'A Sentence of Last Resort': the order for lifelong restriction and the sentencing of dangerous offenders in Scotland

Ferguson, Elaine A. (2021) 'A Sentence of Last Resort': the order for lifelong restriction and the sentencing of dangerous offenders in Scotland. PhD thesis, University of Glasgow.

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Abstract

This thesis is a critical analysis of the order for lifelong restriction (OLR). The OLR is a risk-based indeterminate sentence of imprisonment. It is imposed when the offender satisfies certain statutory risk criteria for the protection of the public. This thesis has four main aims: (1) to identify an appropriate theoretical basis for the imposition of preventive detention that is capable of supporting an ethically defensible model of preventive sentencing, and of serving as an analytical model for application to the OLR; (2) to give a detailed and critical account of the OLR’s operational framework; (3) to assess the extent to which the current statutory framework conforms to the requirements identified in the analytical model proposed in relation to the first aim; and (4) in light of this to propose amendments to the relevant legislation.

The thesis concludes that preventive sentencing is best conceptualised as a punitive form of societal self-defence, the right of which is engaged when an offender exercises his autonomy such as to violate the rights of others in a way that threatens lasting physical or psychological harm. Since the need to consider preventive detention has arisen from fault on the offender’s part, it is morally permissible to require him to bear the burden of any uncertainty as to repeat offending. The derogation from the principle of desert-proportionality requires to be tempered with threat-proportionality. This means that the offences to which preventive sentences may apply must be restricted to serious offences against the person, or other offences which threaten physical harm to persons – this has the effect of excluding property offences that do not endanger others. Finally, it is concluded that, while the OLR is, in general terms, an ethically defensible model of preventive detention, some modifications to the procedural framework ought to be considered in order to restrict its scope.

Item Type: Thesis (PhD)
Qualification Level: Doctoral
Keywords: orders for lifelong restriction, preventive detention, life sentences, risk-based sentencing, dangerous offenders.
Subjects: K Law > K Law (General)
K Law > KD England and Wales > KDC Scotland
Colleges/Schools: College of Social Sciences > School of Law
Supervisor's Name: Chalmers, Professor James and Leverick, Professor Fiona
Date of Award: 2021
Depositing User: Dr Elaine Ferguson
Unique ID: glathesis:2021-82066
Copyright: Copyright of this thesis is held by the author.
Date Deposited: 24 Mar 2021 17:14
Last Modified: 24 Mar 2021 17:19
Thesis DOI: 10.5525/gla.thesis.82066
URI: http://theses.gla.ac.uk/id/eprint/82066

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