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Seeking Security by Eroding Rights: The Side-stepping of Due Process
SECURITY IS SO powerful an aspiration that it tends to trump all other considerations and silence countervailing concerns. Its capacity to license draconian measures is fuelled both by the impossibility of knowing precisely against which threats security measures must protect and by sheer weight of numbers—not least when mass public protection is juxtaposed against loss of individual rights for the few.1 This chapter examines recent security measures, broadly defined, that have particular implications for individual liberties because they circumvent the procedural requirements of the criminal law to impose prospective constraints in respect of remote harms.
Let us first set out a few preliminary challenges to prevailing presumptions about the provision of security. First, it is commonly presumed that security is a good in its own right. Understood this way, security denotes objective protection or guarantee or perhaps a subjective sense of personal safety. The difficulty with these definitions, however, is that they seem to license forms of defensive cocooning that are potentially burdensome and, ultimately, without point. I can wrap myself and my family in cotton wool, bolt the doors and bar the windows in order that we be safe, but to what end? We may feel and even be safe but at no small cost to quality of life.2 Conceiving of security in this way invites the question: what is security for? Trying to articulate exactly what is at stake might lead us to think of security less as a good in its own right than as the means to or pre-condition of other goods such as justice, equality, trust, social inclusion, and, not least, liberty.3 If these ulterior goods justify its very pursuit, logically security should not trample upon them.
A second key question is: whose security do we pursue? Posing this question tackles head-on the assumption implicit in much rhetorical recourse to security that just as there are threats, so too are there those who threaten and that we—an ill-defined larger public—need protection against them—an ill-defined predatory minority. One way to contest this assumption is to acknowledge that in large measure our own security depends upon the security of others.4 Understood this way, effective security must be security for all. The difficulty is to ensure a realm of security in which each of us is able to exercise the widest possible freedom compatible with the same realm of security for others. Maximising security therefore necessarily has distributive implications.5
Our third question is: how should we pursue security? Acknowledging that security is best conceived as serving other goods and that our own security is dependent upon that of others has important implications for the channels and instruments by which we pursue it. Duff and Marshall have persuasively argued that the means by which security is pursued must be rendered consistent with its ends.6 It follows that the ends or goals of security measures need to be specified in such a way as to ensure that the means are appropriate to them. Searching your colleagues as they leave your office might secure your book collection but would hardly be conducive to fostering a healthy and trusting academic community. Similarly, acknowledging that my security depends upon your security requires that the means I employ in pursuit of my own safety do not unduly encroach upon your interests and that yours do not trespass upon mine. New forms of moral reasoning are needed to capture these dual aspects of security.
This chapter tackles these questions by examining how they are played out in one particular domain. Recent years have seen the introduction in Britain of a slew of diverse measures that have in common only the shared aspect of seeking to preempt future risks. Many of these measures do not operate squarely within the domain of the criminal law, as they would once have done. Rather they are distinct orders ancillary to criminal sanctions or operating in parallel systems of questionable justice: according to the less exacting requirements of the civil process or enforced via hybrid systems in which breach of civil orders results in criminal sanctions. Whilst this paper focuses on legislative innovation in Britain, parallels can and will be drawn with developments elsewhere, not least the deployment of civil containment against sexual offenders in the United States—a development that has spawned a large and critical law review literature of its own.7 These developments furnish a timely and fertile basis for asking for whom we provide security and at what cost.
I. FROM PUNISHMENT TO PRE-EMPTION
The measures with which this chapter is concerned have their origins in a larger temporal shift. We are moving from a ‘post-crime’ society in which crime is thought about primarily as harm or wrong done and in which dominant ordering practices arise post-hoc, to a ‘pre-crime’ society in which the perspective is shifting to anticipate and forestall that which has yet to occur.8 Under the post-crime model, the dominant mechanisms of crime control are the police, the criminal process, trial and punishment. Dedicated to detecting offences, ascribing responsibility, determining guilt, they impose penal burdens either proportionate to the wrong done or consistent with consequentialist aims of punishment. The pre-crime model has a different, prospective orientation, concerned rather with the calculation of risk and the prevention of future harms in the name of security.
Prevention is hardly new: the preventive possibilities of policing were recognised even in its origins.9 It is also an established pillar of the criminal law, manifest most clearly in the articulation of inchoate offences whose perpetrators may be punished for inciting, conspiring and attempting to do harm. What has changed is that the point of intervention has been brought forward. The licence to intervene earlier against as yet remote harms is perhaps best captured by the notion of pre-emption. We borrow the term from international relations, where resort to pre-emption or what international lawyers call ‘anticipatory self-defence’ is justified by reference to the need to avert the gravest threats.10
Pre-emption stands temporally prior to prevention of proximate harms: it seeks to intervene when the risk of harm is no more than an unspecified threat or propensity as yet uncertain and beyond view. Whereas the preventive turn of the criminal law is triggered in the main by acts ‘more than merely preparatory’ to a specified offence, pre-emption legitimates substantial curtailments of individual liberty at earlier points in time—often without the requirement of mens rea, still less actus reus. This temporal shift is hardly peculiar to Britain; US commentators have also noted it.11 Janus, for example, observes:
what might be called radical prevention … differs from routine prevention in two ways. First, radical prevention seeks to intervene where there is some sort of ‘propensity’ or risk of future harm, whereas routine prevention responds to actual or attempted harm. Second, radical prevention operates by substantially curtailing people’s liberty before harm results, whereas in routine prevention individuals suffer deprivations of liberty only after actual harm is done or attempted.12
The impulse towards pre-emption or ‘radical prevention’, particularly in the case of prospective grave harms, is at some level understandable. Those charged with public protection must continually seek to avert grave harm before it occurs or risk being called to account for the failure of their security measures.13 Yet the urgency and licence with which pre-emptive intrusions are now contemplated and condoned are of a different order of magnitude. The impact of 9/11 and the Bali, Madrid and London bombings has accelerated an existing trend toward preemptive endeavours, particularly in respect of serious crime and political violence. But there are other causal factors at work. In what follows we sketch three such factors that appear to drive current trends: namely the rise of ‘actuarial justice’; the influence of the ‘precautionary principle’; and the decline of ‘social prevention’.
The concepts of actuarial justice,14 the ‘new penology’,15 and the ‘pursuit of security’,16 capture in differing ways significant shifts in the focus and means of crime control. Actuarial justice is the means by which high-risk populations are identified, classified, and contained. It is debatable whether it is driven principally by the demand for security or rather by the very possibility of calculation. Arguably too little attention has been paid to the degree to which the growing sophistication of actuarial tools and huge advances in computational power both enable and legitimate pre-emptive intervention. Quantitative risk assessment tools are not only commonplace in the insurance industry but play an increasingly important role in the criminal process. It is claimed that these tools have superior reliability and should therefore rightfully displace the subjective clinical judgement of psy-professionals that have historically been relied upon in criminal trials.17 The widespread application of these tools generates statistical artefacts of ‘good’ and ‘bad’ risks that are then used pre-emptively to manage conduct yet to occur. For example, in 1996, Virginia became the first US state to incorporate a specified risk assessment instrument into its legislative framework for sentencing guidelines.18
Although this reliance upon actuarial tools suggests a high level of confidence in their statistical validity, it is debatable whether risk assessment is truly a scientific endeavour separate from the political and policy choices of risk management. Much of the power of predictive and risk assessment tools derives from the fact that they can be presented as independent, objective, and scientific. Yet, as we will consider below, their claim to objectivity is questionable. A larger issue still is that although actuarial justice purports to be about identifying suspect populations and assessing the risk they pose, the focus and impact of actuarialism falls no less heavily upon the individual than conventional retributive penal regimes. Thus although leading commentators on actuarial justice aver that it ‘focuses not on individuals but on the population itself as a target of power’ and that ‘actuarial crime policy is not designed for individuals but is designed to respond to the problem of dangerousness’,19 in application its ramifications for individual liberty are just as serious as those of the so-called ‘old penology’.
The precautionary principle is a second driving force behind pre-emption. As a guiding framework for public decision-making, the precautionary principle is only now beginning to influence thinking about the risks of crime and terrorism. In the fields of natural science, engineering and environmental law, the precautionary principle has long licensed early intervention by imposing strict demands upon public authorities in the face of scientific uncertainty.20 The precautionary principle requires that where there is a threat of serious harm, ‘lack of full scientific certainty’ should not be used as a reason for inaction.21 Indeed, the principle requires policy makers to take precautionary steps even in the absence of clear scientific evidence where the potential harm is life threatening, or gravely damaging to human safety, health or the environment. The precautionary principle is thus a powerful driver of government regulation over risky industries, farming practices and scientific decision-making. The danger is that applied to the management of threat by human individuals, rather than companies or nation-states, the precautionary principle poses no small threat to civil liberties. Enforcing precautionary measures against the directors of a petro-chemical factory or a nuclear plant does not inflict the same deprivation of liberty that is entailed, for example, by preemptively containing individuals who are thought to pose a particular risk.
The decline of social prevention is a third factor in driving the pre-emptive turn. Social prevention was devoted to identifying the fundamental causes of social disorder and sexual and political violence. It has been displaced by a move towards secondary prevention, namely a focus on forestalling the risk posed by known or suspected offenders.22 Social prevention sought to identify and address the deeper roots of crime and security threats—in poverty, social inequality, poor education, unemployment and health care.23 Secondary prevention, on the other hand, is the product of a neo-liberal polity in which concern for collective, social and structural dimensions is displaced by a focus on the governance of risky individuals and risky situations. Intervention is based upon technologies of crime control such as ‘target hardening’, ‘opportunity reduction’ and ‘situational controls’.24 As such, social and moral considerations are displaced by an economic rationality that is concerned less with the constitutive mechanisms of civil society than with the narrower goal of loss management. Responding to crime as a moral wrong becomes secondary to estimating, calculating, preventing, and minimising losses and insuring against harm.25
II. PRE-EMPTIVE MEASURES
Together the diverse driving forces of actuarial justice, the precautionary principle and the decline of social prevention stand behind a series of equally diverse measures that, each in different ways, may be said to signify the shift to what Janus has called the ‘preventive state’.26 These measures span the spectrum of security risks and in Britain include at the lower end of the tariff: ‘disqualification from driving’; ‘disqualification from acting as a company director’; ‘disqualification from working with children’; ‘travel restriction orders’; and ‘exclusion from licensed premises orders’.27
One of the more important and controversial such provisions in Britain is the ‘anti-social behaviour order’ (ASBO), introduced under the Crime and Disorder Act 1998. The ASBO is a civil order designed to tackle behaviour that causes offence or harassment or intimidates neighbours, or a community in general.28 Further up the tariff, the sexual offences prevention order and the risk of sexual harm order (RSHO), both created under the Sexual Offences Act 2003, are likewise civil preventive orders aimed specifically at protecting the public from serious sexual harm.29 Both ASBOs and RSHOs require no criminal conviction; impose wide-ranging constraints for a minimum of two years; and, if breached, may result in imprisonment for up to five years.30
At the very top of the tariff lies the introduction of control orders against terrorist suspects under the Prevention of Terrorism Act 2005. In the words of the Home Office, ‘control orders are preventative orders which impose one or more obligations upon an individual which are designed to prevent, restrict or disrupt his or her involvement in terrorism-related activity’.31 They can impose wide-ranging conditions including curfews; tagging; restrictions on access, for example, to computers or communications equipment; reporting requirements; and limits upon personal associates for a period of up to 12 months at a time (renewable on application to the court). Breach of a condition imposed by a control order is a criminal offence punishable by imprisonment. In order to avoid criminal sanction a ‘controlled’ individual must engage in continual self-surveillance and self-imposed restrictions that impact adversely not only on his or her own quality of life but also that of family and friends. The Act also foresees special ‘derogating control orders’, including house arrests, that would require derogation from Article 5 of the European Convention of Human Rights (ECHR), although none has yet been imposed.
There is a large academic and policy literature that takes issue with the very necessity of such measures (not least since no such measures were thought necessary in the years immediately following 9/11).32 As Shami Chakrabarti, Director of Liberty, has observed:
The control order regime is descending still further into cruel and futile farce. Confused individuals who have never been charged with a recognisable criminal offence are running around on plastic tags. They fear imprisonment at any moment for breaches of the broadest and vaguest of restrictions—all decided, and then variable, by a politician.33
Together these various preventive measures can be seen as contributing to the larger ‘security architecture’ presently being developed as a defensive barrier against the spectrum of risks and that includes the work of intelligence agencies as well as military operations against security threats.34 Although, as we have indicated, it is the need to avert grave harms that provides the theoretical justification for pre-emption, many of these measures are aimed at harms at the lower end of the tariff. As is the case in so many areas of present public policy, the gravest security risks furnish the underlying rationale and licence for measures that tackle much lesser risks but pose no small threat to basic liberties.
III. EVADING THE PROTECTIONS OF DUE PROCESS
One of the most damaging aspects of the move to pre-emption is that the demands of security are deemed to warrant departure from the ordinary strictures of the criminal process. A common means by which this is achieved is, as in the measures just described, by the ruse of placing pre-emptive powers within the civil rather than the criminal process or by asserting that measures are preventive not punitive. Whereas the prosecution, trial and punishment of offenders is directed at proving guilt for past actions, holding offenders to account, and sentencing in proportion to the blameworthiness and gravity of past action, the deployment of civil measures legitimates decisions based largely upon legal determinations about future conduct. With minimal flourish and less debate, the core criminal law requirement of culpability and sanction-justifying condition of blameworthiness is dispatched in favour of a prospective concern for future risk that licenses earlier, more expansive, and enduring intervention.
Whereas resorting to penal measures requires special justification and intervention is constrained by the principles of the criminal process and the requirements of proof, culpability and proportionality to offence seriousness, by contrast, preemptive endeavour in the civil sphere is said to be ‘jurisprudentially unconstrained’.35 According to John Monahan, a leading US proponent of preventive intervention, ‘any risk factor that validly forecasts violence—with the exception of race or ethnicity—is a legitimate candidate for inclusion’.36 In short, promotion of civil measures, even up to and including indefinite commitment, is justified by reference not to past wrongs but to future risks.
This claim assumes a deceptively unproblematic distinction between civil and criminal procedure that permits the courts free rein in determining the appropriate legal context in which decisions are to be made. Once that is decided, it is argued, the courts need only ‘apply accepted jurisprudential principles that govern decision making in that context’.37 However, the danger is that to permit such jurisprudential context-shopping allows too great a discretion to resort to civil measures and, in so doing, risks riding roughshod over the procedural requirements of the criminal law. Even if it were possible to say with absolute accuracy which categorical risk groups threaten and which do not, this would do little to assuage the larger moral, legal, and utilitarian objections that arise as civil measures—and with them civil proceedings—come to encroach ever more upon the territory of the criminal law.
Different legal contexts legitimately require different procedural standards and operate according to different principles and values. The requirement of proof ‘beyond all reasonable doubt’ in the criminal trial, for example, is an appropriate and proper reflection of the fact that conviction upon proof of guilt attaches profound stigma and may result in substantial loss of liberty. This and the larger array of due process protections that surround the criminal trial have evolved over time in explicit recognition that the consequences for the individual of breaching the criminal law are very serious indeed. It follows that moves to pursue matters properly belonging to the criminal process in a different legal context (be it civil, administrative or contractual) are liable to result in the application of inappropriate or improper standards, principles and values. Placing a measure in a particular legal context or procedural channel should not determine jurisprudential principle without reference to the normatively prior question of whether the choice of context is itself defensible.38
Let us be clear, this is not to argue that all matters of future risk or threat to security are better dispatched in the criminal process. Criminalisation commonly entails stigma; conviction may have long-term consequences for life and career chances; and many forms of punishment are painful and burdensome. To this extent it might be thought that avoiding recourse to the criminal process is generally to be welcomed. Indeed, criminal lawyers have argued for the shifting of lesser harms into alternate categories of civil wrong or regulatory offence.39 On the other hand, the very fact that the consequences of conviction are serious is one reason why the criminal process is wrought with strictures and safeguards designed to uphold the rights of those subject to it.40