Preventive Justice Project
This is a three-year study of Preventive Justice generously funded by the Arts and Humanities Research Council. This project will re-assess the foundations for the range of coercive measures that states now take in the name of crime prevention and public protection. The project is directed by two members of the Centre of Criminology: Professor Andrew Ashworth, All Souls College, and Professor Lucia Zedner, Corpus Christi College. They are joined by a Post-Doctoral Research Officer, previously Dr Patrick Tomlin and currently Dr. Ambrose Lee, who is based at the Centre and is associated with Corpus Christi College.
The main objective of the project is to develop an account of the principles and values that should guide and limit the state’s use of preventive techniques that involve coercion. Although the rationales for and justifications of state punishment have been explored extensively, the scope, limits and principles of preventive justice have attracted little doctrinal or conceptual analysis, save in respect of measures to prevent terrorism. This project will re-assess the foundations for the range of coercive measures that states now take in the name of prevention and public protection—for example, the extension of criminal liability to merely preparatory acts, the extensions of liability for offences associated with terrorism, and the development of civil-criminal hybrid orders such as ASBOs, Control Orders, Serious Crime Prevention Orders, etc. The project will accomplish this by means of a cross-disciplinary approach that builds on the expertise of the two principal investigators in history, criminology, criminal law and legal theory, that draws in the perspectives of the post-doctoral research officer and his expertise in political philosophy, and that includes a cross-jurisdictional approach developed with the collaboration of scholars from other legal cultures.
There are good reasons to justify the state in authorizing the use of coercion to protect the public from harm. But recent years have witnessed a proliferation of preventive measures that alter the parameters of criminal liability and blur the historic division between the criminal and civil law, allowing the civil law to be used for criminal law purposes but without the protections normally provided to defendants. Not only is the ambit of preparatory crimes being extended, but new legal forms are being developed in the name of prevention. Thus measures such as the ASBO and similar orders have been structured as a new species of hybrid or two-step measure, imposed in civil proceedings but backed by severe criminal sanctions for breach. Insofar as civil preventive measures are burdensome in ways analogous to punishment, or render those subject to them liable to punishment on breach, then adequate justification and principled limits to their deployment need to be constructed. Moreover, higher up the scale are incapacitative measures such as Control Orders and the sentence of Imprisonment for Public Protection, which are based on judgments of dangerousness. We will examine whether these and other measures are justified, whether they blur the proper boundaries between criminal and civil constraints, or whether they signal a larger change in the architecture of security.
Four streams of investigation are envisaged. First we will develop a taxonomy of coercive preventive measures in and on the margins of the criminal process. Secondly, we will explore the explanatory frameworks that underpin their development, particularly writings on political theory. Thirdly, we will examine the doctrinal legal issues raised by the drive to prevent harms before they occur, examining the foundations for pre-inchoate offences, endangerment offences, and so forth. Fourthly, we aim to develop a normative framework for preventive justice.
Prevention is too readily represented in the literature as a serendipitous bi-product of the criminal law, as an uninteresting supplement to punishment, or as a conceptual anomaly in the punitive toolbox. The project will address a deficiency in legal and political thought about a core, but previously little explored, facet of the exercise of state power. Of particular interest is the central paradox that although preventive measures are justified in the name of security they tend to undermine individual liberty or to call into question a much older conception of security - the security of the individual from the state. Through engagement with these theoretical issues, our objective is to develop a set of principles and values that will underpin a normative framework for all forms of coercive preventive measure, and thereby to develop scholarship in a new direction – preventive justice.