Dangerousness, Rights and Criminal Justice
Dangerousness, an individual's 'propensity to cause serious physical injury or lasting psychological harm,' is a highly influential factor in decision-making in the arena of mental health law and, to a more limited extent, the criminal justice system. It is a concept which is fraught with difficulty, particularly in the legal context.2 Use of the exact term in legislation is rare.3 However, this has not prevented the courts from applying dangerousness as a criterion for decision making.4 This is not as surprising as it might appear. Although no definitive definition exists, at the heart of the concept lies the assessment of future risk of serious harm. Courts are required to make just such an assessment when deciding to impose protectionist disposals following conviction. For example, both the Mental Health Act 1983, which enables an individual to be hospitalised as a 'restricted patient,'5 and the criteria for imposing a discretionary life sentence involve a predictive judgment of this type.6 Similarly, once these orders have been made, predictive judgments are an integral component of decisions to discharge from hospital or to release from prison. Therefore, in reviewing such decisions the courts are again confronted by the issue of dangerousness. The aim of this article is to analyse the adverse implications for the rights of individuals who have been labelled as dangerous, either as a result of hospitalisation as a restricted patient, or through the imposition of a discretionary life sentence.