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Canada Canada is a country in North America. Its Provinces and territories of Canada, ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, making it the world's List of coun ...
and
England and Wales England and Wales () is one of the Law of the United Kingdom#Legal jurisdictions, three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. Th ...
, certain convicted persons may be designated as dangerous offenders and subject to a longer, or indefinite, term of imprisonment in order to protect the public. Dangerousness in law is a legal establishment of the risk that a person poses to cause harm. Other countries, including
Denmark Denmark is a Nordic countries, Nordic country in Northern Europe. It is the metropole and most populous constituent of the Kingdom of Denmark,, . also known as the Danish Realm, a constitutionally unitary state that includes the Autonomous a ...
,
Norway Norway, officially the Kingdom of Norway, is a Nordic countries, Nordic country located on the Scandinavian Peninsula in Northern Europe. The remote Arctic island of Jan Mayen and the archipelago of Svalbard also form part of the Kingdom of ...
,
Finland Finland, officially the Republic of Finland, is a Nordic country in Northern Europe. It borders Sweden to the northwest, Norway to the north, and Russia to the east, with the Gulf of Bothnia to the west and the Gulf of Finland to the south, ...
, and parts of the
United States The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...
, have similar provisions of law. The question of a person's dangerousness predominately occurs when decisions are being considered regarding the future safety of the public at various stages through a suspect or defendant's journey through the criminal justice system. This includes decisions on whether a person can be released on bail or requires to be remanded in police custody, followed by sentencing for certain offences, their confinement (such as what category of prison to send them to), as well as future legal proceedings, such as their suitability to be released, assessed by a parole board.


Worldwide


Canada

In
Canadian criminal law The criminal law of Canada is under the exclusive legislative jurisdiction of the Parliament of Canada. The power to enact criminal law is derived from section 91(27) of the ''Constitution Act, 1867''. Most criminal laws have been codified in ...
, a convicted person who is designated a dangerous offender may be subjected to an indeterminate prison sentence, whether or not the crime carries a
life sentence Life imprisonment is any sentence of imprisonment under which the convicted individual is to remain incarcerated for the rest of their natural life (or until pardoned or commuted to a fixed term). Crimes that result in life imprisonment are c ...
. The purpose of the legislation is to detain offenders who are deemed too dangerous to be released into society because of their violent tendencies, but whose sentences would not necessarily keep them incarcerated under other legislation, such as the Correctional and Conditional Release Act. Under subsection 761(1) of the ''
Criminal Code A criminal code or penal code is a document that compiles all, or a significant amount of, a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that might ...
'', the
Parole Board of Canada The Parole Board of Canada (PBC; ; formerly known as the National Parole Board) is the Canadian government agency that is responsible for reviewing and issuing parole and criminal pardons in Canada. It operates under the auspices of Public Sa ...
is required to review the case of an offender with a dangerous offender label after seven years, and
parole Parole, also known as provisional release, supervised release, or being on paper, is a form of early release of a prisoner, prison inmate where the prisoner agrees to abide by behavioral conditions, including checking-in with their designated ...
may be granted as circumstances warrant, but the offender would remain under supervision indefinitely. After the initial review, the Parole Board must conduct subsequent reviews every two years. According to Corrections Canada, on average 24 dangerous offenders are admitted to the Canadian prison system each year. Paul Bernardo is one well-known dangerous offender. The dangerous offender provisions have been found
constitutional A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization or other type of entity, and commonly determines how that entity is to be governed. When these princ ...
: "The individual, on a finding of guilty, is being sentenced for the 'serious personal injury offence' for which he was convicted, albeit in a different way than would ordinarily be done. He is not being punished for what he might do. The punishment flows from the actual commission of a specific offence." On 17 October 2006, the Canadian government introduced legislation that made it easier for Crown prosecutors to obtain dangerous offender designations. The amendments provide, among other things, that an offender found guilty of a third conviction of a designated violent or sexual offence must prove that he or she does not qualify as a dangerous offender. This legislation was passed in 2008. Under previous legislation, the Crown had to prove that the individual qualified as a dangerous offender. The amendment reverses the onus for individuals convicted of three violent offences. Such individuals must now demonstrate to a court that despite the three convictions, they should not be designated as dangerous offenders. As of 2019–2020, there were 874 persons with the dangerous offender designation. Of these 874 designated offenders, 743 (85%) were in custody, whereas 131 (15%) were on conditional release in the community. Canadian courts also have the option of designating convicts "long term offenders". A hearing is held after sentencing, and, if a judge rules the accused is likely to re-offend after release, a 10-year period of community supervision is required after the sentence is completed.


Denmark

In
Denmark Denmark is a Nordic countries, Nordic country in Northern Europe. It is the metropole and most populous constituent of the Kingdom of Denmark,, . also known as the Danish Realm, a constitutionally unitary state that includes the Autonomous a ...
, offenders who commit dangerous crimes, such as
murder Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse committed with the necessary Intention (criminal law), intention as defined by the law in a specific jurisd ...
,
arson Arson is the act of willfully and deliberately setting fire to or charring property. Although the act of arson typically involves buildings, the term can also refer to the intentional burning of other things, such as motor vehicles, watercr ...
,
assault In the terminology of law, an assault is the act of causing physical harm or consent, unwanted physical contact to another person, or, in some legal definitions, the threat or attempt to do so. It is both a crime and a tort and, therefore, may ...
,
rape Rape is a type of sexual assault involving sexual intercourse, or other forms of sexual penetration, carried out against a person without consent. The act may be carried out by physical force, coercion, abuse of authority, or against a person ...
,
child molestation Child sexual abuse (CSA), also called child molestation, is a form of child abuse in which an adult or older adolescent uses a child for sexual stimulation. Forms of child sexual abuse include engaging in sexual activities with a child (whet ...
or
robbery Robbery is the crime of taking or attempting to take anything of value by force, threat of force, or use of fear. According to common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person o ...
may receive a "custody sentence" (), which lacks a definite time period. This sentence is often bestowed on offenders with deviant personalities (for example,
antisocial personality disorder Antisocial personality disorder (ASPD) is a personality disorder defined by a chronic pattern of behavior that disregards the rights and well-being of others. People with ASPD often exhibit behavior that conflicts with social norms, leading to ...
). The detainees are typically housed in the Institution of Herstedvester. There are periodic pardoning reviews and on average the offenders serve 14 years and 7 months before being released.


England and Wales

In England and Wales, the sentencing of dangerous offenders is governed by the
Sentencing Act 2020 The Sentencing Act 2020 is a landmark Act of the Parliament of the United Kingdom. The Act has 14 Parts and 29 Schedules. Parts 2 to 13 of the Act together make up a code called the “Sentencing Code”. The Sentencing Code is the law which conta ...
.Sentencing Act 2020
/ref> It was governed by of the
Criminal Justice Act 2003 The Criminal Justice Act 2003 (c. 44) is an Act of the Parliament of the United Kingdom. It is a wide-ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland a ...
, until the repeal of those sections by the Sentencing Act 2020. The assessment of dangerousness is a statutory part of the law on a defendant being sentenced for specified violent, sexual or terrorism offences. The court ''may'' take into account as prior convictions that the offender has, from a court in any place in the world, as well as information about a pattern of behaviour, including in which any offences, either the ones on trial or previously tried, have involved. Previous proceedings that could be taken into account are disciplinary proceedings or convictions if the person was part of the
armed forces A military, also known collectively as armed forces, is a heavily armed, highly organized force primarily intended for warfare. Militaries are typically authorized and maintained by a sovereign state, with their members identifiable by a ...
, or any civil proceedings. The court should consider the level of danger the public are at risk to by the defendant and whether there is a 'reliable estimate' of how long they will remain a danger.


Case law

* ''Lang and others'' provides that for a person to be dangerous, the risk a person poses must be considerable. It should not be assumed that a significant risk exists because a 'foreseen offence is serious'. * ''Johnson'' provides that the existence of previous convictions does 'not compel such a finding' in the same way the absence of previous convictions does not preclude a defendant from being found dangerous. * ''R v Considine; R v Davis'' provides that the crucial word in assessing dangerousness is 'information', meaning that this is not restricted to evidence, previous convictions of behavioural patterns of a defendant. However, it is not appropriate for a Newton hearing to decide 'whether the defendant had committed a discrete, but similar, offence to the one before the court', just for the purpose of assessing dangerousness.


Finland

In Finland, a prosecutor can demand an evaluation of the danger a serial offender poses to others. Such an evaluation is carried out by forensic psychiatrists of the Finnish Institute for Health and Welfare. The court has final discretion whether such a demand is accepted and whether the outcome of the evaluation leads to a change in sentencing. The result of the evaluation can either be negative or the offender is classified as being "particularly dangerous to the life, health or freedom of another". The reliability of these evaluations has been questioned by legal scholars and the forensic psychiatrists themselves, because such evaluations inevitably have to predict an offender's future criminality, which is uncertain. According to the Finnish Criminal Code, such offenders maybe sentenced to a special punishment referred to as a "combination penalty", where the offender cannot be released under parole during a period of imprisonment and after the prison term has been served, is subject to one year's supervision. A court cannot impose such a punishment without the demand of the prosecutor. Additionally it is required that multiple serious offences have been committed by the offender within the past ten years or the offence in question occurred within three years of release from life imprisonment or from a previous period of the special "combination penalty". An exhaustive list of the serious offences that qualify for such a punishment is stated in the criminal code. If the offence in question with the previous history accounted for, does not call for a sentence of more than three years, such a penalty shall not be imposed. The imprisonment part of the sentence may also not exceed the general limits for fixed-term sentences, 12 years for a single offence, 15 years for multiple offences tried at the same occasion. The "combination penalty" superseded the previous type of special penalty of imprisonment without parole (lit. serving the whole punishment in prison). Offenders serving that penalty could however request exceptional parole from a court, but only after five-sixths of the term had been served. The new type of punishment excludes all parole eligibility. Including a supervision period has been viewed as an important development by prison and forensic psychiatry officials, citing high reoffending rates of such convicts. It is the most severe penalty that can be applied to a person who has not committed a crime that allows for life imprisonment. In practice, life imprisonment in Finland is reserved exclusively to cases of aggravated homicide. A combination penalty has also been applied to other crimes, such as repeated acts of aggravated rape, child sexual abuse and homicide. Application of this penalty is very rare.


United States

In the
United States The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...
, "Dangerous offender" statutes are defined on a state-by-state basis and are applied at sentencing such that the enhanced "dangerous offender" sentence stems from the original illegal activity. A person under "dangerous offender" sentencing is typically held for a minimum term that coincides with the sentence the person would have received without the "dangerous offender" sentence, and thereafter is subject to review of the person's state of mind as a determination of eligibility for release. Alternatively, a person can be civilly committed if a judicial hearing determines that a concurrent
mental disorder A mental disorder, also referred to as a mental illness, a mental health condition, or a psychiatric disability, is a behavioral or mental pattern that causes significant distress or impairment of personal functioning. A mental disorder is ...
makes the person likely to remain dangerous because of a lack of
self-control Self-control is an aspect of inhibitory control, one of the core executive functions. Executive functions are cognitive processes that are necessary for regulating one's behavior in order to achieve specific goals. Defined more independen ...
. This issue arose in the case of
sex offenders A sex offender (sexual offender, sex abuser, or sexual abuser) is a person who has committed a sex crime. What constitutes a sex crime differs by culture and legal jurisdiction. The majority of convicted sex offenders have convictions for crime ...
in '' Kansas v. Hendricks'' (1997) in which the court did allow limited commitment; the court reversed itself on the very same issue in ''
Kansas v. Crane ''Kansas v. Crane'', 534 U.S. 407 (2002), is a United States Supreme Court case in which the Court upheld the Kansas Sexually Violent Predator Act (SVPA) as consistent with substantive due process. The Court clarified that its earlier holding in ...
'' (2002) imposing much stricter commitment standards and a higher burden of proof. Various state and federal sex offender registry laws impose additional post-conviction requirements for sex offenders.


Known criminals designated as dangerous offenders

*
Garry David Garry Ian Patrick David (20 November 1954 – 11 July 1993) (also known as Garry Webb), was an Australian criminal. Early life David's father Rupert David, was a habitual criminal and pedophile, who served time in prison and psychiatric ho ...
(
Australia Australia, officially the Commonwealth of Australia, is a country comprising mainland Australia, the mainland of the Australia (continent), Australian continent, the island of Tasmania and list of islands of Australia, numerous smaller isl ...
) * Johnson Aziga (
Uganda Uganda, officially the Republic of Uganda, is a landlocked country in East Africa. It is bordered to the east by Kenya, to the north by South Sudan, to the west by the Democratic Republic of the Congo, to the south-west by Rwanda, and to the ...
/
Canada Canada is a country in North America. Its Provinces and territories of Canada, ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, making it the world's List of coun ...
) * Paul Bernardo (
Canada Canada is a country in North America. Its Provinces and territories of Canada, ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, making it the world's List of coun ...
) * Paul Brumfitt (
England England is a Countries of the United Kingdom, country that is part of the United Kingdom. It is located on the island of Great Britain, of which it covers about 62%, and List of islands of England, more than 100 smaller adjacent islands. It ...
) * Stanley James Tippett (
Canada Canada is a country in North America. Its Provinces and territories of Canada, ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, making it the world's List of coun ...
) * Terry Driver (
Canada Canada is a country in North America. Its Provinces and territories of Canada, ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, making it the world's List of coun ...
) *
Thomas Silverstein Thomas Edward Silverstein (born Thomas Edward Conway; February 4, 1952 – May 11, 2019) was an American criminal who spent the last 42 years of his life in prison after being convicted of four separate murders while imprisoned for armed robbery, ...
(
United States of America The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 states and a federal capital district, Washington, D.C. The 48 contiguo ...
) * William Chandler Shrubsall (
United States of America The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 states and a federal capital district, Washington, D.C. The 48 contiguo ...
)


References

{{Reflist


External links


Public Safety and Emergency Preparedness Canada: Dangerous offender designation

The Elusive Concept of Dangerousness: The State of the Art in Criminal Legal Theory and the Necessity of Further Research
a report by Max de Vries and Johannes Bijlsma, 2022 Welsh law Canadian criminal law English criminal law Law of Denmark