Referrals for expert psychiatric opinion on dangerous offenders: a survey of instructions regarding defendants liable on conviction to a statutory assessment of dangerousness

Abstract

The Criminal Justice Act 2003 ('the Act') introduced significant changes to the sentencing of violent and sexual offenders. The Act brought in a statutory assessment of dangerousness which includes a statutory assumption of dangerousness ('SAD') for certain repeat offenders. Previously, expert psychiatric witnesses have commented on whether a defendant demonstrated sufficient mental instability to warrant a discretionary life sentence. Under this regime, psychiatric evidence is adduced to the assessment of dangerousness, especially for the purpose of supporting or undermining a rebuttal of the statutory assumption. This study investigated how legal referrers are instructing psychiatrists in cases where on conviction there will be an automatic assumption that the offender is dangerous. The aim was to determine whether the requirements of the new law are being outlined to expert witnesses and how much notice is being given for the production of evidence. All referrals to a medium secure unit were surveyed over two years. Fifty-one referrals concerned defendants liable to the SAD on conviction. The majority of the SAD referrals (40 referrals = 78.4%) included no request to comment on risk or dangerousness. This figure did not fall over time as the Act became established. Only a small minority (5.9%) of instructions directed the psychiatrist to the relevant statutory provisions. On average, adequate notice appeared to be given for the production of evidence (45.6 days). In the authors' view, legal referrers should make more explicit the requirements of psychiatric evidence in such cases. New legislation currently before Parliament would amend further the sentencing of such offenders, but there would remain a statutory assessment of dangerousness as the basis of sentencing violent and sexual offenders. Psychiatrists wishing to act as expert witnesses should be aware of the contents of the statutory assessment and be prepared to liaise with legal counsel to clarify instructions.

The Interface Between Dangerous Offender Sentencing and Psychiatry

“…Despite the importance of the assessment of dangerousness in such cases, solicitors appear very poor at explaining the evidential requirements to psychiatrists. In a survey of two years of medicolegal referrals to a regional secure unit, Bickle and Stankard (2008) found that in four-fifths of cases concerning alleged repeat violent or sexual offenders, the solicitors commissioning a psychiatric report made no request to comment on risk or dangerousness. In only a tiny fraction was the expert guided to the assessment of dangerousness in the statute.…”