ABSTRACT
In this chapter, I seek to place the law on public protection in the context of the reality of the implementation of that law. Law in practice is, of course, not always as it appears on the statute book or in the case law. Even where the law appears clear, it often gives wide discretionary powers to those whose duty it is to apply it. Thus, laws exist that allow both prisons and psychiatric hospitals to be used lawfully to protect the public from ‘dangerous’ people. The rights and freedoms of the ‘dangerous’ are also curtailed in numerous ways within the community. The law is used to construct complex rules that both allow huge restrictions on liberty and also create complex frameworks (safety nets) to protect the individual from the abuse of power. This chapter focuses on how these laws leave broad discretionary powers with key decision-makers, and emphasises that the key decision-makers are not always the most obvious players. There are serious holes in the ‘safety nets’ provided by the law. In particular, while the courts may offer a due process safety net in relation to many decisions, other equally crucial decisions may remain relatively invisible. The chapter concludes that the protection of the individual must be taken as seriously as the protection of the public: more open and accountable decision-making is essential.
