Oct 28, 2010
Preventive detention, risk and the ECHR
Various developments in criminal justice policies and practice in Ireland and abroad exemplify a marked aversion towards risk, such as the restriction of the right to bail, situational crime prevention, and gated communities. While risk has always been of concern in the criminal justice context, commentators like Barbara Hudson and Lucia Zedner identify a new orientation towards it, in which the actuarial probabilistic language of risk is joined to the moral language of blame, and where wariness towards risk compromises due process norms. The imposition of preventive detention, which has recently been examined in Strasbourg in Grosskopf v Germany, is paradigmatic of this risk-oriented approach to penal policy. Indeed, the release of convicted sex offender Larry Murphy, which prompted debate about electronic monitoring and sentence remission, also sparked consideration of preventive detention in Ireland.
However, imprisonment for this purpose is not possible in Ireland. The Irish approach to sentencing, grounded in Bunreacht na hÉireann, requires that each sentence be formulated with the individual facts of the case in mind and be proportionate to the gravity of the crime and the circumstances of the perpetrator (People (DPP) v Sheedy [2000] 2 IR 184). As was reiterated earlier this year in Lynch v Minister for Justice Equality and Law Reform, preventative justice “has no place in our legal system” (People v. O’Callaghan [1966] IR 501) and “there is no form of imprisonment for preventative detention” (People (The Director of Public Prosecutions) v. Jackson (Court of Criminal Appeal, 26 April 1993).
In contrast, both England and Scotland, and indeed other European jurisdictions, permit preventive detention. In England, an order for Imprisonment for Public Protection (IPPs) permits indefinite preventive sentences to be imposed where “a person has been convicted of a specified offence, and … it falls to a court to assess … whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences.” Although originally the court was to “assume that there is such a risk” (s.229(3)), this was subsequently removed and discretion reverted to the court.
A comparable Order for Lifelong Restriction (OLR) may be made in Scotland when a person has been convicted of a sexual or violent offence. A risk assessment report is made by the Risk Management Authority, and if the court finds that there is a likelihood that he, if at liberty, will seriously endanger the lives, physical or psychological well-being of members of the public, then an OLR may be made.
Despite the repercussions that IPPs and OLRs hold for the presumption of innocence and the right to liberty, a challenge has not been taken in domestic courts in the UK against these measures. Indeed, the decision of the European Court of Human Rights in Grosskopf v Germany indicates that such challenge would not succeed, based on its judgment that preventive orders are not in breach of Article 5(1) of the ECHR. The relevant aspects of this Article state that
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court; …
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; …
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; …”
Grosskopf had been convicted in 1995 on three counts of attempted burglary. He was sentenced to seven years’ imprisonment and preventive detention was ordered as is permitted under the German Criminal Code, based on his personality, his numerous previous convictions of burglary, his disposition to commit serious offences causing serious economic damage, his danger to the public, and his lack of remorse. His full prison sentence was served by February 2002, and since then Grosskopf has been in preventive detention. He claimed that this detention since 2002 breached his right to liberty as protected by Article 5(1).
In a judgment remarkable for its brevity, consequentialist attitude and lack of rights’ focus, the European Court of Human Rights rejected his application. The Court adopted a positivist approach to the issue, never veering from a strict analysis of the terms of the Code and Article 5(1). It considered that the preventive detention of Grosskopf was based on his “conviction”, which is required by Article 5(1)(a), and he was not detained for a period beyond the statutory maximum period applicable at the time of his offence and conviction. The next aspect of the judgment determined whether there remained a sufficient causal connection between his conviction and deprivation of liberty. Such a causal link could be broken if the decision not to release the person were based on grounds that were inconsistent with the objectives of the sentencing court’s decision when ordering preventive detention, or if based on an assessment that was unreasonable in terms of those objectives.
The European Court acquiesced in the domestic court’s view that preventive detention served legitimate ends, based on Grosskopf’s “previous convictions, his conduct in prison and his attitude towards work”, and his refusal to undergo therapy. It found that the decisions not to release Grosskopf were consistent with the objectives of the sentencing court. Although the European Court expressed concern regarding the lack of special measures or institutions directed at persons in preventive detention aimed at reducing the danger they present, it concluded that the domestic courts’ decisions could not be deemed “unreasonable in terms of the objectives of the preventive detention order.”
This is a notably conservative and positivistic decision, which fails to engage with the true crux of the issue — that a person may be detained, not for retributive reasons for a past act, but for potential future harm without a finding of guilt. Moreover, the Court spoke of his potential to cause economic danger. It is nothing less than astonishing that liberty can be restricted because of a nebulous threat of economic harm. Furthermore, his previous offending, although persistent and serious, was not of a violent nature. Finally, the focus on his lack of remorse begs the question of whether liberty is dependent on fulfilling expected norms regarding repentance, rather than a legal finding of culpability in accordance with the rule of law.
In essence, while the ECHR and its jurisprudence often acts as a bulwark for due process rights and in the specific context of Ireland can provide impetus for legal reform, Grosskopf indicates the true significance of our domestic prohibition on preventive detention.
This is an excellent analysis of this decision and its implications. Part of the domestic courts reasoning for the preventative detention referenced the applicants’ unwillingness to engage in therapy. That is interesting from the perspective of the United Nations Convention on the Rights of Persons with Disabilities which has been interpreted by the Office of the High Commissioner for Human Rights (2009) as meaning that it is unlawful to deprive a person of their liberty, when the deprivation is grounded in the combination between a mental or intellectual disability and other elements such as dangerousness, care and treatment. To the extent that Grosskopf’s preventative detention is based on his unwillingness to engage in treatment seems to conflict with the position of the Office of the High Commissioner, although other factors are at play in this case. The issues you raise are also connected to the human rights issue that arises when the insanity defence is used successfully. The consequences of which is indefinite detention normally in a psychiatric facility, until such time as the detainee is judged not to pose a threat to the public. Some studies suggest that persons deemed not guilty by reason of insanity will be detained longer in a psychiatric facility than had they been found guilty and served the sentence for the offence(s). Also the decision seems to be very inconsistent with the body of case law developed by the European Court, in particular in the mental health field beginning with Winterwerp v the Netherlands (1979) which challenges arbitrary detention.
This is a very informative and well written article.