There are certain key themes, which dominate this agenda, and these will be explored throughout this chapter. In particular, there are recurring elements of indefinite sentencing, extended punishment, registration, restriction, regulation and the growth of community-based partnerships to manage risks as offenders are discharged from custody. As this is a high-profile agenda with the media, politicians have been keen to be seen as doing all they can to protect the public. This has led to overblown claims about safety, exaggerated notions of risk and a policy of trying to plug every possible loophole identified by the press and others making claims. Running alongside and at times interwoven with the risk agenda is that of punishment and the problems that prominent politicians seemingly have in distinguishing between the two. Whatever the vagaries of risk assessment as a basis for the legislation on dangerous offenders, when it becomes confused with populist punitive emotions the waters become very muddied indeed.

At heart then, legislation in this field attempts to not only punish past behaviours but also restrict the freedom of the offender on the basis that there is a risk assessment indicating future (possible) harm – it is therefore preventative. What is interesting about this idea is how embedded it has become into policy, practice and legislation. There is seemingly a ready acceptance that it is OK to punish someone for what they might do in the future. It is really hard to think of other areas in life where this would be acceptable practice, but for this (what should be restricted) group of offenders, it is commonplace. If the literature from what has become known as the first dangerousness debate is reviewed (see for example Floud and Young, 1981; Bottoms and Brownsword, 1982; Conrad, 1982), it is evident that there were many legal and ethical concerns raised about dealing with what was popularly cast as pre-crime in the movie Minority Report. In essence that early debate was marked by moral concerns over punishing people for what they had yet to do, although there was a suggestion that those who had caused harm in the past might be more likely to harm again in the future (Kvaraceus, 1966); that said, a number of contributors to the debate called for ethical safeguards, which included requiring good evidence of imminence (Dworkin, 1977; Brooks, 1984), suggesting that predictions of far-off behaviour could not justify sanctions in the present. Forty years on, these concerns appear to have taken a back seat with a greater interest now in how as many as possible can be included into the public protection arena, rather than kept outside of it. This situation is likely to get even worse with the Metropolitan Police Service’s investment in ‘pre-crime-esque’ computer algorithms that generate future crime maps that can predict where future crime events will occur (Infante, 2013).

If we restrict ourselves to the last 30 years or so, it is possible to identify recurring themes with measures introduced, discarded and reintroduced in a different guise. The scale of legislation and the rapidity of change is at times bewildering with measures introduced following particularly bad cases, serious further offences and serious case reviews or because the media get hold of a particular topic. For example, following the murder of Naomi Bryant by released lifer Anthony Rice in 2006, Her Majesty’s Inspectorate of Probation issued guidance that offenders should not be allowed at Multi-Agency Public Protection Arrangements (MAPPA) meetings. This followed what the inquiry into this serious further offence regarded as rights being too much in the offender’s favour (this despite the view of probation staff that attendance for at least part of the meeting was a good risk-management tool). The development of a Child Sex Offender Disclosure Scheme (see below) followed on from the death of schoolgirl Sarah Payne and a concerted campaign by her parents and the News of the World newspaper (see Charman and Savage, 2009; Savage and Charman, 2010). Additionally, a decision was taken not to open up the UK sex offender registry to public notification in part following the disturbances at Paulsgrove in Hampshire in 2000 (Williams and Thompson, 2004a, 2004b). To date, though, the UK has not reached the scale of the disclosure and monitoring legislation seen in the US and, in particular, we have not named our public protection legislation after the child victims of serious crime.¹

In the UK, the general term ‘offender’ is used to cover many types of ‘risky groups’. However, the term ‘potentially dangerous persons’ is used when specific issues related to risk are in play. There are 3 categories of offenders whom are managed at any 1 of 3 available levels. In addition to that, numerous different ‘orders’ can be placed on offenders and ex-offenders, depending on the type and level of risk it is thought that they potentially pose. Those who are deemed to pose a risk of serious harm are usually placed within the MAPPA framework: Category 1 offenders are ‘registered sexual offenders’ (RSOs), and a person falls within this category if they are subject to the notification requirements of Part 2 of the Sexual Offences Act 2003. These individuals are sometimes referred to as statutory offenders (or ‘stat’ offenders for short). Schedule 3 of SOA 2003 lists the relevant offences linked to RSOs and, giving an indication as to the legislative complexity in this area, there are 98 sections, some of which have numerous subsections. All of these equate to a plethora of ‘relevant offences’, the risk of which needs to be managed. Individuals can also be brought into the notification requirements if they are subject to any of the following: Notification Order (Sections 97 to 103), Sexual Offences Prevention Order (Sections 104 to 113), or Risk of Serious Harm Order (Sections 123 to 129). The primary responsibility for the identification of category 1 offenders lies with the police, although these offenders will be ‘subject to statutory supervision by the Probation Service or Youth Offending Team’ (ACPO, 2010, p. 28).

Category 2 MAPPA offenders are violent offenders and other sexual offenders, and this category covers ‘distinct sets of offences’ (ACPO, 2010, p. 28), such as manslaughter, kidnapping, false imprisonment, threats to kill, procurement of a woman by false pretences, and administering drugs to obtain or facilitate intercourse (see Schedule 15, Parts 1 and 2 of CJA 2003). The majority of these offenders will be under statutory supervision, and whilst these offences do not require the offender to notify the police, the risk is managed by the probation service for the duration of the licence period. Again, what can complicate the reality of managing the risk assigned to this category of offenders are the numerous layers of additional supervision and risk management. For example, category 2 offenders could be subject to a Violent Offender Order, which is a civil preventive order under Part 7 (Sections 98 to 117) of the Criminal Justice and Immigration Act 2008, and which contains restrictions and conditions that prevent the individual from accessing places, events and people (ACPO, 2010, p. 198).

Category 3 offenders are identified in Section 325(2)(b) of the CJA 2003 as ‘other dangerous offenders’ and are ‘other persons who, by reason of offences committed by them (wherever committed), are considered by the responsible authority to be persons who may cause serious harm to the public’. The responsible authority (RA) is the primary agency for MAPPA and usually includes the police and probation and prison services who work together on matters relating to risk assessment and management plans. For an individual to become a category 3 offender, 2 factors must be present. The first is that the RA must establish that a person has a conviction or caution ‘for a criminal offence which indicates that the person is capable of causing serious harm to the public’. The second is that the RA must have cause to think that the offender ‘may cause serious harm to the public’ (ACPO, 2010, p. 29). In order to distinguish these offenders from Potentially Dangerous Persons PDPs, they are referred to as ‘other dangerous offenders’. However, when added to the problems with the legislation that we discuss below, this category leaves a lot open for interpretation. The worrying aspect here is the notion of ‘may cause’ – a pre-crime philosophy that gives individuals such as police and probation officers immense powers to control members of the population before they have even acted.

These 3 MAPPA categories have been developed over a period of 12 years, since their introduction through the Criminal Justice and Court Services Act 2000. It is also important to distinguish between PDPs who are covered by MAPPA and those who do not meet the criteria for MAPPA category 3 but are still regarded as PDPs. There is no statutory multi-agency framework to manage these individuals, yet it would be wrong to think that risk stops because the licence and/or notification requirements have elapsed. This presents an interesting catch-22 situation: those who work with ex-offenders understand that risk can continue even after the individual becomes a ‘non-stat’ offender, yet to actually continue the ex-offenders’ management, for example, through continued police surveillance, adds to the problems of what has been labelled penal panopticism.

A broad range of political, social and structural factors shape the control of risky groups. Specifically, the ‘war’ against crime as seen through the lens of the law and order brigade has created vitriolic rhetoric against dangerous offenders that suggests it’s a moral battle between good and evil. Wacquant (2009, pp. 209–239) suggests that this rhetoric, especially when aimed at sex offenders, has resulted in a discursive change in the form of the repudiation of the ideal of ‘rehabilitation’ and the move towards vengeful rehabilitation, which ignores the rational implementation of penology as envisioned by Beccaria ([1764] 1986). The effects of these recent discourses and practices has been to target those deemed as being in ‘risky groups’, which tend to include sex offenders, drug offenders (dealers and users), terrorists and priority and prolific offenders, in order to govern citizens through the fear of crime (Simon, 2009; Wacquant, 2009). Such structures and policies see offenders as something to be ‘neutralized’ rather that rehabilitated, which takes place within a heavily legislated risk and dangerousness framework. Unfortunately, the current structure and policies of the UK criminal justice system do not always follow a social-rehabilitative perspective and this has led to inc...