Preventive Sentences and Orders: The Challenges of Due Process

Abstract

Measures designed to prevent individuals committing future crimes are increasingly part of legal regimes in common law jurisdictions, typically made in relation to sexual offenders or violent offenders and typically imposed on the basis of evidence that the offender poses a risk of further offending that is unacceptable. These measures may be in the form of community monitoring or restrictions, or both; but they may also extend to preventive detention. One of the many questions arising is the extent to which courts are alert to the difficulties of making such assessments and the rigour of the process followed. This article outlines these difficulties, and reviews whether the courts in England and Wales, New Zealand and Australia are alert to them.