration longer than warranted by their offences; in essence, they are detained for offences not yet committed (Henham, 1997). Further, because the court is not required to consider a pre-sentence report, a judge must determine whether an offender is dangerous without the aid of a psychologist or a psychiatrist. Preventive sentencing provisions are also criticized for being incompatible with the paramount goal of the legislation- community protection (Henham, 1997). Although this might seem counterintuitive at first glance, it is fair to say that incarcerating a person for an undue period of time could be detrimental to the offender's chances of rehabilitation and reintegration into society. The longer a person remains in prison, the more he becomes 'institutionalized' and loses his ability to function as a productive member of society when released.
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