O’Loughlin, Ailbhe
(2016)
Balancing rights? Dangerous offenders with severe personality disorders, the public, and the promise of rehabilitation.
PhD thesis, London School of Economics and Political Science.
Abstract
This thesis examines the emergence of the concept of dangerous and severe personality disorder (DSPD) in England and Wales and its subsequent interactions with criminal justice and health policy, mental health law and the law of sentencing. It also presents a normative critique of the promise of rehabilitation as a limit on the preventive detention of offenders perceived to be dangerous and personality disordered. In the first part of the thesis it is argued that the DSPD initiative was a compromise between the objectives of the Home Office and Department of Health intended to provide a solution to the long-standing problems personality disordered offenders presented for the prison and secure hospital systems. The plans also sought to strike a “balance” between the recognised rights of the offender to liberty and the more contested and nebulous “right” of the public to protection against harm. In essence, the bargain struck meant that, in exchange for their detention to protect the public, dangerous offenders with severe personality disorders would be offered tailored treatments aimed at alleviating their personal distress and reducing the risks they posed to the public so that they could eventually be released. Problematically, however, the effectiveness of the treatments on offer in reducing risk has not yet been proven. In the second part of the thesis, it emerges that the domestic and European legal framework governing the DSPD group takes a similar approach to “balancing” competing rights. In the final analysis, however, the legal and policy framework prioritises the pursuit of public security over the rights of the offender and risk subjecting the latter to disproportionate punishment. In this context, it is argued that the promise of rehabilitation may be more accurately characterised as means of rendering the coercive practice of preventive detention more palatable for liberal governments than as a true safeguard against the violation of prisoners’ rights. Finally, some suggestions for a new normative framework that is more responsive to the risks of disproportionate punishment presented by the current system are put forward.
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