By Jeremy Sirrell, Supervising Director and Criminal Defence Solicitor at Palmers Solicitors
The Ministry of Justice has indicated that they are seeking new legislation to give probation officers powers to create restriction zones, banning serious sexual and violent offenders from larger areas.
Currently, judges can impose restrictions on offenders not to enter an area or to come into proximity with victims of their crimes.
However, the Ministry of Justice has indicated that they are now seeking new powers so that probation officers can not only prevent offenders from going into certain areas but can actually create zones restricting offenders to specific areas.
It is claimed that these new powers will only be in relation to serious sexual or violent offenders.
Preventing offenders from going to certain areas has long been understood in English Criminal Law to be a usable tool, both for cases that are still in the system pending resolution and for post-resolution, where such restrictions may be part of a sentence.
However, what appears now to be proposed is something quite different. That is that, rather than offenders being prevented from going to some areas, they will be prevented from going anywhere other than areas allowed by their probation officers.
If this is the case, this would be a radical departure from English Law, which, hitherto, has always taken the view that one is allowed to do anything unless specifically prohibited from doing so.
Immediately, questions and concerns arise:
- What is the definition of ‘serious’ in relation to sexual offenders or those accused of assault? Will this be defined in law or be left to the probation officer’s own discretion? One can only hope that any legislation will give a specific definition of the word ‘serious’ so that offenders who may be subject to such restrictions are clearly identified.
- Any legislation will also need to include specific safeguards against overreach, and the most obvious one would be to allow a direct line of appeal to a Magistrates’ Court, allowing any offender to challenge restrictions placed by the Probation Service.
These proposed restrictions are in line with consistent development in English Criminal Law to expand the reach of the state beyond that of traditional prosecution, conviction, and sentence.
It goes hand in hand with a widening of opportunities for the police and prosecutors to bring actions against individuals outside of simply charging them with an offence, and also, once such individuals have been charged, to widen the control that they are subject to.
Given that defendants may now spend a smaller proportion of their sentence actually in prison than ever before, these proposals may be seen as part of a blurring of the line between being in prison subject to the strictest regime and being free.
If they are used in that way, then there may be a positive contribution to the punishment and control of offenders in society.
What is important, however, is that such powers are not used or able to be used by the Probation Service, which is both cash and time strapped, to impose excessive restrictions on offenders in place of more positive but more cash and time intensive work on rehabilitating them.
It is also important to remember that, whilst victims of crime should be protected, wherever possible, there must be a balance struck between the rights of all parties, including those of offenders who after all need to be rehabilitated back into the community, not held in some limbo where they are not in prison but then, in reality, not quite outside it either.
As always, the devil will be in the details.