ONE OF THE more useful things I did as chairman of the Howard League for Penal Reform (a post I held from 1973 to 1984) was in May 1976, when I convened a committee of independent experts to review and report on the law and practice in relation to ‘dangerous’ offenders.

The inspired choice of Jean Floud, then Principal of Newnham College, Cambridge, meant that she and her distinguished colleagues learned a great deal more about an intractable topic as a result of the stimulus of organised discussion.

I am unaware of the impact (if any) that the report has had on politicians, save to note that it was prophetic in recognising that change in penal philosophy was in the offing. But until the 1960s, sentencing by the courts largely reflected society’s view of just pun­ishment as the prescribed penalty for offences against the criminal law. It contained determinate periods of imprisonment for all serious offences and, apart from a tiny proportion of sentences of life imprisonment, there was no element of public protection, except impliedly in the temporary removal of the offender from the community and the lessening of the risk of future re-offending. Sentencing, broadly speaking, made a distinction only between the offender who was a social nuisance (usually the repetitious, petty offender) and the social menace of the high-risk offender. Both were held to represent social dangers in the natural sense of danger, meaning an unacceptable risk of harm.

The devices of preventive detention and extended sentences came under sustained attack, directed mainly against the idea of combating the nuisance by draconian means. Often what was a ‘danger’ was little mentioned, since the index offence hardly war­ranted such appellation. The state and composition of the class of dangerous offenders was sufficiently small and heterogeneous not to cause official, and certainly not parliamentary, action. All this was documented in the Floud report, which I re-read in 2013; its contents are just as relevant today, as Parliament returns to the pressing issue of sentencing for public protection. The other nota­ble events of that time were the last two reports of the Advisory Council on the Penal System, The Length of Prison Sentences (interim) (1977)^[206] and Sentences of Imprisonment (1978), which had embarked on a review of maximum penalties of imprisonment to deal with the pressing question of the policy to reduce sentences for ordinary offenders. The full report, however, recommended a pilot sentence for adjusting the statutory maxima, but added a pos­sible system for exceeding the maxima for an offence that was espe­cially harmful. The final report was academically and otherwise attacked for introducing a bifurcatory system. If it was prematurely innovative, it was speedily buried by the penal policy of the incom­ing Conservative Government.

Dangerousness is meaningless other than in a social context; that is why the late Peter Scott, an outstanding psychiatrist, once pro­claimed that dangerousness was a dangerous concept. Therein lies the difficulty. Who qualifies to be labelled ‘dangerous’, and how does criminal justice identify him for special treatment? The legis­lator’s task is to provide the sentence with a definition of ‘serious harm’ and to prescribe for those so defined a civilised system of review and sentence extended beyond that of the normal offender detained under a determined sentence.

It is essential, if not readily to hand, to draw the distinction implicit in sentencing policy between the ordinary offender who pre-emptively receives a penalty for past criminality - call it punishment, if you will - and the exceptional offender whose criminality should be formulated so as to take account of the risk of repetitious behaviour. The legislature’s motive should be to infer a substantial reduction in the length of sentences of imprison­ment, while providing explicitly a necessary measure for public protection; the latter is punished for the seriousness of his or her crime and additionally is made subject to custodial control beyond the determinate sentence. Other than for the public protection provision, the indeterminate prison sentence should cease to be available for non-homicidal offences. The determinate sentence of imprisonment for public protection should be precisely prescribed as the core of the penal system. For homicidal offences, encompass­ing serious harm, indeterminacy would remain available discre- tionarily; the sentence of life imprisonment for murder would cease to be mandatory, which has been loudly proclaimed by reformists for 50 years since the abolition of capital punishment.

The modern penal system, exacerbated by the natural concern to combat terrorism, has been aware of the need for protective sentencing without clearly defining that which is to be statutorily protected. The debate has focused on what constitutes ‘serious harm’ or ‘dangerousness’. It should encompass all unlawful kill­ings, serious bodily harm, serious sexual assaults and other serious crimes involving prolonged pain or mental stress or permanent mental disorder. It covers the worst offences against the person. Should it be extended to property offences? The Advisory Council on the Penal System in 1978 thought that serious fraud, affecting numerous victims, should qualify, even if unaccompanied by any physical violence. Nothing that has occurred since that time should alter that judgment. A victim’s deprivation by a fraudster can be just as devastating as a major wound. They both inflict serious harm.