Preventive Order and Civil Law Research Paper

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What legal mechanisms are available to control an individual whose behavior reveals a propensity for harm? For the greater part of the twentieth century, with the exception of civilly committing the mentally ill, the state acted through the criminal sanctioning process to counter actors who presented a risk of criminal conduct. Law enforcement authorities could thus immediately perform an arrest and initiate a prosecution; if a conviction followed, the court could impose sanctions to protect the public, including measures to rehabilitate or incapacitate the offender. Recent decades, however, have been marked by the growing use in Anglo-American jurisdictions of preventive mechanisms beyond the criminal law to cope with the likelihood that an actor will commit a crime. Significantly, these preventive orders are deemed civil rather than criminal in nature and may be granted in respect of an individual who has not actually perpetrated an offence. Furthermore, the state need not meet all of the heightened procedural and evidentiary barriers which apply in a criminal trial. Since the trend of using preventive orders has been especially pronounced in the United Kingdom, the following discussion largely focuses on the developments that have marked the English landscape of criminal justice.

Historical Background

For the greater part of the twentieth century, legislative practice in Anglo-American jurisdictions proceeded on the assumption that, in coping with the risk posed by an individual whose behavior suggests a propensity for harm, preventive measures, such as arrest and detention or the seizure of tools intended to be used for criminal purposes, could only be taken if the actor actually engaged in conduct which has been criminalized. However, the past three decades have been characterized by a growing trend which involves the use of preventive orders in lieu of, or in conjunction with, the machinery of the criminal law, which do not necessarily require the performance of conduct which amounts to a criminal offence. These preventive orders subject individuals who present a risk of harm to judicial control. The court may impose restrictions on movement, contacts with specified individuals, and access to designated materials or tools. These judicial powers are not without antecedents (Ramsay 2012). Common-law courts have historically had the power to “bind over” an individual likely to breach the peace and enjoin her to enter into a recognizance to keep the peace and specify reasonable conditions to secure her good conduct (Williams 1953). Similarly, the traditional civil injunction process granted courts the power to impose preventive measures by requiring individuals who pose a risk of harm to refrain from performing certain actions. So-called “status” offences criminalizing such activities as begging and vagrancy also commonly served as a vehicle to subject to public control individuals whose behavior was believed to evince a criminal proclivity (Williams 1955). Inchoate offences that criminalize preparatory actions and other remote risks of harm now serve a similar preventive function (Dubber 2002), although it should be noted that, in some cases, the criminalization of conduct performed with the intention of laying the groundwork for the commission of a substantive offence may be justified based on retributive principles of justice (Ohana 2007). Modern forerunners of the preventive order can also be traced back to the ante delictum security measures which emerged in a number of European countries in the early and middle twentieth century. These measures were championed by members of the “Social defense” movement who were opposed to the classical model of criminal law and punishment guided by the purposes of deterrence and retribution (Digneffe 2008).

Viewing crime primarily as a symptom of an “e´tat dangereux” (a dangerous condition), they argued that conviction of a criminal offence should not necessarily be required in order to authorize preventive and rehabilitative action by the criminal justice system and that once satisfactory indications were forthcoming that an individual is in a state of dangerousness, steps should be taken to avoid further deterioration in her condition (Ancel 1987). Ante delictum security measures failed to fulfill the expectations of their supporters, inter alia, because the measures were exploited by authoritarian regimes to exclude social deviants and repress political opponents (Pradel 2002). A vestige of the ante delictum preventive measures can still be found in the Italian system of misure di prevenzione, which is now used to control individuals associated with Mafia organizations and terrorist groups (Molinari and Papadia 2002).

In American jurisdictions, the civil injunction has most notably been used in recent decades to protect against spousal abuse (Finn and O’Brien Hylton 1994) and gang-related criminal activity (O’Deane 2012). This legislative practice forms part of a larger trend, whereby a variety of civil remedies, such as civil monetary penalties and civil forfeiture, are pressed into service to address criminal behavior (Cheh 1991). This trend has given rise to the formation of a “middle ground jurisprudence” (Mann 1992) between the criminal law and the civil law. In Canadian law, preventive measures, which are not predicated on the commission of a criminal offence, have been statutorily framed as an exercise of the Commonlaw judicial power to “bind over” an individual likely to breach the peace (Criminal Code of Canada, R.S.C., 1985, c. C-46, sections 810–810.2; R. v. Budreo, 104 C.C.C. (3d) 245). These measures may be imposed on an individual who is likely to engage in spousal or child abuse, a criminal organization or terrorism offence, sexual misconduct towards a minor, or a serious personal injury offence.

Although preventive instruments allowing for the imposition of protective measures in respect of an individual who presents a risk of harm can be found in the legislation of a variety of Common-law countries, the tendency of using preventive orders in lieu of, or in conjunction with, the machinery of the criminal law has been especially pronounced in the United Kingdom. The preventive order first rose to prominence with the enactment of the Crime and Disorder Act 1998, which empowered courts to extensively restrict the movement of individuals found to have acted in an antisocial manner by subjecting them to an “Anti-Social Behaviour Order.” The Prevention of Terrorism Act 2005 provided another impetus for the entrenchment of the preventive order within the English landscape of criminal justice. The Act empowered the Secretary of State for the Home Department to impose a “Control Order” significantly curtailing the activities of individuals suspected of involvement in terrorism-related activity. Both of these preventive orders proved to be controversial. As explained below, these preventive orders have lately been the subject of reform initiatives by lawmaking authorities. In this context, the Prevention of Terrorism Act 2005 (and, with it, the Control Order) was abolished and replaced by the Terrorism Prevention and Investigation Measures Act 2011, which introduced a new preventive mechanism, namely, the Terrorism Prevention and Investigation Measure. Moreover, a program for comprehensive reform of the Anti-Social Behaviour Order was recently announced.

Even with these efforts to reform the preventive orders available to protect against antisocial behavior and terrorism-related activity, legislative schemes authorizing the imposition of a preventive order on an individual due to the likelihood of criminal conduct on her part have become commonplace in the British statute books. Indeed, the scope of the preventive order has greatly expanded as of late. Most tellingly, the Serious Crime Act 2007 significantly widened the range of criminal activities in respect to which a preventive order may be sought. The Act provides that a Serious Crime Prevention Order may be issued to prevent drug trafficking, human trafficking, prostitution, armed robbery, money laundering, fraud, tax evasion, corruption and bribery, blackmail, intellectual property offences, and environmental crimes (Serious Crime Act 2007, Schedule 1). Furthermore, a Serious Crime Prevention Order may also be made to prevent any offence which “in the particular circumstances of the case, the court considers to be sufficiently serious to be treated for the purposes of the application or matter as if it were so specified” (Serious Crime Act 2007, section 2(2)(b)).

Characteristics And Functions Of The Preventive Order

According to Andrew Ashworth and Lucia Zedner, “the essence of [preventive] measures is that they involve (i) restrictions on individual liberty of action; (ii) in order to prevent harm or risk of harm and (iii) are backed by threats of coercive sanctions” (Ashworth and Zedner 2010, p. 61). There is a major structural difference between the preventive order and the machinery of the criminal law. The preventive order is explicitly intended to be preventive, not punitive. Although conviction of a criminal offence may constitute a prerequisite for the making of a preventive order, it is fundamentally oriented towards the future. The actor’s prior conduct is only taken into consideration to assess the likelihood that she will engage in the commission of a crime. Setting in motion the criminal sanctioning process, on the other hand, hinges on the past conduct of the offender, rather than on her personal dangerousness. Whereas punishment of offenders may fulfill an important function in protecting the public, the fact that the machinery of the criminal law can only be triggered by the commission of an offence endows it with an essentially backward-looking dimension, which does not exist in the preventive order.

A typical legislative scheme which allows for the issuance of a preventive order contains rules pertaining to most or all of the following: the specific harm to be averted, the preventive restrictions available, the conduct prerequisites, the principles of procedure and evidence applicable, the penal consequences of a breach of the order, the competent authority, the parties qualified to file an application, the possibility of obtaining an interim order pending decision on the merits, and the duration, variation, and discharge of the order. There is considerable diversity across statutory arrangements in the specifics of each of these components.

A standard preventive order places a number of obligations on the targeted person, and the violation of these obligations may constitute a criminal offence subject to a maximum penalty of 5 years of imprisonment. Hence, the preventive order has been dubbed a “two-step prohibition” (Simester and Von Hirsch 2006, p. 174). As onerous as some of the obligations may be, they involve restrictions on, rather than deprivations of, liberty (Ashworth and Zedner 2010). The conditions attached to a preventive order typically enjoin the actor to refrain from engaging in specified forms of activity, such as accessing certain areas, coming into contact with potential accomplices or victims, and possessing designated instruments. For instance, the Sexual Offences Act 2003 empowers a court to grant a Sexual Offences Prohibition Order that might prohibit having unsupervised contact with anyone under the age of 18, being present in certain places such as schools or playgrounds or accessing the Internet. Significantly, the court must be satisfied that “it is necessary to make an order for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant” (Sexual Offences Act 2003, section 104, emphasis added). Some statutes set a lower threshold: Under the Serious Crime Act 2007, a Serious Crime Prevention Order may be issued restricting the person’s place of residence, working arrangements, business dealings, access to specified premises, travel, and means of communication and association with others (Serious Crime Act 2007, section 5) provided that the court has “reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime” (Serious Crime Act 2007, section 1(1)(a)) (emphasis added).

Since the issuance of a preventive order may result in stringent restrictions of liberty, the function of adjudicating the application process is confined in principle to the judiciary. Some legislative schemes, however, provide for special arrangements. The Terrorism Prevention and Investigation Measures Act 2011 gives the Secretary of State the power to decide to impose a Terrorism Prevention and Investigation Measure (hereinafter, TPIM) on an individual who is involved in terrorism-related activity. Before imposing the measure, the Secretary of State must obtain the permission of the court, except in cases of urgency, where the measure must be immediately referred to the court for confirmation. The court may refuse permission if the Secretary of State’s decision is “obviously flawed” (section 6(3)(a)). In practice, the courts subject the decision of the Secretary of State to a relatively high level of scrutiny both with respect to the finding that the individual concerned is involved in terrorism-related activity and with respect to the necessity for each of the restrictions imposed to prevent further such activity (Walker and Horne 2012).

Under nearly all legislative schemes governing the making of a preventive order, it is required that the applicant prove that the person concerned engaged in a course of conduct defined in the statute. There are some preventive orders, such as the Sexual Offences Prohibition Order under the Sexual Offences Act 2003, that may almost only be imposed if the actor was convicted of a designated offence (Sexual Offences Act 2003, section 104). Under a number of statutes, inappropriate conduct that does not necessarily amount to a criminal offence may provide grounds for the issuance of a preventive order. Under the Sexual Offences Act 2003, a Risk of Sexual Harm Order can be made against an individual who has, on at least two occasions, engaged in such conduct as sexual activity involving a child or in the presence of a child; causing or inciting a child to watch a person engaging in sexual activity or to look at a moving or still image that is sexual; giving a child anything that relates to sexual activity or contains a reference to such activity; and communicating with a child, where any part of the communication is sexual (Sexual Offences Act 2003, section 123(3)).

Since the application proceeding for a preventive order is classified as civil, the hearsay rule does not apply as a rule. Indeed, the fact that hearsay evidence may be used in application proceedings for an Anti-Social Behaviour Order is viewed as representing a significant advantage for public authorities, since it enables them to overcome the problem of witness intimidation. That the preventive order is viewed as a civil mechanism also entails that the criminal (“beyond a reasonable doubt”) standard of proof does not need to be met. The Terrorism Prevention and Investigation Measures Act 2011 provides for a relatively low evidentiary threshold: It is sufficient that the Secretary of State “reasonably believes” that the individual concerned is involved in terrorism-related activity (Terrorism Prevention and Investigation Measures Act 2011, section 3) (Walker and Horne 2012). The vast majority of preventive measures rest on a civil proof standard (“balance of probabilities”). The House of Lords, however, ruled in R (McCann and Others)v Manchester Crown Court [2002] 4 All E.R. 593 that, although the application proceeding for an Anti-Social Behaviour Order should be classified as civil, it must be proven beyond a reasonable doubt that the individual acted in an antisocial manner.

To conclude, it is not always the case that the application process for the issuance of a preventive order may only be initiated by the police or the prosecution authorities. Some legislative schemes allow other state and non-state actors to set the process in motion. This is not surprising, perhaps, given that the protective measures involved are deemed civil rather than criminal in nature. For instance, the Crime and Disorder Act 1998, which lays down the legislative framework for the imposition of an “Anti-Social Behaviour Order” on an individual who acts in an antisocial manner, specifies that this preventive order may be sought by the council for a local government area as well as by a person who by statute provides or manages any houses or hostels in a local government area (Crime and Disorder Act 1998, section 1A). Under some statutes, a private individual may seek a preventive order. Thus, the Family Law Act 1996 states that any person may apply for a non-molestation order prohibiting another person previously associated with her in marriage, civil partnership, cohabitation, or an intimate physical relationship of significant duration from harassing the applicant or a relevant child (Family Law Act 1996, section 42).

Current Issues And Controversies

The preventive order has proven to be a controversial mechanism of legal control amongst criminal law theorists and criminologists. Although commentators generally agree that the state has the obligation to take steps to protect citizens from an individual who poses a risk of harm, they argue that when the state resorts to the preventive order, rather than the criminal law, to achieve security, it does not give sufficient weight to the autonomy and liberty of the individual concerned and to her expectations of legal certainty. It is also argued that the preventive order does not provide for enough procedural safeguards and that it undermines the principle of proportionality in punishment and the separation of powers doctrine. As explained below, various aspects of this preventive instrument have provoked concerns and trenchant criticisms, based on considerations of both principle and policy.

First, it has been argued that the preventive order is inconsistent with the principle that the state should treat its citizens as responsible agents, because it allows for restrictions to be set on an individual based on a prediction about her future conduct, thereby violating her freedom to autonomously decide whether to abstain or not from breaking the law. A similar claim has been made from a communitarian standpoint, namely, that the preventive order runs counter to a mode of governance which befits dealings between fellow members of the polity, because it unjustifiably singles out a given actor as an untrustworthy citizen, whose commitment to the values underpinning the norms of the criminal law is put in doubt (Duff and Marshall 2006; Simester and Von Hirsch 2006).

Second, the hybrid character of the preventive order has been attacked for failing to concur with a liberal paradigm of criminal justice, in which respect for the rights of suspects and defendants constitutes a central value. Since it is categorized as a measure that is civil rather than penal in nature, the preventive order enables the state to impose intrusive restrictions while circumventing principles of due process that apply as a rule in a criminal trial. Indeed, “[t]he principal reason why some governments have been devising forms of civil proceedings.. .is that the criminal justice system is thought to present too many barriers to swift and effective outcomes” (Ashworth 2004, p. 273). It has been argued that an application for a preventive order should not be classified as a civil proceeding simply because the order is made with preventive rather than punitive objectives. Rather, attention should also focus on the impact and potentially detrimental consequences of the prohibitions attached to an order for the dignity and freedom of movement of the individual concerned (Ashworth 2004). The boundaries between the civil and the criminal law are not only blurred by the fact that the restrictions which attach to a preventive order may be onerous but also by the fact that a breach of the order may constitute a criminal offence (Simester and Von Hirsch 2006). Given the stringent character of some of the restrictions which may be imposed on an individual targeted by a preventive order, some commentators have argued that the core procedural protections guaranteed to defendants in a criminal trial should also apply in a proceeding leading to the making of such an order, even if the proceeding is formally categorized as civil (Ashworth and Zedner 2010).

Third, the preventive order has been criticized for not according with a desert-centered conception of criminal liability and punishment. Specifically, critics note that a violation of the terms of a preventive order without reasonable excuse suffices to establish liability for a breach and that no evidence need be adduced to prove the mental state of the defendant (Simester and Von Hirsch 2006). It is also argued that the issuance of a preventive order can generate outcomes which are at odds with the principle of proportionality in punishment, since restrictions may be imposed on an offender even after completion of sentence if these are deemed necessary to protect the public (Ohana 2010). The fact that, as noted below, in practice courts sometimes impose disproportionately harsh sanctions (including imprisonment) in response to a breach strengthens this objection.

Fourth, it has been argued that unduly harsh criminal sanctions are imposed for a violation of the terms of a preventive order. Significantly, the breach of a preventive order is often threatened with a maximum penalty of 5 years imprisonment. The preventive order has been likened to a Trojan horse, with the civil law serving as a vehicle for setting in motion the machinery of the criminal law once a breach has taken place (Simester and Von Hirsch 2006). Given that the prohibitions can be wide-ranging and poorly targeted, and that little rehabilitative assistance is provided to the individual concerned, it has been argued that the preventive order involves significant potential for “net-widening” – that is, it risks entangling actors who would not otherwise have been prosecuted for dangerous or harmful conduct constitutive of a criminal offence (Crawford 2009). This criticism has been raised most forcefully in respect of the Anti-Social Behaviour Order. Research has found that the prohibitions contained in Anti-Social Behaviour Orders made by magistrates are often loosely defined, and thus not only often entirely bar the person concerned from a wide range of public areas, such as parks and shopping malls, but also heighten the risk of a breach later on (Von Hirsch and Shearing 2000; Hoffman and Macdonald 2010). More importantly, approximately half of all Anti-Social Behaviour Orders are breached, and approximately half of those convicted receive a custodial sanction (Home Office 2010). These findings reveal that the Anti-Social Behaviour Order is not entirely successful in its preventative function. More generally, these findings reveal how the preventive order can blur the boundaries between the civil and criminal law and detract from the potency of the condemnatory message and sanctions of the criminal law and from its standing as a distinct moral voice within the community.

Fifth, critics have taken issue with the imprecision which often characterizes the conduct prerequisite in some of the statutes authorizing the imposition of a preventive order (Ashworth 2004). Specifically, it is argued that there are often vague statutory formulations, which run afoul of the principle of legal certainty, failing to provide citizens the guidance needed to steer themselves in such a way as to remain free of state intervention. For instance, the Crime and Disorder Act 1998 defines antisocial behavior for the purpose of obtaining an Anti-Social Behaviour Order as acting in “a manner which causes or is likely to cause harassment, alarm or distress to one or more persons not of the same household” as the actor concerned (Crime and Disorder Act 1998, section 1(1)(a)). The Serious Crime Prevention Order provides another example of the ways in which, as Lucia Zedner has observed, “uncertainty now provides the grounds for action against individuals who are believed, but not known, to be involved in harmful behaviours[.]” (Zedner 2009, p. 51) It may be made against an individual who has been involved in serious crime, which is defined as including cases where the individual has conducted herself in such a way that was likely to facilitate the commission by herself or another person of a serious offence. In assessing whether the conduct prerequisite is established, the court is to disregard the intentions of the actor at the time of the act in question, as well as acts which are shown to have been reasonable under the circumstances (Serious Crime Act 2007, sections 4(2)-(3)).

Sixth, it has been argued that the proliferation of preventive orders within the English landscape of criminal justice is problematic because unelected judges are given the power to proclaim which norms of conduct must be complied with, on pain of criminal sanction for failure to do so, in the absence of detailed legislative guidance (Ashworth and Zedner 2010). This arguably runs counter to the fundamental principle of democratic governance, according to which the power to prohibit conduct by means of the criminal law should reside in the legislature, which is composed of the elected representatives of the citizenry and which offers a forum for public debate (Simester and Von Hirsch 2006).

Reforms And Proposals

Following this review of the objections leveled at the preventive order, it should be noted that although academic experts in the criminal justice field have faulted the preventive order on many grounds, it has not encountered significant hostility amongst actors within the criminal justice system, such as policymakers, judges, law enforcement officials, and local governmental offices (Ramsay 2009). Moreover, as mentioned previously, in recent years, steps have been taken towards reforming some varieties of the preventive order while taking into account a number of relevant criticisms. The Terrorism Prevention and Investigation Measures Act 2011 abolished the controversial “Control Order” which had been introduced under the Prevention of Terrorism Act 2005 and replaced it with a new system of TPIMs. This new system arguably represents an attempt to strike a more measured balance between counterterrorism security measures and individual liberties by tightening the normative framework for imposing preventive restrictions on persons suspected of involvement in terrorism (Walker and Horne 2012). The new Act requires that the Secretary of State have a reasonable belief that the individual is or has been involved in terrorism-related activity, whereas earlier, only a reasonable suspicion was needed to make a Control Order. And whereas Control Orders could previously remain in force for 12 months and be renewed an indefinite number of times, TPIMs are now subject to a 2-year time limit, unless there is new evidence of further involvement in terrorism-related activity. The Terrorism Prevention and Investigation Measures Act 2011 is similarly distinguished from its predecessor by exhaustively listing the prohibitions, restrictions, and requirements which may attach to a TPIM. In some respects, the measures have been made less onerous. Most notably, 16-h curfews have been replaced with overnight residence requirements.

There has also been a recent governmental proposal to reform the Anti-Social Behaviour Order. A White Paper published by the Home Secretary in May 2012 aims to enhance the effectiveness of the legal powers available to respond to antisocial behavior. The most far-reaching proposal is to abolish the criminal sanction for a breach and relabel the Anti-Social Behaviour Order as a “Crime Prevention Injunction” (Home Office 2012). This proposal differs importantly from current law in that positive requirements as well as prohibitions could be attached to the order. Specifically, positive obligations could require the offender to participate in rehabilitative programs to address underlying causes of antisocial behavior, such as drug dependency. In addition, only a civil, rather than criminal, standard of proof would have to be met within application proceedings. This change in the law would have the effect of offsetting the previously mentioned ruling of the House of Lords in the McCann case that, although application proceedings for an Anti-Social Behaviour Order are civil in nature, it must be established beyond a reasonable doubt that the individual engaged in antisocial behavior. A breach of the Crime Prevention Injunction would be subject to civil sanctions by triggering liability for civil contempt. Lastly, the Crime Prevention Injunction would exist alongside a “Criminal Behaviour Order,” the breach of which would be subject to criminal sanctions. This preventive order would be reserved for actors convicted of an offence and would be imposed at sentencing.

Although some criminal law theorists have called for the outright abolition of the Anti-Social Behaviour Order (Ramsay 2010), suggestions for reform have been advanced in the academic literature. Andrew Cornford has proposed that the Anti-Social Behaviour Order be reformed by narrowing the remit of the definition of antisocial behavior. In his view, the Anti-Social Behaviour Order should only be available in respect of individuals whose conduct causes others to experience justifiable anxiety about the safety of their local community (Cornford 2011). As regards more generally the appropriate uses which may be made of the preventive order as a mechanism of legal control in lieu of the criminal sanctioning process, Daniel Ohana has examined the possibilities of revamping the preventive order in order to allow for moderate preventive intervention vis-a`-vis an actor who has taken concrete steps with the intention to commit a crime (Ohana 2006). He has suggested that the preventive order could serve to avoid the criminalization of minor preparatory offences which are not sufficiently blameworthy to justify the invocation of criminal sanctions, without neglecting public protection concerns. Ohana has argued that the infringement on liberty imposed by a preventive order can be mitigated by following a similar approach to that used by situational crime prevention practitioners, who draw upon empirical “script” (Cornish 1994) analyses of crime commission processes to provide tailor-made solutions to particular crime problems. More specifically, Ohana has articulated how script studies can be used to pinpoint the restrictions imposed by a preventive order and thus ensure that the hardship suffered by the individual concerned is not disproportionate to the relatively low level of seriousness of the preparatory actions performed and that their ability to lead a reasonably normal life is not unduly hampered.

The Rise Of The Preventive Order And The Sociopolitical Context Of Late Modernity

Many commentators have inquired why it is that particularly in recent decades the preventive order has attained such a high level of prominence in the English landscape of criminal justice. Examining the wider historical, political, and socioeconomic context of the late twentieth century and early twenty-first century, they have explored and drawn out the various ways in which the preventive order is related to ideas and practices of governance that have gained currency in the present era. Given that the preventive order allows for state intervention to avert harmful behavior well beyond the traditional boundaries of the criminal law, Ashworth and Zedner have identified its ascent as emblematic of the rise of the “preventive state” (Ashworth and Zedner 2008, p. 40; Steiker 1998). This institutional “ideal type” is characterized by a temporal shift in the focus of governance, whereby the state is preoccupied with preventing future harm no less than with punishing past crimes. Preventive orders are infused by the logic of precaution and arguably represent an extension of the so-called precautionary principle (Ewald 2002) which was first developed in the field of environmental protection to address the risk of serious, irreversible damage to natural resources (Crawford 2009; Zedner 2009). According to the precautionary principle, it is incumbent upon public authorities confronted with a possible threat of harm to take action immediately – even where uncertainty prevails as to the nature, intensity, and scope of the risk at hand. In this context, uncertainty concerning whether a source of potential danger will actually prove harmful is no excuse for adopting a posture of nonintervention. On the contrary, active, widespread anticipatory actions are required, so as to ensure safety and avert harm. From this perspective, the rapid growth and entrenchment of the preventive order as a tool of crime control dovetails with the emergence of the “risk society” (Beck 1992) in which institutional goals and strategies are focused on identifying, ordering, and responding to risks and assuaging fear and anxiety by providing assurances that various risks are under control (Ashworth 2004).

Peter Ramsay has argued that the preventive order has found favor with English lawmakers over the past two decades because it serves as a tool for the protection of what he calls “vulnerable autonomy” (Ramsay 2008). More specifically, the preventive order enforces a demand that members of the polity not “fail to reassure” others. Ramsay locates the source of this normative demand to respect vulnerability in political theories which have gained preponderant influence in the United Kingdom, namely, the Third Way, communitarianism, and neoliberalism. Moreover, Ramsay observes that this depiction of citizens as vulnerable “views the law generally and the criminal law in particular, as having failed in relation to anti-social behaviour and fear of crime.” Ramsay’s thesis echoes Lord Steyn’s comments in the McCann case, which concerned the Anti-Social Behaviour Order:

It is well known that.. .young persons, and groups of young persons, cause fear, distress and insecurity to law-abiding and innocent people by outrageous antisocial behaviour.. ..Sometimes the conduct falls short of cognisable criminal offences.. .In recent years this phenomenon became a serious problem. There appeared to be a gap in the law. The criminal law offered insufficient protection to communities. Public confidence in the rule of law was undermined by a not unreasonable view in some communities that the law failed them.

The Anti-Social Behaviour Order, from this viewpoint, forms part of a “political strategy self-consciously aimed at restoring “public confidence” in the exercise of state power” (Ramsay 2009, p. 175). Indeed, several commentators have noted that, beyond its instrumental capacity to provide security, the preventive order acts to assuage the anxiety of a public bewildered by the erosion of the state’s power to prevent crime. Specifically, it has been said that the preventive order reassures the public by manifesting the readiness of law enforcement authorities to act decisively and by conveying that, as Adam Crawford as has put it, “problems have reached such a point as to require drastic and exceptional action” (Crawford 2008, p. 774). Ohana has also emphasized the function fulfilled by the preventive order in restoring the trust of the public in the authority of the criminal law while attempting to bring to light the various ways in which the public’s trust rests on its belief in the readiness of citizens to abide by the norms of the criminal law (Ohana 2010). Specifically, Ohana has scrutinized the conduct prerequisites of the preventive order and has argued that it bolsters confidence in the criminal justice system by verifying the law abidingness of citizens. By initially eliciting awareness of suspicious behavior that tarnishes the perceived authority of the criminal law by upsetting social expectations of responsible behavior, the preventive order sets in motion an inquiry in which the competent authority tries to ascertain whether this behavior is actually symptomatic of a lack of law-abidingness. In this manner, the practices and procedures involved in the making of a preventive order constitute a ritual of verification which reassures the public that, aside from those untrustworthy actors who have actually been made subject to a preventive order, the criminal law largely continues to hold sway within society.


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