Lifelong and Indefinite – Can such sentences make the case for better evidenced legislation?

We are delighted when we get feedback on our webinars. After the webinar from our Scottish colleagues, about approaches to risk management of complex offenders in Scotland, we had some particularly important comments, in part questioning the focus.  This was not because the issue of risk management and prevention is not important. It was not because the work of the presenters was not worthy, but because some key questions were not taken up: is the Scottish Order for Life Long Restriction (OLR) effective in managing risk of harms?   Does it also bring harms? – problems that, in medicine, we might refer to as ‘side effects’?

Such questions are very difficult to answer definitively, but we agree that attempts should be made to do so.  Our Scottish colleagues are moving towards that, but, it is always a problem with research that rushing to provide answers prematurely can actually get in the way of progress, so we respond, while knowing that we have to wait a bit longer for a comprehensive answer from Scotland.

Few powerful interventions of any kind are not without adverse effects – that is true of even the commonest of medicines delivered in the interests of health and it is certainly true of social interventions. An important problem is that legislation is rarely regarded as an intervention that should be subjected to evaluation.  Any suggestion that a radical new sentence should be evaluated by randomised controlled trial, generally regarded as the gold standard for medical interventions and, increasingly, for psychological interventions, would be greeted with horror by legislators or courts – because it would seem incompatible with fairness and consistency. Yet, had that have been possible, we might have found out sooner that lifelong or indefinite restrictions may be doing harms let alone not achieving what was intended. 

We now have excellent documentation of the unintended consequences and probable harms of the rather comparable Sentences for Indefinite Public Protection in England and Wales.  A few simple statistics show how difficult it is to ‘clean up’ after legislation. These sentences were abolished in 2012 – so no new sentences were made after that – but nearly 9,000 people are still subject to them, nearly 1,250 of them never having been released from prison despite being way beyond tariff. UNGRIPP1 has evidenced such problems and campaigned for resolution. HM Inspectorate of Prisons2, the House of Commons Justice Committee3 and the House of Lords4 have amassed essential critical evidence. Most of this evidence gathering was not done by academics, but it can nevertheless be considered that it is research that has provided for resolution. This evidence gathering  has finally paved the way for further, necessary legislative change for England and Wales, under the Victims and Prisoners Act 2024, currently awaiting Royal assent. This should ease the system towards safer rehabilitative pathways, but progress will still need monitoring.

In a literature review on Mental Health and Sentencing5, the (Scottish) Order for lifelong restriction is represented as a key measure of offenders with mental disorder, but O’Loughlin et al, conducting the review are explicit: ‘No outcome studies were found relating to orders of lifelong restriction.’ Although few orders are made each year (14 in 2019-2020), this same report notes that, as of the 31st of March 2021, there were 206 individuals currently serving an OLR, 13 have been released into the community to date and 5 have been recalled to prison.’  That would generally be regarded as a reasonable study cohort size in our field. Were these individuals to be willing, perhaps a lot more could be learned from them about harms and benefits, and about short, medium and long-term outcomes?  We understand that that is happening. 

When our Scottish colleagues agreed to present their work for our webinar, they needed to start with the framework they are given and how they try to optimise practice within it. It is exciting that their decision to bring this topic to researcher attention has triggered strong responses, calling for more knowledge. We certainly need that – to examine the impact of changes we hope will bring improvement in England and Wales and maybe now in Scotland too.  Furthermore, we are now in a much stronger position to learn from each other.





5 O’Loughlin A, Gormley J, Willmott L, Bild J, Roberts J and Draper A. (2022)

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Pamela Taylor