The Insecurity State: Vulnerable Autonomy and the Right to Security in the Criminal Law (Oxford Monographs on Criminal Law and Justice) [1 ed.] 9780199581061, 0199581061

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THE INSECURITY STATE

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The Insecurity State Vulnerable Autonomy and the Right to Security in the Criminal Law

PETER RAMSAY

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Great Clarendon Street, Oxford OX2 6DP United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries # P. Ramsay, 2012 The moral rights of the author have been asserted First Edition published 2012 1 3 5 7 9 10 8 6 4 2 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland British Library Cataloguing in Publication Data Data available Library of Congress Cataloguing in Publication Data Library of Congress Control Number: 2012932656 ISBN 978–0–19–958106–1 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

To the memory of my father

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General Editor’s Introduction In this monograph the author, Peter Ramsay, seeks to excavate and to re-construct the political and legal foundations of one set of measures that have formed a prominent part of what he terms ‘the insecurity state’. The focus is on civil preventive orders and, in particular on the anti-social behaviour order. Ramsay demonstrates that this is best conceived not just as part of the criminal justice system but rather as an example of a wider and deeper trend in government policy. Thus the book contains a detailed political and legal history of the ASBO, but all the time the principal concern is to examine how the justifications for this measure were constructed. Ramsay locates them in the right to security, and he shows how prevailing political theories—such as communitarianism, neoliberalism and the Third Way—have influenced these developments and how a theory of ‘vulnerable autonomy’ has played a significant part. This enables the author to argue that the ASBO, as the archetypal civil preventive order, has really been concerned with the subject’s failure to reassure others; and, he argues, this failure to reassure continues to actuate the proposed replacement of the ASBO, as well as other civil preventive orders. This monograph therefore constitutes an essay in political sociology, using one well-known (but, according to Ramsay, imperfectly understood) development in England and Wales as a case study, and yet rolling out its argument to many recent developments of the criminal law in other jurisdictions. In its detailed and sophisticated argument about the foundations and manifestations of the ‘insecurity state’, this monograph is set to change and to enrich current debates about criminalization. Andrew Ashworth

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Acknowledgements This book began life as a doctoral dissertation generously supported by an award from the Arts and Humanities Research Council. I am grateful to the unfailingly helpful librarians of the Bodleian Law Library where most of it was written. I am indebted to several people whose encouragement has been invaluable in writing the book, and whose influence has framed its arguments. I was very fortunate that Alan Norrie agreed to supervise the thesis. He has tried hard to keep me on the straight and narrow path of critique. I can only hope he succeeded. Nicola Lacey has been immensely generous with her time, conversation and good advice. This book owed her a great deal even before she read and commented on the manuscript. Andrew Ashworth and Lindsay Farmer were constructive examiners of the thesis and have continued to be supportive of the project since then. I am particularly in debt to Lacey, Norrie, and Farmer for doing so much by their own work to create the interdisciplinary space in which the political sociology of criminal law that I am trying to do here has some room to breathe. Lucia Zedner and Markus Dubber have greatly encouraged me and provoked much of the thinking in this book. Ben Bowling gave me some good steers early on. Chris Bickerton, Philip Cunliffe, and Alex Gourevitch talked about sovereignty in international relations in a way that made me look more carefully at it here at home. Stuart Macdonald has been an agile sparring partner on the ASBO. Jean-Francois Drolet, Audrey Gale, Lee Jones, Insa Koch, and Lynn Revell all made useful observations or provided good leads. The LSE law department has been an intellectually stimulating and constructive environment to work in while writing the book. My thanks to all my colleagues and to the students, but especially to Ely Aharonson, Zelia Gallo, David Kershaw, Nico Krisch, Martin Loughlin, Emmanuel Melissaris, Jo Murkens, Jill Peay, Tom Poole, Mike Redmayne, Helen Reece, Robert Reiner, Charlie Webb, Grégoire Webber, and Mike Wilkinson, who have all provided useful questions, comments or tips at various times. A number of colleagues gave me the opportunity to try out the arguments in the book at conferences and seminars. On that score, my thanks to Markus Dubber, Michael Tonry, Ian Loader, Mireille Hildebrandt, Lucia Zedner, Stuart Macdonald, Antony Duff, Sandra Marshall, Victor Tadros, Ian Dennis, Bob Sullivan, Jesper Ryberg, and Carlo Panara. The seeds of the thoughts harvested in this book were sown in the course of discussions on many subjects with James Heartfield. Suke Wolton read the entire manuscript and pressurized me to explain more clearly when I really did not want to. She also put up with the writing of the thesis, the book, and much else besides. She makes it possible.

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Acknowledgements

Several of the chapters in this book borrow material from the following journal articles and chapters that I have previously published: ‘What Is Anti-Social Behaviour?’ (2004) Criminal Law Review 908; ‘Vulnerability, Sovereignty, and Police Power in the ASBO’ in M Dubber and M Valverde (eds), Police and the Liberal State (Stanford University Press, 2008); ‘The Theory of Vulnerable Autonomy and the Legitimacy of the Civil Preventative Order’ in B McSherry, A Norrie, and S Bronitt (eds), Regulating Deviance: Redirection of Criminalisation and The Futures of Criminal Law (Hart, 2009); ‘Overcriminalization as Vulnerable Citizenship’ (2010) 13:2 New Criminal Law Review 262; ‘A Political Theory of Imprisonment for Public Protection’ in Michael Tonry (ed), Retributivism Has a Past: Has it a Future? (Oxford University Press, 2011); ‘Preparation Offences, Security Interests, Political Freedom’ in A Duff, L Farmer, S Marshall, M Renzo, and V Tadros (eds), Structures of Criminal Law (Oxford University Press, 2012).

Contents Abbreviations Table of Cases Table of Legislation Introduction

xii xiii xv 1

1. Failure to Reassure as Threat

16

2. Failure to Reassure as Public Wrong

38

3. Freedom from Fear

54

4. The Reassurance Gap

67

5. The Ideology of Vulnerable Autonomy

84

6. The Right to Security and the ECHR

113

7. The Right to Security Beyond the ASBO

132

8. Security Interests in the Criminal Law

163

9. The Right to Security in Criminal Law Theory

184

10. The Insecurity State

212

Afterword: On the Future of Authority

234

Bibliography Index

242 255

Abbreviations ACPO ASB ASBO CBO CDA CPI CPO ECHR ECtHR IPP ISA PHA 1997 POA 1986 RSHO SCA 2007 SCPO TPIM

Association of Chief Police Officers anti-social behaviour anti-social behaviour order criminal behaviour order Crime and Disorder Act 1998 crime prevention injunction civil preventive order European Convention for the Protection of Human Rights and Fundamental Freedoms European Court of Human Rights Imprisonment for public protection Independent Safeguarding Authority Protection from Harassment Act 1997 Public Order Act 1986 risk of sexual harm order Serious Crime Act 2007 serious crime prevention order terrorism prevention and investigation measure

Table of Cases A v Secretary of State for the Home Department [2004] UKHL 56 . . . . . . . . . . . . . . . . . 219–21 A-G v PYA Quarries Ltd [1957] 2 QB 169 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 Abdul v DPP [2011] EWHC 247 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Anderson v UK [1998] EHRLR 218 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Bhimji v Chatwani (No 3) [1992] 4 All ER 912 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Bozano v France (1987) 9 EHRR 297 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Brutus v Cozens [1973] AC 854 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Buckley v UK (1997) 23 EHRR 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Chambers and Edwards v DPP [1995] Crim LR 896 . . . . . . . . . . . . . . . . . . . . . . . . . 18, 29, 119 Chief Constable of Lancashire v Potter [2003] EWHC 2272 (QB) . . . . . . . . . . . . . . . . . . . 22, 30 Chorherr v Austria (1994) 17 EHRR 358 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116, 169 Cicek v Turkey (2003) 37 EHRR 464 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 CPS v T (Michael) [2006] EWHC 728 (Admin) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Cunningham v Birmingham City Council [1998] Env LR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 174 Cyprus v Turkey (1976) 4 EHRR 482 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Dahlab v Switzerland No 4239/98 2001-V DA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Danchevsky v Danchevsky (No 2) (1977) 128 NLJ 955 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 DPP v Hammond [2004] Crim LR 851 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 118–19 DPP v Ramsdale, Independent 19 March 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Engel v Netherlands (No1) (1976) 1 EHRR 647 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35–6, 115 Feehan v Justices of Queens County (1882) 10 LR Ir 294 . . . . . . . . . . . . . . . . . . . . . . . . . . . 198 Foulkes v Chief Constable of Merseyside [1998] 3 All ER 705 . . . . . . . . . . . . . . . . . . . . . . . . 168 Greek Case (1969) 12 YB 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220 Harrison v Southwark and Vauxhall Water Co [1891] 2 Ch 409 . . . . . . . . . . . . . . . . . . . . . . 173 Hashman and Harrup v UK (2000) 30 EHRR 241 . . . . . . . . . . . . . . . . . . . . . . . . . . 168–9, 198 Haughton v Smith [1975] AC 476 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 Hills v Chief Constable of Essex [2006] All ER (D) 35 (Oct) QBD . . . . . . . . . . . . . . . . . . 40, 46 Howell v Jackson (1834) 6 C&P 723 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166, 175 Hughes v Holley (1988) 86 Cr App R 130 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167, 198 Ingle v Bell (1836) 1 M&W 516 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Johanneskirche and Peters v Germany 2001-VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Lawrence v MPC [1972] AC 626 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 Leeds City Council v Fawcett [2008] EWCA Civ 597 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 London Borough of Southwark v Simpson [1999] Env LR 553 . . . . . . . . . . . . . . . . . . . . . . . 174 Lonergan v Lewes Crown Court [2005] 2 All ER 362 . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 115 NCB v Thorne [1976] 1 WLR 543 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172 Norwood v DPP [2002] EWHC 1564 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 118–19 Nottingham City Council v Cutts (2001) 33 HLR 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Otto-Preminger-Institut v Austria (1994) 19 EHRR 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Percy v DPP [1995] 1 WLR 1382. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118–19, 168 R (Cooke) v the DPP [2008] All ER (D) 202 (Oct) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 R (Gosport Borough Council) v Fareham Magistrates Court [2006] All ER (D) 267 (Nov) QBD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 R (McCann and Others) v Crown Court at Manchester and Another [2003] 1 AC 787 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 23–4, 28, 29–30, 35–37, 50, 58, 59–61, 79–81, 120, 127–28 R (Mills) v Birmingham Magistrates Court [2005] All ER (D) 94 . . . . . . . . . . . . . . . . . . . . . . . 45

xiv

Table of Cases

R v Anthony [2006] 1 Cr App R (S) 74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 R v Avery [2010] 2 Cr App R (S) 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 R v Boness [2005] All ER (D) 153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 41–2, 116, 169, 187 R v Braxton (No2) [2005] 1 Cr App R (S) 36 . . . . . . . . . . . . . . . . . . . . . . . . . . .20, 44, 48–9, 50 R v Constanza [1997] 2 Cr App R 492 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 R v Court [1989] AC 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 R v Dolan and Whittaker [2007] EWCA Crim 2791 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 R v Fenton [2007] 1 Cr App R (S.) 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 R v Frost and Hale (1964) 48 Cr App R 284 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 R v G; R v J [2009] UKHL 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147–48 R v Geddes [1996] Crim LR 894 CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 R v Ghosh [1982] QB 1053 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 R v Harris [2006] All ER (D) 301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 46, 52 R v Howell [1982] QB 416 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166, 175 R v Hinks [2001] 2 AC 241 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153–57 R v Ireland; Burstow [1998] AC 147 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 R v Jones and Others [2006] All ER (D) 97 (Sep) CA . . . . . . . . . . . . . . . . . . . . . 18, 25, 47, 116 R v Kirby [2005] EWCA Crim 1228 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41–2, 47 R v Lamb [2005] All ER (D) 132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 47 R v Lang [2006] 1 WLR 2509 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 R v Lawson [2007] All ER (D) 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44–5, 46, 52 R v Madden [1975] 1 WLR 1379 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 R v Morrison [2006] 1 Cr App R (S) 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41–2 R v Nicholson [2006] All ER (D) 218 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57, 224 R v R [2009] 1 WLR 713 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 R v Randall (1986) 8 Cr App R (S) 433 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 R v Rimmington [2006] 1 AC 459 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 R v Roddis [2009] EWCA Crim 585 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 R v Shivpuri [1987] AC 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 R v Stevens, R v H [2006] 2 Cr App R (S) 453 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42–3, 46, 50 R v Thomas [1979] QB 326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 R v W and F (2006) 2 Cr App R (S) 110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 R v Wood (1832) 3 B & Ad 657 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 R v Zafar [2008] QB 810 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Re Bramblevale Ltd [1970] Ch 128 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Redmond-Bate v DPP [1999] Criminal Law Review 998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 Reed and Bull Information Systems v Stedman [1999] IRLR 299 . . . . . . . . . . . . . . . . . . . . . . . 21 Robinson v Kilvert (1889) 41 ChD 88 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 Secretary of State for the Home Department v JJ and others [2007] UKHL 45 . . . . . . . . . . . . 116 Secretary of State for the Home Department v MB [2006] EWCA Civ Div 1140 . . . . 134–5, 221 Selmouni v France (1999) 29 EHRR 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Selvanayagam v DPP (1996) JP Reports 155 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 Smith v Chief Superintendent of Woking Police Station (1983) 76 Cr App R . . . . . . . . . . . . . 158 Soering v UK (1989) 11 EHRR 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Steel and Others v UK (1999) 28 EHRR 603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 Sturges v Bridgman (1879) 11 ChD 852 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1223. . . . . . . . . . . . . . . . . . . . . . . 18 Timurtas v Turkey (2001) 33 EHRR 121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Tomasi v France (1992) 15 EHRR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Warner v Metropolitan Police Commissioner [1969] 2 AC 256 . . . . . . . . . . . . . . . . . . . . . . . 180 X v Netherlands No 2988/66 10 YB 472 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

Table of Legislation Administration of Justice Act 1970, s40 . . . . 176 Anti-Terrorism, Crime and Security Act, s23 . . . . . . . . . . . . . . . . . 219 Contempt of Court Act 1981, s14 . . . . . . . 63 Crime and Disorder Act 1998 s1(1) . . . . . . . . . . . . . . 17, 58–61, 81, 113 s1(1)(a) . . . . . . . . . . 17–23, 25, 29–31, 70 s1(1)(b) . . . . . . . . . . . . . . . . 17, 23–31, 70 s1(1A) . . . . . . . . . . . . . . . . . . . . . . . . . 16 s1(4) . . . . . . . . . . . . . . . . . . . . . . . .17, 30 s1(5) . . . . . . . . . . . . . . . . . . 17, 31–3, 207 s1(6) . . . . . . . . . . . . . . . . . . . . . . . .38–44 s1(10) . . . . . . . . . . . . . . . . . . . .16, 38, 49 s1C . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 s8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Crime Sentences Act 1997, s28 . . . . . . . . 160 Criminal Attempts Act 1981, s1 . . . . . . . 178 Criminal Damage Act 1971 s2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176 s3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 Criminal Justice Act 1982, s70 . . . . . . . . 163 Criminal Justice Act 1988, s139 . . . . . . . 179 Criminal Justice Act 2003 s114 . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 s225 . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Criminal Justice and Immigration Act 2008 . . . . . . . . . . . . . . . . .133, 139 Criminal Law Act 1967, s3(1) . . . . . . . . . 143 Criminal Law Act 1977 s1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 s51 . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Domestic Violence Crime and Victims Act 2004 s1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 s12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Environmental Protection Act 1990 s79 . . . . . . . . . . . . . . . . . . . . . . . . . . . 172 s80 . . . . . . . . . . . . . . . . . . . . . . . . . . . 172 Firearms Act 1968 s1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 s16 . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 Football (Disorder) Act 2000, Sch 1 . .133, 138 Forgery and Counterfeiting Act 1981, s7 . 179 Fraud Act 2006 s2 . . . . . . . . . . . . . . . . . . . . . . . . . . .152–3 s6 . . . . . . . . . . . . . . . . . . . . . . . . .148, 177 s7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Human Rights Act 1998 . . . . 113, 121–3, 169

Justices of the Peace Act 1361 . . . . . . . . . 166 Larceny Act 1916 s28 . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 s33 . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 Local Government Act 1988, s28 . . . . . . . 101 Magistrates Court Act 1980, s115 . . . . . . 166 Malicious Communications Act 1988, s1 . . . . . . . . . . . . . . . . . . . . 176 Misuse of Drugs Act 1971 s5(2) . . . . . . . . . . . . . . . . . . . . . . .179–80 s5(3) . . . . . . . . . . . . . . . . . . . . . . . . . 179 s7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Offences Against the Person Act 1861, s16 175 Police and Criminal Evidence Act 1984, s24 225 Prevention of Crime Act 1953, s1 . . . . . . 179 Prevention of Terrorism Act 2005 s 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . 134 s1(3) . . . . . . . . . . . . . . . . . . . . . . . . . 135 s13 . . . . . . . . . . . . . . . . . . . . . . . .134, 221 s3(3) . . . . . . . . . . . . . . . . . . . . . . . . . 135 s9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Proceeds of Crime Act 2002 s327 . . . . . . . . . . . . . . . . . . . . . . . .149–50 s330 . . . . . . . . . . . . . . . . . . . . . . . . . . 151 s340 . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Protection from Harassment Act 1997 s2 . . . . . . . . . . . . . . . . . . . . . . . . .18, 55–6 s4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 s5 . . . . . . . . . . . . . . . . . . . . . . . . . . . .55–6 s5A . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 s7(2) . . . . . . . . . . . . . . . . . . . . . . . . .18, 55 Public Order Act 1936 s5 . . . . . . . . . . . . 175 Public Order Act 1986 s4A . . . . . . . . . . . . . . . . . . . . . .18, 29, 55 s5 . . . . . . . . . . 18, 20, 29, 55–6, 81–2, 102, 118–20, 167, 174–6, 183 Safeguarding Vulnerable Groups Act 2006 139 s7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 s8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Sch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Serious Crime Act 2007 s1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 s2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 s25 . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 s45 . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 ss44–46 . . . . . . . . . . . . . . . . . . . . . . . 149 ss 1–37 . . . . . . . . . . . . . . . . . . . . . . . . 133

xvi

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Serious Organised Crime and Police Act 2005, ss 125–127 . . . . . . . . . . . . . . . . . . . . . . 55 Sexual Offences Act 2003 s104 . . . . . . . . . . . . . . . . . . . . . . . . . . 139 s107 . . . . . . . . . . . . . . . . . . . . . . . . . . 139 s114 . . . . . . . . . . . . . . . . . . . . . . . . . . 139 s117 . . . . . . . . . . . . . . . . . . . . . . . . . . 139 s123 . . . . . . . . . . . . . . . . . . . . . . . . . . 137 s124 . . . . . . . . . . . . . . . . . . . . . . . . . . 137 s14 . . . . . . . . . . . . . . . . . . . . . . . . . .146–7 ss104–113 . . . . . . . . . . . . . . . . . . . . . 133 ss114–122 . . . . . . . . . . . . . . . . . . . . . 133 ss123–129 . . . . . . . . . . . . . . . . . . . . . 133 Telecommunications Act 1984, s43 . . . . . 176 Terrorism Act 2000 s118 . . . . . . . . . . . . . . . . . . . . . . . . . . 147 s19 . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 s21A . . . . . . . . . . . . . . . . . . . . . . . . . 151 s38B . . . . . . . . . . . . . . . . . . . . . . . .151–2

s57 . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 s58 . . . . . . . . . . . . . . . . . . . . . . . . . .147–8 s5 . . . . . . . . . . . . . . . . . . . . . . . . . . .144–6 Theft Act 1968 s1 . . . . . . . . . . . . . . . . . . . . . . . . . . .154–7 s22 . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 s25 . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 ss15–16 . . . . . . . . . . . . . . . . . . . . . .152–3 Vagrancy Act 1824 s10 . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 s3 . . . . . . . . . . . . . . . . . . . . . . . . . . .163–4 s4 . . . . . . . . . . . . . . . . . . . . . . . . . . .164–5 s5 . . . . . . . . . . . . . . . . . . . . . . . . . . .164–5 Value Added Tax Act 1983, s39 . . . . . . . 177 Violent Crime Reduction Act 2006 s1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 ss1–14 . . . . . . . . . . . . . . . . . . . . . . . . 133 s3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

Introduction One reason to have criminal laws is that they make us feel more secure. For Thomas Hobbes this was the key reason for having them.1 Hobbes thought that without obligations to the sovereign to desist from violating others’ interests we would all feel vulnerable to the predation of others. Fearing the possibility that force will be used against us, we would take measures to anticipate others’ coercion. Since attack is often the best method of defence, the result would be relentless conflict, ‘the war of all against all’, and no civil society would be possible. By contrast, the existence of the obligations contained in the criminal law allows us to believe that our interests are to some extent secure. We do not normally need to pre-empt the danger represented by others with coercion of our own, and a commonwealth is made possible. We do not have to accept all of Hobbes’s political theory to grasp the truth that it contains on this point. To the extent that we believe in the criminal law’s effectiveness in lowering what we might call the objective risk of victimization— the risk that we will in fact be victimized—that risk is reduced in our subjective perceptions.2 As a consequence we are less likely to plan for—and still less to take— our own coercive action. With the law of murder in place, for example, we can go about our lives secure in the knowledge that the ultimate coercive authority does condemn the deliberate taking of our lives (without some special justification or excuse), and that it can and will try to punish anyone who kills us in this way. The risk is not entirely removed, but the consequence is that ‘in a given social situation, we know what behaviour to expect from others because we know that if they behave differently they will be punished’.3 The communication of the law’s norms in the form of the state’s penal threats serves a general reassurance function in so far as subjects know that violations of their protected interests will be taken seriously by the state. And this background reassurance is part of what makes the normal life of society possible. Of course the mere existence of the law may not provide much in the way of subjective security—it may fail to reassure us—unless a number of other conditions are also fulfilled, including: widespread public knowledge of the law’s existence and 1

T Hobbes, Leviathan (Penguin, 1968). On the difference between objective and subjective senses of security see L Zedner, Security (Routledge, 2009) 14–19 and I Loader and N Walker, Civilizing Security (Cambridge University Press, 2007) 155–61 and further discussion in Chapter 3. 3 R Dahrendorf, Law and Order (Steven & Sons, 1985) 25. 2

The Insecurity State

2

the consequences of violating it; rigorous enforcement with adequately high clearup rates; belief that the courts and the criminal process generally do justice and that the penalties for violation of the law are adequate; all in all a sufficient degree of public confidence in the law’s justice and effectiveness. It is no secret that such confidence is neither universal nor evenly distributed across society. Nor is it the case that the sovereign’s threats are the only, or necessarily the most effective, source of order. Nevertheless, with these important caveats, the existence and enforcement of criminal offences that prohibit conduct that we tend to fear will serve to protect our subjective feeling of security. If our penal obligations to a central coercive authority simply disappeared or ceased to be enforced, and all other things remained the same, most people would feel very insecure.4 This protection of our feelings of security by the criminal law is then of fundamental political significance, even if the law’s practical contribution to security can be argued about. The threat of punishment for criminal wrongs, in symbolically and practically excluding those wrongs from the normal life of the community, is one of the ways in which the very existence of a political community is constituted by the sovereign state.5 But historically this protection of subjective security has been, for the most part, indirect. It has largely been a secondary effect of laws that threaten punishment for an invasion of some other primary wrong. The most familiar criminal wrongs—killing, battering, raping, thieving, vandalizing and so on—are not defined in terms of causing insecurity. The feeling of security is not the interest they explicitly invoke. The primary wrongs and harms that are directly committed by these acts provide the justification for the coercive force of the laws that prohibit them, and for the state’s punishment when those laws are defied.

The content of the argument In recent decades, the criminal law in the UK has sought to protect our subjective feelings of security more directly than in the past. It has done so by prohibiting a much larger range of conduct than the criminal law covered in the preceding period. Offences have been enacted that prohibit not only conduct that undermines our feelings of security but also conduct that might undermine them, conduct that manifests an indifference to others’ feelings of security. Some of these offences explicitly define a substantive wrong of causing subjective insecurity. Others can only be understood as punishing a wrong in so far as that wrong is understood to be the causing of insecurity. The new offences that protect this interest in subjective security include: public order offences; breach of civil preventive orders; preparation, possession and failure to report offences; new developments in fraud, theft and assault law. While protection of interests in subjective 4

When law enforcement is suddenly removed, as it was, for example, in Egyptian cities in January 2011, locally organized vigilantism develops very quickly. 5 See also I Loader and N Walker, Civilizing Security, 164.

Introduction

3

security by the substantive law is far from unprecedented, the scope, speed and explicit character of the recent development represents a qualitative shift that can be understood as the institutionalization of a ‘right to security’ in UK law. At least that will be one of my arguments in this book. The right to security has been prominent in British political rhetoric especially since the terror attacks on 11 September 2001. In his response in parliament to those atrocities, the then prime minister, Tony Blair, declared that ‘the most basic liberty of all is the right of the ordinary citizen to go about their business free from fear or terror’.6 Blair’s belief was one reiterated by the home secretaries who served in his government.7 But the political commitment to the right to security pre-dated 9/11 and that commitment had by then already gone beyond the level of rhetoric to become institutionalized in substantive penal liabilities. Moreover this was a commitment shared across the political mainstream. Indeed, by the time the first home secretary in the Conservative–Liberal Democrat Coalition that replaced New Labour declared, ‘I believe everyone has the right to feel safe in their home and in their neighbourhood’, the phrase was political boilerplate.8 Although the institutionalization of the right to security was most marked under New Labour, more than a year after the Coalition government took power, only two of the more extreme powers covered in this book have been made the subject of repeal legislation. As well as demonstrating that a right to security unites a great deal of recent criminal legislation, this book is addressed to two groups of related questions about the development of a right to security. First, why has it come about and, more particularly, why do these very broad laws enjoy a significant degree of political legitimacy? Why do both officials and the majority of the population consent to the duties imposed by protecting a right to security? Why is there relatively little political controversy about the substantive demands they make? Why have these sweeping security laws arisen in an apparently liberal society rather than in an avowedly authoritarian regime? Second, what do these laws and the normative expectations they institutionalize tell us about the state that created them? What implications does this have for the future of criminal law and of our theories of it? To readers familiar with the criminal justice literature, there will be nothing novel in the claim that the penal law has been expanded and deployed in the name of security. Indeed the criminal legislation that is the focus of this book occurred during a period in which the political preoccupation with crime and punishment, and more especially with victims of crime and the security of potential victims, has led numerous commentators to invoke the name of Hobbes. For many like David Garland, ‘Hobbes is the thinker whose vision seems most relevant in situations

6

HC Deb, 14 September 2001 vol 372 col 606. ‘I claim that the ID cards Bill that I am introducing today is a profoundly civil libertarian measure because it promotes the most fundamental civil liberty in our society which is the right to live free from crime and fear’: Charles Clarke, The Times, 20 December 2004. 8 T May, More Effective Responses to Anti-Social Behaviour (Home Office, 2011) Ministerial Foreword. 7

4

The Insecurity State

where “law and order” is perceived to be breaking down’.9 This is because Hobbes’s Leviathan, the sovereign he thought was established by rational subjects to avoid the war of all against all, is generally thought to have been authorized to do anything necessary to protect security. Garland describes the expansive and hardline penal measures pursued by politicians as a ‘Hobbesian solution’.10 For Loïc Wacquant, too, the new tendency to ‘punish the poor’ in the name of security ‘is part of the building of a neoliberal Leviathan’,11 while Simon Hallsworth and John Lea regard the emerging ‘security state’ as ‘reconstructing’ and ‘tooling up’ Leviathan.12 The conclusion drawn here will, however, be very different. This is because our focus will not be on the instrumental categories of criminal justice policy. It will not be on security as such (security as a good or insecurity as a bad, that criminal justice policy might increase or decrease). Rather the focus will be on the normative categories of legal theory, on the right to security (security as a legally protected interest that is the ground of penal obligations to the state not to set it back). The normative assumptions that are needed in order to justify punishing people for breaking these laws turn out to be ones that no Leviathan could maintain because they amount to a confession of the state’s lack of authority. The state is clearly preoccupied with security but the right to security turns out to be an ironic paradox. The contemporary British state turns out to be less ‘security state’ and more ‘insecurity state’. Of course it can be argued that contemporary criminal justice policy and the contemporary criminal law are simply not justified and not justifiable. This has been the approach taken by much of the expert literature, and it is the view that leads experts to perceive the hand of an absolutist Leviathan, or at least of a Hobbesian political outlook, in current developments. It has been argued that criminal justice policy has been either purely instrumental, seeking to achieve the good of security whatever the cost to the rights of the law’s subjects,13 or a narrowly political reaction to popular anxiety about crime, one that ‘acts out’ those popular emotions by singling out for harsh treatment a wide range of undesirable elements—not least criminal offenders, but potentially anyone who causes fear. The aim of the political response is to assuage those fears and so to avoid the electoral consequences of seeming to lack authority over crime. The problem with these views is not that that they are entirely false. The expressive acting out in contemporary policy would be particularly hard to deny. The problem is that they either fail to notice or, at least, to take seriously the claims 9 D Garland in N McCormick and D Garland, ‘Sovereign States and Vengeful Victims’ in A Ashworth and M Wasik (eds), Fundamentals of Sentencing Theory: Essays in Honour of Andrew von Hirsch (Oxford University Press, 1998) 19. 10 D Garland, The Culture of Control (Oxford University Press, 2000) 202. 11 L Wacquant, ‘Bringing the Penal State Back In’, Lecture at London School of Economics, 6 October 2009 (available at ). 12 S Hallsworth and J Lea, ‘Reconstructing Leviathan: Emerging Contours of the Security State’ (2011) 15(2) Theoretical Criminology 141. 13 See, for example, A Rutherford, ‘An Elephant on the Doorstep: Criminal Policy without Crime in New Labour’s Britain’ in P Green and A Rutherford, Criminal Policy in Transition (Hart, 2000).

Introduction

5

of an influential body of contemporary political thought that does offer a normative justification for punishing harms to other people’s interests in feeling safe. Moreover this political thinking has been a predominant influence on governments from the 1990s onwards. At least that will be another of the arguments of this book. The normative justification for the right to security is found in the idea of vulnerable autonomy, a concept that is axiomatic not only in the Third Way and communitarianism, but also implicitly (and more significantly perhaps) in the theory of Friedrich Hayek that has been a chief source of so-called neoliberalism. The vulnerability of the law’s subjects assumed by these theories is the normative basis of the subject’s right to be free from fear, their right to security. For this reason, it is a mistake to see in the policy and legislative development only an unprincipled reaction to popular anxiety. The political reaction may often be reactive and emotive, but the reactions and the emotions reflect normative principles that are shared across mainstream political life, however much criminal justice experts may dislike the consequences. Moreover, the norm of vulnerable autonomy has not only influenced policy. It can be and is used to explain the jurisdiction of the ultimate normative resource for contemporary lawyers—human rights. There are, of course, many possible sources for human rights, but the ECHR offers few obstacles to the protection of the right to security by substantive law and this tends to confirm the view that the vulnerability of autonomy is the normative source of fundamental rights as they are protected by the Convention. This degree of consistency with human rights is significant because the right to security in the sense of freedom from fear is seen by many to be a threat to human rights (especially the rights of those suspected of wrongdoing by the authorities),14 and to liberty more generally.15 That it might be consistent with (or even foundational to) human rights suggests, by contrast, that there is a large degree of convergence between liberal norms and the right to security. When the right to security is examined for its consistency with various liberal theories of criminal law, the relationship between it and liberal order can be more precisely specified. The institutionalization of the right to security extends the liberal commitment to protect vulnerable individuals from harm to a point where it comes into contradiction with the underlying preconditions of liberal order. In declaring the normal vulnerability of its subjects, the state undermines its own authority in a way that would be intolerable to Leviathan, or indeed any sovereign worthy of the name. Criminal laws that lack sovereign authority present us with the paradox of a selfdefeating insecurity state—a state that upholds the right to security through laws that have as their substantive premise the law’s own lack of authority. The historical conditions for the appearance and the survival of this self-contradiction lie in the exhaustion of both the imperial tradition and the representative politics that 14 L Lazarus, ‘Mapping the Right to Security’ in B Goold and L Lazarus (eds), Security and Human Rights (Hart, 2007). 15 For a philosophical discussion of the right to security see J Waldron, Torture, Terror and Trade Offs: Philosophy for the White House (Oxford University Press, 2010) chs 2 and 6.

The Insecurity State

6

formerly supplied the lifeblood of the UK’s sovereignty. The result has been the decay of liberal norms into a political culture characterized by permanent emergency. Once the problem of our security laws is understood not to be one of authoritarianism, but of a deficit of authority, a new set of questions for criminal law theory are posed. That in brief is the argument that I will make. For readers well versed in criminal law theory or the criminal justice literature the argument may seem unconventional in a couple of respects. I am trying to identify and explain recent changes in social norms and their influence on substantive criminal law. Although I will be exploring the law’s justification, I am not trying to justify it. Moreover this ‘political sociology’ of the law’s norms employs a method that is a relatively unfamiliar one in criminal law theory. Before explaining the structure of the book, I should give an account of the method of inquiry in order to clarify what the book is trying to achieve and what it is not.

Method of inquiry The book offers a historical theory of a specific trend in recent criminal legislation. My investigation of that trend proceeded in the following way. I first examined in detail the substantive law of one of the most politically prominent of recent penal laws—the anti-social behaviour order. By analysis of its case law I found that it defined a particular wrong (manifesting a disposition to cause others to feel insecure) and protected a particular interest (subjective security). I sought out the normative argument for the legal protection of that interest in policy documents and then in the social theories that were influential on policy makers at the time. Having identified the normative argument, I found that it could also explain a great deal of other recent legislation. I then considered how the law had protected interests in subjective security in the past so as to identify qualitative differences with the present legal order. Finally I examined the new legal order from the standpoint of a variety of theoretical understandings of the state’s penal powers. The purpose was to identify the elements of contradiction and tension within the new order and to understand the political conditions in which such a contradictory structure of law is sustainable. Hopefully the merits of this method will be self-evident to readers, but since it is an unfamiliar one in theoretical writing about criminal law it may need to be situated with respect to more familiar methods. The Hobbesian argument that we began with emphasizes the aspect of the criminal justice system that is concerned with the reproduction of social order. However, as Nicola Lacey argues, it is a concern with order ‘not exclusively or even primarily in an instrumental, straightforwardly empirical sense, but rather with social order in a symbolic sense: with a society’s sense of itself as a cohesive, viable and ethical entity’.16 Most theorizing about criminal law, however, tends in one 16

N Lacey (ed), ‘Introduction’ A Reader on Criminal Justice (Oxford University Press, 1994) 28.

Introduction

7

way or another to separate the normative concerns of philosophy from the questions of order pursued by social theory, implicitly or explicitly subordinating one set of concerns to the other. The present study resists that separation. The predominant style of criminal law theory sets out from a philosophical account of freedom or of morality and then reconstructs or criticizes law on the model of that theory. Laws are assessed on the basis of norms announced in advance of any investigation of the actual law and the law itself is welcomed or criticized accordingly. The question that is asked is whether or not the law is legitimate according to the philosophical principles of the theory. But the initial question that we are concerned with here is a different one. It is not whether the legal powers that subjects consent to are normatively right according to an abstract principle, but what makes these powers legitimate in the context of a particular society at a particular time. Though this question is concerned with the normative dimension of law, it invokes a ‘social–scientific’ concept of legitimacy as opposed to a strictly normative one. Power will be legitimate in this social–scientific sense where subjects consent to it because the power can be justified in terms of beliefs that are shared by governors and governed alike.17 The philosophical method is necessarily of limited help when we are seeking to answer the historical question of why particular laws enjoy ‘legitimacy in context’, as we will be here.18 In general, the task of explaining legal developments has fallen to criminal justice theory and this has been, by contrast, highly sensitive to social and historical change. Criminal justice policy and the laws it produces have been subjected to minute analysis of the shifting pressures on policy. But theories of criminal justice have been reluctant to take the law’s normative content or its justificatory claims too seriously.19 This is not merely scepticism about the philosophers’ normative question—what the law ought to be—but also about the historical question that is central to the current work: the question of why human subjects at a particular time will consent to be ruled by one law or another. One of the reasons for the indifference to this question seems to be that it is thought to contradict the insight of social theory that the subjects whose consent to power is to be normatively investigated are themselves produced by power. From this perspective, the law’s normative claims tend to be understood in the Foucauldian terminology as aspects of the ‘rationalities’ or ‘technologies’ of government 17 D Beetham, The Legitimation of Power (Macmillan, 1991) 14–16. Note that this concept of legitimacy is different from, and more demanding than, the more familiar sociological concept of Max Weber, that power is legitimate when the subjects believe it to be (see ibid, 11). 18 Moreover, the dogmatic pursuit of philosophical method without regard to historical change is potentially misleading for reasons suggested by Lacey: ‘Developments in the criminal process, in the penal system, and in the political and economic world, in short affect the meaning as well as the normative significance of criminal responsibility; and that meaning, produced within an influential system of social signalling, should be a core concern of criminal law theory.’ N Lacey, ‘The Resurgence of Character’, in RA Duff and SP Green, Philosophical Foundations of the Criminal Law (Oxford University Press, 2011). To imagine that we can understand the normative significance of legally relevant concepts independently of their changing meaning to living subjects is to leave theory either sequestered in the ivory tower or drifting with events. 19 L Zedner, ‘Dangers of Dystopia’ (2002) 22 Oxford Journal of Legal Studies 341, 365–6.

8

The Insecurity State

through which power constructs its subjects. To ask why subjects consent to a particular power would seem to ignore this insight by assuming that the human subject exists independently of, and prior to, the exercise of power, consenting or dissenting according to some rational calculation of interests or moral evaluation that is mysteriously power-free.20 It is worth taking a moment to clarify the approach taken to this issue in the present work because here we will be asking about the recent history of social order, but in a way that runs counter to the normatively sceptical approach that is more familiar in theorizing about criminal justice policy. The sceptical social theory alights on an important aspect of the historical question. It would be a mistake to assume that subjects are merely natural entities given independently of human history and unchanging throughout its vicissitudes. At any particular time, the character and limits of human subjectivity is at least in part a product of how it is imagined to exist, and particularly how it is imagined to exist by authoritative disciplines and institutions, not least the law. But constructions of the subject change over time. And we can ask meaningful questions about why existing subjects consent to transformations of subjectivity achieved through new structures of power without assuming that the individual subject is a naturally free entity who exists independently of power and is only repressed by power. Moreover, there is much to be learned if we do ask these questions. The fact of a subject’s agreement to a form of subjugation, the subject’s reasons for that agreement and the extent to which a subject believes in, plays along or resists power’s demands, all tell you something important about how that subject perceives her- or him-self and how she or he is perceived, which in turn tells you something important about who that subject is. Without consideration of these reasons and self-perceptions, the theory concerns the construction of subjects only in a very one-sided sense: in the sense of human beings as subjected to power and not in the sense of humans as the subjects of power; only as beings upon whom power is exercised and not as beings who exercise power.21 Not only does this theory give an impoverished account of the subjects of law (and implicitly relieves us of responsibility for the law), but also, and more to the point in the present context, it can give only a thin account of the power of law. There are significant differences between a 20 As Michel Foucault put it: ‘We should not . . . be asking subjects how, why, and by what right they can agree to being subjugated, but showing how actual relations of subjugation manufacture subjects.’ M Foucault, Society Must Be Defended (Penguin, 2004) 45. 21 It is, therefore, the first clause in Foucault’s dictum (ibid) that is one-sided from the point of view adopted here. The second clause is unproblematic. The ‘manufacture’, or indeed the ‘construction’, of subjects certainly has an ironic connotation, since ‘manufacture’ or ‘construct’ are words describing how humans produce complicated artificial objects. But from the broadly social–scientific perspective adopted by the present work, the ‘manufactured subject’ is that peculiar object of power that is capable of imagining itself and becoming a subject of power. For Foucault, by contrast, because subjectification is an effect of power it is a trap to be avoided. For him the power of subjectification can and should be resisted, perhaps with an ‘aesthetics of the self ’ or a ‘politics of the body’ or the creation of something entirely different from a subject, but not by indulging in the power-laden discussion of ‘legitimacy’ or the political consent of subjects. But in so far as the Foucauldian theory itself becomes power/ knowledge, it is self-fulfilling: subjects are constructed accordingly as beings subjected to power. See, generally, J Heartfield, The Death of the Subject Explained (Sheffield Hallam Press, 2002) 68–75.

Introduction

9

power that is exercised through terrorizing those subjected to it, a power that is exercised through their routine and unthinking habits, and a power that is exercised through their wholehearted embrace of its demands—and this is to give only the crudest of normative differentiations. These differences in the normative legitimacy of power go to the core of its quality as power, its capacity to produce or to repress, its potency, its powerfulness. As David Beetham puts it: legitimacy is not the icing on the cake of power, which is applied after baking is complete and leaves the cake itself essentially unchanged. It is more like the yeast that permeates the dough, and makes the bread what it is.22

Without a nuanced understanding of the legitimacy claims of our present criminal law, we will see only the exercise of power and fail to grasp precisely what sort of power it represents, and how powerful a power that is. In the present work I will, therefore, take the normative content of the law seriously while not making any assumption that the law’s subjects are naturally given and merely repressed by law. On the contrary, I will be concerned with the construction of a new subject—the vulnerable subject—and the giving of institutional form and legitimacy to that construction through the normative order contained in new legal powers. In so doing I aim to get a better understanding of both the contemporary subject of law and of the changing quality of the state power that is being exercised. None of this should be read as a simple dismissal of the work of theorists who do follow a normatively sceptical approach. Their attention to the production of subjects and to the ‘technologies’ of government is highly attuned to changes in the structure of relations between government and the governed. On these points I will rely on writers drawing on the Foucauldian perspective frequently and some of my conclusions will be familiar to those writers. But this study will take the normative dimension as its primary object of study with the aim of shedding some light on the legitimacy and the authority of the state’s penal power. The method that I rely on here is then neither that of normative philosophical theories of criminal law nor of normatively sceptical sociology. The method of this work is rather that of immanent critique pursued in contemporary criminal law theory by Alan Norrie.23 By immanent critique I mean setting out from an analysis of the posited legal form, an analysis that seeks to lay bare its conceptual and normative structure, and to uncover the tensions, oppositions, conflicts and contradictions that inhere in this structure. This is the basis of what Norrie describes as a second stage of ‘explanatory critique’, which explores the ‘fault lines’ in the historical social context that can account for the contradictory conceptual structure:24 22 D Beetham, The Legitimation of Power (Macmillan, 1991) 39. The problem with Foucault’s theory is that the concept of power it contains is too unspecific to do the amount of work that the theory requires of it. See also N Fraser, ‘Foucault on Modern Power: Empirical Insights and Normative Confusions’ (1981) 1 Praxis International 272. 23 A Norrie, Crime, Reason and History (Butterworths, 2001); A Norrie, Punishment, Responsibility, Justice (Oxford University Press, 2000) 45. 24 Norrie, Punishment, Responsibility, Justice, 45.

10

The Insecurity State

Such an approach reflects law’s own claims, but at the same time critically explores and decentres them. It involves a respect for the ‘internal’ presentation of legal concepts (their treatment as if they were formally rational), coupled with a historical and deconstructive exposure of the limits of such an approach. Such a deconstruction takes us into the ‘external’ social and historical conditions of possibility of the internal presentation. It asks: what claims does law make and how does it sustain them; what is wrong with the claims that law makes and the means of sustaining them; and in what social conditions and contexts does it become possible to seek to make and sustain them.25

This passage summarizes the aspirations of the present work. It offers a historically specific explanation of the criminal law’s changing normative structure, elucidating the relation of these legal powers to the social and political environment in which they exist. Where Norrie has undertaken a critique that has mostly been directed at the so-called ‘general part’ (that is the general principles that are claimed by criminal law doctrine), here the critique is directed towards a contemporary development in the so-called ‘special part’ (the form and content of the many particular offences that comprise the criminal law). This method of immanent critique has an advantage, which will hopefully become clear in its results. As Norrie puts it: ‘The strength of such a critique is that it starts from within the field of investigation and works through and beyond it, without imposing, seemingly from without, an alien frame of reference.’26 This strength of the method means, however, that the normative stance is secondary to the explanation. It appears at the end of the explanatory analysis and is not set out at the beginning. It is also important to keep in mind that the investigation concerns a specific trend in contemporary penal laws and that trend is the unifying theme of the work. In explaining the law, connections will arise to subjects such as anti-social behaviour policy and criminal justice policy generally, recent political history, contemporary political theory, human rights and normative criminal law theory. But none of these is discussed for its own sake and all only in so far as they arise from or are connected to the trend in penal law that we are trying to understand.

The presentation of the argument The argument is presented in a way that directly reflects the method. It begins with the law of the anti-social behaviour order (ASBO), moves on to policy and then to social theory. A new normative order is identified in this way and this is then applied to other recent laws. Finally the argument examines the contradiction that this legal structure contains and the historical conditions in which it is sustained. 25 A Norrie, ‘From Law to Popular Justice’ in A Norrie, Law and the Beautiful Soul (Glasshouse Press, 2005) 41. The term ‘deconstruction’ is used loosely in this passage and not in the specific sense of the term developed by Jacques Derrida. For Norrie’s account of the relation of his critical realist method to that of Derrida see ibid, 6–16. 26 Ibid, 21.

Introduction

11

This order of presentation is intended to emphasize the method that has been relied upon and the necessarily exploratory character of an investigation into a historical moment in which an old political order has passed away and a new dispensation is emerging in its wake. If there is anything to the theory presented here there will be much more to be said, in particular about its application outside the substantive law, its relevance to other jurisdictions, the historical context of the insecurity state and the decay of liberal norms. In the first three chapters I present a detailed analysis of the law of the ASBO. There are several reasons for this initial focus. The ASBO was the first major contribution to the criminal justice system made by New Labour in government, and it was to become a flagship of their policy. The reason for this flagship status was that by imposing a liability for failing to reassure it provided the most explicit and elaborate protection of security interests of any of the powers I will discuss here. And it was not only the flagship for the government, but for its critics among criminal justice experts too. No measure achieved such notoriety, and the response to it has been overwhelmingly hostile among academic experts.27 But the ASBO’s legal critics have misunderstood it in important respects. The ASBO itself has been consistently misread as a punishment for morally offensive behaviour when it is apparent that its intent was preventive rather than penal (whatever its effect), and that is was aimed at behaviour that causes or risks causing insecurity rather than offence as such. The criminal offence of breach of an ASBO has been taken to be an offence of mere defiance or a course of conduct offence when it was neither. By clarifying these points through a detailed analysis of the measure I hope to show that the proposition that the law protects interests in subjective security, defined in the broadest way, is not an abstract theoretical impression but can be read in the law’s black letter. This is the foundation of the claim that will be made later that the wider law has shifted towards protection of a right to security. Another reason for the focus on the ASBO is that it was the most used of a whole new class of powers dubbed the civil preventive orders, and it has the most extensive case law of any of them. By elaborating the argument with respect to the ASBO we shall be able to see subsequently, in Chapter 7, that the very form of the civil preventive order lends itself to the protection of interests in subjective security whatever the exact conduct that liability to an order covers. The ASBO is, therefore, 27 The key texts include A Ashworth, J Gardner, R Morgan, ATH Smith, A Von Hirsch, and M Wasik, ‘Neighbouring on the oppressive: the government’s “Anti-Social Behaviour Order” proposals’ (1998) 16(1) Criminal Justice 7; A Ashworth, ‘Is the criminal law a lost cause?’ [2000] LQR 116; E Burney, Making People Behave: Anti-Social Behaviour Politics and Policy (Willan, 2005); S Macdonald, ‘The Nature of the ASBO—R (McCann & Others) v Crown Court at Manchester’ (2003) 66(4) Modern Law Review 630; RA Duff and SE Marshall, ‘How Offensive Can You Get?’ in A von Hirsch and A Simester (eds), Incivilities (Hart, 2006); AP Simester and A von Hirsch, ‘Regulating Offensive Conduct Through Two-Step Prohibitions’ in von Hirsch and Simester, ibid; S Macdonald, ‘A Suicidal Woman, Roaming Pigs and a Noisy Trampolinist: Refining the ASBO’s Definition of Anti-Social Behaviour’ (2006) 69(2) Modern Law Review 183. For a more sympathetic view see R Burke and R Morrill, ‘Anti-social Behaviour Orders: An Infringement of the Human Rights Act 1998?’ (2002) 11 (2) Nottingham Law Journal 16; J Donoghue, Anti-Social Behaviour Orders: A Culture of Control? (Palgrave Macmillan, 2010).

The Insecurity State

12

the most prominent example of a legal form innovated to address the problem of subjective insecurity. Finally as the flagship New Labour policy, the Coalition government that replaced New Labour has been keen to dispense with the ASBO. The new government’s criticisms of the ASBO are, however, wholly focused on its effectiveness.28 The Coalition’s reform proposals make no criticism of the normative content of the substantive liabilities that the ASBO imposed. On the contrary, these liabilities are retained in the new orders proposed as replacements for the ASBO. That is not to say that there are no differences. In one sense the new proposals offer a more limited protection of security interests but in another they are more insidious. The key point is that, for all the noise about the ASBO’s ineffectiveness, the Coalition is happy to retain its basic formal structure and the substantive liability that it imposed. The ASBO case law is likely to remain directly relevant to at least one of the orders that the Coalition has proposed to replace it with. But much more important is that the survival of this liability in form and content is the clearest example of the breadth of consensus around the protection of the right to security. The ASBO, like one of its proposed replacements, takes the form of a court order made up of prohibitions breach of which is a criminal offence. Punishment for breach of an ASBO is, therefore, the result of two separate sets of proceedings, the civil proceedings in which the ASBO is imposed and the criminal proceedings for the breach. The first two chapters analyse the law at each stage of these proceedings. In Chapter 1, I analyse the law governing the imposition of an ASBO. The purpose is to show first that the grounds for imposing an order are defined as any conduct that manifests a disposition that fails to reassure others about their security and second that a finding of liability to an order is best understood as the exercise of a power in administrative law to make a risk assessment and preventive order rather than to impose a punishment. In Chapter 2, I analyse the case law on the criminal offence of breach of an ASBO to show, first, that the offence converts conduct manifesting the same unreassuring disposition from a threat to be controlled by a court order into a public wrong to be punished, and, second, that the penal wrong that the offence defines is a wrong of dangerousness. In Chapter 3, I consider what is distinctive about the ASBO. I compare it with criminal offences that appear to target the same kind of conduct, specifically section 5 of the Public Order Act 1986, in order to show that the ASBO penalizes not specific or individual acts that fail to reassure others but any manifestation of a disposition that fails to reassure others. I argue that the ASBO imposes a subtle positive obligation of active citizenship: anyone who, by manifesting the unreassuring disposition, fails to fulfil this positive obligation, is formally marked as a secondclass citizen by the reduction of their civil rights imposed by the court’s order. I review the legal controversy over the ASBO’s procedure in the light of its substantive law in order to demonstrate that the ASBO protected a right to freedom 28

See Home Office, More Effective Responses to Anti-Social Behaviour (Home Office, 2011).

Introduction

13

from fear. I show that the Coalition’s proposed reforms to the ASBO impose the same substantive liability as an ASBO, and represent a more subtle manipulation of procedural distinctions than that found in the ASBO. Finally, I explain why I describe the ASBO’s freedom from fear as a right to security. Chapter 4 turns from law to policy, reviewing the development of New Labour’s anti-social behaviour policy in the context of its wider criminal justice and social policies. I seek to show first that the ASBO’s imposition of conditional citizenship, in which rights are made contingent on the performance of duties, was central to policy discussion and, secondly, that these duties extended to security questions because the representative citizen was constructed as weak and vulnerable, and in need of reassurance. Chapter 5 identifies and explains the normative basis of New Labour’s policy claim that citizens owe duties of reassurance. I argue that this idea arises from an axiomatic proposition of three theories that had a major influence on New Labour—The Third Way, communitarianism, neoliberalism—and that this proposition remains significant in the civic conservatism underlying the Big Society thinking of the Coalition government. All in different ways assume that the autonomy of citizens is vulnerable to insecurity caused by others’ hostility and indifference. To explain the influence of this theory, I offer an account of the partial political victory of Hayekian neoliberalism over welfare liberalism during the 1980s. It is the aspect in which Hayekian ideas failed, I argue, that explains the rise to influence of the other theories, and the emergence with this of the idea of a duty towards others’ feelings of security—a right to security. Chapter 6 considers the compliance of the ASBO’s protection of subjective security interests with the European Convention on Human Rights and the wider question of the relationship between vulnerability and human rights. I show that the protection of the interest in subjective security by the substantive law of the ASBO and by section 5 POA 1986 is for the most part consistent with the ECHR and capable of justifying significant interferences with the right to free speech. I argue that while it is not formally a human right, the right to security is recognized as fundamental in the scheme of the ECHR, and that this tends to confirm New Labour’s communitarian interpretation of the Human Rights Act. I then explore the theoretical problem presented by the human rights of those individuals made subject to ASBOs. These individuals are often described as vulnerable and with good reason. That their subjection to the degraded citizenship status of the ASBO is compatible with the ECHR notwithstanding their vulnerability raises interesting questions about the relationship of human rights and vulnerability. I distinguish two different senses of vulnerability—universal and particular—and account for the apparent denial of human rights to the particularly vulnerable through a critique of Bryan Turner’s vulnerability theory of human rights. I argue that this theory gives no definitive answer to the imposition of liabilities for failure to reassure such as those found in the ASBO, and offers no theoretical resources to resist them. Having established that the ASBO’s right to security is grounded in influential theories and is for the most part ECHR compatible, in Chapter 7 I review the wider

14

The Insecurity State

scope of its protection under the criminal legislation enacted by New Labour governments. First I will show that the other civil preventive orders, by virtue of their form, serve to protect the right to security across a wide range of behaviour. After that I investigate the Vetting and Barring Scheme—a very extensive administrative licensing scheme enacted by New Labour but significantly scaled back by the Coalition. Then I look at a range of preparation, possession and ancillary offences that I categorize as preinchoate offences and contrast with properly inchoate offences on the ground that the scope of conduct for which they impose liability to punishment can only be explained in terms of targeting the dangerousness of the offender rather than of her acts. I apply the same analysis to three classic complete criminal offences that have acquired or moved towards a preinchoate form in recent years: fraud, theft and assault. Finally I consider imprisonment for public protection, a controversial sentencing power that reflects the underlying logic of the substantive offences considered here. The chapter is not intended to be comprehensive. The analysis could probably be extended to other offences. The chapter is intended simply to demonstrate that the ASBO was indeed the flagship of a fleet of measures sent out to do battle on behalf of the public’s feeling of security. Chapter 8 reviews the protection of subjective security interests in the criminal law of an earlier period before the ASBO. Again the review of the law is not meant to cover every relevant power but rather to argue that while subjective security interests were protected in different ways, this protection remained piecemeal, implicit or justified in a traditional moralized language quite different from the later more explicit and systematic development of a liability for failure to reassure. In the next two chapters I investigate the relationship between liberalism and the right to security. Chapter 9 assesses the penal protection of the right to security in the terms of thee recently published broadly liberal theories of criminal law: Douglas Husak’s theory of the limits of criminalization; Markus Dubber’s critique of the police power; and Alan Brudner’s theory of dialogic community. The enemy criminal law theory of Gunther Jakobs is also considered briefly in passing. Since these are normative theories, readers should keep in mind that the purpose of this assessment is to understand the relationship of the right to security to liberalism, and not to offer a normative assessment as such. Specifically I seek to argue two points. The first is that moral philosophy in itself gives us no clear answer to the question of how far the law should go in protecting subjective security, and that from one ethical standpoint at least the right to security seems consistent with liberal order. The second is that, from the point of view of liberal political theories of the criminal law, protection of the right to security is inconsistent with the state’s authority understood either as a traditional (and essentially illiberal) patriarchal order or as a modern liberal state. The inconsistency of the right to security with the authority of the state is the starting point for Chapter 10. I show that the substantive law that protects the right to security has the character of emergency power that takes a normalized form, and I offer a critique of the recent theory of the normalization of the state of exception. In particular, I argue that this experience offers compelling evidence that the sovereignty of the state has decayed significantly in the UK, so that the criminal

Introduction

15

law’s threats are premised on their own inadequacy. I identify the historical precondition of this paradoxical state of affairs in the decay of representative politics, a decay that is an aspect of the political experience already discussed in Chapter 5. I contrast this theory with Garland’s apparently similar ‘myth of the sovereign state’ thesis arguing that the problem of the expansion of penal control is the result of the actual decline of sovereign authority rather than of the political pursuit of its myth, as proposed by Garland. The book ends with a brief afterword on how criminal law theorists might contribute to solving the problem of the insecurity state. I argue that liberalism is exhausted as a source of political authority and that democratic sources of authority will need to be better understood. This book is a political sociology of the substantive criminal law, and more particularly of a recent development in what theorists refer to as ‘the special part’ of the substantive law. Beyond the substantive criminal law, it considers only one sentencing power and does not cover the law of procedure and evidence except in so far as that sheds light on the substantive law of the hybrid civil preventive orders. If there is anything to the argument pursued here it is of undoubted significance to criminal procedure and evidence but that is for another day. Strictly speaking this is a political sociology of the substantive law of England and Wales, although most of the law it covers applies in some form to the whole of the UK. The claims it makes about the insecurity state are, therefore, restricted to the UK. Having said that, it would be very surprising if the connections drawn here between the legal protection of a right to security, the ideology of vulnerable autonomy and the decline of sovereignty had no relevance to other jurisdictions. But the specific legal and political articulations are likely to be quite different in other countries. Finally this is a political sociology of contemporary legal developments and its argument is necessarily held hostage to events after it went to press, which was in late 2011. In particular, the writing was completed after the Coalition government published its consultation on the reform of anti-social behaviour powers but before it published a bill. The assumption made in what follows is that the essentials of the proposals in the consultation will be enacted by parliament. However, at the time of writing, the ASBO is still in force and it is, therefore, referred to in the present tense.

1 Failure to Reassure as Threat The criminal offence of breaching an ASBO appears on its face to be straightforward. The Crime and Disorder Act 1998, section 1(10) provides that an offence is committed ‘if without reasonable excuse a person does anything which he is prohibited from doing by an anti-social behaviour order’. But these simple words define an offence of considerable substantive complexity. In the next chapter I will consider the very different types of conduct that an ASBO can prohibit: conduct that is merely anti-social; conduct that is anti-social and already criminal in any case; and conduct that is in itself neither anti-social nor criminal. However, before we can understand the criminal offence of breaching an order, we must know how a person comes to be subject to an ASBO in the first place. To be liable for breaching an ASBO, the order must already have been imposed in an earlier civil proceeding. This chapter will therefore investigate the law’s definition of the anti-social behaviour that creates liability to an ASBO. This is found in Section 1(1) CDA. The analysis in this chapter will demonstrate that the behaviour that renders a person liable to an ASBO can best be understood as behaviour that manifests a disposition that fails to reassure others about their future security. Where most legal commentators have argued that the ASBO itself is ‘really’ a punishment, and that the grounds for imposing an ASBO are ‘really’ a criminal offence, this analysis will draw attention to the contrast between the structure of the substantive law of section 1(1) CDA and the structure of criminal offences. Rather than punishment for a criminal wrong, the imposition of an ASBO is the exercise of an administrative power in the service of public security policy. As such, this power exhibits a substantive hybridity that complements its controversial procedural hybridity. I will first look at the clear sense in which the grounds of liability to an ASBO define a wrong and consider the distinctive characteristics of this wrong. I will then turn to the risk assessment process that the law permits authorities and courts to engage in. Finally I will explain the underlying consistency between the court’s essentially administrative process and the civil procedure. An ASBO may be imposed by a magistrate on the application of a local authority, a chief of police or a registered social landlord.1 It may also be imposed in addition to a sentence following a criminal conviction (a so-called CrASBO).2 In either case the magistrate or sentencing judge may impose an ASBO if it is proved

1

CDA 1998, s 1(1A).

2

CDA 1998, s 1C.

Failure to Reassure as Threat

17

that the conditions in CDA 1998, section 1(1) are fulfilled.3 The conditions in section 1(1) are stated as follows: An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged ten or over, namely— (a) that the person has acted . . . in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and (b) that such an order is necessary to protect relevant persons from further anti-social acts by him.4

The grounds are qualified in subsection 1(5) which allows that: For the purpose of determining whether the condition mentioned in subsection (1)(a) above is fulfilled, the court shall disregard any act of the defendant which he shows was reasonable in the circumstances.

The analysis of these grounds will proceed in two stages. First the law’s definition of anti-social behaviour will be investigated by analysing the legal grounds for imposing an ASBO that are to be found in the requirements of section 1(1)(a) and section 1(1)(b), and their associated case law. The wrong that is contained in this definition will be shown to be one of failing to reassure others about their security, and the conceptual contrast between this and conventional criminal wrongs will be emphasized. Then the functional difference between the court’s process in ASBO applications and its process in a criminal adjudication will be investigated. I will argue that the section 1 procedure is in substance an administrative process of risk assessment, and that this understanding of the law’s substantive character underlies the House of Lords’ designation of the proceedings as civil proceedings.

1.1 Section 1(1)(a): harassment, alarm or distress There are two possible ways in which a defendant might meet the criteria laid down in Section 1(1)(a).

‘acted . . . in a manner that caused . . . harassment, alarm or distress’ By the time the Crime and Disorder Act 1998 came into force the phrase ‘harassment, alarm or distress’ already appeared in the definitions of other criminal offences and provided grounds for other civil orders.5 No further definitions of the 3

CDA 1998, s 1(4). A relevant person is a person within the geographical area, or likely to be present on premises, for which the relevant authority has responsibility (s 1(1B)). 5 See the discussion in Chapter 3. 4

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The Insecurity State

phrase had at that time been offered by parliament, and the courts tended to regard them as ‘ordinary English words’.6 As a consequence, the scope of the feelings that might meet these criteria is likely to be treated as a question of fact, and the higher courts will not interfere with this unless the magistrates’ judgment is one no reasonable tribunal could have come to.7 For the purposes of sections 4A and 5 Public Order Act 1986 harassment has been ruled not to require any element of apprehension about the safety of a person or property.8 The offence of harassment in section 2 Protection from Harassment Act 1997, which can also be committed by causing harassment, alarm or distress,9 requires the prosecution to prove ‘a minimal level or degree of alarm or distress suffered by the victim before it amounts to harassment within the meaning of the Act’, although there is no clear authority as to what might mark the threshold.10 Although the language of section 1 CDA is no more specific than that of the earlier statutes, the courts have interpreted the intention of parliament to be that the phrase ‘harassment, alarm or distress’ bears a narrower meaning in this context. Lord Steyn in the leading case of McCann stated that ‘Section 1 is not meant to be used in cases of minor unacceptable behaviour, but in cases which satisfy the threshold of persistent and serious anti-social behaviour.’ However he gave no indication of where or how that threshold could be identified.11 I will return to the issue of persistence below, but the Court of Appeal has been more specific about seriousness and in particular sought to limit the possibilities offered by the word ‘distress’. In Jones the appellants had prevented trains from leaving a station during a political protest. They were convicted of minor offences and ASBOs were imposed on them at sentencing stage. The Court of Appeal doubted whether their conduct could have met the criteria of section 1(1)(a): . . . We do wish to draw a distinction between activity likely to cause harassment, alarm or distress, and activity which merely causes frustration, disappointment, anger, or annoyance. That is plainly not what the Crime and Disorder Act 1998 is aimed at. It is aimed at actions likely to cause what might be globally described as ‘fear for one’s own safety’; merely being frustrated at the delay on a train does not come within that meaning, even though in one sense it might be said to cause distress. . . . 12

For our purposes the importance of these remarks is that they make clear that it is threats to feelings of security that are the target of the ASBO. The court’s remarks in Jones are emphatic, although their legal authority may be limited since the 6 Chambers and Edwards v DPP [1995] Crim LR 896; Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1223, [29]. 7 Brutus v Cozens [1973] AC 854 at 861. 8 Chambers and Edwards v DPP [1995] Crim LR 896. 9 See s 7(2) PHA 1997 and DPP v Ramsdale [2001] EWHC Admin 106, [20]. 10 Ibid, [17]. 11 R (McCann and Others) v Crown Court at Manchester and Another [2003] 1 AC 787, 808. Early Home Office guidance documents and some ministerial statements in the parliamentary debate on the bill suggested that the ASBO was only intended for serious conduct: see M Sikand, ASBOs: A Practitioners Guide to Defending Anti-Social Behaviour Orders (Legal Action Group, 2006) 83–5. 12 R v Jones and Others [2006] EWCA Crim 2942 [45].

Failure to Reassure as Threat

19

particular appeal was decided on different grounds.13 There may be a continuing tendency for lower courts to treat the terms as the ‘ordinary English words’ they are for the purposes of the Public Order Act 1986. However it is worth taking a moment to grasp just how broad the scope of legal protection from ‘fear for one’s safety’ must necessarily be. The boundaries of the Home Office’s understanding of the term ‘anti-social behaviour’ were always ambiguous. For example, in 2010 the Home Office web page for anti-social behaviour defined it as ‘any aggressive, intimidating or destructive activity that damages or destroys another person’s quality of life’, and readers were encouraged to contact the authorities if ‘anti-social behaviour is affecting your quality of life, or making you fear for your safety or the safety of others’.14 However this wider sense of damage to quality of life was also referred to as ‘threatening’.15 This ambiguity arises from the fact that ‘fear for one’s safety’ is a very broad category, and it is not unrelated to damage to ‘quality of life’. We can get a better grasp of the still wide scope of the Court of Appeal’s narrower definition of harassment, alarm or distress in section 1 if we think about what is not covered by it. It indicates very clearly that anti-social behaviour should not be understood as behaviour that needs to be controlled because it causes offence.16 Plainly there is no requirement for the conduct to be offensive, and much threatening or intimidating behaviour will not also be offensive. But, more important, if the definition in Jones is exhaustive, where the behaviour that causes harassment, alarm or distress does also cause offence, it will only create liability to an ASBO if that offensiveness causes others to fear for their own safety. It might be thought that there could not be any overlap—that what causes fear cannot really be described as being offensive.17 But that would be to underestimate just how broad the criterion remains, even after the Court of Appeal has narrowed it. Persistent offensiveness, perpetrated by a person who knows that their behaviour causes offence to others, might start to make someone who is frequently exposed to their offensiveness fearful or anxious, and it might thereby cross the threshold of seriousness.18 The same might apply to persistent nuisance.19 The reason is that such behaviour tends to manifest a lack of concern, or possibly an active contempt, for the interests and sensibilities of the other person to the extent that they are made

13

See n 43 below. (accessed December 2011, emphasis added). 15 Ibid. 16 This was the initial interpretation of the subsection made by many theorists. See, for example, RA Duff and SE Marshall, ‘How Offensive Can You Get?’ and E Burney, ‘No Spitting: Regulation of Offensive Behaviour in England and Wales’ in A von Hirsch and A Simester (eds), Incivilities (Hart, 2006). 17 See D Husak, ‘Disgust: Metaphysical and Empirical Speculations’ in von Hirsch and Simester, ibid, 94. 18 Although s 1(1)(a) does not include any requirement that a defendant intends to, or knows that they might, cause harassment, alarm or distress, in many cases the defendant may in fact know and there is no reason why a court should not take that into account in assessing the effect of the conduct. 19 See ‘Neighbour with sex ASBO arrested for noisy sessions’: Daily Telegraph, 21 March 2010. 14

20

The Insecurity State

to feel insecure.20 In certain circumstances the manifesting of this attitude by means that are not directly threatening will cause the feelings of insecurity that the Court of Appeal is adverting to in Jones. And if persistent offensiveness is capable of causing insecurity, so are one-off acts that offend the sensibilities of those who already feel insecure.21 Manifest disrespect for the sensibilities of those who already feel persecuted, for example, is quite likely to contribute to an increase in the risks to which the offended perceive themselves to be exposed.22 At its outer limit, this includes offending the feelings of those who will be emotionally hurt by the disrespectful conduct.23 It is this breadth of the sense of safety to include emotional security that can explain many of the apparently borderline cases of what have been termed ‘extreme ASBOs’ imposed in the magistrate’s courts.24 And, as I will argue in a moment when we look at section 1(1)(b) CDA 1998, it is this disrespectful attitude of indifference or contempt that is the true marker of liability. Where the conduct causing harassment, alarm or distress is persistent, the manifest indifference to others’ feelings has the effect of turning what might otherwise be relatively trivial behaviour into something more serious because it causes others anxiety or fear for their safety.25 The threshold of conduct that causes others fear because it manifests indifference to their feelings of (in)security is not a very high one. Fear for one’s safety is so broad a term that it will often result when one person’s persistent acts damage another’s quality of life. This discussion draws out a key aspect of the harassment, alarm or distress that forms the basis of liability. Even after the phrase ‘harassment, alarm or distress’ is narrowed to mean ‘fear for one’s safety’ in its broadest sense, that fear is still a subjective feeling that is not restricted by reference to the nature, imminence or 20 An extreme example is the ASBO imposed on Amy Dallamura banning her from the seafront in Aberystwyth for repeated attempts to commit suicide from the beach. The police argued that her conduct was anti-social because it was distressing to the public: see ‘Woman given ASBO for suicide bids’ BBC News, 15 January 2006. The case is clearly borderline and it is interesting that the police appear to have bolstered their argument that the defendant was causing distress to others by referring to the way that members of the emergency services were forced to put their lives at risk in the attempt to rescue her: (accessed September 2010). 21 The psychological outlook that connects a single instance of incivility to a profound sense of insecurity is brilliantly satirized in L Truss, Talk to the Hand: The Utter Bloody Rudeness of Everyday Life (Profile Books, 2007) 51–5. It is a very good question whether the law ought to protect its subjects from insecurity in such circumstances. Why it seeks to do so is the subject of this book. 22 For examples of convictions under POA 1986, s 5 see discussion in Chapter 6. 23 An example of the relation between extreme offensiveness and insecurity is the CrASBO imposed on internet ‘troll’ Sean Duffy for mocking and insulting recently deceased teenagers on websites dedicated to their memories. On the face of it, his conduct was morally offensive, but the prosecutor was careful to insist that his conduct was ‘virtual bullying’ (see R Camber and S Neville, ‘Sick internet “troll” who posted vile messages and videos taunting the death of teenagers is jailed for 18 weeks’ Daily Mail, 14 September 2011). Duffy’s own lawyer made the general connection with insecurity explicit: ‘In terms of mitigation there is none. I cannot imagine the trauma and anxiety caused to the families of these horrible, despicable offences.’ In sentencing him, the magistrate Paul Warren commented that his case ‘serves to illustrate the harm and damage done by the malicious misuse of social networking sites’ (see S Morris, ‘Internet troll jailed after mocking deaths of teenagers’ Guardian, 13 September 2011, emphasis added). 24 See Statewatch, ‘ASBOwatch’ (available at (accessed December 2011)). 25 See the remarks in R v Braxton (No 2) [2005] 1 Cr App R (S) 36, [17] discussed in Chapter 2.

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21

seriousness of the threat feared. Under this heading, the applicant authority only has to prove that someone was caused to experience the feeling. There is no limitation by reference to an objective standard of sensitivity to the defendant’s conduct, such as the effect it would have on a ‘reasonable person’. As a consequence, ‘the true measure of harassment is its effect on the victim’.26 Of this element of section 1(1)(a), it can be said that: The law does not proscribe certain forms of conduct as harassment per se but enables the victim to determine the parameters of acceptable interaction on an individualistic basis . . . . primacy [is] given to the victim’s interpretation of events when attributing liability.27

Acting in such a way as to cause ‘harassment, alarm or distress’ is therefore a ‘context-dependent’ category.28 What constitutes it will vary according to context because what is essential to it is not what is done, but others’ perceptions of what is done.29 It is injuries to the feeling of security that the subjective, context-dependent category of causing harassment, alarm or distress in section 1 is intended to control. The context dependency of section 1 and the ambiguous connection it makes possible between fear and a broader insecurity (a connection that can be mediated by persistent offensiveness or nuisance as well as threat and intimidation) are both characteristic of harassment law. To summarize, in the context of section 1(1)(a), the phrase ‘causes harassment, alarm or distress’ has not been given a clear legal definition. But it includes conduct that causes another person not of the same household to ‘fear for their safety’ in a very broad sense of that phrase. It seems also to cover behaviour that seriously damages another person’s quality of life so as to cause them anxiety. It is unusual for liability in the criminal law to be context-dependent in this way but not unknown.30 The second element of section 1(1)(a) throws the scope of context dependency wider still by releasing the authority from the requirement to prove facts and requiring it only to prove a possibility.

‘acted . . . in a manner that . . . was likely to cause harassment, alarm or distress’ No member of the community need in fact have been threatened, intimidated or caused to fear for their safety in some less direct way for there to be a finding against 26

P Infield and G Platford, The Law of Harassment and Stalking (Butterworths, 2000) 22. E Finch, ‘Stalking the Perfect Stalking Law: An Evaluation of the Efficacy of the Protection from Harassment Act 1997’ [2002] Criminal Law Review 703. 28 Ibid. 29 This conception is also found in sexual harassment law: see Reed and Bull Information Systems v Stedman [1999] IRLR 299. 30 Context-dependent criminal offences, in which the actions of the defendant and the harm inflicted are not coextensive but depend upon the occurrence of a particular reaction in someone else, typically involve acts of communication. Jaconelli gives the examples of obscenity, perjury and contempt of court, trades descriptions offences, public order offences and incitement to racial hatred. See J Jaconelli, ‘Context-Dependent Crime’ [1995] Criminal Law Review 771. Recent additions to the list include the various criminal offences of harassment. 27

22

The Insecurity State

a defendant under section 1(1)(a). An order may be granted by a court upon a finding that the defendant has acted ‘in a manner that . . . was likely to cause harassment, alarm or distress’. Section 1(1)(a) thus allows for a hypothetical assessment of the effect of the defendant’s conduct.31 If there is sufficient evidence that ‘serious’ harassment, alarm or distress have in fact been caused by the defendant, a court will have no need to consider the ‘likely’ effect of the conduct. If a court is considering these words in relation to a defendant’s conduct, sufficient evidence of actual causation will be lacking. In Chief Constable of Lancashire v Potter the Divisional Court ruled that likely means that it was ‘more probable than not’ that the defendant’s conduct would have caused ‘harassment, alarm or distress’.32 A question remains: to whom must this conduct more probably than not have caused harassment alarm or distress? In Potter the defendant was a street prostitute and heroin addict in a neighbourhood where many other street prostitutes worked. There was no question that street prostitution generally had caused harassment, alarm or distress in the neighbourhood, but on appeal Potter claimed that the applicant had brought no evidence that she had done any of the activities known to have caused it (having sex in doorways, leaving needles and used condoms lying around, staring into passing cars and so on). Lord Justice Auld stated that ‘the cumulative effect of prostitutes operating in residential areas would, as a matter of common sense, have caused or have been likely to cause harassment, alarm or distress to at least some of the broad range of residents and visitors to those areas’, by which he must mean to the most sensitive residents and visitors.33 In a subsequent case, the court ruled that in order to prove that conduct was likely to cause harassment, alarm or distress, the prosecution had to prove that there was in fact someone present who would more likely than not have been caused harassment, alarm or distress.34 Putting that ruling together with Lord Justice Auld’s dictum suggests that the standard of sensitivity is whether the conduct would more likely than not have caused harassment, alarm or distress to the most sensitive person proved to be actually present. This absence of any control on the sensitivity of the person likely to have been caused harassment, alarm or distress seems to be consistent with the subjective definition of ‘harassment, alarm or distress’. An objective test of what is ‘likely to cause’ it (such as whether or not harassment, alarm or distress would more probably than not be caused to the person of reasonable fortitude), would conflict with the essential context-dependency of the concept of ‘harassment, alarm or distress’.

31 See Ashworth et al, ‘Neighbouring on the Oppressive: The Government’s “Anti-Social Behaviour Order” Proposals’ (1998) 16(1) Criminal Justice 7, 13. 32 Chief Constable of Lancashire v Potter [2003] EWHC 2272 (QB) para [32]. 33 Ibid, paras [44] and [46]. 34 R (Gosport Borough Council) v Fareham Magistrates Court [2006] All ER (D) 267 (November) (QB). Although it is not entirely clear that this reading is consistent with Potter or implied by the words of s 1(1)(a), see A Pema and S Heels, Anti-Social Behaviour Orders (Jordans, 2010) para [3.35].

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23

Summary: anti-social behaviour under section 1(1)(a) While noting the fuzzy edges of harassment, alarm or distress where serious damage to quality of life borders on causing insecurity, we can be certain that the anti-social behaviour described by section 1(1)(a) includes: (1) conduct that has actually caused others to fear for their safety in any way; (2) conduct that would, more probably than not, cause the most sensitive person actually present in the particular context to fear for their safety. However, neither the fears nor the anxieties of others nor the official evaluation of their likely feelings provide a complete account of the conduct that will render a person liable to an ASBO. A finding that the defendant has met the criteria of section 1(1)(a) will not have legal consequences unless section 1(1)(b) is also satisfied.

1.2 Section 1(1)(b): what makes an order necessary? Section (1)(b) makes clear that the purpose of the proceedings is preventive.35 The court must be satisfied that granting an ASBO is ‘necessary to protect . . . persons from further anti-social acts by him’, that is by the defendant. It is important to clarify at the outset what ‘necessary to protect’ means in this legal context. That the order must be necessary denotes that the order must be proportionate. It will be disproportionate where other means at the court’s disposal would achieve the protection without an order.36 But necessary does not mean that the court believes the order will necessarily be effective in protecting others from further anti-social acts. If it did mean that, defendants would be able to dispute the legal basis for the imposition of the order by asserting an intention to defy it. Rather, necessary to protect must mean that if obeyed the order would have the effect of protecting others. An order may, therefore, be necessary even if there are significant doubts about its likely effectiveness.37 As the House of Lords observed in McCann: ‘The inquiry under section 1(1)(b) . . . does not involve a standard of proof: it is an exercise of judgment or evaluation.’38 It is the defendant’s likely future behaviour that is the object of the evaluation. However informally it may be carried out in practice, this evaluation is a risk assessment. The court must be satisfied that the risk that the defendant will commit further anti-social acts is sufficient to render the order ‘necessary’.

35

See R (McCann) [2003] 1 AC 787, Lord Steyn at 808, Lord Hope at 824. A common issue in CrASBO decisions, where an ASBO application is made against a convicted offender who is also being sentenced. The courts have also frequently faced the problem of the proportionality of particular terms included in ASBOs to the preventive aim: see R v Boness [2005] All ER (D) 153. 37 This is the meaning clearly intended by Lord Steyn: R (McCann) [2003] 1 AC 787, para [23]. 38 R (McCann) [2003] 1 AC 787, 812. 36

24

The Insecurity State

The words of the subsection imply that this risk assessment must be of the ‘clinical’ type as opposed to the ‘actuarial’ type, since they require that the order be necessary to prevent further anti-social acts by the defendant, rather than by a person with the defendant’s characteristics.39 In practice any clinical assessment of the defendant by the court will be heavily influenced by what could be called a common-sense reading of many objective factors about the defendant’s situation, such as her family circumstances, her history of offending, her employment and educational record and so on. But it will not be adequate for the court to make a purely actuarial assessment based only on such an objective reading of the situation and the statistical probabilities one could derive from that.40 The chief factor in this assessment will be the persistence of the conduct proved under section 1(1)(a). As we noted above, for Lord Steyn in McCann persistence was a distinguishing factor of the conduct to be targeted by section 1.41 And, unlike the qualification that ‘harassment, alarm or distress’ caused must be ‘serious’, a plain reading of the statute seems to require that the conduct be persistent. The reason is that it will be hard to prove that an order will be ‘necessary’ to prevent future instances where there is no evidence of persistent anti-social behaviour of the type proved under section 1(1)(a). Without persistence there will usually be no evidence that the defendant has a settled disposition to continue and, therefore, no evidence that the order is necessary to prevent future instances. However what this reasoning makes clear is that it is not the persistence as such that is substantively significant. Rather persistence supplies evidence of a disposition to engage in the conduct and that provides the surest connection between past conduct and its likely future continuance. Without the disposition to continue, it is hard to imagine why the order will be necessary. While many aspects of a defendant’s situation might make a contribution to the existence of such a disposition, it is the defendant’s subjective attitude to her situation, to the others who suffer the harassment, alarm or distress she causes (or is likely to be causing), and to her conduct that will be critical. Since it is the likely future behaviour of the particular defendant that must be evaluated by the court, then all the objective risk factors will be mediated by that defendant’s attitude to those factors and especially to her previous conduct. It is the defendant’s disposition that mediates between the past conduct that has been proved and the future 39 See B Hudson, Justice in the Risk Society: Challenging and Reaffirming Justice in Late Modernity (Sage, 2003) 48–9. 40 Although the distinction between actuarial and clinical risk assessment is questionable in so far as all that is known about a defendant is the characteristics that they share with wider groups in the population (see D Mossman and T Sellke, ‘Avoiding Errors About “Margins of Error” ’ (2007) 191 British Journal of Psychiatry 561). Moreover, it is now argued that this distinction merely defines two ends of a spectrum of assessment of techniques (see JL Skeem and J Monhan, ‘Current Directions in Violence Risk Assessment’ (2011) 20(1) Current Directions in Psychological Science 38). For a general discussion of the problems of risk assessment see L Zedner, ‘Erring on the Side of Safety: Risk Assessment, Expert Knowledge, and the Criminal Court’ in G. R Sullivan and I Dennis (eds), Seeking Security (Hart, forthcoming). 41 R (McCann) [2003] 1 AC 787, 808. Lord Steyn does not himself offer any further explanation for this dictum.

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25

conduct that it is necessary to prevent. Attitude and disposition are at the heart of section 1(1)(b). The role of attitude can be clarified by considering how a defendant might convince the court that the order was not necessary, notwithstanding persistent anti-social behaviour in the past. A defendant could conceivably show that even a period of persistent conduct proved for the purposes of section 1(1)(a) was exceptional when viewed in the light of more characteristic behaviour, and that, whatever the other risk factors attributed to her, the conduct was therefore ‘out of character’,42 or, at least, that in light of her good character there was no necessity for the ASBO.43 Alternatively a defendant might offer sincere expressions of regret and convincing evidence of an intention to act differently in future by, say, giving voluntary undertakings to make reparations to people she has caused harassment, alarm or distress to or to seek treatment for drug addiction or behavioural problems. Thus the defendant who can offer convincing evidence of otherwise ‘good character’ or of a change of attitude will find it at least possible to contest a claim that they represent a sufficient risk in the future.44 In practice an order might not be sought in such circumstances, but that is because it would be hard for an applicant to get one precisely because of the operation of section 1(1)(b). The dispositional and attitudinal component is essential to a complete picture of the liability section 1(1) imposes. Where the defendant’s conduct proved for the purposes of section 1(1)(a) is connected with an attitude of practical indifference or contempt towards the feelings of others, an ASBO is likely to be regarded as necessary.45 Where the defendant’s conduct is not a consequence of such an indifferent or contemptuous disposition, then there will have to be exceptional reasons for the court to believe that the risk of further anti-social acts by the defendant is high enough to render an order necessary to prevent them. A minimal definition of the behaviour that renders the defendant liable to being made subject to an ASBO is behaviour that manifests a continuing attitude or disposition of indifference or contempt, at minimum a lack of respect, for others’ feelings of security. The disposition of offenders is thought by some theorists to explain the fundamental structure of criminal law doctrine, the analysis of criminal liability in terms 42 Such an argument could be strengthened if the defendant could argue absence of fault in the orthodox criminal law sense of intention or recklessness. For the relation of criminal law concepts of fault to the ‘dispositional’ concept implied here, see N Lacey, State Punishment (Routledge, 1988) 191. 43 In R v Jones and Others [2006] EWCA Crim 2942 the Court of Appeal noted that the sentencing judge had not set out any basis for finding that the ASBOs against the protesters were necessary and, declaring that there was no basis for its necessity, the court took into account the previous good character and exemplary records of voluntary service of the defendants. See also R v Dolan and Whittaker [2007] EWCA Crim 2791. 44 See P Tain, ‘Anti-Social Behaviour Orders’ (2001) 145(2) Solicitors Journal 36. 45 Note that an indifferent disposition may be the result of mental disorder. Only where the mental disorder is such that the defendant is regarded by magistrates as ‘truly incapable of complying with the conditions of any ASBO that they were minded to make’ could that ASBO be regarded as not necessary (R (Cooke) v DPP [2008] All ER (D) 202 (October), para [10]).

26

The Insecurity State

of conduct elements, fault elements and defences. For character theorists, as for most theorists of criminal law, the criminal law is only justified in punishing agents who are responsible for their actions, and ‘an agent is not responsible for his action if that action is not reflective of him as an agent’.46 For character theorists, the relationship of conduct and fault elements in the definitions of criminal offences to the various criminal defences permits the criminal courts to determine whether a defendant’s actions did indeed reflect on him as an agent. The ASBO, as a coercive response to wrongful conduct that reflects the disposition of the person against whom the response is made, might therefore look like a simple penal measure. However, the role played by disposition in section 1(1) is rather different to the role that it might arguably play in criminal law. The imposition of an ASBO is not lawful unless the requirement of section 1(1)(b) is satisfied and the ASBO is held to be necessary to prevent future anti-social behaviour by the defendant. Here, the agent’s disposition is critical to an assessment of that agent’s future conduct. The character theory of the criminal law, on the other hand, is concerned with the agent’s past actions and in particular to explaining why that agent can be held responsible for past wrongs and punished for them. This distinction marks both a conceptual difference between conventional criminal wrongs and the wrong of antisocial behaviour, and a functional difference in the court’s process in the face of the wrong. Let’s look at each of these differences in turn.

1.3 The failure to reassure Combining the analysis of sections 1(1)(a) and 1(1)(b) tells us that the behaviour that attracts liability to an ASBO may be annoying, offensive, shocking, intimidating, threatening or outright criminal. But it must occur in a context that causes, or more probably than not would cause, another person to fear for their safety in some way (including by serious damage to their quality of life). And, in so doing, the behaviour must manifest a disposition of indifference or hostility to others’ feelings of security. The criteria of this liability describe a wrong, and they share much in common with Peter Birks’s account of the tort of harassment. Birks claims that the common law recognizes a cause of action based on the wrong of harassment and that this serves to protect ‘the right to one’s fair share of respect’ from the ‘hubris’, the insolent presumption of the tortfeasor.47 For Birks the particular wrong manifested in this tort involves a belittlement of the victim which: . . . has two aspects, immediate and prospective, in that it infringes the protected interest and threatens the victim’s future entitlement. That belittlement is both an immediate wrong 46 V Tadros, Criminal Responsibility (Oxford University Press, 2005) 9. See also N Lacey, State Punishment (Routledge 1988); RA Duff, ‘Choice, Character and Criminal Liability’ (1993) 12 Law and Philosophy 345. 47 P Birks, Harassment and Hubris: The Right to an Equality of Respect (University College Dublin, 1996) 13.

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and, in that a person belittled is thereby in danger of being perceived as a person of less consequence, an exposure to future wrongs. Self-esteem and public esteem . . . are simultaneously in issue.48

This gets to the heart of anti-social behaviour: what is wrong with the conduct potentially covered by section 1(1) is that the disrespectful disposition manifested by the defendant’s conduct causes others to feel exposed to future wrongs. But Birks’s tort is narrower than anti-social behaviour since it requires an intentional harassment, which manifests contempt.49 Section 1(1) CDA, by contrast, has no requirement to prove that the defendant intended to cause any harassment. Rather it requires the applicant to convince the court that the defendant’s behaviour manifests a disposition to continue to disrespect others’ needs in this way, either through directly threatening contemptuous behaviour or through selfish indifference. In this way section 1, like Birks’s tort, might be said to enforce a right to respect; but it can be given a slightly more precise description. Although a wrong is defined here, this broader construction should alert us to how the wrong that establishes liability to an ASBO is not like conventional torts or criminal offences. Birks’s account already discloses a tension between two different aspects of the wrong of harassment. Causing someone to feel exposed to future wrongs is both wrongful and threatening, in the general sense of the word ‘threat’ as some impending bad. Harassing conduct is wrongful in the present because of its threatening character in respect of the future. In this respect the wrong targeted by section 1 CDA differs conceptually from the wrongs usually targeted by criminal law. Criminal liability generally depends on proof of discrete acts with discrete results.50 Where a criminal offence is not one of strict liability and requires more than proof of some act or omission, liability will depend on the relation of the specific unlawful act or result to the defendant’s responsibility for that act,51 and each of these moments in the defendant’s life is ‘abstracted . . . from its social situation’.52 The substantive criminal law seeks to avoid any concern with the wider moral context of the relation of a defendant to her victim when it determines liability for punishment.53 That wider relationship might have evidential value but liability is not supposed to turn on it.54 48

49 Ibid. Ibid, 17. Though not always: see especially the discussion of possession offences and vagrancy in Chapter 8. 51 A responsibility that might be theorized as deriving from the defendant’s choices, capacity or character; for a discussion see V Tadros, Criminal Responsibility ch 2. 52 C Wells and O Quick, Lacey, Wells and Quick: Reconstructing Criminal Law (Cambridge University Press, 2010) 95. 53 See A Norrie, ‘Simulacra of Morality: Beyond the Ideal Actual Antinomies of Criminal Justice’ in RA Duff (ed), Philosophy and the Criminal Law (Cambridge University Press, 1998) 120; and, generally, RA Duff, Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law (Basil Blackwell, 1990) and A Norrie, Punishment, Responsibility and Justice: A Relational Critique (Oxford University Press, 2000). 54 Although it often does in practice, the formal suppression of moral context failing to prevent its ‘return’ in elastic definitions, rules of evidence, or flexible defence requirements; see generally A Norrie, Crime, Reason and History (Butterworths, 2001); A Norrie, Punishment, Responsibility and Justice, ibid. 50

28

The Insecurity State

By contrast, the criterion for granting an ASBO is whether the defendant’s conduct manifests a disposition to continue threatening others’ security into the future. It is the future relationship between the defendant and other people that renders the defendant liable. Section 1(1) does not prohibit interference with objectively defined interests of other individual subjects or of the state, as is the case with most of the criminal law. Indeed, for Lord Steyn, ‘the critical point [is] that section 1(1) itself does not prohibit any act’.55 Rather, it seeks to regulate the attitudes and perceptions that constitute the continuing relationships between individual subjects. Another way of putting this is that the ASBO seeks to protect the quality or integrity of the ‘intersubjective field’ in which the identities and interests of individual subjects are constituted in the first place.56 Once the intrinsically intersubjective aspect of the interest that is interfered with by the wrong in section 1(1) is grasped, a second key feature of anti-social behaviour can also be seen. Not only does section 1(1) not prohibit any act, but it is misleading to think of the subsection merely as prohibitive. In its combination of context-dependency, liability without proof of feelings caused and dispositional assessment of necessity, section 1 imposes a subtle positive obligation. To undertake any sort of action beyond the most minimal—which is to say any sort of action through which one’s attitudes might be communicated to others—and not through that action manifest indifference to the feelings of others, a person must, to some minimal degree, be interested in, or aware of, the feelings and sensibilities of others. Of course, in many cases ASBO defendants will have a very good idea that what they are doing causes insecurity to others, but there is no requirement to prove that they know this. The obligation imposed on individuals by section 1(1) is, in effect, to be aware of the potential effect of their actions on the feelings of others before they act.57 The prohibitive element follows from this positive obligation: do not manifest an attitude of indifference or contempt to others’ feelings of (in)security. This is how the ASBO’s supporters understand its effect. In parliament, Attorney-General Lord Williams observed that the ASBO ‘requires the subject of it to do no more—I paraphrase bluntly—than to behave in a decent way to the fellow citizens of our country’.58 He means that citizens are under an obligation to maintain a minimum degree of civility. We might say that they are required not to fail to reassure each other as to their future security. Liability to an ASBO arises when a person manifests a disposition that fails to reassure others about their future security.

55

R (McCann) [2003] 1 AC 787, 808 (emphasis original). I will return to the idea of the intersubjective field in Chapter 5. For an account of crime as a breach or defect in this field see RA Duff, ‘Penal Communications’, in M Tonry (ed), Crime and Justice: An Annual Review of Research (Chicago University Press, 1996) 48. 57 The intrinsic connection between the character conception of liability and a moral demand on subjects to care about each other’s interests is observed by RA Duff, ‘Choice, Character and Criminal Liability’ (1993) 12 Law and Philosophy 380–3. 58 HL Report, 3 February 1998 col 514. See also H Blears, The Politics of Decency (Mutuo, 2004) 23. 56

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So the wrong described by section 1 CDA is the wrong of manifesting a threatening disposition. But section 1 CDA redoubles the future orientation of harassment law because liability to an ASBO is not just a question of a wrong already done, but of preventive necessity. If anti-social behaviour is wrong because it is threatening, it only creates liability to an ASBO in so far as there is a threat that the threat will continue in the future. As well as defining a different sort of wrong from those traditionally targeted by criminal law, there is a functional distinction between criminal offences and ASBO proceedings.

1.4 Risk assessment The conceptual difference between anti-social behaviour and most criminal wrongs underpins the significant functional distinction between the criminal law’s role in censuring and punishing past wrongs and the purpose of section 1(1) to prevent certain conduct in the future.59 The effect of section 1(1)(b) is to require a risk assessment before an ASBO can be imposed. Contrast this with the offences of intending to cause harassment, alarm or distress or conduct likely to cause harassment, alarm or distress in the Public Order Act 1986, sections 4A and 5 respectively. Both offences punish behaviour with the same effect on people’s feelings of security as that comprised by section 1(1) CDA 1998.60 But these offences treat that conduct as a past wrong to be punished irrespective of the prospects of future repetition. Section 1(1) CDA requires that the wrongful behaviour be identified solely for the purposes of assessing the necessity of preventive action. This is a functional distinction that marks out the court’s discretionary evaluative process as one that is different from that of a criminal court determining guilt or innocence of a criminal offence. While this distinction is most marked in the risk assessment made in order to satisfy the necessity requirement in section 1(1)(b), it is also worth pausing to notice another element of risk assessment in cases where section 1(1)(a) permits an authority to prove only that the defendant’s conduct was likely to cause harassment, alarm or distress. The effect of this clause is that in some cases the imposition of an ASBO may result from nothing but risk assessment. According to the House of Lords in McCann, notwithstanding that ASBO proceedings are civil proceedings, the conduct alleged for the purposes of section

59 The House of Lords’ judgment in McCann that s 1(1) is a civil procedure rests heavily on this distinction. For a critical response see S Macdonald, ‘The Nature of the ASBO—R (McCann & Others) v Crown Court at Manchester’ (2003) 66 Modern Law Review 630. See further discussion in this chapter below. For a discussion of the blurred functional distinctions between criminal and civil law in general see A Ashworth, ‘Is the Criminal Law a Lost Cause?’ (2000) Law Quarterly Review 225, 232–7. 60 Indeed their scope is wider since there is no requirement in the POA 1986 offences that the phrase harassment, alarm or distress be limited to feelings of fear for safety (see Chambers and Edwards v DPP [1995] Crim LR 896).

The Insecurity State

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1(1)(a) must be proved by the applicant to a standard that is for all practical purposes the beyond reasonable doubt standard of the criminal law.61 That is straightforward in relation to whether or not conduct in fact caused harassment, alarm or distress. But in Chief Constable of Lancashire v Potter Lord Justice Auld had to grapple with the problem of proving that conduct was ‘likely to cause harassment alarm or distress’. We have already noted his ruling that ‘likely’ means ‘more probable than not’.62 But Lord Justice Auld nonetheless confessed that the application of a standard of proof to the likelihood element presented a task ‘difficult of analysis’.63 He decided that the criminal standard should apply to proving this element of section 1(1)(a) but after a tortuous analysis of the problem,64 he admitted that when a court considers the ‘likely to cause’ element of section 1(1)(a), it is ‘conducting what is necessarily an evaluative exercise on this issue as well as that under section 1(1)(b)’.65 These words recall those of Lord Steyn in McCann in respect of section 1(1)(b) to which no standard of proof applies. The fact ‘proved’ by the risk assessment is itself a degree of uncertainty, an actuarial fact, and in so far as this evaluation can be said to involve proof, ‘it might . . . be characterised as proof of a speculative outcome’.66 The word ‘evaluation’, like Lord Steyn’s ‘judgment’, also connotes the practical reality that, in undertaking the speculative risk assessment, the imprecise methods of common sense and general knowledge, rather than statistical methods, will be deployed by magistrates and judges. The effect of the words ‘likely to cause’ in section 1(1)(a) is that where the applicant authority lacks sufficient evidence that the defendant has in fact caused harassment, alarm or distress, the court may conduct a context-sensitive evaluation of the risk that the most sensitive person actually present would have been caused to fear for their safety as a substitute for evidence of feelings actually caused in others. If an ABSO is imposed on the basis of such an evaluation combined with an evaluation of the necessity of the order then the entire determination consists of an evaluation of the hypothetical likely effect of the defendant’s conduct, past and future. In such a case, Potter is an example, the magistrate or judge must accept or reject the applicant’s hypothetical reasoning regarding the relation of the defendant to her particular context, and the defendant’s arguments will be heard. While some proof of the existence of some behaviour or of some harassment, alarm or distress caused by someone is necessary, the key elements of the court’s findings are matters either not susceptible to proof or proved only as an ‘actuarial fact’ or probability. In practice the court’s determination will be a process of ‘commonsense’ evaluation by magistrates of the attitude manifested by the defendant’s behaviour. The combination of context-dependency and the hypothetical evaluation of the defendant and her conduct in section 1(1) means that the only fact that needs to be 61 62 63 64 65 66

R (McCann) [2003] 1 AC 787. Chief Constable of Lancashire v Potter [2003] EWHC 2272 (QB) para [32]. Ibid, para [31]. For more detail see P Ramsay, ‘What is Anti-Social Behaviour?’ [2004] Crim LR 908. Chief Constable of Lancashire v Potter [2003] EWHC 2272 (QB), para [33]. Ibid, para [28]. Note that s1(4) CDA requires ‘proof’ of the matters in s 1(1)(a).

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proved is some conduct that may be otherwise lawful. Liability to an order may, therefore, arise out of an official evaluation of conduct that is not in itself unlawful. This is the first component of the ‘vast discretion’ to criminalize granted to decision-makers.67 The prosecution cannot prove, nor the defendant disprove, that the defendant has in fact violated a rule of law,68 and neither is asked to. The contrast with the substantive criminal law is marked. The terms of section 1(1) appear to supply the criteria for an essentially discretionary decision as to whether or not a particular defendant’s behaviour manifests the anti-social attitude. This ‘privileging of public sensibility’69 grounds liability in an official conception of the appropriate character of relationships between people, one that does not need to have regard to any actual effects of conduct. An ASBO may be granted when the court believes that the defendant’s disposition is such that she will do wrong to the quality of those relationships in the future.

1.5 Policy-determined wrong A further layer of policy-led discretion in the execution of this context-sensitive threat assessment is provided for by section 1(5) CDA, which provides that any conduct that the defendant can show was reasonable may be disregarded by the court for the purposes of section 1(1)(a). We have seen that there is no limitation on the sensitivity of the victim of anti-social behaviour and therefore it is only necessary to prove that someone present would more likely than not be caused to fear for his or her safety in the very broad sense encompassed by the subsection. But section 1(5) provides for an objective limitation on the harassment, alarm or distress that may attract liability. It establishes that any amount of harassment, alarm or distress can in fact be caused or risked without incurring liability providing that the conduct that does the causing or risking can be shown by the defendant to be ‘reasonable’ notwithstanding the harassment, alarm or distress caused. The circumstances in which people will be caused to fear for their safety will be many and varied. For example, an air crash at a busy airport could cause a person who lives under its flight path to fear for their safety. Or a politician might fear for her safety when pursued by journalists seeking to expose her corrupt practices. Indeed ‘harassment, alarm or distress’ seem peculiarly apt terms to describe these fears. But these circumstances do not appear to have been on parliament’s mind when enacting the ASBO. Insecurity caused in this way is presumably not wrong because the conduct that caused it is reasonable. In Birks’s terms, if people are caused to fear for their safety by conduct that is reasonable then they are not exposed to future wrongs.

Ashworth et al, ‘Neighbouring on the Oppressive’. Or indeed a set of criteria that even purports to be a rule—see discussion at n 81 below. 69 H Jones and T Sagar, ‘CDA 1998 and the Anti-Social Behaviour Order’, [2001] Criminal Law Review 873, 885. 67 68

32

The Insecurity State

The question of what is reasonable (and therefore not wrongful) can only turn on a strictly political assessment of the motives for the fear-causing actions. ‘What is “reasonable” places the central issues in a case into the realm of value rather than fact.’70 And the proper evaluative criteria available to the courts and relevant authorities are those provided by the aims of public policy. In other words, what constitutes behaviour that is unreasonable is a matter left to executive instruments such as Home Office guidance documents.71 A ‘low visibility’ executive discretion is an essential component of section 1(1),72 and this is why section 1(5) almost never arises in practice—the relevant assessment of reasonableness is implicitly undertaken by the relevant authority long before any court action occurs. Section 1(5) thus complements the concern with manifest disposition and attitude found in section 1(1)(b). The decision to seek an ASBO where the conditions of section 1(1) are met is premised on an evaluation of the defendant’s reasons for acting, her motives. If they are thought to be contrary to public policy then the application will go ahead; if they are not contrary to public policy, then an application is unlikely, since such a possibility will not occur to the relevant authority without external pressure. The myriad occasions in which the conditions of section 1(1) are satisfied but no decision to seek an ASBO is taken or even considered depend on the tacit (even unconscious) evaluation of the non-defendant’s reasons for acting. Here again, the contrast with modern criminal law doctrine is particularly striking. The criminal courts claim that the defendant’s motive and attitude are irrelevant to liability despite the considerable doctrinal difficulties in the law of intention and recklessness that this has created.73 In stark contrast, section 1 CDA places the defendant’s motives and attitudes at the heart of liability, albeit that much of their significance is submerged in the ‘low visibility’ of the applicant authority’s discretion. This discretion is not merely in respect of whether or not to seek an order, although the relevant authority undoubtedly enjoys a wide discretion in this respect.74 The interpretive discretion in section 1 is closer to that exercised by public authorities in respect of the enforcement of regulatory schemes that invoke general standards such as ‘practicable means’ or indeed ‘reasonableness’, but significantly wider. The relatively narrow ambit of most regulatory schemes tends to take for granted the aims of the behaviour they are regulating.75 The interpretation of the general standard does not concern the reasons for the defendant’s action, 70

K Hawkins, Law as Last Resort (Oxford University Press, 2002) 398. S Collins, ‘Anti-Social Behaviour Powers: Historical Realism and Quick Fixes’ (2003) 6(4) Journal of Local Government Law 87. 72 See S Cracknell, ‘ASBOs’ (2000) 22(1) Journal of Social Welfare and Family Law 108, 113. 73 See A Norrie, Crime, Reason and History (Butterworths, 2001) chs 3 and 4. In practice, as Norrie argues, motive and attitude cannot be entirely excluded by the criminal law, but s 1 CDA formally incorporates them into the substantive criteria of liability. 74 The policy considerations that determine its exercise by a local authority in relation to anti-social behaviour generally are discussed by S Bright and C Bakalis, ‘Anti-Social Behaviour: Local Authority Responsibility and the Voice of the Victim’ [2003] 62(2) Cambridge Law Journal 305. 75 See, for example, the discussion of Health and Safety at Work Act 1974, s 2(1) in Hawkins, Law as Last Resort, 396–403. 71

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the defendant’s ends, but whether the defendant pursued those ends by reasonable means. But section 1 CDA does not apply to a particular defined sphere of activity and therefore the evaluation in section 1(5) does not apply only to the means pursued. Both ends and means are subject to the reasonableness evaluation. Every application for an ASBO is premised upon a decision that the defendant’s behaviour is in some way unreasonable in contrast to much other behaviour that would also meet the criteria of section 1(1). The authority’s discretion is with respect to what constitutes anti-social behaviour and what should therefore be subject to the effects of section 1(1). Section 1(5) makes a further contribution to the ‘vast discretion’ that section 1 gives to authorities to ‘privilege public sensibility’. Some causing of insecurity, even if it manifests a disposition not to reassure others, will not be regarded as a threat to the moral quality of future relations between people because public policy recognizes that it is motivated by good reasons. Only where the reasons for the defendant’s conduct are not valued by public policy will the conduct be regarded as sufficiently disrespectful as to invite regulation in the form of an ASBO. A theoretically complete account of the behaviour controlled by an ASBO is, therefore, that anti-social behaviour is conduct that manifests a settled attitude of hostility or indifference to others’ feelings of security, and is not consistent with the aims of public security policy, so that it constitutes a threat to the integrity of intersubjective relations.

1.6 Section 1(1) as administrative law While it is true that manifesting a disposition that fails to reassure others about their security can be understood as a wrong, the account given here of the substantive grounds of liability to an ASBO shows that in every respect they provide the criteria for an executive decision to pursue the aims of public security policy that is governed by the principles of administrative law. Liability only arises when disrespectful conduct provides the occasion for an executive intervention against an individual in pursuit of the aims of public security policy.76 Moreover each aspect of the positive grounds for granting an ASBO—the subjective definition of harassment, alarm or distress; the evaluation of hypothetical effects of conduct; and the necessity requirement—emphasizes both the sense in which the conduct is being assessed as a threat to security and that section 1(1) requires the court to make a threat assessment. The necessity requirement is particularly decisive on this point. It does not matter how wrongful the past conduct of a defendant has been, if there is no sound basis upon which a court can conclude that this conduct will continue in the future, the grant of an order would be unlawful.

76

We will consider the substance of this policy in greater detail in Chapter 4.

34

The Insecurity State

In making this threat assessment, the applicant authority and magistrate between them exercise considerable discretion with respect to the meaning of ‘reasonable’, the interpretation of the defendant’s attitude and the context-specific assessment of the effects or the likely effects of conduct. This amounts to a discretion to set the standard according to which the power to impose an ASBO will be exercised. Where no proof of causation of damage to feelings is provided but only of lawful behaviour, liability will turn on this ‘vast discretion’ alone. On the other hand, this discretion is constrained by the possibility of proving some relevant facts and of rational argument over the interpretations and evaluations of motive, character and context, to determine whether or not an ASBO is necessary in pursuit of security policy.77 Criminal trials are a paradigmatic form of adjudication.78 In the lower courts at least, the key issues of liability turn on proofs of evidence and arguments from relatively precise rules articulating generally formulated duties. By contrast, in the absence of a universal duty defined independently of public policy considerations, the magistrate hearing an ASBO application could find herself determining liability to an order by interpreting broad standards in a way that enjoys a limited but significant freedom from precise rules. This style of decision-making has been described as ‘modified adjudication’ of the sort found in sentencing decisions and the work of administrative law tribunals.79 The more discretion there is for the decision-maker, the more the hearing engages the parties to it in a ‘mode of participation’ that has the characteristics of an administrative consultation.80 Now this distinction between criminal adjudication and administrative consultation could be disputed. Criminal offences can only be described as precise general rules in so far as they exclude broad evaluative standards and are comprised only of objectively and clearly defined specific conduct, and factual (cognitive) fault elements such as intention and subjective recklessness. But in reality throughout this factual fault-finding criminal law there are elements—such as contextdependency, vagueness of definition, broad standards of conduct, objective and attitudinal tests of fault, objective elements of defences, absolute liability, and a multiplicity of overlapping doctrinal sources—that disrupt the law’s generality and predictability, allowing to prosecutors, judges and juries an effective discretion to take account of the particular moral context of the conduct concerned in any particular case to the detriment of the purported rule of general laws.81 But the qualitative 77

Although applications for ASBOs are rarely rejected (see R Matthews, H Easton, D Briggs and K Pease, Assessing the Use and Impact of Anti-Social Behaviour Orders (Policy Press, 2007) 7). For an example of the exercise of this judicial discretion see ‘MoD Refused ASBO “to Beat Down” Peace Protester’ Daily Telegraph, 18 May 2005. 78 D Galligan, Discretionary Powers (Clarendon, 1986) 114. 79 Ibid, 114–17. 80 Ibid, 340–1. 81 For the view that the criminal law cannot be described as a system of predictable general rules at all, see M Kelman, ‘Interpretive Construction in the Substantive Criminal Law’ (1981) 33 Stanford Law Review 591. For the view that tension between formal equality and substantive elements that disrupt it is a fundamental characteristic of the criminal law, such that moral context can never be permanently excluded from judgment, see Norrie, Crime, Reason and History.

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difference between substantive criminal law and section 1(1) CDA is that the latter is comprised only of these ‘disruptive’ elements: it is all moral context and no rule. Even if we assume that the criminal law cannot be considered a system of rules,82 and, moreover, we further assume that the ‘principles’ that are sometimes said to rationalize the criminal law in the absence of rules are so moveable a feast that they are in reality no more than a fiction to cover the raw power to decide that is enjoyed by a judge, there would still be a difference between this penal law and section 1 CDA. For the latter announces the absence of a general rule, the policy-led discretion, on its face. There is no need to spend many hours studying the judgments of the appeal courts in order to uncover this buried truth. It is right there on the surface of the statutory power. The substantive law of section 1(1) exhibits the character of a consultation on the exercise of a discretionary public law power, an administrative process of risk assessment, albeit one in which the judicial branch is given the final say. The effect of this judicial decision is the redistribution of penal obligations (in the form of the ASBO itself) and this redistribution is apparently justified on the basis that the defendant has done something wrong by manifesting the unreassuring disposition. In ASBO proceedings the judicial function of the adjudication of wrongs is, therefore, subsumed in the administrative function of risk assessment.83 This substantive hybridity is reflected in the reasons officially offered for designating ASBOs as civil orders, to which we now turn.

1.7 Preventive not penal proceedings It is this aspect of administrative risk assessment that is central to the House of Lords’ decision in the leading case of McCann. The appellants in that case argued that the application for an ASBO ought to be considered a criminal proceeding. Article 6(3) of the European Convention on Human Rights lays down specific protections for people charged with criminal offences including that they have a right to have witnesses against them examined. Among other differences, the criminal procedure has rather more restriction on the use of hearsay evidence than does the civil procedure.84 In the case of Engel v Netherlands, the European Court of Human Rights has laid down three criteria to be considered when determining whether or not a proceeding involves a criminal charge and is thereby subject to the restrictions in Article 6(3). These are: 82

See A Ashworth, Principles of Criminal Law (Oxford University Press, 2006) 56. For a theoretical account of the boundary of adjudication and consultation in public law see L Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353 and M Eisenberg, ‘Participation, Responsiveness and the Consultative Process’ (1978) 92 Harvard Law Review 410. The review by courts of the proportionality of any legitimate interference with European Convention rights necessarily puts this boundary into question. David Feldman argues for the advantages enjoyed by courts in the making of risk assessments in terrorism cases, see D Feldman, ‘Human Rights, Terrorism and Risk: The Roles of Politicians and Judges’ [2006] Public Law 364, 377. 84 Although the difference has narrowed in recent years: see discussion in Chapter 3. 83

The Insecurity State

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(1) the classification of the proceedings under national law; (2) the nature of the offence; and (3) the nature and degree of severity of the penalty.85 These do not all have to be satisfied for there to be a determination that the charge is criminal, and it is recognized that it is the third criterion that is the most significant. The House of Lords unanimously concluded that ASBO application proceedings could not constitute a criminal charge because the ASBO is not a penalty. As Lord Hope put it, the restrictions in an ASBO are ‘imposed for preventive reasons, not as punishment . . . . The court is not being required, nor indeed is it permitted, to consider what an appropriate sanction would be for his past conduct.’86 For Lord Steyn, it follows from the preventive requirement that ‘the making of an anti-social behaviour order is not a conviction or condemnation that the person is guilty of an offence. It results in no penalty whatever.’87 The House of Lords does not deny that there may be something wrongful in the conduct that provides the grounds for an ASBO, and I shall consider its discussion of the mischief at which the ASBO is aimed in Chapter 4. Nor does the judgment deny that an ASBO may be penal in effect. Many civil orders or administrative decisions may have penal effects: Lord Steyn mentions Mareva injunctions and Anton Piller orders specifically.88 The point is rather that the ASBO, like those injunctions, cannot be imposed as a punishment, but only as a preventive response.89 This is the key point in the ruling that the ASBO is a civil order. The House of Lords’ identification of the preventive rationale (as opposed to any punitive rationale) in ASBO proceedings reinforces the view propounded here that it is misleading to regard the anti-social behaviour that creates liability to an ASBO as nothing more than the wrongful causing of the feelings of harassment, alarm or distress and the ASBO as simply a new way of punishing nuisance, offensiveness or the causing of fear. The ASBO is wholly concerned with the relation between past and future conduct, with ensuring that those who manifest a disposition to cause others harassment, alarm or distress are prevented from doing so. It is that disposition that renders an order necessary. It also puts the assessment of ‘exposure to future wrong’, which is the key to the experience of insecurity, at the core of the substantive grounds of the ASBO. For all that it is carried out by a member of the judicial branch, the making of these evaluations and the imposing of an ASBO are administrative tasks in pursuit of the aims of public security policy, and are governed by the civil procedure.

85

Engel v The Netherlands (No 1) (1976) 1 EHRR 647, 678–9. R (McCann) [2003] 1 AC 787, Lord Hope at 824 (emphasis added). 87 Ibid, Lord Steyn, 808. 88 Ibid, 809. 89 The government did not refrain from taking maximum advantage of this distinction between intention and effect. The general deterrent effects of ASBOs have been promoted by the Home Office; see, for example, Home Office, A Guide to Anti-social Behaviour Orders and Acceptable Behaviour Contracts (Home Office, 2002) 13. 86

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This does not entirely dispose of the arguments concerning the ASBO’s procedural designation as a civil order. I will return to another of the arguments of the McCann appellants in the next two chapters. For now it should be noted that the procedural hybridity of a civil order bearing criminal penalties for breach complements a substantive hybridity in which penal obligations are derived from an administrative assessment of the threat posed by certain wrongful behaviour.90

1.8 Conclusion The definition of anti-social behaviour has been widely criticized for its vagueness, but the grounds of liability to an ASBO can be coherently understood as conduct that manifests a disposition that fails to reassure others about their future security. The official identification of such conduct is necessarily a matter of evaluation. Although this conduct can be understood as wrongful, the evaluation required of courts by section 1(1) is oriented to prevention. An ASBO is legally imposed only as a measure to prevent the disposition not to reassure others from being manifested in future. At this stage of the process, the law configures the wrongful manifestation of the disposition not to reassure as a threat to be controlled administratively. Moreover, this interpretation of anti-social behaviour also offers the most coherent account of the second stage of the proceedings that occurs if someone made subject to an ASBO breaches any of its prohibitions. In sentencing defendants for breach of an ASBO the courts have grappled with the question of why it is wrong to breach one. The theory of anti-social behaviour offered in this chapter will help us to account for the courts’ answer to that question. At this second stage, the offence of breach of ASBO reconfigures the manifesting of the disposition not to reassure as a criminal wrong. To that we now turn. 90 Chara Bakalis has argued that the House of Lords failed to apply the Engel criteria correctly because it did not consider the second criterion (nature of the offence) separately from the third criterion (nature of the penalty): C Bakalis, ‘ASBOs. “Preventative Orders” and the European Court of Human Rights’ (2007) 4 European Human Rights Law Review 427. Rather, the House of Lords tended to read the nature of the offence from the absence of a penalty. As she points out the Strasbourg court regards these criteria as disjunctive. When viewed independently from the absence of a penalty, the causing of harassment, alarm or distress shares the features of many criminal offences (not least those against POA 1986, ss 4A and 5 and PHA 1996, s 2 that we will consider in Chapter 3). What these offences lack, however, is the additional requirement on the applicant to satisfy the court that the court’s response, in the form of an order, be necessary on preventive grounds. We have noted above that the ASBO is not imposed for behaviour likely to cause harassment, alarm or distress but for behaviour that manifests a disposition to continue doing so, and that is rather different from offences covered by the criminal law. There have been no challenges at Strasbourg on these grounds and as Bakalis notes the whole question is of less practical significance since the changes to criminal evidence rules in the Criminal Justice Act 2003: see discussion in Chapter 3.

2 Failure to Reassure as Public Wrong The prohibitions that may be imposed by an ASBO ‘are those necessary for the purpose of protecting persons . . . from further anti-social acts by the defendant’.1 In section 1(1)(a) an anti-social act is defined as one that ‘causes, or is likely to cause, harassment, alarm or distress’. An ASBO, therefore, consists of prohibitions ‘necessary’ for the purpose of protecting persons from acts of the defendant that cause or are likely to cause harassment, alarm or distress. For a person subject to an ASBO, doing any of the acts it prohibits is a criminal offence unless the accused can prove a reasonable excuse for the breach. It is an offence of strict liability and the maximum punishment is five years’ imprisonment.2 The explicit rationale of the offence is, therefore, public protection and what the public is to be protected from is the anti-social behaviour of the defendant. Breaches are committed when the defendant fails to abide by prohibitions that serve the protective rationale of the offence. There are two aspects then to the wrong involved in breaching the order: first, the content of the prohibitions either prohibits actual anti-social acts or conduct that creates a risk of anti-social acts; second, that the form of those prohibitions is individualized. This second aspect may seem too obvious to merit attention, but it is important to bear in mind that the rationale of the offence is preventing future anti-social acts by the particular defendant and only by that defendant. Unlike more familiar criminal offences, the offence of breach of ASBO does not threaten the entire population with punishment for wrongful conduct, only the person made subject to the order. This differentiation of the ASBO defendant from other citizens is crucial to understanding the offence. In this chapter I will consider these two aspects of the offence of breach, the preventive content of the prohibitions and their individualized form. In both these aspects, breach of ASBO presented some novel problems for the criminal courts. In grappling with these problems, the Court of Appeal had to work out what wrong is done when an ASBO is breached. Investigating its answer will show that it is the defendant’s dispositional failure to respect security interests that gives the most coherent account of the law. The chapter, therefore, proceeds with an analysis of the case law on breach of ASBO. I will first consider the content of ASBO prohibitions. This question is itself influenced by the individualization of the offence, but it also raises a problem of 1

CDA 1998, s 1(6).

2

CDA 1998, s 1(10).

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overlap between breach of ASBO and ordinary criminal offences. Often both could be charged on the same set of facts. I will consider how both the content of the prohibitions and the individualized form of the offence has affected the courts’ approach to sentencing breaches of ASBO that involve this overlap. On the basis of this analysis, the wrong that the law identifies when a breach of ASBO is committed will be outlined. I will conclude with a brief critique of alternative theories of the offence of breach of ASBO that are derived from normative critiques of the ASBO’s hybrid procedure.3

2.1 Three types of ASBO prohibition At first glance, it might seem that to satisfy section 1(6)’s preventive requirements all an ASBO needs to contain is a single generic prohibition of behaviour ‘likely to cause harassment, alarm or distress’. But, while such a prohibition may be included in an ASBO,4 it is far from exhaustive of the preventive possibilities provided for by section 1(6). Nor would it be sufficient to meet its requirements. The reason is that for a prohibition to be ‘necessary’, it must serve the aim of prevention and, as the Judicial Studies Board points out in its guidance on ASBOs, to serve this aim properly: each separate prohibition must be targeted at the individual and the specific form of antisocial behaviour it is intended to prevent. The order must be tailored to the defendant and not designed on a word processor for generic use.5

Moreover, to be necessary for prevention, each prohibition must be precise and capable of being understood by the defendant. The Judicial Studies Board adds that ‘the court should ask itself before making an order, “Are the terms of this order clear so that the defendant will know precisely what it is that he is prohibited from doing?”’.6 In general, therefore, ASBO terms need to be specific and precise prohibitions on conduct that is involved in the particular defendant’s past antisocial behaviour, the behaviour that the order is intended to prevent in future. This allows for a wide scope of possible prohibitions, which has in turn posed some interesting problems for the courts. Two are of particular interest for present purposes. The first arises because there is no requirement that a term in an ASBO prohibits conduct that in itself causes harassment, alarm or distress. If, for example, a particular defendant causes harassment, alarm or distress in a particular neighbourhood then prohibiting her from entering that neighbourhood may be necessary to prevent future anti-social behaviour. This prohibition may be necessary 3 S Macdonald, ‘The Principle of Composite Sentencing: Its Centrality to, and Implications for, the ASBO’ [2006] Criminal Law Review 791. 4 Subject to the strictures in CPS v T (Michael) [2006] EWHC 728 (Admin). 5 Judicial Studies Board, Anti-Social Behaviour Orders: A Guide for the Judiciary (Judicial Studies Board, 2007) 1. 6 Ibid.

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The Insecurity State

notwithstanding the fact that the defendant does not cause harassment, alarm or distress most of the time that she is present in the neighbourhood. Such movement restrictions are commonly included in ASBOs. Along with terms such as restrictions on associating with named individuals, curfews, drinking alcohol and so on, such prohibitions can for present purposes be called purely preventive prohibitions.7 The problem they pose is that if these prohibitions are violated, the defendant has committed an offence with a maximum penalty of five years’ imprisonment although in the particular circumstances she may have done something that, but for the order, would not be unlawful, and, since it need not even involve the causing of harassment, alarm or distress, might not even be wrongful or harmful in any way. What is the justification for punishing someone in these circumstances and what should their sentence be? But ASBO terms are not restricted to purely preventive prohibitions. If a defendant causes harassment, alarm or distress by, say, regularly spitting and kicking footballs at other people’s property then prohibiting him from spitting and from kicking footballs at others’ property might be necessary prohibitions.8 Moreover, this second category of ASBO terms, those that prohibit conduct that directly causes harassment, alarm or distress, can itself be broken down into two sub-categories: those that prohibit conduct that is not a criminal offence (like spitting or kicking footballs), and those that prohibit conduct that is already a criminal offence (like assault, criminal damage, public order offences, drugs offences and many others). Much criminal conduct will also cause harassment, alarm or distress. Prohibitions on already criminal conduct are particularly prominent because ASBOs are widely used as a response to conduct that would give rise to the possibility of criminal prosecution, at least in theory, or are imposed, under section 1C Crime and Disorder Act 1998, on a person who has been convicted of a criminal offence (a so-called CrASBO).9 For present purposes I will refer to these prohibitions as ‘criminal terms’, and they pose the second set of problems for the courts. The first problem posed by criminal ASBO terms is in what circumstances can it be ‘necessary’ to prohibit by means of an ASBO conduct that is already a criminal offence? Why is the ordinary criminal law not sufficient for the purpose? The courts experienced this overlap between the ASBO and the rest of the criminal law as a particular problem in sentencing decisions. Where a defendant’s conduct both breaches an ASBO and amounts to a criminal offence with a maximum sentence

7 Some of these prohibitions may be formulated so specifically as to be practically indistinguishable from mandatory terms. For example, to be prohibited from leaving home between certain times is to be required to remain there. See Lonergan v Lewes Crown Court [2005] 2 All ER 362. 8 Hills v Chief Constable of Essex [2006] EWHC 2633. 9 For a review of the precise procedures to be followed see R v W and F (2006) 2 Cr App R (S) 110. On the prevalence of CrASBOs, see R Matthews, H Easton, D Briggs and K Pease, Assessing the Use and Impact of Anti-Social Behaviour Orders (Policy Press, 2007) 18–20; E Burney, ‘No Spitting: Regulation of Offensive Behaviour in England and Wales’ in A von Hirsch and A Simester (eds), Incivilities (Hart, 2006) 214.

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that is less than five years, can the sentence be higher than the maximum for the ordinary offence? The problem then is to identify the courts’ explanation for the necessity of criminal terms, how higher sentences for breach of ASBO than for stand-alone criminal offences might be justified, and whether this justification of punishing breach of ASBO terms can be made to cohere with punishing purely preventive terms on occasions where no harassment, alarm and distress is caused.

2.2 The problem of criminal ASBO terms The Court of Appeal has ruled that criminal ASBO terms cannot be imposed merely to increase the sentence for the criminal offence. In Kirby, a CrASBO was imposed that only prohibited the defendant from conduct that amounted to the offences of taking vehicles without the owner’s consent and driving while disqualified. In explaining the reason for, and the effect of, the order, the sentencing judge had said to the appellant that the ASBO: ‘actually increases the penalty that the courts can impose on you for those offences, which are now, maximum 6 months. It increases the penalty to five years.’10 The Court of Appeal quashed the ASBO on the grounds that the judge’s words made plain that the order had been imposed simply to increase the available sentence and not to prevent further anti-social behaviour by the defendant. In Morrison the Court of Appeal reaffirmed the logic of Kirby in an appeal against sentence for breach of a criminal ASBO term.11 The defendant was arrested after driving a car in breach of an ASBO term prohibiting him from being in the front seat of a car. He was also disqualified from driving at the time. He was convicted of breach of ASBO and sentenced to 12 months’ imprisonment. Justice Hughes upheld his appeal against sentence substituting a sentence of six months on the grounds that it was not open to the court to ‘evade’ the maximum sentence set by parliament by imposing an ASBO simply to increase the sentence for further offences.12 He then went on to suggest that: If a breach of an ASBO consists of no more than the commission of an offence for which a maximum penalty is prescribed by statute, it is wrong in principle to pass a sentence for that breach, calculated by reference to the five-year maximum for breach of an ASBO . . . . We draw attention however in that last proposition to the words ‘no more than’. There may be exceptional circumstances in which it can properly be said that the vice of breach of an ASBO although it amounts to an offence, goes beyond that offence.13

Where the Morrison court doubted that there would often be a justification for imposing higher sentences for criminal ASBO terms than were available for the equivalent criminal offence, in Boness, a few months later, the Court of Appeal cast 10 11 12

R v Kirby [2005] EWCA Crim 1228, para [6]. R v Morrison [2006] 1 Cr App R (S) 85. 13 Ibid, para [18]. Ibid, para [19].

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doubt on whether such terms could be justified in the first place. Drawing attention to the words of section 1(6), the court ruled that the test for inclusion of any prohibition in an ASBO was that it must be necessary to prevent further anti-social behaviour by the defendant.14 On this basis, Lord Justice Hooper reaffirmed the logic of Kirby that criminal terms could not be included merely to increase sentence for the offence where the maximum was thought too lenient. Although Morrison was not referred to in Boness, Lord Justice Hooper nevertheless also thought that the circumstances in which a criminal term might be necessary would be exceptional: It follows from the requirement that the order must be necessary to protect persons from further anti-social acts by him, that the court should not impose an order which prohibits an offender from committing a specified criminal offence if the sentence which could be passed following conviction for the offence should be a sufficient deterrent. If following conviction for the offence the offender would be liable to imprisonment then an ASBO would add nothing other than to increase the sentence if the sentence for the offence is less than five years’ imprisonment. But if the offender is not going to be deterred from committing the offence by a sentence of imprisonment for that offence, the ASBO is not likely (it may be thought) further to deter and is therefore not necessary.15

Combining these arguments from Boness and Morrison poses the key question: how can criminal terms be necessary if the sentence for breach cannot be higher than the maximum for the criminal offence? In Boness Lord Justice Hooper took the view that since ‘the aim of an ASBO is to prevent anti-social behaviour . . . the police or other authorities need to be able to take action before the anti-social behaviour it is designed to prevent takes place . . . ’.16 In consequence he thought only purely preventive terms are likely to be appropriate. But Lord Justice Hooper’s suggestion has not been followed because, when his judgment in Boness is read together with that in Morrison, the possibility of criminal terms remains open. In Boness, Lord Justice Hooper’s argument was that adding the criminal ASBO term could not be ‘necessary’ because it would add nothing to the effect of the existing criminal offence. But in Morrison, Justice Hughes was careful to recognize that there might exist ‘exceptional circumstances’ in which the breach of the ASBO term amounted to ‘more than’ the criminal offence, justifying a higher sentence. In such circumstances a criminal term might conceivably add something and be rendered ‘necessary’. The question then is what might the wrong be through which breach of a criminal ASBO term becomes something ‘more than’ the commission of the ordinary criminal offence.

2.3 Anti-social behaviour as a separate wrong In Stevens, the Court of Appeal confirmed that the offence of breach of ASBO should be regarded as separate from the criminal offence that may also be committed 14 15

R v Boness [2005] All ER (D) 153, para [31]. 16 Ibid, para [30]. Ibid, paras [35]–[36].

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when the order is disobeyed. The defendant had breached an ASBO prohibiting him from being drunk or urinating in a public place.17 He had 135 previous convictions for public drunkenness and other minor offences. The judge sentenced him to nine months’ imprisonment for the breach. Stevens appealed sentence on the grounds that the maximum for being drunk in a public place was a fine. Lord Justice Judge ruled that: It cannot . . . be right that the court’s power is . . . limited to the . . . maximum imprisonment of the distinct criminal offence. That would treat the breach as if it were a stand-alone offence, which at the time when it was committed did not amount to a breach of the court order. In reality, the breach is a distinct offence in its own right, created by statute, punishable by up to five years’ imprisonment.18

By clearly separating the different offences disclosed by the same conduct, one a specific criminal wrong of being drunk in a public place, the other the breaching of an ASBO, Lord Justice Judge gives a formal explanation as to why a higher sentence for breach of a criminal ASBO term than for the stand-alone offence is possible. The separate offence means that some wrong in addition to the criminal wrong is being committed and a higher sentence may be justified. In other words, in some circumstances the offence of breaching the criminal ASBO term must be ‘adding something’ to the ordinary criminal law, contrary to Lord Justice Hooper’s expectations in Boness. But what is that ‘something’ that the criminal term can be said to be ‘adding’?

2.4 A ‘public protection’ offence In Stevens the court upheld the reasoning in Lamb and Braxton with respect to the sanctions for breach of a criminal term, and disapproved of Morrison. In Lamb, Justice Leveson had criticized the Morrison approach of ruling out higher sentences for breach of ASBO than the maximum available for the stand-alone offence on the grounds that it ‘appears to ignore the impact of anti-social behaviour on the wider public which was the purpose of the legislation in the first place’.19 It is the harassment, alarm or distress caused by the defendant who breaches an ASBO that is the something ‘more than’ the equivalent criminal offence and that justifies the higher sentence. On the facts of Morrison, the defendant’s breach of his ASBO did not cause any harassment, alarm or distress and therefore did not amount to anything more than the offence of driving while disqualified. But the problem with the Morrison judgment is that the court describes as ‘exceptional circumstances’ precisely those at which the ASBO legislation is primarily aimed—circumstances in which the defendant is likely to cause harassment, alarm or distress.20 17

R v Stevens, R v H [2006] 2 Cr App R (S) 453. Ibid, paras [26]–[27] (emphasis added). R v Lamb [2005] All ER (D) 132, para [16]. 20 The Lamb court pointed out that if courts were forced ‘in principle’ never to sentence for breach of a criminal term in excess of the statutory maximum, this would mean ‘that anti-social behaviour 18 19

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The Insecurity State

Justice Leveson in Lamb cited the earlier case of Braxton in which the Court of Appeal refused leave to appeal against a sentence of three-and-a-half years on the defendant, who had repeatedly breached an ASBO soon after release on licence from a prison sentence for an earlier breach of the same ASBO. In that case the court made explicit reference to the legislation being parliament’s response ‘to increasing concerns about the impact on the public of anti-social behaviour in its many forms’.21 The maximum sentence of five years therefore marks the potential seriousness of the anti-social behaviour that a defendant might do, and it is the seriousness of the anti-social behaviour done by a defendant that should be the issue in sentencing.22 It is the seriousness of conduct in terms of the harassment, alarm or distress involved in breach of a criminal ASBO term that makes a higher sentence possible. The higher sentence is justified as proportional to the greater wrong of the insecurity caused to others by the harassment, alarm or distress in addition to the specific wrong of the ordinary criminal offence, and, arguably, in the preventive context of section 1(6), because its availability provides greater deterrence of the greater wrong. The case of Harris provides a striking example of this rationale.23 The defendant masturbated in front of three 12-year-old girls at a bus stop and asked them if they wanted to touch his penis. He pleaded guilty to two counts of engaging in sexual activity in the presence of a child and was sentenced to 18 months concurrent for those offences. He also pleaded guilty to breach of an ASBO imposed a year earlier prohibiting him from associating with girls under 16, for which he was sentenced to four years also to run concurrently. On appeal against the sentence for breach of the ASBO, Lord Justice Kay relied on the distinction between the two offences made in Stevens and upheld the imposition of the maximum sentence for the breach on the grounds that: ‘We . . . detect no lack of proportionality between a sentence of four years and the criminality engaged in on this occasion in the form of the breach of the ASBO.’24 Lord Justice Kay mentions as aggravating factors the defendant’s 18 previous offences and lack of remorse. The maximum sentence is upheld and this sentence is much longer than the appropriate sentence for the fairly serious sexual offences disclosed on the facts. Similarly in Lawson the Court of Appeal upheld a maximum six-month sentence for a serious common assault while, for the breach of an ASBO term arising out of the same incident, the court substituted a 10-month concurrent sentence, for the

short of a criminal offence could be more heavily punished than anti-social behaviour that coincidentally was also a criminal offence’: para [16]. 21 R v Braxton (No 2) [2005] 1 Cr App R (S) 36, para [3]. 22 See also Sentencing Advisory Panel, ‘Consultation Paper on Breach of Anti-Social Behaviour Orders’ (Sentencing Advisory Panel, 2007) 18. 23 R v Harris [2006] All ER (D) 301. 24 Ibid, para [13]. In Harris’s case the maximum sentence included a discount to take account of the fact that he had pleaded guilty without delay. The sentencing court had reduced his term to four years, although the Court of Appeal with some reluctance recognized that the proper discount for the guilty plea would reduce his sentence to three years and three months, and substituted that sentence.

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original sentence of 10 months to run consecutively.25 Lawson had six previous convictions including two for public order offences and one for harassment.26 The effect of the sentence for breach of ASBO was nevertheless to increase the penalty for the assault by two-thirds to take account of the harassment, alarm or distress likely to be caused by the defendant’s breach. These cases suggest that the courts consider the offence of causing harassment, alarm or distress in breach of an ASBO to be at least as wrongful as quite serious assaults and sexual offences. From the Court of Appeal’s point of view, parliament has supplied the courts with a sentencing power that reflects the need ‘to protect’ the public from this serious wrong. Of course it can be objected that there is no conclusive evidence for the marginal deterrence effect of the increased sentencing power,27 and, therefore, that criminal ASBO terms are not rendered necessary from the point of view of preventing further anti-social behaviour. Moreover a breach of ASBO conviction suggests that the higher sentence was not an effective deterrent in the particular case. But these objections have to be taken in the context of the peculiar individualized form of the offence of breach of ASBO.

2.5 The wrong of dangerousness In any particular case, the conduct element of the offence of breach of ASBO will only exist as a consequence of its ‘necessity’ in order to protect the public from the particular defendant to whom it applies. If it was not deemed necessary to protect the public from the particular defendant, the ASBO term would not exist and nor would the criminal offence. The very existence of the offence is dependent, therefore, on an assessment of the particular risk that the defendant is thought to represent, an assessment that is made in imposition proceedings that give rise to the ASBO with its particular terms. It is plain from the statutory language that the control of the risk that the defendant represents is the raison d’etre of the offence. Where a defendant goes on to cause harassment, alarm or distress in breach of an ASBO term, which is to say in precisely the form that she has been warned by the courts to avoid, her actions can be thought of as having proved the risk assessment correct. The protection of the public from the particular individual, which was the rationale for the imposition of the ASBO term, then becomes the rationale for the sentence. Where that breach involves conduct that is also a criminal offence, the harassment, alarm or distress caused is more likely to be serious and attract a more severe sentence.28

25

R v Lawson [2007] All ER (D) 61. Ibid, para [6]. 27 See A von Hirsch, A Bottoms, E Burney and P-O Wikstrom, Criminal Deterrence and Sentence Severity: An Analysis of Recent Research (Hart, 1999) 47–8. 28 Although not necessarily. The commission of some criminal offences may be such as to not cause harassment, alarm or distress, or be likely to only on some occasions and not others—shoplifting, for example: see generally R (Mills) v Birmingham Magistrates Court [2005] All ER (D) 94. 26

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When the judges recall the depressing history of Stevens’ drunkenness, Harris’s masturbating, or Lawson’s loutishness they are making reference to the special risk that the imposition of the breached ASBO term had constructed them as representing in the first place—a special risk that, when it subsequently materializes in the breach of the ASBO, justifies a sentence for public protection. This reasoning is made explicit in the case of Anthony. The defendant was an alcoholic with a long history of drunken assaults and racial abuse against hospital staff. She had previously been imprisoned for various offences and had breached previous ASBOs on eight occasions. She was prohibited by an ASBO from abusing NHS staff or being drunk in a public place. The day after the order was imposed, she got drunk and assaulted hospital staff. At trial, the judge imposed a maximum sentence for the single breach on the explicit grounds that hospital staff needed protection from the defendant. The judge had before her a pre-sentencing report that, in the words of the Court of Appeal, indicated that ‘every possible community penalty had been explored in order to engage the appellant, but nothing had effected any lasting change. She was unwilling or unable to comply with the [probation] service.’29 The Court of Appeal upheld the sentence in principle on the grounds that the defendant: is just the sort of offender that anti-social behaviour orders were devised to control and as yet they are proving singularly ineffective. The new offences occurred on the day following the implementation of the anti-social behaviour order. The circumstances of the new offences, by which hospital staff and police were assaulted by way of swearing, kicking, spitting and hitting out, was offensive and calculated to outrage all decent people. We fully understand why the judge passed what she intended to be a long sentence.30

Imposition of the ASBO constructed Anthony as a special risk of the anti-social behaviour that it sought to prevent. Protecting the public by preventing further anti-social acts by her required the greater deterrence of breach of ASBO, and, when even that failed, incapacitation by incarceration. The critical point is that by imposing the ASBO in its particular terms, the defendant has ‘been differentiated from other members of the public who may commit [the same] act by reason of his past conduct’.31 In Anthony that past conduct revealed a disposition to get drunk and harass NHS staff. This disposition made the order ‘necessary’ because greater powers of deterrence and incapacitation are needed to protect the public from this defendant in this respect. In Hills v Chief Constable of Essex the respondent explicitly advanced this argument for the necessity of a criminal ASBO term as a form of special deterrence for the particular defendant. Keith J commented that, notwithstanding Lord Hooper’s scepticism in Boness, ‘these are powerful arguments’, although on the facts of the case he ruled that he did not have to decide the issue.32 They are 29

R v Anthony [2006] 1 Cr App R (S) 74, para [8]. Ibid, para [12]. The connection between the defendant’s past conduct and the need for protection of the public once an ASBO term is breached is equally explicit in Braxton (No 2): see text at n 38 below. 31 A Pema and S Heels, Anti-Social Behaviour Orders (Jordans, 2010), para [10.26]. 32 See Hills v Chief Constable of Essex [2006] All ER (D) 35 (October), paras [14]–[16]. 30

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powerful arguments because they draw out the logic of risk management found in the terms of section 1 CDA. Those people for whom specific prohibitions are ‘necessary’ to prevent them from causing ‘harassment, alarm or distress’ have indeed been differentiated from other citizens for whom such specific prohibitions are not necessary.33 The imposition of a criminal ASBO term, with its higher maximum sentence, is based on the assessment that the defendant represents a special risk of causing harassment, alarm or distress in the form of the conduct concerned. Indeed any ASBO term that was not based on such an assessment would be open to legal challenge.34 It is important to note that this rationale is not in violation of the rule in Kirby from which we set out. This is not an argument for merely increasing the sentencing power because the maximum for that criminal offence is thought inadequate. The increased sentencing power is to protect the public from the anti-social behaviour that the particular defendant has a propensity to cause, rather than from the wrong prohibited by the specified criminal offence. In respect of breach of criminal ASBO terms, and by implication of any term where harassment, alarm or distress is caused, breach of ASBO is an offence of public protection, protection from the risk of harassment, alarm or distress that the particular defendant has been authoritatively determined to represent. It is the risk of insecurity that the defendant represents that is at the core of the offence of breach of ASBO. The wrong of breaching an ASBO is the threat that is involved in maintaining a disposition of causing harassment, alarm or distress. Substantively it is not different from the grounds for the ASBO in the first place. But where the grounds treat the wrong as a threat, the offence treats the threat as a wrong. The more serious the threat posed by the breach, the more serious the wrong done by the offence and the higher the proportionate sentence. This theory of the wrong done by breaching an ASBO has the advantage that it can account for the Court of Appeal’s approach to breaches of purely preventive terms where no harassment, alarm or distress is caused directly by the breaching conduct itself. In Lamb the defendant had been sentenced to 22 months for repeated breaches of an ASBO term prohibiting him from being anywhere on the Tyneside Metro system. The breaches did not involve the causing of any harassment, alarm or distress. The Court of Appeal reduced Lamb’s sentence to eight months, ruling that where no harassment, alarm or distress was occasioned by the breach a community penalty was to be preferred but that the authority of the order was important, so in respect of repeated breaches ‘custodial sentences which are necessary to maintain the authority of the court can be kept as short as possible’.35 In Lamb the Court of Appeal speaks in terms of maintaining the authority of the court. But a defendant’s simple defiance of the judicial authority, in the context of the order’s preventive aims, itself manifests the threat that the defendant has been constructed as representing. Although no harassment, alarm or distress may be 33 34 35

See discussion in Chapter 3. R v Jones and Others [2006] All ER (D) 97 (September) CA. R v Lamb [2005] All ER (D) 132, para [19].

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caused on the occasion of a breach, the breach itself, and especially repeated breaches, suggests that the defendant is either willing to breach the order or at least not willing to take sufficient care to avoid breaching it, and, therefore, continues to manifest the particular risk of harassment, alarm or distress, materialization of which the order is intended to prevent. The simple defiance of the court’s authority itself manifests a degree of risk with respect to others’ security, albeit in a less serious form.36 In other words, sentence for breach of a purely preventive term can be justified by the same rationale as sentence for a breach that directly causes harassment, alarm or distress. Any doubts about the public protection theory of breach of ASBO should be settled by the Court of Appeal’s review in R v Fenton of several of the cases discussed here. The Court sought to ascertain and apply the breach of ASBO sentencing principles to the offence of breach of a sex offender order. The Court understood the crucial factor in sentencing to be the degree of risk to the public represented by the breach: the greater the risk to the public that a breach ‘involves’ or ‘creates’, the higher the sentence. Where a sufficiently high risk is disclosed by the breach, sentences higher than those available for the specific criminal offence that might have been prosecuted will be justified.37 Understanding the sentence as proportionate to the threat that the particular defendant represents allows us to explain punishment for breaches that cause harassment, alarm or distress and sentencing for breaching a purely preventive obligation, without causing harassment, alarm or distress, as constructing a single wrong. The offence constructs the defendant as a particular threat of harassment, alarm or distress. Obedience to the order will avoid any manifestation of the threat. It appears then that it is wrong to breach the ASBO because the breach is a failure by the defendant to take seriously the threat of harassment, alarm or distress caused to others that the ASBO authoritatively constructs the defendant as representing. This is not the same as simple defiance of the order, which in itself is just one relatively mild form of this failure, as Lamb makes clear, nor is it simply the content of the conduct on any particular occasion. It is the conduct in the context of the reasons for the order. In Braxton (No 2) the court put it like this: the applicant still does not appear to understand the nature or effect of the order made against him. The anti-social behaviour order is specifically designed to protect the public from frequent and distressing repeated misbehaviour of the type which is the subject of this order. . . . He acted in deliberate breach of that order not once but twice . . . and yet again twice more within weeks of his release from [a] prison sentence. He must understand that what he might consider as trivial in his case, because of the persistence of his conduct, is now

36 A point confirmed by the Sentencing Guidelines Council’s Definitive Guideline, which states: ‘There are . . . two dimensions to the harm involved in breach of an ASBO: (a) the breach may itself cause harassment, alarm or distress, which can reduce the quality of life in a community . . . (b) breach of an ASBO contravenes an order of the court, and this can undermine public confidence in the effective administration of justice.’ (Sentencing Guidelines Council, Breach of an Anti-Social Behaviour Order: Definitive Guideline (2008) 3 (emphasis added)). 37 See R v Fenton [2007] 1 Cr App R (S) 97, para [25].

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treated seriously, specifically to protect the public. It is thus vital that he address this issue and his behaviour in public if he is to avoid further conflict with the law.38

It is the unreformed defendant, her unaddressed disposition to cause harassment, alarm and distress to others and the continuing risk that she therefore constitutes, and from which the public requires protection, that is the wrong targeted by breach of ASBO. When the defendant breaches the ASBO she demonstrates her contempt or indifference to the obligations it contains, and these obligations are to desist from manifesting the threat to others’ security. When this indifference or contempt is manifested in ways that cause harassment, alarm or distress in a form that the courts have specifically prohibited the wrong is regarded as grave. The breaching conduct itself is important, but as the manifestation of the continuing risk represented by the defendant. The wrong in breach of ASBO is the failure to address the behaviour that causes insecurity to others when required to by the court so that the threat to others’ security remains. It is punished in proportion to the degree of threat made manifest in the breach. This is confirmed by the Sentencing Guidelines Council’s Definitive Guideline, which states following normal sentencing principles that the sentence for breach must be ‘commensurate with the seriousness of the offence’; and seriousness is a question of ‘the culpability of the offender and any harm which the offence caused, was intended to cause or might foreseeably have caused’.39 As we saw above, the harm is composed of the harassment, alarm or distress caused and the undermining of public confidence associated with contravention of a court order. Each of these dimensions of harm is a threat to others’ security, and the more culpable the defendant for the breaching conduct, the more serious that threat will be precisely because it indicates the seriousness of the failure to address the disposition on which the order is founded. The proposition that manifest threat is the wrong involved in breaching an ASBO is reinforced by the offence being one of strict liability. In effect, the ASBO term warns the person subject to it that they are under a legal burden positively to avoid such conduct. If the ASBO defendant does anything that is prohibited by the order, the prosecution will not have to prove that she intended or knew there was a risk of the conduct; on the contrary, the ASBO defendant will have to prove that she has a reasonable excuse.40 In respect of this criminal liability, the defendant is required positively to address her propensity to cause harassment, alarm or distress by making sure she avoids the conduct that causes it.

2.6 Neither ‘composite offence’ nor mere defiance In McCann the appellants proposed an alternative theory of the breach offence. The offence they argued had to be considered together with the proceedings in which the

38 39 40

R v Braxton (No 2) [2005] 1 Cr App R (S) 36, para [17]. Sentencing Guidelines Council, Breach of an Anti-Social Behaviour Order, 2. CDA 1998, s 1(10).

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order was imposed. Both were penal in character with the second stage serving to aggregate punishment for the entire course of conduct. The House of Lords emphatically rejected the appellants’ theory.41 It has, however, continued to influence the expert legal literature in the form of the theory that breach is a ‘composite offence’.42 For the House of Lords, if the application proceedings serve their purpose there will be no later breach proceedings to connect them with.43 Therefore, the earlier proceedings are independent of the later set of proceedings. Only if the application proceedings do not serve their purpose and fail to prevent further acts of anti-social behaviour will a penalty be imposed. But this does not alter the purpose of the earlier proceedings, which is to identify whether or not there is a need for a preventive order and, if there is, the specific terms of the order that are needed. Since the House of Lords has ruled that the two sets of proceedings are independent then sentencing for any breach of an ASBO, as a question of positive law, cannot be based on the aggregate impact of the entire course of conduct. And this is exactly how the Court of Appeal interpreted the position in Braxton when it disapproved of the possibility that a sentencing judge might have handed down a severe sentence as a punishment for the conduct leading up to the imposition of the order as well as for the breaching conduct.44 Support for the composite offence theory has been found in a dictum of Lord Justice Judge given as part of his conclusion in Stevens that the defendant’s sentence of nine months was appropriate: ‘Given the appellant’s prolonged history of offending’, he said, ‘it would not be right for this Court to interfere with [the sentencing judge’s] decision.’45 But we have seen that this invocation of the defendant’s previous conduct can also be understood as a reference to the continuing unaddressed disposition towards others’ security that Stevens showed in his breach behaviour. The breach offence is rendered consistent with the House of Lords’ ruling in McCann when it is understood in this way as protecting from dangerousness rather than as a composite offence.46 41 R (McCann and Others) v Crown Court at Manchester and Another [2003] 1 AC 787, Lord Steyn at 808, Lord Hutton at 830. 42 See Macdonald, ‘The Principle of Composite Sentencing’, 791, 800. See also R Hansen, L Bill, and K Pease, ‘Nuisance Offenders: Scoping the Public Policy Problems’ in M Tonry (ed), Confronting Crime: Crime Policy Under New Labour (Willan, 2003). 43 Lord Steyn, n 41 above. 44 R v Braxton (No 2) [2005] 1 Cr App R (S) 36, para [5]. See also the language used by Kay LJ when justifying the maximum sentence in Harris: text at n 24 above. 45 R v Stevens, R v H [2006] 2 Cr App R (S) 453, [29]. See Macdonald n 42 above. Macdonald also draws support from the original Labour Party proposal when in opposition to deal with low-level offences with composite offences (see A Quiet Life (Labour Party, 1995)). But in A Quiet Life, the community safety order was presented as one of three separate changes proposed. One of the others was a composite criminal offence. It is therefore not entirely clear that the composite offence theory would be consistent even with the original community safety order proposal let alone the eventual ASBO; certainly it is doubtful that ‘the principle of composite sentencing was thus an integral feature of the ASBO’s design’ (Macdonald, ‘The Principle of Composite Sentencing’, 793). For more on the difference between the ASBO and community safety order see Chapter 4. 46 While this gives a consistent account of the positive law it does not necessarily solve the potential problem identified by Macdonald that composite sentencing would have with Art 5 ECHR (see ‘The Principle of Composite Sentencing’, 791, 795). Even if punishment is not a composite punishment as

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Another suggestion has been that the offence of breach is an offence of simple defiance of the court order.47 But this takes no notice of the substantive content of the offence in punishing both the harassment, alarm or distress caused by a breach and the failure to fulfil the special obligations to avoid creating a risk of insecurity that have been imposed on the defendant as a consequence of the assessment of the defendant as representing a particular dispositional risk of insecurity. Defiance of the order, even where it does not cause harassment alarm or distress, does represent a failure to fulfil these special obligations towards the protection of the public.

2.7 Conclusion The public protection theory draws our attention to the ASBO’s essence as an instrument of threat assessment and risk management in which criminal defendants at trial have already been differentiated from ordinary citizens by the very charge that they face, before any decision has been made as to whether they are guilty of the offence charged. This interpretation of breach of ASBO sentencing also carries the threat-control rationale for imposing the ASBO forward into the sentence for breach. Where at the stage of imposing an ASBO the wrong of manifesting a threatening disposition and failing to reassure provides the occasion for a risk assessment and preventive response, at the second stage of punishing for breach of ASBO the threat made manifest by the defendant’s continued failure to reassure is the basis upon which the seriousness of the wrong is assessed. Sentencing decisions are then highly contextual since the wrong committed by the defendant is proportional to the degree of risk manifest in the breach, and this can only be calculated by reference to the defendant’s particular pattern of behaviour and attitudes, and the reasons for imposing the ASBO in the first place. The public protection theory gives a better account of the positive law of breach of ASBO but that says nothing about the normative attractiveness of the law. The imposition of penal liabilities for a failure to reassure could be read as substantive law that effectively reverses the burden of proof with respect not to past offences but future ones. Certainly in so far as the public protection theory explains sentence for breach in terms of the incapacitation for public protection purposes of persons identified as a special risk, it directly raises all the normative and criminological question marks over such heavy-handed coercion.48 Clinical predictions of future offending are notoriously unreliable. While the overall crime reduction effects of incapacitatory sentences are highly questionable, it cannot be doubted that they such the findings of a civil court are still essential to understanding the public protection rationale of the sentencing decision. 47 See A Simester and A von Hirsch, ‘Regulating Offensive Conduct Through Two-Step Prohibitions’ in von Hirsch and Simester (eds), Incivilities, 188–9. 48 See A Ashworth, ‘Criminal Justice Act 2003: Part 2: Criminal Justice Reform—Principles, Human Rights and Public Protection’ [2004] Crim LR 517; A Ashworth, Sentencing and Criminal Justice (Cambridge University Press, 2005) ch 6.

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will do injustice in retributive terms. This has led many to conclude that sentencing on the grounds of the need for public protection from dangerous offenders lacks justification.49 Andrew Ashworth concludes a critique in these terms of the indeterminate sentencing provisions in the Criminal Justice Act 2003 by asking: Is this critique unduly rationalist? One conception of public protection, we must recall, is a subjective feeling of security. The Government might argue that its aim is to create such feelings in members of the public. But is it justifiable to pursue policies aimed at fostering such feelings or aimed at increasing ‘public confidence’ (a nebulous notion, at best), when it is known that such policies are unlikely to have a significant effect on objective risk or protection?50

Lying at the heart of the breach of ASBO sentencing case law is just such a division between the doing of ‘objective’ harms to interests, which is the focus of most stand-alone criminal offences, and representing a threat to ‘subjective’ feelings by manifesting a disposition to cause harassment, alarm or distress, which is punished by breach of ASBO. But section 1 CDA, formally at least, evades the normative problem posed by incapacitation by constructing the continuing manifestation of the threat as a public wrong appropriate for punishment. In this way the breach of ASBO offences appears to merge the retributive and incapacitatory aims of punishment. If the wrong is the continuing manifestation of a disposition to threaten the security of others, then punishment that is proportionate to the seriousness of the offence will also be proportionate to the need for incapacitation.51 It is precisely this justification for protecting subjective security interests by means of a penal wrong of dangerousness to which the rest of this book is addressed. The breach case law also alerts us to the precise historical context in which the question of justifying these laws arises. Distinguishing the wrong of continuing to be a threat of harassment, alarm or distress in defiance of an ASBO from the wrongs prohibited by stand-alone criminal offences reveals an interesting implication. The courts have taken it that, in providing a maximum sentence of five years, parliament required them to treat the harassment, alarm or distress caused by the sexual offending of a defendant like Harris as a problem at least as serious and wrongful as the actual sex offences. And yet what must, therefore, be a fairly serious wrong could not have been punished in anything like this way until the late 1990s.52 How is it that a wrong that is so serious as to justify a near doubling of Harris’s total sentence or a two-thirds increase in Lawson’s was either not recognized or could not have been punished to anything like this extent until then? Why has the causing of

49

We will return to imprisonment for public protection in Chapter 7. Ashworth, ‘Criminal Justice Act 2003’, 531. 51 For more detailed debate on this point see P Ramsay, ‘Substantively Uncivilized ASBOs’ (2010) 10 Crim LR 761; and S Hoffman and S Macdonald, ‘Substantively Uncivilized ASBOs: A Response’ (2010) 10 Crim LR 764. 52 Before 1994 a fine was all that was available for conduct merely likely to cause harassment, alarm or distress; after 1994 six months was the maximum for the intentional causing of harassment, alarm or distress. For more details of these offences see discussion in Chapter 3. 50

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insecurity only recently come to be regarded as such a serious wrong by parliament and the courts? To begin to put the ASBO and its protection of subjective security into historical context I will in the next chapter try to establish a clear characterization of its effects as a legal power: first, by comparing it with other penal laws concerned with causing harassment, alarm or distress and, second, by clarifying further the relationship between its substantive law and its controversial procedure.

3 Freedom from Fear The substantive law of the ASBO protects an interest in subjective security by imposing a liability for failure to reassure others, at first in the form of preventive penal obligations imposed administratively and then in the form of punishment imposed by a criminal court. Before moving on to the policy and normative rationales for this liability, this chapter identifies certain distinctive characteristics of the ASBO as a legal power. The ASBO itself is not a punishment. Although its effects may be experienced as a penalty, it may not be imposed for that reason and the substantive grounds resemble an administrative power more than they do a criminal offence. Any particular ASBO is a set of prohibitions that is imposed administratively, albeit by a court of law. Breach of any of these prohibitions is a criminal offence resulting in punishment. The prohibitions contained by an ASBO might therefore be called penal obligations, but they are plainly different to the penal obligations we generally refer to as criminal laws because they are laid down in an administrative process by courts on an authority delegated to them by parliament. So what are they? To answer that question I will briefly summarize the analysis of the previous two chapters by comparing the ASBO to some of the ordinary criminal offences, enacted in the years before 1998, that also criminalized the causing of harassment, alarm or distress. While the earlier offences punish wrongs against subjective security interests, liability to the breach of an order increases the penalty for the same behaviour and in so doing necessarily marks the person subject to it as someone administratively assessed as in need of special deterrence. I will show that this new form of liability imposes a two-tier citizenship structure in which full citizenship rights are conditional on fulfilment of prior obligations to others’ security. Moreover the conditional citizenship that the substantive law achieves in this way explains the controversial procedural designation of the ASBO as a civil order. Both substantive and procedural aspects of the ASBO’s law served to protect a freedom from fear of crime. Finally I will argue that the Coalition government’s proposed reforms will make very little difference to this underlying structure of obligation and substantially preserve the protection of this freedom from fear.

3.1 ASBO and other harassment offences compared The breach of an ASBO offence provided punishments for conduct likely to cause harassment, alarm or distress of a severity much greater than had been available

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before it. The Public Order Act 1986 contains two offences of harassment. Section 5 penalizes a range of ‘threatening, abusive or insulting’ conduct done ‘within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby’. There is, therefore, no need to prove any actual harassment, alarm or distress caused to anyone. The defendant must intend or be aware that his words or behaviour may be threatening, abusive or insulting but there is no requirement that the defendant intends to cause harassment, alarm or distress.1 The maximum penalty for the offence is a fine. Section 4A POA 1986 (which was inserted later by the Criminal Justice and Public Order Act 1994, s 154) prohibits similar conduct but it must actually cause harassment, alarm or distress and be intended to cause it. The maximum penalty is six months’ imprisonment. In neither offence does the meaning of harassment, alarm or distress require feelings of apprehension about personal safety, although plainly such feelings are covered by it.2 Both these offences protect subjective security interests but neither enforces a liability for a failure to reassure as such. Section 4A is a narrower offence in that it requires proof of actual harassment that is intentionally caused. This serves to protect subjective security interests from a deliberate and effective choice to cause insecurity rather than from mere manifestation of a disposition of indifference. Section 5 is more sweeping than breach of an ASBO in its criminalizing of harms to subjective feelings going beyond insecurity. However it requires an intention or awareness with respect to the threatening, abusive, insulting or disorderly character of the conduct. In this sense it falls short of criminalizing simple indifference to others’ feelings. There must be some deliberate wrongful conduct with at least a likely harmful effect on other people’s feelings. The effect of the conduct in section 5 is more broadly defined than that in the ASBO’s grounds, but the fault element is more restrictive requiring an element of knowing disregard of or active hostility to others’ feelings. Two more offences appeared just a year before the ASBO in the Protection from Harassment Act 1997.3 Section 2 prohibits a person from pursuing ‘a course of conduct . . . which amounts to harassment of another and which he knows or ought to know amounts to harassment of another’. References to harassing a person include alarming them or causing them distress.4 The maximum penalty is six months’ imprisonment. Section 5 permitted courts to impose restraining orders on persons convicted of the section 2 offence or of the separate offence in section 4 of repeatedly putting people in fear of violence.5 A restraining order had to have the purpose of protecting the victim of the offence and could prohibit any conduct that

1

POA 1986, s 6(4). Chambers and Edwards v DPP [1995] Crim LR 896. 3 Further offences of harassment have since been added to the criminal law, for example, in the Serious Organised Crime and Police Act 2005, ss 125–127. 4 Protection from Harassment Act 1997, s 7(2). 5 Under the Domestic Violence Crime and Victims Act 2004, s 12 a new s 5A was inserted into PHA 1997 allowing restraining orders to be imposed on a person convicted or acquitted of any offence, providing it is necessary to protect another person from harassment. 2

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‘amounts to harassment’. Breach of any of its terms is an offence with a maximum penalty of five years’ imprisonment. The section 2 offence is again narrower than the ASBO requiring proof of at least two instances of harassing conduct and of actual harassment or the causing of alarm or distress. Again this falls short of conduct merely manifesting indifference or hostility because it must be proved to have actually caused these feelings. The section 5 offence introduces the form and technique of the ASBO. But because of the narrower type of terms that can be imposed in an order, a breach must involve actual harassment. Liability for breach of a restraining order is a liability for actually harassing the victim of a previous offence. Knowing abuse or insult or persistent causing of harassment, alarm or distress will in some instances be wrong only because of causing or potentially causing insecurity.6 The ASBO, however, introduces an offence that explicitly expands liability to cover all causing of insecurity, including by those who merely manifest a disposition of indifference or hostility to others’ security. Unlike the earlier offences, simple manifestation of indifference is enough to create liability for breach of an ASBO. The ASBO significantly expands the scope of the protection of subjective security interests even by comparison with the broadly defined laws that preceded it. Moreover, the five-year maximum for conduct in breach of a harassment restraining order, conduct which, but for the court order, could only receive a maximum of six months, reminds us that the high sentence for breach of an ASBO is not just a question of the content of anti-social behaviour, and how much more seriously parliament began to take that in the 1990s, but also how much more seriously parliament regards offences that are breaches of these court orders compared with offences that are not. The difference between the offences of breach of an order and the ‘ordinary’ harassment offences is that the court order is imposed prospectively as a response to the manifest disposition revealed in the conduct that makes the order necessary. The law allows for much more deterrence against a person who has not merely violated others’ subjective security interests, but has been assessed as representing a dispositional threat. And the courts regard the wrong involved in breach as more serious than the same insecurity-causing conduct in isolation. The breach of an order indicates, as we saw in the previous chapter, a culpable failure to address the disposition that gave rise to the order and the conduct involved is all the more alarming and serious for the failure of the greater deterrence. What marks out the breach offences from the earlier stand-alone offences of harassment, alarm or distress is that these offences construct their subjects differently from the law’s other subjects, and put them under a harsher penal regime than other subjects. Prosecutions for breach of ASBO meet the formal definition of criminal law in that they are governed by criminal procedure and lead to punishment.7 But there is nevertheless something misleading about describing the ASBO 6 7

See the discussion of s 5 cases in Chapter 6. G Williams, ‘The Definition of Crime’ (1955) Current Legal Problems, 107, 130.

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itself as ‘a bit of criminal law peculiar to the individual’.8 Laws are general in form. On their face, at least, they apply equally to all subjects, however much they are interpreted contextually.9 But the penal obligations in an ASBO only come into existence following a specific intervention of the executive, overseen by the courts, in pursuit of security aims and they apply only to particular individuals. In Nicholson an animal rights protestor was convicted of breaching an ASBO term prohibiting her from entering an exclusion zone around an animal-testing laboratory. She claimed that she had a reasonable excuse for the breach because the ASBO referred to the laboratory by the obscure official name of the building it was housed in, which was unfamiliar to her, and she therefore did not know she was prohibited from its vicinity. The respondent argued that the appellant’s claim amounted to a defence of error of law. The court rejected the respondent’s analysis as ‘artificial’, ruling that whether or not her ignorance of the meaning of the term amounted to a reasonable excuse was a question of fact for the jury.10 If the terms of an ASBO are neither penalties nor strictly speaking laws, they are exactly what parliament called them—orders. The person subject to them is under orders, and these orders have a very specific political meaning that differs from that of the ordinary criminal law.

3.2 The equal rights of ‘good citizens’ To be subject to an ASBO is to bear the burden of special penal obligations that are not borne by anyone not subject to an ASBO. These may prohibit otherwise lawful conduct (for example, movement restrictions, curfews, associating with named individuals) and some of these obligations are likely to be unique to the particular individual. Or they may prohibit conduct that is already unlawful, but, since the conduct in an ASBO will be prohibited as an offence of strict liability and in many cases will carry a higher maximum penalty than the stand-alone offence, will still amount to an obligation that is not general. Only the ASBO defendant will owe the particular duty to the state set out in the terms of the order. She will be liable to conviction and punishment if she engages in that conduct although others would not be liable if they engaged in exactly the same conduct (or the same conduct with the same state of mind in the case of criminal terms). The effect then of imposition of an ASBO is that the person subject to it owes duties to the state that are not owed by the general population. This expansion of the defendant’s obligations entails a reduction of her civil rights in a way that is specific to her. This may not appear to achieve anything different in principle from the familiar practice of the criminal law upon conviction for an offence. All punishment for 8 JC Smith, R (McCann) Case Comment [2003] Crim LR 271. See also J Cooper, ‘Public Order Review’ Legal Action February 2003, 18; A Ashworth et al, ‘Neighbouring on the Oppressive: The Government’s “Anti-Social Behaviour Order” Proposals’ (1998) 16(1) Criminal Justice 7, 9. 9 See the discussion in Chapter 1. 10 R v Nicholson [2006] All ER (D) 218.

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breaking the criminal law involves some ‘interference’ with the convicted person’s civil rights. However, the person subject to an ASBO following proceedings under section 1(1) has not been found to have disobeyed the criminal law.11 And this is more than a matter of procedure. The substantive content of the court’s discretionary power to vary rights and obligations and the conditions for its deployment suggest a more fundamental difference between punishment for violation of the criminal law and the imposition of an ASBO. The criterion for this alteration in the rights and obligations is the defendant’s manifest indifference to the feelings of others, in particular their feelings of security. This criterion is a negative formulation of a definition of the good citizen. A minimal, consensual conception of the ‘good citizen’ would be a person ‘who want[s] to behave in such a way as to bring benefit to their community’.12 A survey of some 700 schoolteachers found an ‘overwhelming consensus’ that a good citizen is, among other things, someone who ‘exhibits social concern characteristics’ and ‘a primary concern for the welfare of others’.13 It is precisely such a minimal conception of good citizenship that is reflected in the inverted form of the liability for a failure to maintain an attitude of concern towards others subjective (in)security. The effect of section 1(1) CDA is, therefore, to differentiate people’s ‘citizenship-as-legal-status’ (the extent of their civil rights), on the grounds of their compliance with a minimal conception of good citizenship, or ‘citizenship-as-adesirable-activity’ (the activity of maintaining a proper concern for others’ subjective security).14 It is this distribution of civil rights according to a prior discretionary assessment of the quality of the defendant’s ‘citizenship-as-desirable-activity’ that seems at odds with the premises of the substantive criminal law.15 Punishment for breach of the modern criminal law has not set out from anything like this deliberate assessment of an individual’s disposition towards others’ interests. If any concept of citizenship has been associated with modern criminal law, it has been ‘citizenship-as-legalstatus’ and a formally equal status at that. By subjecting all to the same clearly formulated rules that apply to all, the law can claim to distribute the duties it imposes equally. In this way the criminal law in principle pays some respect to the formal equality of citizens’ legal status.16 The restriction of civil rights represented by punishment for breach of the criminal law is thus premised on the defendant’s formal equality with every other citizen.

11

R (McCann and Others) v Crown Court at Manchester and Another [2003] 1 AC 787. D Oliver and D Heater, The Foundations of Citizenship (Harvester Wheatsheaf, 1994) 114. I Davies, I Gregory, and S Riley, Good Citizenship and Educational Provision (Falmer, 1999) 57. 14 The terminology is taken from W Kymlicka and W Norman, ‘Return of the Citizen’ in R Beiner (ed), Theorizing Citizenship (State University of New York Press, 1995) 284. 15 This is not to say that the wider criminal justice system does not effectively exercise such discretion in practice, only that it is largely excluded from the formal terms of the substantive law. 16 This formal equality is at least the central claim of criminal law doctrine. In practice the law will fail to meet its demands: see C Wells and O Quick, Lacey, Wells and Quick: Reconstructing Criminal Law (Cambridge University Press, 2010) 95. 12 13

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The premise of section 1 CDA when it permits a court to grant an ASBO is that the defendant has failed to fulfil the positive obligation upon which full citizenship rights are founded. Just as the prohibitions within an ASBO cannot be described as general laws, similarly the criteria of the positive obligation, default in which will create liability to an ASBO, cannot be found in a rule with any claim to general application.17 These criteria are to be found in the reactions of others to the defendant, and in the evaluations of her conduct, motives and attitudes, and their context, made by the administration and the courts (evaluations which the defendant may contest). This is as it must be, since the question of good citizenship is concerned with a contextual assessment of the moral quality of the relations between the defendant and her surrounding community. Rather than formal equality, the premise of the discretion to impose an ASBO is that an individual’s rights as a citizen are relative to an administrative assessment of her fulfilment of a prior positive obligation to respect her fellow citizens’ need for subjective security. Under the regime of section 1, the extent of a subject’s civil rights was made conditional upon fulfilment of the prior substantive obligation to others’ sense of security. As substantive law, an ASBO is the discretionary power of a court to redistribute civil rights in proportion to any subject’s default in their prior obligation to protect other subjects’ interests in subjective security. And it is this logic that lies at the heart of the reasoning of the House of Lords when it determined that an ASBO was indeed a civil order to be obtained under civil proceedings, notwithstanding the criminal proceedings resulting from a breach.

3.3 Procedural designation and fundamental rights In McCann the House of Lords was asked to determine whether the civil designation of ASBO proceedings was compatible with Article 6 ECHR. The appellants contended that the ASBO was a penalty and that proceedings for imposition were therefore criminal in character. As we saw in the previous chapters, the House of Lords rejected that argument on the grounds that the ASBO was preventive in intent and the penalty followed the entirely separate breach proceedings. Their Lordships prefaced their judgments with general remarks about the policy of the Act and the relation of section 1(1) to the protection of fundamental human rights. These remarks will be looked at here for what they tell us about the rationale for the procedure, but I shall return to them in the next chapter as expressions of the underlying policy. The House was unanimous that the fundamental right at issue in the proper procedural designation of section 1(1) is that of the community. As Lord Steyn put it: ‘My starting point is an initial scepticism of an outcome which would deprive communities of their fundamental rights.’18 Neither Lord Steyn nor the rest of the House explicitly stated what they thought these rights of the community are but 17

See discussion in Chapter 1.

18

R (McCann) [2003] 1 AC 787, 806.

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the implications of their remarks seem clear. For Lord Steyn: ‘The aim of the criminal law is not punishment for its own sake but to permit everyone to go about their daily lives without fear of harm to person or property.’19 However, as Lord Hope explained, neither the criminal law nor the existing civil law is able to provide this protection to many ordinary people because they are afraid of reprisals from the perpetrators of anti-social behaviour if they give evidence in a criminal prosecution or seek an injunction on their own behalf.20 For Lord Steyn the ‘criminal law by itself’ fails to offer adequate protection to people from their ‘fear of the consequences of complaining’.21 Their Lordships then directly connect this specific failure of the existing law to protect the community from fear to the practical advantages of the civil procedure as it applies to section 1(1). Lord Hope notes that: the opportunity which civil proceedings provide for the use of hearsay evidence is a valuable safeguard. It greatly increases the prospects of persuading those who are likely to be exposed to further anti-social behaviour to cooperate with the authorities in protecting them from such conduct.22

And Lord Hutton: I consider that the striking of a fair balance between the demands of the general interest of the community (the community in this case being represented by weak and vulnerable people who claim that they are the victims of anti-social behaviour which violates their rights) and the requirements of the protection of the defendant’s rights requires the scales to come down in favour of the protection of the community and of permitting the use of hearsay evidence in applications for anti-social behaviour orders.23

Their lordships’ argument is that the causing of fear justifies the application of the relaxed evidence rules of the civil procedure, which is to say justifies denying the right of cross-examination to the defendant.24 Notwithstanding their lordships’ preferred terminology of balancing rights, the logic of their argument is that the right of the community not to be caused a particular feeling, and therefore the individual’s duty not to cause that feeling, is prior to any procedural right of the defendant to cross-examine her accusers.25 Failure in that prior duty, at minimum a failure to be aware of what will cause others fear or insecurity, means the defendant will not enjoy the procedural right.

19

20 R (McCann) [2003] 1 AC 805 (emphasis added). Ibid, 814. 22 23 Ibid, 805–6. Ibid, 814. Ibid, 835 (emphasis added). 24 For a criticism of this argument from the standpoint of the ECHR see A Ashworth, ‘Social Control and “Anti-Social Behaviour”: The Subversion of Human Rights?’ (2004) 120 LQR 263, 291. 25 The House of Lords’ argument in terms of rights does not dispose of the specific legal problem created by their recognition of the criminal standard of proof in ASBO proceedings. As Alvaro GilRobles puts it: ‘For my part, I find the combination of a criminal burden of proof with civil rules of evidence rather hard to square; hearsay evidence and the testimony of police officers or “professional witnesses” do not seem to me to be capable of proving alleged behaviour beyond reasonable doubt.’ Report by Alvaro Gil-Robles, ‘Commissioner for Human Rights on His Visit to the United Kingdom 4–12 November 2004’, para [115]. 21

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In justifying the use of the civil procedure rules the House of Lords confirms the underlying logic that we have observed in relation to the substantive terms of section 1(1) outlined above. Section 1(1) proceedings concern a determination of the defendant’s citizenship status in which the civil rights of the individual depend upon a collective assessment of the individual’s disposition towards others, carried out both procedurally through hearsay evidence and substantively through official evaluation of conduct, motive and disposition. The extent and nature of the defendant’s rights, procedural and substantive, are derivative of the fulfilment of the prior responsibility towards others’ feelings of security. On this point at least the procedure of section 1(1) reflects its substantive concept in a way that criminal procedure would not have done at the time McCann was decided. Arguably that position changed subsequently. Procedural redesignation would have had little practical effect after the coming into force of the Criminal Justice Act 2003, section 114, which gave judges in criminal trials a broader discretion to allow hearsay evidence, in particular where a witness is in fear.26 After that reform the criminal courts were in a better position to give procedural effect to the substantive duties in section 1(1) CDA than they were previously. There was, therefore, a quite specific conceptual connection between the civil procedure and ASBO proceedings at the time of McCann, in that being able to admit hearsay evidence is an evidential counterpart of the substantive obligation that section 1(1) enforces, so that the lack of it would seriously undermine the enforcement of that obligation. Moreover, in a more general sense, the section 1(1) proceedings display all the characteristics of an administrative consultation appropriate for a decision that is in essence a risk assessment. The argument here is not intended to deny that there was something punitive in the effect of the ASBO, whatever the measure’s primary purpose.27 Rather the point of it is to show that the ASBO application’s designation as a civil proceeding, and the House of Lords’ argument in favour of it, make sense once the substantive law of section 1(1) is understood to be a power to redistribute civil rights to control individuals who have failed in a prior obligation of awareness and respect for others’ subjective feelings of security. Lord Steyn explains this structure as fulfilling the criminal law’s aim of permitting people to live ‘without fear of harm to person or property’. In other words, causing that fear is a public wrong and the criminal law, both substantive and procedural, protects a right to be free from the fear of crime that is caused by those whose disposition marks them as dangerous.

26 See C Bakalis, ‘ASBOs. “Preventative Orders” and the European Court of Human Rights’, (2007) 4 European Human Rights Law Review 427. 27 The general deterrent effects of ASBOs have been promoted by the Home Office; see, for example, Home Office, A Guide to Anti-social Behaviour Orders and Acceptable Behaviour Contracts (Home Office, 2002) 13.

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3.4 Reforming the ASBO The Coalition government’s proposed reform to the ASBO regime involves procedural redesignation of the ASBO by splitting the measure into two separate orders, one wholly criminal and one wholly civil. But crucially the form and content of the substantive law are largely unchanged. The ASBO is to be replaced by the criminal behaviour order (CBO) and the crime prevention injunction (CPI). The CBO is the CrASBO rebadged. Available only on conviction for an offence, the order is identical to the ASBO except with the power to include ‘positive requirements on an offender to take action to address the underlying causes of their behaviour’ in addition to prohibitions.28 In respect of criminal offenders, the ASBO’s capacity to distinguish them from ordinary citizens through imposition of specific liabilities for failure to reassure is to remain unchanged except for making more explicit the element of positive obligation it always implicitly contained. The freestanding ASBO available on application is to be replaced with the CPI. This will be a wholly civil order applied for like the ASBO by local authorities, the police or social landlords. These are presented as a response to a course of conduct, to the cumulative impact of a series of ‘relatively trivial incidents’, and the key policy motive for this reform is to make it quicker, easier and less expensive to get a preventive order than it is to get an ASBO.29 The critical reason why the CPI would be quicker and cheaper is that the civil standard of proof would apply, requiring less evidence to be gathered.30 The substantive test proposed by the Home Office consultation is, however, either exactly the same as the ASBO—conduct causing or likely to cause harassment, alarm or distress to one or more person not of the same household—or the still broader test of conduct that causes ‘nuisance or annoyance’, which would still encompass the ASBO’s liability for failure to reassure.31 The order will prohibit behaviour in the same way but like the CBO will be expanded to include mandatory obligations. Apart from the lower standard of proof, the difference with the ASBO will be that breach will be treated in the same way as breach of an anti-social behaviour injunction, a civil order that is available to landlords. It will be a civil contempt with no criminal conviction. In the county court the maximum penalty will be two years’ imprisonment, in the magistrates’ court six months. The practical effect of this reform in reducing sentencing severity could easily be overestimated. If the evidence of the appeal cases is anything to go by, the higher sentences for breach of an ASBO have in any case for the most part been attached to CrASBOs imposed by sentencing courts. Underlying this probable lack of much practical difference is the similarity in the sentencing principles for contempt of court and breach of an ASBO. The Court of Appeal has ruled in respect of breach of an antisocial behaviour injunction that ‘when committing a person to prison for breach of a court order . . . an element in the sentencing process is punishment, but the court has 28 29

Home Office, More Effective Responses to Anti-Social Behaviour (2011) 14. 30 31 Ibid, 16. Ibid. Ibid, 17.

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to take into account the importance of obedience to court orders and disobedience to them and, importantly in the present case, the protection of the people in respect of whom the court order was made’.32 But these different rationales were effectively integrated by the substantive law of the offence of breach of an ASBO—public protection being the effect of punishment proportionate to the defendant’s failure to address a disposition not to reassure others made manifest in the breaching conduct. There are differences in the treatment of contemnors by comparison with criminal offenders, and they include the lack of a criminal record, the special treatment of imprisoned contemnors in conditions more like that of a remand prisoner,33 and some scope for a contemnor to apply for an earlier discharge at the discretion of the court.34 There has been a convoluted legal debate about the relation of the criminal and civil aspects of contempt.35 But either way the courts have recognized the seriousness of the civil contempt proceedings, imposing the beyond reasonable doubt standard of proof,36 allowing that the defendant cannot be compelled to give evidence against his will so as to incriminate himself,37 and applying the rules of autrefois acquit and autrefois convict.38 Lord Denning summed up the reasons for these criminal aspects to contempt proceedings: ‘A contempt of court is an offence of a criminal character. A man may be sent to prison for it.’39 Taken all together, the similarities between the ASBO and the CPI are more striking than the differences. In both regimes, in circumstances where there is antisocial behaviour and criminal offences cannot be proved, a court order is available on the grounds that it is necessary to prevent conduct likely to cause harassment, alarm or distress, and that order can prohibit anything necessary to prevent further such conduct. The proceedings for breach have a broadly similar procedure and sentencing principles. The differences are that the CPI requires a lower standard of proof and will be easier to obtain, but maximum sentences for breach will be lower, and breach will not result in a criminal record or treatment as a criminal offender even where imprisonment is used. The procedural reform makes a substantial difference in the lack of a criminal record and treatment as a criminal prisoner. But the civil rights of the person who manifests a disposition of indifference or hostility to others’ security interests can still be restricted as necessary by obligations not to manifest that disposition, obligations that if breached render the person liable to detention for the purposes 32

Nottingham City Council v Cutts (2001) 33 HLR 7, para [6]. Prison Rules 1999 (SI 1999/728), r 7(3). Contempt of Court Act 1981, s 14(1). 35 One authority summarizes the effect of the case law as follows: ‘civil contempt (in so far as disobedience of court orders does not pass into the realm of public misconduct and therefore into the arena of criminal contempt) is concerned to protect the private interest in the enforcement of court orders’: I Cram (ed), Borrie & Lowe, The Law of Contempt (Lexis Nexis, 2010) 252. On this basis, although the government calls it civil contempt, it is hard to see committal for breach of a CPI as anything but a criminal matter given that it is a remedy sought by public authorities on the ground of public protection. 36 Re Bramblevale Ltd [1970] Ch 128. 37 Bhimji v Chatwani (No 3) [1992] 4 All ER 912. 38 Danchevsky v Danchevsky (No 2) (1977) 128 NLJ 955. 39 Re Bramblevale Ltd [1970] Ch 128. 33 34

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of public protection. If anything, the manipulation of the procedural boundary is more striking in the ‘civilized ASBO’ than it was in the criminal order. The policy motivation for civilizing is speed and efficiency but the orders will enable courts to coerce persons administratively assessed to be a risk to desist from conduct that is otherwise lawful by making specific penal threats.40 Calling the power an injunction and applying the civil procedure leaves the substantive liability and the essentially administrative process intact, albeit with less severe maximum penalties. The CPI is, like the ASBO, an administrative power protecting the same freedom from fear by diminishing the civil rights of those made subject to it, only now with civil penalties instead of criminal penalties.

3.5 Freedom from fear as the right to security The ASBO introduced something distinctive in form and content. In form it was an administrative order imposing special penal obligations that marked its subjects by reducing their civil rights on the grounds of a discretionary risk assessment. The content of that assessment was the risk posed to others’ sense of security. The earlier harassment offences went a long way in the direction of protecting subjective security explicitly and for its own sake. The innovation in the ASBO was to protect a right to live free from the fear of crime drawn in the broadest possible terms by prohibiting any manifestation of a disposition that fails to reassure. The form and content of this protection is preserved in the CBO and the CPI with which it is proposed to replace the ASBO. It is this legally protected freedom from fear that constitutes ‘a right to security’. It is worth taking a moment at this point to clarify the use of this terminology: firstly, the use of ‘a right’, and secondly the use of ‘to security’. The substantive criminal law is traditionally thought of in terms of imposing duties to the state rather than protecting rights of individuals against victimization. The reason is that the ultimate power to enforce the liabilities imposed by criminal law lies with the state and not with the victim or any other individual person.41 But the idea that rights are legally protected interests, independently of whether their beneficiary is in control of the enforcement of their corresponding duty, is of long standing and is influential in contemporary legal theory.42 The reason for 40

The Home Office cannot quite conceal the criminal aspect of the supposedly entirely civil CPI. In the consultation paper on the reforms, the relative merits of county courts and magistrates’ courts as a forum for applications are discussed. Among the disadvantages of the county courts are that they lack security provisions ‘such as docks and secure cells’ (More Effective Responses to Anti-Social Behaviour, 17). 41 The private prosecutor in English criminal law is only representing the public interest because she is unable to discontinue any litigation at will (Wood (1832) 3 B & Ad 657) and is subject to the Attorney-General’s power to enter a nolle prosequi, thereby taking over and discontinuing the litigation. The state’s still tighter control over ASBO/CPO and CPI applications is determined by statute. 42 See J Raz, Morality of Freedom (Oxford University Press, 1986) ch 7, esp 166 and 182; and N MacCormick, Legal Right and Social Democracy: Essays in Legal and Political Philosophy (Clarendon Press, 1982) 154–66.

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adopting the language of rights here is not out of philosophical commitment to the interest theory of rights as opposed to any other, but because, for better or worse, it more accurately reflects contemporary usage of the concept of rights both in general,43 and more especially in the jurisprudence of the European Convention on Human Rights that understands the human rights of individual subjects as interests that can be protected by the use of coercive state powers.44 When rights are understood as a protected interest it will often be necessary to limit them by reference to the rights of others and, as I shall argue in Chapter 6, that is how a right to security turns out to be treated as a fundamental one by the ECHR.45 The freedom from fear protected by the ASBO/CBO/CPI is not a freedom from specific fears of specific acts but a freedom from subjective fear of crime as such. It serves to control and incapacitate those who manifest a disposition that fails to reassure, those who are perceived as dangerous. By protecting the broadest interest in security in this way, the interest protected deserves the name ‘right to security’. By contrast, much of the ordinary criminal law that is concerned to protect from harmful or objectively dangerous acts (dangerous in the sense that they do harm or increase the risk of a harm in a way that goes beyond the subjective perceptions of particular others)46 cannot be said to protect a right to security. These offences may serve what we might call ‘objective security interests’; we could even say that they protect a right to be free from harms to those security interests. But it falls short of a right to security because conceptually security cannot be reduced to a matter of objective risks of harm. The reason for this is that the magnitude of a risk of harm to a particular person is not independent of that person’s perception of the risk. A perception of a greater risk may result in a person taking measures to avoid its materialization,47 thereby altering the objective risk; and vice versa.48 Although objective and subjective security are analytically separable they are not independent of each other, and if it is security as such

43 For an argument on the general practice of constitutional courts, see K Moller, ‘Two Conceptions of Positive Liberty: Towards an Autonomy-based Theory of Constitutional Rights’ (2009) 29(4) OJLS 757. 44 See, for example, Otto-Preminger-Institut v Austria (1994) 19 EHRR 34, paras [47]–[48]. 45 Although other theories have been suggested for this limiting of rights. For a discussion of the relative merits of the interest theory and the Dworkinian ‘reason-blocking’ theory as accounts of the jurisprudence of the ECHR, see G Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford University Press, 2007) 101–5 and Moller, ‘Two Conceptions’. 46 For discussions of examples see generally Chapters 7 and 8. 47 Strictly speaking, subjective insecurity or vulnerability is not just a question of perception of risk but of risk compounded by perception of impact (S Green, ‘Crime, Victimisation and Vulnerability’ in S Walklate (ed), Handbook of Victims and Victimology (Willan, 2007)). 48 This relationship between objective and subjective security is further complicated by what Murray Lee refers to as the ‘fear of crime feedback loop’ in which the fear of crime comes to be constructed by the efforts to identify and draw attention to the problem, so rendering the population more fearful (M Lee, Inventing Fear of Crime (Willan, 2007) 76). In this way the concept fear of crime serves to constitute its object. This is a process that has developed from the surveys of fear of crime and the rhetorical justifications for tough crime policies to combat fear, that Lee discusses, to the security interest that is directly protected by the criminal law and is the object of the present study.

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that is to enjoy legal protection then that will necessarily involve protection of subjective security.49 The other harassment offences that are defined in terms of subjective security go a long way in the direction of a right to security, but their protection also falls short in the sense that they protect subjective security only from certain specific threats or injuries, leaving untouched much of the field in which people’s perceptions of the risk of victimization are formed. It is this vast field that is covered by the enormous scope of the ASBO’s liability for a failure to reassure. I will return to the question of where else in the criminal law we can identify such a liability in Chapters 7 and 8. But before that I will examine the sources of the idea that the law’s subjects should be formally divided along the lines of a conditional citizenship in which civil rights are distributed according to an assessment of a person’s respect for others’ right to security. First I will seek out the argument for it in New Labour policy before turning to the theories that informed that policy. As Ian Loader and Neil Walker put it, ‘the socially inflected experience of feeling or not feeling secure is itself internal to and partially constitutive of what we mean by (in)security.’ I Loader and N Walker, Civilizing Security (Cambridge University Press, 2007) 157. 49

4 The Reassurance Gap The ASBO is a power to distribute rights on the basis of subjects’ fulfilment of their obligations to each other in relation to security. This chapter seeks to show that it is this relationship between the rights and duties of citizenship that lies at the core of anti-social behaviour (ASB) policy. Moreover it will show that ASB policy in general, and the ASBO’s liability for failure to reassure in particular, institutionalize a conception of citizenship that reflects the wider themes of New Labour’s criminal justice and social policy. These themes are that government should be based on a contract between state and citizen entailing positive obligations on both parties, that the criminal justice system has previously failed to deliver on some of the state’s obligations under that contract, and the representative citizen is therefore marked by their vulnerability to crime. This chapter is not intended as a comprehensive account of the history of ASB policy process nor as a discussion or critique of the category of ASB. Though it may offer some oblique commentary on these important subjects, this is incidental to its purpose, which is to explain the threads of normative argument that link the right to freedom from fear of crime that is protected by the substantive law to the beliefs of contemporary political theory that the law institutionalizes. That mediating link is to be found above all in the statements of policy makers.

4.1 A Quiet Life The prehistory of the ASBO is a proposal in a Labour Party consultation document entitled A Quiet Life.1 The document proposed legislating for a ‘community safety order’ and the ASBO emerged from the results of that consultation. A Quiet Life introduced themes that would remain important in the development of ASB policy and there was much in common between the original proposal and the eventual ASBO. But the differences between the community safety order and the ASBO should not be overlooked. A Quiet Life opens with the claim that ‘Every citizen has the right to a quiet life—a right to go about their lawful business without harassment, interference or criminal behaviour by their neighbours.’2 The document then asserts that this right 1 2

Labour Party, A Quiet Life: Tough Action on Criminal Neighbours (Labour Party, 1995). Ibid, 1.

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is breached in many neighbourhoods by the problem of chronic and persistent ASB, a combination of the merely un-neighbourly with the outright criminal that makes the lives of many a misery. The criminal justice system, it is argued, has failed to deal with this problem effectively, in part because, where conduct was localized and persistent, victims and witnesses were intimidated into silence, and partly because ‘the criminal justice system tends to treat the commission of crime as an acute, rather than a chronic condition’.3 The individual incidents that make up ASB might be minor in themselves but the cumulative impact of their persistence is very serious. The result was that ‘the charges and punishment rarely fit the crimes’.4 As a consequence local authorities had been forced to rely on civil remedies in housing law, which were slow and not available to them as landlords against private tenants or owner-occupiers. The document then makes clear that the failure of the criminal justice system to address this ASB effectively is not only a problem because of the immediate effects of ASB. At least as important is that ‘[p]ublic confidence in the criminal justice process is significantly reduced where the process is seen to be ineffective or incapable of dealing with serious criminal behaviour.’5 This is a theme that recurs and turns out to be central to the entire ASB policy. The community safety order is then proposed as one potential solution to the problem of collapsing public confidence. Like the ASBO, the proposed CSO would have been: • a civil order granted by a magistrates’ court; • applied for by either local authorities or police forces, but in either case the applicant authority would be under a statutory duty to consult other authorities in making an application; • would ‘amount to a special form of injunction . . . . It could include curfews, exclusion from a particular area, restraints on approaching individuals, uttering threats, making noise of specified kinds and desisting from racist behaviour’;6 • ‘could impose conditions on parents in respect of their minor children’;7 • would enable the protection of witnesses by use of civil evidence rules; • would have a criminal offence for breach attached (with a suggested maximum sentence of seven years’ imprisonment). But the differences with the power that was eventually enacted are very significant. Unlike the ASBO, ‘The principal aim of the new order is punitive and preventive.’8 The reason for the punitive element was that an application could be made where there was ‘evidence of chronic anti-social behaviour’ and that evidence could include: 3 4 7 8

Labour Party, A Quiet Life: Tough Action on Criminal Neighbours (Labour Party, 1995), 7. 5 6 Ibid, 1. Ibid, 8. Ibid. Ibid. A parenting order can be attached to an ASBO under CDA 1998, s 8. Labour Party, A Quiet Life.

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• multiple previous convictions; • ‘evidence of the commission of such multiple offences, even where there had not been a conviction’; • ‘other evidence of unlawful acts . . . likely to interfere with the peace and comfort of a residential occupier’, where unlawful acts means existing civil wrongs.9 The grounds for the imposition of an ASBO, by contrast, do not require a finding of conduct that is in any way unlawful except as a result of the operation of section 1 CDA. As a consequence, the House of Lords has determined that the aim of the order is in itself only preventive and not penal. Concomitant with that change of legal substance between the original proposal and eventual legislation is a subtle change in the policy justification of the measure to which we now turn.

4.2 The Crime and Disorder Act 1998 After being elected in 1997, the New Labour government lost no time publishing a Home Office consultation paper on the proposed community safety order. The proposals in A Quiet Life had arisen out of the particular frustration of housing managers trying to deal with badly behaved residents including many who could not be controlled through the landlord–tenant relationship and the injunctions that this relationship made possible. In the new consultation, the Home Office asserted that the response to A Quiet Life had been positive, but also reformulated the problem to which the proposals were addressed, as the wider need ‘to combat disorder in society’.10 Moreover the problem was now understood to be a major concern for the electorate. As Home Secretary Jack Straw commented in parliament: I was struck by the degree to which the problems and experiences of my constituents had changed since I was first elected in 1979. Then, the great bulk of my constituency casework concerned housing complaints and social security, but that changed from the early 1990s. More and more people came to me complaining of intolerable anti-social behaviour, of harassment and of intimidation. Much of the trouble was caused by children and young people who were out of control. The criminal justice system appeared to be incapable of enforcing decent standards of public behaviour on children and adults alike.11

In line with the expansion of the scope and significance of the problem in the Home Office consultation, the grounds for imposition of such an order had also changed to include behaviour that was not criminal and with no mention of repeated incidences.12 Defending these proposals as they appeared in the Crime and Disorder Bill from backbench parliamentary critics, Home Office minister Alun Michael insisted that, like the community safety order, ASBOs ‘are intended 9 11 12

10 Ibid, 9. Home Office, Community Safety Order: A Consultation Paper (1997) 1. HC Report, 8 April 1998 col 370. Home Office, Community Safety Order, 2.

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to tackle persistent behaviour’.13 But, as we have seen, there is no requirement in what became the section 1(1)(a) grounds for conduct to be persistent—only that the conduct gives ground for believing the order to be necessary as required by section 1(1)(b). Two days earlier, Michael had in any case agreed that persistence was not needed: Matters such as repetition would be considered by the local authorities and by the police. They would not be prevented from taking action because the behaviour seemed to be a oneoff act. It is likely that they would ask whether the act was single and isolated, and whether it made an order necessary. A lot of common sense must be applied . . . .14

What in the community safety order had been a new way of responding to already legally wrongful acts had become the assessment of disposition analysed in Chapter 1. The relatively precise grounds for the community safety order had given way to the broadest of discretion. In response to criticism of the lack of any threshold of seriousness of the harassment, alarm or distress caused, the minister notoriously observed that ASBOs ‘are intended to be used for criminal or sub-criminal activity, not for run-of-the-mill civil disputes between neighbours’.15 In these responses he makes clear, however, that the ASBO is not the community safety order since the behaviour controlled need not in fact be criminal or even unlawful, any more than it need be persistent.16 The minister did not, however, elaborate further on the line between ‘subcriminal’, ‘run-of-the-mill civil dispute’ and the simply lawful, relying instead on the wisdom and discretion of local authorities in making applications and the courts in determining that orders were necessary or conduct unreasonable before granting the orders. Pressed by opposition peers on the vagueness of this borderline and the lack of any threshold of seriousness for the harassment, alarm or distress caused, the Attorney-General, Lord Williams, responded by saying: If [complainants] are unusually susceptible to harassment, alarm or distress, the court will have to draw a balance as to what is suitable in all the circumstances. That does not depend on the purely legalistic question of whether it is subjective or objective. That is far too narrow and unhelpful a question.17

This legalism is ‘narrow and unhelpful’ because it undermines what to the Attorney-General is the entirely reasonable requirement of conduct as defined by section 1(1). As we noted in Chapter 1, he said that the subsection ‘requires the subject of it to do no more . . . than to behave in a decent way to the fellow citizens of our country’.18 We have seen that the liability for a dispositional failure to reassure is indeed one aspect of a minimal, consensual account of good citizenship. 13

HC Standing Committee B, 30 April 1998 cols 46 and 47. HC Standing Committee, 28 April 1998. 15 HC Standing Committee B, 30 April 1998 cols 46 and 47. 16 Although, in contradicting himself on the question of persistence, Alun Michael suggests that ministers were not entirely clear in their own minds just how different the ASBO and community safety order were. See also Jack Straw HC Report, 22 June 1998 col 722. 17 HL Report, 3 February 1998 col 516. 18 Ibid, 514. 14

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Section 1 requires the maintaining of a concern for others’ feelings and in particular their need for subjective security. It can, therefore, be described as enforcing a certain standard of civility. But enforcing a basic standard of civility is not the same thing as responding to persistent offending, although there will plainly be a considerable overlap. In institutionalizing such a requirement, the policy behind the ASBO was no longer simply a question of solving a particular problem that had arisen in the management of social housing or of filling a gap in the criminal justice system as it had been in A Quiet Life, although ministers continued to refer to the incapacity of the criminal justice system to respond effectively to chronic offending and ‘subcriminal’ behaviour. Rather the requirement of civility put the ASBO at the centre of attempts to revitalize communities. Motivating the whole Crime and Disorder Bill of which the ASBO was one central enforcement measure, Jack Straw rhetorically connected ASB policy as an aspect of the broad rebalancing of the criminal justice system to the question of civil renewal and social exclusion: It will shift the balance of power in communities from the anti-social and the criminal to the law-abiding majority. It will put the victim first, and it will ensure that offenders understand that even so-called petty crime has a victim. It will help to rebuild community life, and to tackle social exclusion.19

The implication is that social exclusion is a consequence of the ASB of a minority. The broad social problem of neighbourhood decline is seen as being caused by incivility. It is this rhetoric that suggests that official thinking on ASB has borrowed heavily from the criminologically controversial ‘broken windows’ theory of crime causation, in which minor incivility and disorder leads to abandonment of public space and an environment in which more serious crime will flourish.20 The ASBO with its much broader substantive reach than the community safety order certainly fits into the policy context of incivility as a cause of communal decline, and of the need for the enforcement of standards of civility as a way of bringing about civic renewal. The apparent influence of the broken windows theory reinforces the view that the ASBO is simply an unprincipled instrument of the government’s broader crime control policy.21 But despite the political priority made of the ASBO by central government and the lack of party political opposition to it, there was very little use of the order by local authorities or police forces in the first four years following its enactment.22 The Home Office only successfully motivated its use in New Labour’s second period in government under a new Home Secretary, David 19

HC Report, 8 April 1998 col 372. The theory was propounded in J Wilson and G Kelling, ‘Broken Windows’ (1982) The Atlantic Monthly 29. For a discussion of the controversy in the context of ASB policy, E Burney, Making People Behave: Anti-Social Behaviour Politics and Policy (Willan, 2005) 24–9. 21 For the normative critique of broken windows see A Simester and A von Hirsch ‘Penalising Offensive Behaviour: Constitutive and Mediating Principles’ in A von Hirsch and A Simester (eds), Incivilities (Hart, 2006). 22 A Home Office study showed that between April 1999 and September 2001 just 466 ASBOs were granted and 18 applications refused by magistrates (S Campbell, A Review of ASBOs (Home 20

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Blunkett. By this time, while civic renewal was still at the heart of ASB policy, and the rhetoric of broken windows theory not entirely abandoned, the Home Office had reformulated the problem that ASB represented in a more subtle way. It had shorn ‘broken windows’ of its more controversial aspect—the idea that incivility leads to serious crime, and rested the policy only on the argument that ASB would lead to fear of crime and abandonment of public space.23 This reformulation allowed the preoccupations of police and local authority officials to be combined with the broader themes of New Labour social policy, and its normative vision of citizenship. It is this policy package to which the ASBO gives legal form as a police power.

4.3 Respect and Responsibility The 2003 Home Office white paper Respect and Responsibility: Taking a Stand Against Anti-Social Behaviour set out the policy underlying the broad range of ASB powers taken on by government. In Respect and Responsibility the issue of respect for others’ feelings is put at the heart of ASB: ‘The common element in all anti-social behaviour is that it represents a lack of respect or consideration for other people.’24 Echoes of the ‘broken windows’ theory remain in David Blunkett’s ministerial forward when he refers to: the way communities spiral downwards once windows get broken and are not fixed, graffiti spreads and stays there, cars are left abandoned, streets get grimier and dirtier, youths hang around street corners intimidating the elderly. The result: crime increases, fear goes up and people feel trapped.25

However, notwithstanding these echoes of broken windows theory, Blunkett concludes on the trapping effects of fear of crime rather than crime itself, anticipating the central concern of the white paper. The lack of respect that constitutes ASB ‘gives rise to fear of crime’,26 and this, rather than crime itself, is the core problem because, as the white paper notes, although actual crime reported in victim surveys and recorded by the police had fallen: . . . the fear of crime has not fallen to the same extent. And it is fear of crime—rather than actually being a victim—that can so often limit people’s lives, making them feel afraid of going out or even afraid in their own homes . . . .27

Office Research Study 236, 2002)). See also E Burney, ‘Talking Tough, Acting Coy: What Happened to the Anti-Social behaviour Order?’ (2002) 41(5) Howard Journal 341. 23 Burney too recognizes that it is this element of broken windows that continues to ‘hold sway’: see Making People Behave, 29. 24 Home Office, Respect and Responsibility: Taking a Stand against Anti-Social Behaviour (Cm 5778, TSO, 2003) 17. 25 Ibid. 26 Ibid, 13. 27 Ibid. The Home Office’s claims about actual crime are borne out by the trend in the figures, see R Reiner, Law and Order (Polity, 2007) ch 3.

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This theory of the problem of ASB is plainly related to broken windows theory but it is not the same. It is not concerned primarily with criminal harms that may or may not arise later on in an area where people are reluctant to use public space, but with the more immediate problem that they are in fact afraid of crime. Moreover this is not simply a problem of the disutility that fear represents. Rather the policy is addressed to the problem of confidence in government as such. Respect and Responsibility argues that ‘nothing undermines public confidence more than the sense that no one is taking anti-social behaviour seriously’. A tough approach to ‘enforcement’ is therefore ‘critical’ because without it civic renewal strategies ‘are meaningless and the community loses faith’.28 The object of the enforcement strategy is only secondarily to address the ‘perpetrator’ and deal with her conduct. Its primary purpose is to restore the community’s ‘faith’ in government as such. The issue of public faith and confidence in authority is a theme reflected across criminal justice policy at this time. The year before Respect and Responsibility, the government published the white paper Justice for All. It maintained the view that ‘tackling crime is a social justice priority’29 and expressed the government’s ‘absolute determination to create a system that meets the needs of society and wins the trust of citizens’.30 But the white paper admits that: despite all the changes of recent years, the signals sent out are ones of weakness in critical areas . . . .We need to send the clearest possible signal that the criminal justice system will be effective in detecting crime, in bringing offenders to court, in convicting those who are guilty and in sentencing them properly.31

This problem of ‘weakness in critical areas’ was described in Justice for All as ‘the justice gap’. And it is in this broad context of an official perception of weakened public confidence in the authorities’ capacity to enforce the law, and bring offenders to justice, that policy makers observed the existence of another ‘gap’, one into which the ASBO fits nicely.

4.4 The reassurance gap The connection made in Respect and Responsibility between an intransigent fear of crime and the need for a very public and unambiguous response to the behaviour thought to cause it is a broader restatement of a new approach to community policing that was developing during the same period. This new thinking was addressed to a problem that the Association of Chief Police Officers (ACPO) dubbed ‘the reassurance gap’.32

28

29 Ibid. 53. Home Office, Justice for All (TSO, 2002) 27. 31 Ibid, 13. Ibid, 11. 32 Association of Chief Police Officers, Reassurance—Civility First: A Proposal for Police Reform (ACPO, 2001) cited in A Millie and V Hetherington, ‘Bridging the Gap: Understanding Reassurance Policing’ (2005) 44 Howard Journal 41. My thanks to Lucia Zedner for alerting me to this literature. 30

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The Audit Commission had suggested in a 1999 report that the problem of apparently improving crime rates but little change in public perception could be put down to the problem of local disorder.33 This was associated with a marked decline in public confidence in the police.34 ACPO took up the problem in their 2001 proposals, and ‘the idea that communities need reassuring has become a central principle of the police reform agenda and has been included in both the Police Reform Act 2002 and the National Policing Plan 2003–2006’.35 In 2003 the Home Office funded a National Reassurance Policing Programme, piloting a ‘reassurance policing’ approach to tackling local signs of disorder. The central purpose of reassurance policing is ‘to address the gap between broadly improving indicators of risk of criminal victimization and the declining indicators of public confidence’.36 In general terms ‘order maintenance’ is the key to reassurance policing.37 But the policy has been given an influential theoretical basis in the ‘signal crimes’ perspective developed by Martin Innes and Nigel Fielding.38 This perspective draws out the close connection between reassurance policing and the ASBO as it has been analysed in previous chapters. ‘Signal crimes’ may be obviously serious offences or seemingly trivial but they all send out a ‘signal’ that ‘serve[s] to remind people of the risks to which they are potentially exposed’.39 This is a subtly different perspective from that of the ‘broken windows’ theory of neighbourhood decline and crime causation. Where the ‘broken windows’ theory postulated the controversial and as yet unproven claim that accumulated neglect and disorder in a neighbourhood caused crime, the signal crimes perspective is from a criminological perspective more modest claiming not that ‘signalling functions as a direct cause of further crime’ but only that ‘signal crimes adversely shape people’s criminogenic risk perceptions, encouraging higher levels of fear and anxiety’.40 What will function as a signal crime will be context-sensitive, different crimes and disorder may send signals to different people in different environments.41 Reassurance policing therefore lays a lot of stress on working closely with a local community and with local authorities,42 because this type of policing is as much to do with perceptions of social order as it is to do with law enforcement.

33

Audit Commission, Safety in Numbers: Promoting Community Safety (Audit Commission, 1999). Millie and Hetherington, ‘Bridging the Gap, 42–3. Ibid, 42. 36 N Fielding and M Innes, ‘Reassurance Policing, Community Policing and Measuring Police Performance’ (2006) 16(2) Policing & Society 127, 130. 37 Ibid, 43. 38 M Innes and N Fielding, ‘From Community Policing to Communicative Policing: Signal Crimes and the Problem of Public Reassurance’ (2002) 7(2) Sociological Research Online . 39 Ibid, 11. 40 Innes and Fielding, ‘From Community Policing’. 41 Ibid, paras [5.5]–[5.10]. 42 The Crime and Disorder Act 1998 requires partnership working between the police and local authorities in the development of local strategies and in the process that leads to freestanding ASBO applications: see CDA 1998, s 1E. 34 35

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[reassurance policing] recognises the significance of . . . the logic of ‘perceptual intervention’—that is, if it is accepted that policing should undertake to not only make people ‘objectively’ safer but also improve their ‘subjective’ feelings of security, then all policing interventions need to reflect this and attend to the impact upon public perception that they may have.43

The ASBO is an instrument of just such a context-sensitive approach to policing, oriented to subjective feelings of security. Indeed conduct (whether criminal or not) which manifests an indifference or hostility to others’ sense of security, conduct which fails to reassure, is conduct sending out exactly the ‘signal’ that is the target of reassurance policing. Moreover ‘the signalling function is a quality of the social reaction to the event, rather than being inherent to the act itself’.44 Here too the ASBO is tailor made. The terms of the ASBO are frequently publicized by the authorities with the defendant named and pictured and the prohibitions listed.45 Not only does this facilitate community surveillance of the defendant but also allows for the publicizing of a forceful official reaction. As reassurance policing is about ‘bridging the reassurance gap’, so the ASBO is one of its instruments, seeking to restore public confidence in the authorities’ capacity to maintain order. The connection between ASB and public confidence in the police has remained central to official thinking.46 Respect and Responsibility draws out the themes shared between ASB policy and reassurance policing—perceptual intervention by altering the reaction to events so as to improve the signal to ‘criminogenic risk perceptions’ and thereby public confidence in the authorities. But the white paper also reasserts two distinctive features of ASB policy that have also been promoted over a much wider terrain. The first is the proposition that freedom from the feelings that give rise to the fear of crime is not merely a desirable end of policing but a right of citizens and one that lies at the heart of the relation of citizen and government. The second is the connection between that right and the official critique of criminal justice.

4.5 Reassurance and active citizenship For the Home Office the fear of crime, and the consequent abandonment of public space, which ‘limits people’s lives’, makes ASB policy a question of rights. Respect and Responsibility continues to emphasize the ‘defective’ character of the criminal

Fielding and Innes, ‘Reassurance Policing’, 130. Innes and Fielding, ‘From Community Policing’, [7.3]. 45 For a discussion see N Cobb, ‘Governance through Publicity: Anti-Social Behaviour Orders, Young People, and the Problematisation of the Right to Anonymity’ (2007) 34(3) Journal of Law and Society 342. 46 ‘We can see that ASB is one of the key determinants of confidence in the police generally’, speech by Denis O’Connor, Her Majesty’s Chief Inspector of Constabulary, at the launch of My Police, 10 March 2010. 43 44

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justice system raised in A Quiet Life and by ministers in the debates around the Crime and Disorder Bill, again asserting that the system’s problem is that its focus is too heavily on the rights of defendants. It argues therefore that ‘Our job is . . . to shift the culture away from protecting the rights of the perpetrator towards protecting the rights of decent people.’47 In his ministerial foreword to the white paper, Home Secretary David Blunkett spelled out what these rights of decent people are: As a society, our rights as individuals are based on the sense of responsibility we have towards others and to our families and communities. This means respecting each other’s property, respecting the streets and public places we share and respecting our neighbours’ right to live free from harassment and distress. It is the foundation of civic society.48

Blunkett’s presentation of the argument draws out something still largely implicit in the earlier ‘right to a quiet life’ and its capacity to enforce civility. For Blunkett the right that the government sought to uphold was nothing less than ‘a foundation of civic society’. Blunkett reasserts the connection between ASB policy and community building, but ASB policy appears now as the bedrock of social order. And the Home Secretary believed that bolstering those foundations was an urgent priority: ‘Britain has never been at a more insecure moment . . . I think it’s my job to provide some stability and order. Anti-social behaviour is actually at the foundation and root of insecurity.’49 In a speech in 2002 he had made clear that for the government tackling ASB is about more than fighting crime: ‘To emphasise, these are civil renewal measures, not just crime-cutting measures.’50 The Home Office Civil Renewal Unit defined civil renewal as ‘the development of strong, active and empowered communities, in which people are able to do things for themselves, define the problems they face, and tackle them in partnership with public bodies.’51 Blunkett explained that this agenda of developing communities through partnership between people and public bodies could be understood as building ‘social capital’.52 Putting his own spin on social capital theory he argued that: Order generates trust. In turn those who trust others are more likely to participate in community organisations. Without a sense of security, people find it harder to work with others. They are scared to go out on the streets. They are fearful of talking to others.53

The ambition of ASB policy, under Blunkett at least, was to convince the ordinary ‘respectable’ majority that by acting on their reports of ‘anti-social behaviour’ and 47

Home Office, Respect and Responsibility (TSO, 2003) 13. Ibid, ministerial foreword. Interview in Guardian, 12 March 2003, cited in P Garrett, ‘Making Anti-Social Behaviour: A Fragment on the Evolution of “ASBO politics” in Britain’ (2006) British Journal of Social Work 12. 50 D Blunkett, ‘How Government Can Help Build Social Capital’, Speech to the Performance and Innovation Unit on Social Capital (2002), (accessed December 2011). 51 Homepage of the Home Office-sponsored Active Citizenship Centre, (accessed June 2007). 52 53 Blunkett (n 50 above). Ibid. 48 49

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protecting them as witnesses, local government would respond to their efforts to nurture social capital in their locality.54 Blunkett further asserts that the sense of partnership between citizens and government will encourage the former to participate more widely in the institutions of local governance, such as school boards of governors and even local elections.55 He emphasizes that the success of this strategy depends upon citizens’ willingness to fulfil their duties as citizens. There must be ‘a civil spark’.56 Enforcement of the ‘culture of respect’ is intended to nurture that spark into a flame of political and social engagement. By emphasizing this connection between active participation in public life and ASB policy, Blunkett goes some way to explaining the pivotal role of the ASBO, for it was understood as an instrument of a wider social policy. Its substantive requirements expressed the structure of rights and duties at the heart of New Labour social policy. We have seen that the section 1 requirement of ‘decent’ behaviour imposes a subtle positive obligation on the individual citizen to maintain an awareness of the effect of her actions on the security of others, and that failure to be a ‘good citizen’ creates a liability to a reduced citizenship status. This legal enforcement of good citizenship is not only in itself an enforcement of a minimal active citizenship, but one that is intended to nurture the further active participation of good citizens by reassuring them as to their security. As the AttorneyGeneral had put it in 1998, to be liable to an ASBO by acting in an anti-social manner ‘is something which is not consistent with the responsibilities of a citizen who derives rights and benefits from living in our society’.57 This derivation of rights and benefits from the fulfilment of prior responsibilities is consistent with the wider structure of New Labour social policy and the structure of active citizenship it imagines. The problem of ASB was first raised in the context of the landlord–tenant relations of public housing. The tenants’ rights to social housing were subject to behaviour conditions enforced through their tenancies. ASB policy was only one aspect in a wider move to enforce conditionality on the rights of citizenship.58 The liability in section 1 CDA for a failure to be aware of what will limit others’ lives exemplifies the responsibilities of citizenship elaborated in the 1998 green paper New Ambitions for Our Country: A New Contract for Welfare. Here the government declared that: ‘At the heart of the modern welfare state will be a new contract between the citizen and the government, based on responsibilities and rights.’59 The green 54

This was emphasized by Juliet Mountford, Deputy Director of Home Office Anti-Social Behaviour Unit, at Tackling Neighbourhood Anti-Social Behaviour: Where Next?, Joseph Rowntree Foundation seminar, 21 June 2005. 55 Blunkett (n 50 above). 56 Ibid. 57 HL Report, 3 February 1998 col 513. 58 A Deacon, ‘Justifying Conditionality: The Case of Anti-Social Tenants’ (2004) 19(6) Housing Studies 911. See also J Flint, ‘The Responsible Tenant: Housing Governance and the Politics of Behaviour’ (2004) 19(6) Housing Studies 893. 59 Department of Social Security, New Ambitions for Our Country: A New Contract for Welfare (HMSO, 1998) 80. My thanks to Keren Murray for pointing out to me the significance of the ‘welfare contract’ for ASB policy.

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paper sets out the duties of government and of the individual that arise from this ‘contract’. The duties of the individual there set out include such matters as duties to: • seek training or work where able to do so; • take up the opportunity to be independent if able to do so; • give support, financial or otherwise, to their children and other family members; • save for retirement where possible; • not to defraud the taxpayer. These duties underpin a wide range of current social policy. But the list concludes with one duty that applies to both government and individual citizen: Duty of us all: To help all individuals and families to realise their full potential and live a dignified life, by promoting economic independence through work, by relieving poverty where it cannot be prevented and by building a strong and cohesive society where rights are matched by responsibilities.60

For present purposes there are two key aspects of this duty on both parties to the welfare contract. First, the duty to ‘help [ . . . ] all individuals . . . to realise their full potential and live a dignified life’ is both broad and positive. Second, the content of the duty is the ‘building [of] a strong and cohesive society’ by which means individuals’ full potential is to be realized. One way in which this duty on each citizen to help ‘all individuals’ to realize their full potential can be enforced is through the section 1 CDA duty not to manifest a disposition that is indifferent to other individuals’ estimation of how they may realize their potential. Respecting their sensibilities and feelings, their right to a dignified life, and not frustrating that life by disrespectful behaviour that causes them to fear crime, is in the government’s view an aspect of helping them to realize their full potential. Indeed in the government’s view it supplies the necessary precondition of ‘social cohesion’. This contractual concept of government directly underpinned the government’s justification of criminal justice policy, and the ASBO is ‘the most obvious example of this approach’ to the rights and duties of a conditional citizenship.61 The ASBO was one means by which public policy acquired a function of ‘“cultivating the disposition” of citizens to fulfil their obligations to each other and “in some cases directly enforcing them”’.62 But with the ASBO the rights that are made conditional on the fulfilment of the minimal obligations of civility are not the welfare rights of access to public housing, but the civil rights of freedom of movement, freedom of association, freedom of speech and equal treatment before the criminal law. 60 Department of Social Security, New Ambitions for Our Country: A New Contract for Welfare (HMSO, 1998) 80. 61 D Faulkner, Crime State and Citizen (Waterside Press, 2001) 58. 62 Deacon, ‘Justifying Conditionality’, citing Stuart White, ‘Rights and Responsibilities: A Social Democratic Perspective’ in A Gamble and T Wright (eds), The New Social Democracy (Blackwell, 1999).

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Providing no distinction of kind is made between civil rights and welfare rights, the right to reassurance and the positive obligation it imposes can be seen as entirely consistent with the basic outlook of social policy under New Labour. It is an aspect of the mutual obligations that are the foundations of citizenship and are mediated by a contract between the individual and government. Individuals who fulfil their obligations will enjoy the rights and benefits of living in society, which will be guaranteed by government. Enforcement of these mutual obligations is an essential precondition for ensuring that citizens have confidence in the worth of their contract with government. In the next chapter I will consider further the normative grounds of this structure of rights derived from prior obligations, but, before that, it is necessary to consider the second distinctive theme in ASB policy, how the positive right to reassurance is connected to the critique of criminal justice, a relationship that has been expounded by executive and judiciary alike. This is useful for our purposes because in explaining this connection policy makers have argued for a particular conception of the citizen whose protection provides the normative basis for this enforcement of reassuring behaviour.

4.6 Reassurance and vulnerable citizenship The decent citizen’s right to live free from harassment and distress, which the Home Office asserted as the basis of the ASBO power, and the failure of the authorities to deal effectively with conduct that infringes that right, which New Labour asserted from A Quiet Life onwards, form the basis of the House of Lords’ reasoning in the leading ASBO case of McCann. As we noted in Chapter 3, in his preliminary observations, Lord Steyn stated that: ‘My starting point is an initial scepticism of an outcome which would deprive communities of their fundamental rights.’63 Lord Steyn’s upholding of the fundamental rights of the community occurs in the context of his observation that: ‘The aim of the criminal law is not punishment for its own sake but to permit everyone to go about their daily lives without fear of harm to person or property.’64 The clear implication is that the duties imposed by the criminal law are entailed in the right of the community to be free of the fear of crime. The problem for the House of Lords as for the executive was that both the civil and criminal law were inadequate for the control of the behaviour that caused the fear of crime. For Lord Hope in McCann, ‘the apparent inability of the criminal law to restrain’ the perpetrators of ASB was ‘unacceptable’, while to expect victims to seek civil injunctions was ‘unrealistic’.65 Lord Steyn argued that ‘the criminal law by itself offered inadequate protection’ to those who lived with the fear caused by persistent ASB.

63 64

R (McCann and Others) v Crown Court at Manchester and Another [2003] 1 AC 787, 806. 65 Ibid. Ibid, 813–14.

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Moreover, Lord Steyn is explicit that the problem of reassurance is one of building confidence in the authorities. He concludes his review of ‘the social problem’ of ASB with the revealing observation that: 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 had failed them. This was the social problem that section 1 was designed to address.66

If freedom from fear of crime is a ‘fundamental right’, and one that is not protected by conventional criminal law, then deploying the criminal law in the form of the ASBO, so as to enforce conduct that reassures others and preemptively prohibit conduct that does not reassure, would be one way of seeking to protect that right. But what sort of a citizen/subject is it who needs this right to be reassured? The right to reassurance that is enforced by the ASBO was, from the start, rhetorically connected to the vulnerability of those who suffer from fear of crime.67 In the same speech in parliament in which he referred to the ASBO as a requirement for civility, the Attorney-General Lord Williams argued that the ASBO endeavours ‘to safeguard the vulnerable in our society, those who have their lives made a daily misery. I regret to say that at the moment our law does not protect them.’68 It is the vulnerable to whom the existing law offers no protection: At present such people have no protection. They cannot afford to look for civil injunctions. I go further: in many well-documented cases, they are afraid to do that. [The ASBO] offers the shield of the Government, through the appropriate authorities, to assist people who need assistance. They may need assistance because they are old, disabled, vulnerable, poor, or from a particular ethnic minority group.69

This argument is crucial because it begins to make normative sense of the right of reassurance and the liability for failure to reassure. It is the vulnerable that the failure to reassure leaves exposed to future wrongs and thus in fear of crime. The ‘invulnerable’, or at least those who subjectively feel invulnerable, would have little concern about another’s failure to reassure, they would not feel exposed to future wrongs, their lives would not be limited, still less made a misery by anything short of actually criminal (or possibly tortious) infringements of their person or property. But note that Lord Williams has not limited those protected by the law to the particular groups he sets out: ‘I stress again that many of the persons who would be “the complainants” on these occasions are poor, vulnerable, inarticulate and often living lonely lives.’70 The ‘poor, vulnerable and inarticulate’ will make up ‘many’ of 66

R (McCann and Others) v Crown Court at Manchester and Another [2003] 1 AC 787, 806. One of the case studies in A Quiet Life concerned the actions taken against two brothers in Coventry. The document quotes the head of the local neighbourhood management team saying that ‘These people . . . have repeatedly targeted vulnerable people in the area. By ordering them off the estate we hope to restore the confidence of the vast majority of families who have felt intimidated by their presence.’ Labour Party, A Quiet Life, 4. 68 Lord Williams, HL Report, 3 February 1998 col 518. 69 Ibid, col 513. 70 Ibid. 67

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the complainants, but not all. There is no limitation on the social characteristics of the complainant any more than there is on their sensitivity; that is all a question of reasonableness and discretion. Section 1(1) applies to all situations without restriction where persons are caused harassment, alarm or distress by someone ‘not of the same household’.71 The implication of this generally posed liability that makes normative sense only in the service of the vulnerable is noticed by Lord Hutton in his judgment in McCann. In the context of justifying the civil procedure and the use of hearsay evidence in ASBO applications, Lord Hutton considered the balance to be struck ‘between the demands of the general interests of the community . . . and the requirements of the protection of the defendant’s rights’, and he added into that balancing act his view that, ‘the community in this case . . . [is] represented by weak and vulnerable people who claim they are victims of anti-social behaviour which violates their rights’.72 In respect of ASB, the community is represented by the ‘weak and vulnerable’. Lord Hutton’s reading of the policy as one in which vulnerability is the representative condition of the community was subsequently taken up by the then prime minister. In a newspaper exchange with a critic of government policy, Tony Blair drew together the themes of fear of crime, the law’s failure and the rights of the vulnerable. He admitted that ‘we have disturbed the normal legal process with the anti-social behaviour laws’, and appeared bullish as to why this was necessary: If the practical effect of the law is that people live in fear because the offender is unafraid of the legal process then, in the name of civil liberties, we are allowing the vulnerable, the decent, the people who show respect and expect it back, to have their essential liberties trampled on.73

The prime minister’s argument was not merely that particular laws are not up to the job, but that ‘normal legal process’ as such has failed. This failure leaves the ordinary decent citizen defined by their subjective vulnerability to others’ potential for criminal aggression against them. It is significant that the prime minister should join Lord Steyn in speaking of the failure of the normal legal process and the ordinary criminal law. A decade earlier, a very similar construction of the ordinary citizen as vulnerable had provided the policy rationale for another sweeping legal power aimed at conduct likely to cause harassment, alarm or distress—the offence in section 5 Public Order Act 1986, examined in the previous chapter. The Home Office white paper that preceded the 1986 Act gave as the policy rationale for the offence that it was intended to deal with precisely the sort of conduct that later came to be called ‘anti-social

71 On the universality of the experience of ASB implied in the s 1(1) definition see J Bannister, N Fyfe and A Kearns, ‘Respectable or Respectful? (In)civility and the City’ (2006) 43 Urban Studies 919, 929. 72 R (McCann) [2003] 1 AC 787, 835. 73 T Blair and H Porter, ‘Britain’s Liberties: The Great Debate’ Observer, 23 April 2006.

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behaviour’.74 Moreover it was ‘concerned primarily to protect the weak and vulnerable’75 from ‘nuisance’ and ‘disturbances’ that might cause them to be ‘intimidated . . . from taking part in activities in which they have every right to engage, or indeed from leaving their houses at all’.76 The elderly and ethnic minorities were specifically mentioned as examples.77 The resulting construction was similar to that of the ASBO: although the offence is motivated in terms of particularly vulnerable groups, the vulnerable are effectively made representative of the whole community.78 It appears that, in the official mind of the late 1990s, the section 5 offence along with all the other public order offences had proved insufficient to deal with the mischief of insecurity and wider powers were called for. Those powers took the form of the ASBO, which not only allowed for much heavier penalties, but also through its innovative structure imposed a positive obligation not to fail to reassure, rather than section 5’s prohibition of deliberate acts likely to cause insecurity. The ASBO also marked out those who failed in this positive obligation as second-class citizens. In this way, the ASBO gave emphatic legal articulation of the ‘right to be free from harassment, alarm or distress’ asserted by the Home Secretary. The construction of the ordinary, decent citizen as both vulnerable and active in respect of the protection of others’ vulnerability is institutionalized in the substantive law of the ASBO, as it had not been before.79

4.7 Conclusion The steady expansion of the scope and ambitions of ASB policy from a response to a problem of low-level criminal offending in particular neighbourhoods to a core problem of modern social order might be described as a case of ‘mission creep’.80 The widely drawn ASBO power was a central instrument in that expansion. But it is important to recognize that this expansion was always implicit in the wider thinking of government about the proper relation of citizen and state that underlay not just ASB policy but social and criminal justice policy generally. Political actors were predisposed to read the responses to their consultations in an expansive way because the vulnerability of the law’s subjects to each other and their concomitant 74 Home Office, Review of Public Order Law (Cmnd 9510, HMSO, 1985). Examples given include hooliganism on housing estates, groups of youths shouting or pestering, rowdy behaviour in the streets at night: ibid, para [3.22]. 75 Ibid, para [3.26]. 76 Ibid, para [3.23]. 77 Ibid. 78 In practice the offence was widely used by the police to enforce respect where people they were dealing with insulted or abused them: see A Ashworth, ‘Criminalising Disrespect’ [1995] Crim LR 98. 79 The significance of the vulnerability both of victims and perpetrators in the policy discourse of ASB is also discussed in S Waiton, The Politics of Anti-Social Behaviour: Amoral Panics (Routledge, 2008); see also Squires and Stephen, Rougher Justice (Willan, 2005) 10. 80 D Hewitt, ‘Bovvered? A Legal Perspective on the ASBO’ (2007) 14(6) Journal of Forensic and Legal Medicine 355.

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responsibility to reassure each other were assumptions that framed their political thinking. These assumptions about vulnerability had emerged in practical politics at least as early as the mid-1980s. In the next chapter I will argue that these assumptions about vulnerable citizens’ prior obligations to ensure each other’s subjective security are axiomatic elements of the political theories that were most influential in the period between the passage of the Public Order Act 1986 and that of the Crime and Disorder Act 1998. Moreover these assumptions are yet to be displaced in mainstream political thinking.

5 The Ideology of Vulnerable Autonomy The ASBO’s construction of normal, representative citizens as vulnerable in their mutual interdependence, and, therefore, required to be active in their attention to each others’ need for reassurance, was not just a quirk of New Labour anti-social behaviour policy. These legal obligations institutionalize an axiom of influential political theories. I will call them theories of vulnerable autonomy. Discussion will be focused on four theories—the Third Way, communitarianism, neoliberalism and civic conservatism. These theories are chosen on the sole ground that they have enjoyed a significant influence on British politics in the period leading up to and following the ASBO’s enactment and implementation.1 The basic normative proposition of the theory of vulnerable autonomy has been set out by Joel Anderson and Axel Honneth.2 They argue that self-respect, selfesteem and self-trust are preconditions of autonomy. Possession of these qualities arises from an intersubjective process of mutual recognition of each other’s worth. Anderson and Honneth describe these preconditions of autonomy as ‘more or less fragile achievements, and their vulnerability to various forms of injury, violation, and denigration makes it a central matter of justice that the social contexts within which they emerge be protected’.3 Their detailed discussion is limited to the active denigration of other people, but in summing up their theory they observe that: autonomy turns out to have as a condition of its possibility, a supportive recognitional infrastructure. Because agents are largely dependent on this recognitional infrastructure for their autonomy, they are subject to autonomy-related vulnerabilities: harms to and neglect of these relations of recognition jeopardise individuals’ autonomy.4

This is useful as an explicit general statement of the theory of vulnerable autonomy. Here it will be argued that the same basic construction can be found implicitly at The investigation of the normative connections between the first three theories was inspired by the contrasting discussions of them in a number of sources, especially N Rose, Powers of Freedom (Cambridge University Press, 1999), J Heartfield, The Death of the Subject Explained (Sheffield Hallam University Press, 2002) and H Reece, Divorcing Responsibly (Hart, 2003). Others have raised the theme of active citizenship in respect of anti-social behaviour policy. Alan Deacon has suggested an overlapping group of theories that justify that policy, referring to them as contractualist, mutualist and paternalist (see A Deacon, ‘Justifying Conditionality: The Case of Anti-Social Tenants’ (2004) 19(6) Housing Studies 911). 2 J Anderson and A Honneth, ‘Autonomy, Vulnerability, Recognition and Justice’ in J Christman and J Anderson (eds), Autonomy and the Challenges to Liberalism: New Essays (Cambridge University Press, 2005). 3 4 Ibid, 137. Ibid, 145. 1

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the core of the Third Way, communitarianism and civic conservatism, and that even the neoliberalism inspired by FA Hayek is not immune to the claims of vulnerability. Moreover this vulnerability provides normative grounds for the duties of active citizenship found in section 1 CDA.5 These theories are broad schools of thought and between them the subject of a vast literature, which will not be reviewed here. There is no attempt to evaluate these theories or to compare their qualities as political theories for its own sake. Neither is there any effort to prove that the argument made here can be sustained with respect to every writer who has ever been associated with them. All this chapter attempts to do is to demonstrate that the thinkers associated with the theories who have enjoyed the most influence in British political life have this construction of the active and vulnerable citizen at the core of their theories. My reason for returning to these already much discussed theories is to demonstrate that the vulnerability of autonomy is not a contingent feature of these theories but fundamental to them, and, therefore, that both the concept of vulnerable autonomy and the positive duties of active citizenship that vulnerable autonomy entails are deeply rooted in theories with a significant influence right across the political mainstream. The chapter proceeds by first examining the Third Way, communitarianism and neoliberalism in turn as theories that require there to be duties of active citizenship, duties that arise from the normal subject’s condition of vulnerable autonomy. Each theory will be examined from the standpoint of active citizenship and from the standpoint of vulnerable autonomy. They will be considered in what could be described as reverse chronological order, beginning with the Third Way because this outlook had the most direct influence on New Labour, although it is the most recently developed of the three theories. Then communitarianism will be examined in the same way. The influence of this theory on New Labour policy is less direct and more controversial than that of the Third Way. In the first place communitarianism comes in both philosophical and more policy-oriented varieties.6 The relation between the two is contested and in each of them there are different schools of thought. The precise influence of communitarian writers on New Labour is hard to trace and many communitarians have sought to distance themselves from that party’s policies.7 But while New Labour could not be described as a communitarian party, the development of its policies and its justificatory rhetoric was influenced by communitarian thinking, if only indirectly.8 The present discussion will focus on the school of communitarianism with the best claim to have influenced New Labour in the 1990s, the responsive communitarianism of Amitai Etzioni. In particular it will investigate the relation of rights and responsibilities in Etzioni’s writing, and the strong 5 Although, as we shall see, it is more precise to say that neoliberalism proves unable to resist the responsibility to protect vulnerable autonomy rather than directly endorsing it. 6 See E Frazer, The Problems of Communitarian Politics: Unity and Conflict (Oxford University Press, 1999). 7 For a detailed and sceptical account of the connection see S Hale, Blair’s Community: Communitarian Thought and New Labour (Manchester University Press, 2006). 8 Ibid.

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affinities between it and New Labour policy notwithstanding Etzioni’s explicit criticisms of the latter. After that I turn to neoliberalism, the theory that is least obviously normatively supportive of the ASBO. The political influence of the outlook pioneered by Hayek is uncontested, especially in economic policy. It is an influence that amounted to a background consensus among all mainstream political parties as to the superiority of the market mechanism over direct state provision of goods and services. It will be argued here that it is the political difficulties experienced by the Conservative Party in implementing Hayek’s programme that supplies the historical condition for the prominent political influence of the other two theories. These had the more direct influence on social and criminal justice policy, but Hayek’s theory shares with the others an assumption that the individual subject is intrinsically vulnerable. After that I consider the civic conservatism that provided the background theory for the Coalition government’s Big Society project. Though less developed theoretically than the others, comparable themes are apparent in civic conservatism. Finally I will argue that these theories are instances of a wider ideology of vulnerable autonomy, an ideology that implies a right to security, a right that is protected by the criminal liability for a failure to reassure. The purpose of this chapter then is to show that criminal law’s enforcement of that liability enjoys political legitimacy in so far as it gives institutional form to the axiomatic beliefs of these theories.

5.1 The Third Way Active citizenship: no rights without responsibilities In his influential programme for contemporary social democracy, The Third Way, Anthony Giddens argues that we live in a period when custom and tradition have declined, and in their place there has arisen a new individualism in which people seek self-fulfilment on their own terms. Giddens argues that ‘self-fulfilment, the fulfilment of potential’ is more than just ‘therapy-talk, or the self-indulgence of the affluent’. To regard them as nothing more than that ‘is to miss a sea change in people’s attitudes and aspirations’ which amounts to a ‘new individualism’.9 In the new environment of ‘individualism’ ensuring social justice can no longer be achieved by simple collective provision of the goods and welfare services, which was the approach of the postwar welfare state. Indeed for Giddens part of the significance of this new individualism is that the entire basis of the citizenship rights of the postwar settlement had been transformed. This transformation is critical because it is the new conception of the rights and duties of citizenship that his theory imagines that has such significant implications for criminal law. The citizenship rights of the old postwar order had been given their most influential theorization by TH Marshall who analysed the rights necessary to a 9

A Giddens, The Third Way (Polity, 1998) 37.

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democratic polity by dividing them up into three types: the civil rights of free choice that were the precondition of democratic political competition; the political rights of participation in democratic self-government; and the social rights that ensured that the equal status of the citizen was guaranteed to all with respect to the things necessary to ‘live the life of a civilized being according to the standards prevailing in the society’.10 The social rights were the political basis of the extensive public services and transfer payments of the welfare state, but also supplied a rationale for the public welfare offences in criminal law,11 since for Marshall what they were intended to achieve was: ‘a general enrichment of the concrete substance of civilised life, a general reduction of risk and insecurity, an equalisation between the more and the less fortunate at all levels . . . ’.12 Marshall believed that the rights that guaranteed this process of risk socialization were a necessary component of democracy because without them economic and social inequality would leave some practically unable to participate in a ‘single civilization’ notwithstanding their formal civil and political rights,13 and such a situation could not last long once universal suffrage was established. While the extent of social rights was likely to vary markedly over time, these rights of citizenship—civil, political and social—were understood as necessarily unconditional universal guarantees. For Giddens, Marshall’s account was too focused on economic differences between social classes. The striving after a common civilization in Marshall’s account had always tended to marginalize the particular interests of women, and ethnic and sexual minorities, and it was entirely inappropriate to the new period.14 Once an individualized self-fulfilment becomes the key to the outlook of citizens, it is the ensuring of social cohesion among the diversity of these self-fulfilling individuals that takes the place of any shared common civilization. This social cohesion can only be achieved by recognizing that ‘all of us have to live in a more open and reflective manner than previous generations’,15 and this means expanding an idea that lay ‘dormant’ in the old welfare state: We have to make our lives in a more active way than was true of previous generations, and we need more actively to accept responsibilities for the consequences of what we do and the lifestyle habits we adopt. The theme of responsibility, or mutual obligation, was there in oldstyle social democracy, but was largely dormant, since it was submerged within the concept of collective provision. We have to find a new balance between individual and collective responsibilities today.16

The Third Way summarizes the political implication of this new balance in the following words: ‘One might suggest as a prime motto for the new politics, no rights without responsibilities.’17

10

TH Marshall, Citizenship and Social Class (Pluto Press, 1992) 8. P Ramsay, ‘The Responsible Subject as Citizen’ (2006) 69(1) MLR 29. See also the discussion in Chapter 9 and Afterword. 12 Marshall, Citizenship, 33. 13 14 Ibid, 44. A Giddens, Beyond Left and Right (Polity, 1994) 75–7. 15 16 17 Giddens, The Third Way, 37. Ibid. Ibid, 65. 11

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The implications of this is that the idea of rights as unconditional can no longer be sustained: Old-style social democracy . . . was inclined to treat rights as unconditional claims. With expanding individualism should come an extension of individual obligations. Unemployment benefits, for example, should carry the obligation to look actively for work, and it is up to governments to ensure that welfare systems do not discourage active search. As an ethical principle, ‘no rights without responsibilities’ must apply not only to welfare recipients, but to everyone.18

Just how this ‘ethical principle’ of extending obligations in proportion to rights is to apply to everyone is not spelled out in detail. But, while The Third Way discussion of rights is focused on the rights of what used to be called social citizenship and does not explicitly consider civil rights, it does state clearly that ‘the theorem that responsibilities go along with rights . . . should be seen as a general principle of citizenship, by no means confined to the welfare area’.19 In any case, the scope of ‘the welfare area’, as the Third Way conceives of it, is massively expanded on that which was covered by the welfare state. Where the old welfare state was concerned with ‘negative’ problems of the scarcity of economic benefits, according to Giddens, welfare today should be seen as ‘not in essence an economic concept, but a psychic one, concerning as it does well-being. . . . In place of the welfare state we should put the social investment state, operating in the context of a positive welfare society.’20 That ‘positive’ welfare society includes the ensuring of security as an aspect of psychic welfare and a very important one. In a later work, Giddens argues explicitly that ‘Freedom from the fear of crime is a major citizenship right.’21 As we have seen, such a freedom implies precisely the liability for failure to reassure that is imposed by the law of the ASBO. The reason for its importance to Giddens is that it is the key to ensuring the social cohesion that is essential to the self-fulfilment that is life’s central object in the new individualism. The right to be free from the fear of crime provides this key because of the character of the subject of this new individualism.

Vulnerable autonomy: ontological security In his earlier work, Giddens gives an account of the subjects of self-fulfilment who provide the starting point for the Third Way. He develops the idea that, at root, ‘The self is a reflexive project. . . . We are not what we are, but what we make of ourselves.’22 And the point of this reflexive project is self-actualization: the discovery and positing of our authentic self through developing a reflexive self-knowledge of ‘the various phases of the lifespan’.23 For Giddens this ‘moral thread of selfactualization is one of authenticity . . . based on “being true to oneself ”’.24 And he 18

19 20 A Giddens, The Third Way, 37. Ibid, 8. Ibid, 117. A Giddens, Where Now for New Labour? (Polity, 2002) 17. In The Third Way itself Giddens anticipates the signal crimes perspective: at 86. 22 A Giddens, Modernity and Self-Identity (Polity, 1991) 75. 23 24 Ibid, 75. Ibid, 76–7. 21

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points out the problem of ‘social cohesion’ that is posed by this literally self-centred ethics in which ‘the only significant connecting thread is the life trajectory as such’.25 The authentic self is one who successfully creates ‘a personal belief system by means of which the individual acknowledges that “his first loyalty is to himself ”’.26 However the same self-actualization concept that gives rise to this problem of self-centredness also supplies a potential solution in self-fulfilment. The process of self-actualization, of ‘finding oneself’, requires, as one of its moments, ‘achieving fulfilment’, and ‘fulfilment is in some part a moral phenomenon, because it means fostering a sense that one is “good,” a “worthy person” . . . ’.27 And to foster this sense of self-esteem in turn requires the cooperation of others. For Giddens, a precondition of fostering self-esteem is the maintenance of what he calls ‘ontological security’, which is the ‘protective cocoon that all normal individuals carry around with them as the means whereby they are able to get on with the affairs of day-to-day life’.28 This protective cocoon is made up of the everyday conventions of interaction between human beings that establish a ‘basic trust’ and thereby permit the ‘bracketing’ out of all the myriad dangers and threats to which the individual would otherwise perceive that they are constantly potentially exposed. Without this basic trust, individuals would be beset with an enervating ‘existential anxiety’ in which the elaboration of any ‘self-identity’, let alone actually achieving authentic self-knowledge, would be impossible. Conventional civility is thus not merely one aspect of fostering the self-esteem of self and others, but a condition of being able to maintain a secure sense of self in the first place. In this way the theory of the reflexive self establishes the interdependence of the autonomy of the self and the behaviour of others. Giddens’ ethics derive from the view that a precondition of a stable knowable sense of self is the ontological security supplied by the everyday rituals of civility. Ontological security implies ontological vulnerability. In ‘therapeutic individualism’, self-realization is always vulnerable to the hostility or indifference of others, the authentic self to be realized is a ‘vulnerable self’.29 This assumption of the ontological vulnerability of individual autonomy is an essential component of Giddens’s therapeutic concept. The reflexive project of the autonomous self takes place in the shadow of its essential vulnerability. Giddens draws out the political conclusions of this theory of the self by concluding that the autonomy of each individual is dependent on the lifestyle choices of others, entailing a new ‘life politics’ or politics of lifestyle.30 And it is this idea that is developed in the Third Way into the proposition that the welfare state should be reconceived as a ‘positive

25

26 27 28 Ibid, 80. Ibid, 80. Ibid, 79. Ibid, 40. The contemporary influence of the idea of the vulnerable self in therapeutic discourse is discussed in F Furedi, Therapy Culture: Cultivating Vulnerability in an Uncertain Age (Routledge, 2003). Bryan Turner finds a philosophical source of the idea in Martin Heidegger’s work, see B Turner, ‘Forgetfulness and Frailty: Otherness and Rights in Contemporary Social Theory’ in C Rojek and B Turner (eds), The Politics of Jean-Francois Lyotard: Justice and Political Theory (Routledge, 1998). 30 Giddens, Modernity and Self-Identity, 214. 29

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welfare society’ concerned to ensure social cohesion by imposing responsibilities on individuals to consider others’ psychic needs.31 Giddens’s account of ‘therapeutic individualism’ as such is not especially distinctive.32 But the way he poses the problems of social cohesion and ‘ontological security’ that ‘therapeutic individualism’ entails has been influential.33 For Giddens this problem gives rise to a ‘moral dilemma’, which he summarizes as the question of how ‘to remoralize social life without falling prey to prejudice’.34 Traditional moralities will no longer produce social cohesion for they will often conflict with the reflexive project of the self. His solution lies in duties of mutual regard for each other’s vulnerable self-esteem. This dilemma of remoralizing social life without recourse to oppressively conservative traditions is the same problem that the ‘responsive communitarian’ Amitai Etzioni has grappled with.

5.2 Responsive communitarianism Active citizenship: no rights without responsibilities Giddens’s stress on the interdependence of rights and responsibilities is one shared by responsive communitarianism. And this is so notwithstanding the fact that the communitarian writer who probably enjoyed the most influence over New Labour has attempted explicitly to distance himself from Giddens’s proposition and from New Labour policy. Amitai Etzioni has taken issue with this aspect of Giddens’s Third Way proposal. For communitarians, the liberal assertion of rights independently of compliance with prior responsibilities is essentially arbitrary, and tends to dissolve the basis upon which a person may realize their own projects and identity. But Etzioni argues that even though ‘One of the greatest achievements of the communitarian approach has been curbing the language of rights that has turned every want and interest into a legal entitlement’,35 Giddens’s slogan of ‘no rights without responsibilities’ is nonetheless misplaced. Etzioni suggests that ‘a good society does not deny a person her basic rights even if she does not live up to her responsibilities’.36 Rights on this account have ‘their own moral standing’ and ought not to be conceived of as the pay-off for fulfilment of a responsibility in a contractual relation with government. Indeed New Labour’s welfare contract with its conditionality of rights is not a purely communitarian idea in origin but was also influenced by a more conservative line of thinking that Alan Deacon calls ‘paternalist’ because it is 31

Giddens, The Third Way, 37. See N Rose, Governing the Soul (Routledge, 1990). 33 And not only on New Labour policy makers. See, for example, J Young, The Exclusive Society (Sage, 1999); I Loader and N Walker, Civilising Security (Cambridge University Press, 2007) 166; Squires and Stephen also briefly consider ontological security in relation to anti-social behaviour: P Squires and D Stephen, Rougher Justice (Willan, 2005) 187. 34 Giddens, Modernity and Self-Identity, 231. 35 A Etzioni, The Third Way to a Good Society (Demos, 2000) 29. 36 Ibid, 30. 32

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openly willing to override a person’s rights in the name of their own interests.37 But as Deacon notes, a ‘mutualist’ case can be made for the conditionality of rights as well,38 and Giddens’s is only one such case. And the distinction between Etzioni’s communitarian Third Way and Giddens’s version turns out to be less marked than Etzioni’s initial criticism of Giddens would suggest. Though he may not like it, Etzioni’s approach to the relationship between rights and responsibilities can provide an apparently non-paternalist justification for New Labour’s approach.39 Etzioni continues his critique of Giddens’s Third Way, under a subheading ‘Responsibility from all, for all’: ‘Responsibilities from all means that a good person, a member of a good society, contributes to the common good. No one is exempt, although of course people will vary greatly in the contributions they can make.’40 But, as we have already noted, Etzioni had indicated that some people might be exempt since ‘a good society does not deny a person her basic rights even if she does not live up to her responsibilities’. If despite consistent failure to live up to responsibilities a person suffers no legal consequences, then some will be able to exempt themselves. Etzioni seeks to finesse this problem: No one’s basic humanity and membership in the community should be denied. It follows that no one should be completely cut off from welfare or dumped into the streets if they refuse to work, attend classes or do community service. The provisions to such idle or selfish people (who are a minority of benefits recipients) may be reduced and not include cash beyond some small amount, but the state’s duty in a good society is to ensure that no one goes hungry, homeless, unclothed or sick and unattended.41

Social rights cannot be eliminated but may be reduced as a response to a failure to fulfil a person’s workfare duties.42 Some basic rights will always remain to people, but they can be limited where people default on their responsibilities. In Etzioni’s Third Way might the same balance apply to a person’s civil rights? He is not explicit but he does imply that in some circumstances they may. While ‘rights and responsibilities should be treated as two cardinal moral claims. . . . In reality, policies cannot often maximize both. But no a priori assumptions should be made that priority will be given to one rather than the other.’43 Etzioni notes that ‘trade offs’ between rights and responsibilities should be considered only if ‘there is a major social problem, for instance the rapid spread of HIV, if there are no effective treatments that do not entail trade offs, and if the

See A Deacon, ‘Justifying Conditionality: The Case of Anti-Social Tenants’ (2004) 19(6) Housing Studies 911. Lawrence Mead is credited as a key source of the idea: see L Mead, Beyond Entitlement (Free Press, 1986); L Mead, The New Politics of Poverty (Basic Books, 1992). 38 Ibid. 39 On the tendency towards convergence between communitarians and conservatives such as Lawrence Mead around welfare policy, see also P Dwyer, Understanding Social Citizenship (The Policy Press, 2004) 70. 40 Etzioni, The Third Way to a Good Society, 29. 41 Ibid, 31–2 (second emphasis added). 42 See also A Etzioni, The New Golden Rule: Community and Morality in a Democratic Society (Basic Books, 1996) 82. 43 Etzioni, The Third Way to a Good Society, 33. 37

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intrusions proffered are as minimal as possible’.44 The ASBO was premised on just such an argument: that anti-social behaviour is a major social problem, that existing criminal and civil law have failed to combat it, and that the terms of an ASBO are restricted to those that are necessary to prevent it. Of course these arguments about anti-social behaviour may be wrong, but that is a question of political interpretation, which Etzioni allows for. Nothing in Etzioni’s criticism of Giddens would exclude the reduction of the civil rights of ASBO defendants, providing it is accepted that anti-social behaviour is a major problem that other measures have proved ineffective against, and this is precisely the premise of official policy. Etzioni’s only substantial objection to Giddens’s slogan is that it might be interpreted as meaning that those who fail in their obligations should be entirely deprived of rights. In substance Etzioni is willing to restrict legal rights or impose legal duties where necessary. The ‘active citizenship’ of the welfare contract it seems may be enforced as a legal duty for communitarianism as it is for Giddens’s Third Way. This is so despite not only Etzioni’s specific attempt to distance communitarianism from Giddens’ Third Way slogan, but also the often-stated communitarian preference for promoting prior duties of good citizenship as a matter of moral or social rather than legal duty. Etzioni recognizes that states cannot coerce communities into existence and so distanced himself from the contractualist language of New Labour, and implicitly criticized its ‘rush to legislate good behaviour’ of which the ASBO is clearly a part.45 He had earlier commented that ‘Communities gently chastise those who violate shared moral norms and express approbation for those who abide by them. They turn to the state (courts, police) only when all else fails.’46 Perhaps then the ASBO’s legal enforcement of the mutualist obligations to others’ welfare represents a failure of communitarianism.47 If it is a failure of communitarianism, it is one that communitarians have not been slow to countenance. Another responsive communitarian spells out why legal enforcement may be necessary in circumstances where cohesive communities do not already exist. William Galston observes that ‘the effectiveness of social [as opposed to legal] enforcement rests largely on the existence of “close-knit” communities from which opportunities for exit are limited and costly’. As a consequence, Galston observes, legal enforcement may be the only realistic option when the civil conditions for social enforcement have broken down. If communities are not close-knit—if neighbours do not know or trust one another, if individuals do not care what others think about their conduct—then it may be necessary to resort to the law, even when public institutions are themselves mistrusted.48

It is precisely such a situation to which the anti-social behaviour policy is addressed. 44

45 Etzioni, The Third Way to a Good Society, 39. Ibid, 27. A Etzioni The Spirit of Community (Fontana, 1995) ix. 47 See S Hale, Blair’s Community: Communitarian Thought and New Labour (Manchester University Press, 2006) 108. Hale emphasizes Etzioni’s explicit criticisms of New Labour’s contractualism but plays down the practical convergence between it and his own approach to rights that is emphasized here. 48 W Galston, ‘Social Mores Are not Enough’, in A Etzioni et al (ed), The Communitarian Reader (Rowman & Littlefield, 2004) 92. 46

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As a programme for the reform of liberal societies in so far as they are thought to lack already close-knit communities, Etzioni’s ‘responsive communitarianism’ looks to the state and embraces the imposition of legal duties where their purpose is to create the basis of the absent moral community. This embrace extends to a legal duty of easy rescue of others from natural and criminal harms, which is common in Europe, but not in common law jurisdictions.49 Steven Heyman invokes communitarianism explicitly when he argues for a legal duty to rescue others on the grounds that it would strengthen ‘the most basic right of all—freedom from criminal violence and other serious forms of harm’.50 Heyman’s implicit equation of freedom with public safety is characteristic of political rhetoric in the wake of 9/11. In this context, Etzioni has endorsed the possibility of preventive detention where there is good reason to suspect that a person’s release ‘might endanger the public’.51 In so doing, he in effect endorses a legal obligation to allay official suspicion as a precondition of the right to liberty.52 Etzioni may not have liked Giddens’s ‘No rights without responsibilities’ slogan but it hardly seems an inappropriate way to sum up his own position. Like many communitarians, Etzioni prefers informal moral persuasion of citizens to the law’s formal coercion, but the potential for repression is apparent.53 The underlying problem is that practical implementation of idealistic theories about human collectivity, like responsive communitarianism, will always tend towards coercion.54 Even though responsive communitarianism explicitly rejects the conditionality of rights, its own willingness to limit rights in proportion to the extent of the fulfilment of responsibilities rationalizes something not unlike New Labour policy. Though their preference for informal enforcement is clear, responsive communitarians nevertheless countenance the practical imposition of restrictions on social rights where they are undeserved and on civil rights where such restrictions are ‘necessary’. Underlying this willingness to trade off rights is the communitarian conception of autonomy as a property derived from the moral relations between the individual and the wider community that gives them identity. And it is this derivation of autonomy from intersubjective relations that renders autonomy vulnerable to the failure to attend to the moral requirements of those relations.

49 Etzioni embraces the duty to render reasonable assistance to others in peril found in some American states as legal protection of communitarian activities: A Etzioni, The New Golden Rule 150. 50 S Heyman, ‘The Duty to Rescue: A Liberal-Communitarian Approach’ in A Etzioni et al,The Communitarian Reader, 116. 51 A Etzioni, ‘Rights and Responsibilities 2001’ in Etzioni et al, ibid, 196. It is striking that Etzioni does not couch this discussion in the language of emergency powers but rather as part of a measured discussion of ‘where the new point of balance would be between our all too evident need to enhance public safety . . . and our profound commitments to respect and uphold our rights’ (ibid, 191–2). 52 See the discussion of the control order in Chapter 7. 53 For communitarian criticism, see G Hughes, ‘Communitarianism and Law and Order’ (1996) 16:49 Critical Social Policy 17. 54 A Norrie, Dialectic and Difference (Routledge, 2009) 154.

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Vulnerable autonomy: the intersubjective constitution of the self In responding to criticism that communitarianism is open to a highly conservative interpretation of moral order,55 Etzioni has expounded a ‘New Golden Rule’, which he formulates as ‘Respect and uphold society’s moral order as you would have society respect and uphold your autonomy.’56 The autonomy that, for Etzioni, can be well balanced with moral order is ‘socially constructed’ or ‘socially secured’ autonomy.57 Etzioni is explicit that this ‘socially secured’ autonomy is a more upbeat formulation of Michael Sandel’s conception of autonomy as the ‘encumbered self’.58 For communitarians, choices are autonomous if they reflect the identity of the chooser as a moral person, if they are truly choices that that self has commanded. For communitarians the identity of the self has no existence prior to the moral and relational context in which that self makes her choices. The individual is intersubjectively constituted in the prior moral bonds between people.59 As a consequence, individual choices are not autonomous, even where they appear to be unconstrained, unless they pay attention to the requirements of those moral bonds. In so far as the choices of market actors are merely utility-maximizing they are grounded only in the particular desires that an individual feels, her immediate preferences; they represent ‘purely preferential choice’. For Sandel, the satisfaction of these preferences is not itself an autonomous act. On the contrary: ‘“Purely preferential choice” is thoroughly heteronomous.’60 Autonomous choices are not those that seek to satisfy ‘an arbitrary collection of desires accidentally embodied in some particular human being’. Rather, autonomous choices are those that reach beyond spontaneous utility to satisfy ‘a set of desires ordered in a certain way, arranged in a hierarchy of relative worth or essential connection with the identity of the agent’.61 Preferences that are not evaluated as being in accordance with the values inherent in the communal bonds that constitute the individual’s identity are preferences that do not reflect the identity of the person who holds them; they are not therefore autonomous. Since the causing of fear is corrosive of the communal bonds that constitute the individual’s identity, the individual who manifests a settled disposition of practical indifference to others’ fears and anxieties can be understood as refusing moral autonomy. From the standpoint of this ‘socially secured’ autonomy, there is nothing lost in restraining and preventing choices that arise from such a disposition. On the contrary, autonomy can only be socially constructed by maintaining an intersubjective field that inhibits such choices. Where such conditions are lacking, See, for example, N Lacey and E Fraser, ‘Communitarianism’ (1994) 14(2) Politics 75, 79. Etzioni, The New Golden Rule, xviii. 57 Ibid, 257. 58 Ibid, 23. 59 C Taylor, ‘Atomism’, in S Avineri and A De-Shalit, Communitarianism and Individualism (Oxford University Press, 1992) 49. 60 M Sandel, Liberalism and the Limits of Justice (Cambridge University Press, 1982) 165. 61 Ibid, 167. 55 56

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the responsibility to avoid causing others to feel exposed to future wrongs, will need to be legally enforced.62 The ‘heteronomy’ of ‘purely preferential choice’ is nothing other than the inherent vulnerability to external determination of unguided and unreflective choice. Etzioni’s account of ‘socially secured autonomy’ spells this out in less philosophical language: People are socially constituted and continually penetrated by culture, by social and moral influences, and by one another. Businesses advertise products in ways that motivational research has shown will appeal to their customers’ infantile and impulsive urges. The youth culture promotes risky, irrational behaviour. Social bonds tug at people unconsciously. In short, the choices made by individuals are not free from cultural and social factors. To remove, on libertarian grounds, limits set by the public, far from enhancing autonomy, merely leaves individuals subject to all the other influences, which reach them not as information or environmental factors they can analyse and cope with, but as invisible messages of which they are unaware and that sway them in non-rational ways.63

For Etzioni freedom of choice unlimited by some public regulation can only diminish autonomy, because without consciously and politically constructed limits, the individual is subject to the spontaneous operation of forces that they can neither understand nor control. Left to their own devices and without the moral order of community people cannot ‘cope’, and are forced by social and market pressures to act in ‘non-rational ways’, in other words, to make ‘purely preferential choices’. They will therefore never be able to enjoy the self-command enjoyed by autonomous people who understand themselves for the people that they are, as members of their community. To resolve Giddens’s dilemma of remoralizing social life without resort to the prejudices of the possibly oppressive moral traditions of particular local communities, Etzioni proposes a ‘pluralism with unity’ in which the law would adopt a ‘two-layered approach’.64 The values affirmed by any particular community, which the individual would presumptively have to respect, would themselves be ‘additionally accountable’ to ‘society-wide values’.65 It is interesting that Etzioni’s solution is directly reflected in the legal structure of the ASBO with its highly pluralized context-specific definition of anti-social behaviour, which is limited by considerations of reasonableness. The philosophical success or coherence of this solution is not the issue here. The key point is that for communitarianism, individual autonomy is vulnerable to heteronomous determination in the form of the purely preferential choices of both self and others. The protection of autonomy requires respect for the moral order of communal obligation that maintains the intersubjective field in which selfcommand may be achieved. Where discussion of the Third Way focused our attention on the denial of autonomy to the victim of such choices, our discussion

62 63 64

W Galston, ‘Social Mores Are not Enough’, A Etzioni et al, The Communitarian Reader, 92. Etzioni, The New Golden Rule, 21 (emphasis added). 65 Ibid, 226. Ibid, 224–5.

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of communitarianism allows us also to see the lack of autonomy of the perpetrator, the person who causes fear and anxiety. But the two theories share a basic conception of autonomy’s vulnerability. For both theories, a condition of the individual subject’s autonomy is securing that subject from its intrinsic vulnerability to other subjects’ unreflective pursuit of their needs or desires. In both theories, it is this vulnerability that grounds the priority of duties over individual rights because that priority is the condition of securing the subject’s autonomy against its essential vulnerability. Etzioni’s formulation of the self as vulnerable in the face of market relations that are beyond comprehension is particularly intriguing because the same assumption is fundamental to the social theory of FA Hayek, the inspiration of neoliberalism.

5.3 Neoliberalism At first blush, the claim that Hayek’s theory lends any sort of support to the kind of discretionary, particularized and reactive coercive decision-making characteristic of the ASBO may seem perverse, given his avowed commitment to the rule of generally formulated laws.66 But the argument will not be that Hayek’s theory directly supports the structure of the ASBO. Rather, it will be that, in the political conditions that have prevailed at least since the early 1990s, his theory provides no alternative to the normative claims that underpin New Labour’s laws. The reason is that Hayek’s theory, like the Third Way and communitarianism, constructs the subject of the market relations as intrinsically vulnerable. Hayek does not pose the vulnerability of the subject to others’ indifference with respect to physical security against crime but with respect to economic security. But this is crucial because it led him to postulate a different, older source of the duties of active citizenship that are required to protect that vulnerability. His traditionalism in this respect was in tension with his liberal theory of law but more important for our purposes it was a source of duties that through the political practice of his followers has been exposed as entirely lacking in effective authority. The hegemony of neoliberal economic policy contrasts sharply with the practical failure of its founder’s approach to social policy. It is precisely this partial failure of Hayek’s theory in practice that laid the political basis for the Third Way politics of New Labour and the subsequent persistence of the right to security. To explain this, the order of presentation will be reversed, beginning with the vulnerability of the individual in Hayek’s theory and then considering the vicissitudes of the approach to active citizenship adopted by his political disciples.

66

See FA Hayek, Constitution of Liberty (Routledge & Kegan Paul, 1960) ch 10.

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Vulnerable autonomy: the free market To grasp the axiomatic position of vulnerability of the subject of market relations in Hayek’s theory requires us to recognize that, although he was a champion of free market individualism, his case for it was nevertheless a defensive and relative one. Hayek was careful not to make the claim advanced by many neoclassical economists that free markets necessarily make the optimum use of society’s resources. He only claimed that they are less imperfect than the alternatives, and particularly the socialist alternative.67 For Hayek, socialism was an irrational revolt against the ‘impersonal forces’ of the market because it ‘fails to comprehend that the coordination of the multifarious individual efforts in a complex society must take account of facts that no individual can completely survey’.68 The true position, Hayek thought, was that: A complex civilisation like ours is necessarily based on the individual adjusting himself to changes whose cause and nature he cannot understand: why he should have more or less, why he should have to move to another occupation, why some things he wants should become more difficult to get than others, will always be connected with such a multitude of circumstances that no single mind will be able to grasp them . . . .69

For Hayek, the consequences of socialism’s hubristic revolt against the necessarily decentralized decision-making process of the market would not be more freedom but less because ‘the only alternative to submission to the impersonal and seemingly irrational forces of the market is submission to the equally uncontrollable and therefore arbitrary power of other men’.70 In this respect, Hayek’s theory is strikingly paradoxical. The free market has generated a ‘Great Society’ of unparalleled wealth, and of freedom from the arbitrary despotism of other people. But it has done so only through submission to the impersonal forces of the market, the operations of which no individual can understand, let alone control. For Hayek, the attempt to gain control of those impersonal forces so as to influence the way resources and opportunities were distributed created the danger of undermining independence from other people’s arbitrary power. Hayek was conscious of the tension intrinsic to the experience of a freedom founded on submission. And he was explicit that it was only through religious faith and tradition that these tensions could be managed: It does not matter whether men in the past did submit [to market forces] from beliefs which some now regard as superstitious: from a religious spirit of humility, or an exaggerated respect for the crude teachings of the early economists. The crucial point is that it is infinitely more difficult rationally to comprehend the necessity of submitting to forces whose operation we cannot follow in detail, than to do so out of the humble awe which religion, or even the respect for the doctrines of economics, did inspire.71

67 68 69

A Gamble, Hayek: The Iron Cage of Liberty (Polity, 1996) 69. FA Hayek, The Road to Serfdom (Routledge, 1944) 152. 70 71 Ibid, 151. Ibid, 152. Ibid.

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This passage requires some unpacking. Firstly, writing in the 1940s, Hayek’s reference to ‘exaggerated respect’ for the doctrines of the early economists tacitly recognizes the crisis of free market economics in the wake of the Depression of the 1930s and the rise of Keynesianism with its promotion of the macroeconomic role of the state. The economic catastrophe of the Great Depression, and the political upheavals that accompanied it, shattered faith in free market doctrines across the world. Hayek’s defence of the market system was at the time a lonely effort, written in the teeth of the widespread collapse of belief in the capitalist system. He could not credibly argue that everybody would receive what they deserved from the free market. Since compelling reasons could not be given to all as to why they should support the market, he therefore recognized that in practice the necessity of submitting to it would require support from other less rational sources.72 Secondly, Hayek omits to mention one circumstance in which an individual, even in the absence of any respect for neoclassical economics or any religious belief, might nevertheless find it relatively easy ‘rationally to comprehend the necessity of submitting to forces whose operation we cannot follow in detail’. That circumstance is the individual’s knowledge that she possesses sufficient property to protect herself against the unfathomable changes wrought by the market. This omission is significant in so far as it leads to the ideological assumption that vulnerability to other’s choices is a universal characteristic, shared by all the subjects of market society, when in fact the degree of vulnerability experienced by particular subjects varies over a large range and in a way that is structured by the operation of the market. But the critical point for our present purposes is that in the face of the collapse of compelling rational justifications for the distributive effects of the free market, the authority of religion and tradition was critical to the maintenance of social order for Hayek. As he would later write: ‘all progress must be based on tradition’.73 Hayek himself referred to this marriage of progressive liberalism and religious tradition as Old Whiggery, a tradition he identified with Edmund Burke.74 Hayek argues that social cohesion under the market relies on traditional institutions and beliefs,75 but offers little in the way of a systematic connection between the market and traditional beliefs. He recognized that the free market could not be made to be ‘good in the sense that it will behave morally’.76 He regarded it as neither innate nor designed, but a system that ‘we have tumbled into’.77 In 72

This irreducibly sceptical and irrationalist element in Hayek’s thought is plainly at odds with his reliance on rationalist Kantian arguments for a theory of legal justice and freedom (see C Kukathas, Hayek and Modern Liberalism (Clarendon, 1989) ch 5). But this tension is the price of denying the possibility of distributive justice (see ibid, 202), something that his ideological critique of state intervention set out to do. 73 FA Hayek, Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy vol 3 (Routledge & Kegan Paul, 1979) 167. 74 FA Hayek, ‘Why I am Not A Conservative’ in Hayek, Constitution of Liberty, 408–9. 75 P O’Malley, ‘Volatile and Contradictory Punishment’ (1999) 3(2) Theoretical Criminology 175, 188. 76 FA Hayek, Law, Legislation and Liberty, vol 1 (London: Routledge & Kegan Paul, 1973) 33. 77 Ibid, 164.

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his last work, he notes the historical connection between monotheistic religions and the values of capitalism but adds that this ‘does not of course mean that there is any intrinsic connection between religion as such and such values’.78 The market is a spontaneous order that, he claims, is more economically efficient than state interference in the economy but nevertheless leaves individuals in a condition of vulnerable submission to impersonal forces and lacks an intrinsic morality or justice to justify their predicament. Consoling and stabilizing religious traditions are therefore necessary but external to the market’s knowledge-coordinating function: the relation of religion and tradition to the market is a contingent one. And this is critical because if circumstances were to arise in which policy could neither rely on faith in neoclassical economics nor faith in tradition and God, then (presuming it was not to be based on ‘irrational’ revolt against the market either) the subject of market relations would be left to experience an unmediated vulnerability ‘to changes whose cause and nature he cannot understand’. The absence of these essential traditional sources of moral authority was precisely revealed by the experience of the Conservative governments of the 1980s and 1990s, governments that were inspired by Hayek’s ideas. Nowhere was this problem clearer than in their approach to active citizenship.

Active citizenship: Victorian values to Citizen’s Charter Active citizenship was first promoted in the UK in recent times in the later years of the Thatcher government. The concept was explicitly introduced into government thinking in a speech by Douglas Hurd in 1988 and officially endorsed by Margaret Thatcher at the Conservative Party conference that year. The initial emphasis in the Conservative account of the active citizen is on independence and self-reliance rather than on mutual dependence.79 The first duty of the Tory active citizen is to look after themselves and only then to concern themselves with others’ needs and with their civic responsibilities. For individuals conceived of as essentially selfinterested, civic duties to others were voluntary. But, as we shall see, those duties were nevertheless essential to the concept of moral and social order maintained by Thatcherite neoliberals, a concept that fundamentally held to the view that obligations came first. Despite the priority that neoliberal politics accords to economic welfare and selfinterest, its supporters have argued that it is not intrinsically materialistic. Although the Thatcherite active citizen’s first duty was to themselves and their family, Thatcher herself cites Adam Smith’s Theory of Moral Sentiments to the effect that ‘To feel much for others and little for ourselves . . . to restrain our selfish, and to indulge our benevolent affections, constitutes the perfection of human nature.’80 Moreover, for Thatcher the political campaign against the welfare state was intended as an attack on materialism: 78 79 80

FA Hayek, The Fatal Conceit: The Errors of Socialism (Routledge, 1988) 137. K Faulks, Citizenship in Modern Britain (Edinburgh University Press, 1998) 128. M Thatcher, Statecraft: Strategies for a Changing World (HarperCollins, 2002) 414.

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in a country where it is assumed that the state provides for all, there is no scope for charity and no need for self-sacrifice . . . .The more we rely on remote public authorities to cope with the tragedies of life, the less we will do ourselves—and the more the unpleasing canker of selfish materialism will grow.81

And, lest that be thought a retrospective apology in a book written long after her fall from power, it is worth citing in full the notorious passage from a 1987 interview, given when she was at the pinnacle of her political success: I think we’ve been through a period where too many people have been given to understand that if they have a problem, it’s the government’s job to cope with it. ‘I have a problem, I’ll get a grant.’ ‘I’m homeless, the government must house me.’ They’re casting their problem on society. And, you know, there is no such thing as society. There are individual men and women, and there are families. And no government can do anything except through people, and people must look to themselves first. It’s our duty to look after ourselves and then, also, to look after our neighbour. People have got the entitlements too much in mind, without the obligations. There’s no such thing as entitlement, unless someone has first met an obligation.82

The language of the welfare contract is striking in the rarely cited final sentences of this passage. Thatcher draws out the inner connection between her economic liberalism and her moralizing approach to social problems. In the promotion of freedom of choice as against state provision, duty nevertheless comes first. People had a moral duty to help themselves and to help others. Her interpretation of the parable of the Good Samaritan was sincerely intended.83 Moreover those who failed in their duties as active citizens might well find themselves the objects of political attack. Those who did not match up to Thatcherite standards of enterprise and responsibility were undermining the nation’s strength and prosperity and were the objects of the sequence of moral panics that characterized the era.84 Nevertheless, despite the rhetoric and the harsh treatment of the ‘undesirable element’—the ‘passive citizens’—the Thatcherite concept of active citizenship did not extend to anything like the conditional relationship between an individual’s legal status and the official assessment of the moral quality of their citizenship that is constructed by the subsequent welfare contract. Rather than a contract between government and citizen, Thatcher famously found the substantive content of the active citizen’s civic duties in the ‘Victorian values’ of work, family, neighbourliness and private charity. The source of these values lay in traditional Christian teaching, and in this respect Thatcher was true to Hayek’s belief in the necessity of tradition. But here the historical origins of neoliberalism as a critique of the Keynesian welfare 81

M Thatcher, Statecraft: Strategies for a Changing World (HarperCollins, 2002), 425–6. Woman’s Own, 31 October 1987 cited in ibid, 426. 83 ‘No-one would remember the Good Samaritan if he’d only had good intentions; he had money as well.’ Interview on Weekend World, London Weekend Television, 6 January 1980: see . That is not to say that her interpretation made good social policy. The actual impact of private charity on welfare needs under Thatcher was marginal: see E Wilson, A Very British Miracle: The Failure of Thatcherism (Pluto Press, 1992) 164. 84 Faulks, Citizenship in Modern Britain, 157. 82

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state presented an intractable problem. Certain fundamental aspects of the postwar order with its social citizenship and big welfare budgets proved highly resistant to ‘Victorian values’. The rhetorical invocation of Victorian values did not result in the return of the workhouse tests of the Victorian Poor Law, which state welfarism had replaced.85 Thatcherite government was marked more by cuts and ‘targeting’ (that is, more restrictive criteria) in welfare spending than it was by the imposing of positive conditions on welfare provision to individuals so as to derive people’s individual rights from their fulfilment of prior responsibilities.86 Nor did the authority of traditional family values revive under Thatcher. Whatever the rhetoric of Thatcherite governments, the 1980s and early 1990s saw a rapid expansion of women in the workforce and in full-time education.87 Moreover there was no repeal of any of the crucial legislation of the 1960s that had institutionalized the welfare state’s moral pluralism, in particular the partial decriminalization of abortion and male homosexual acts. Over the course of the many controversies and moral panics of the 1980s, this moral pluralism proved to be heavily entrenched against any demand to impose traditional morals on all, and this limited the capacity of traditional values to produce moral order. The most striking example of this failure to return to the ‘values’ of the past occurred at the height of Thatcher’s political success following the 1985 defeat of the National Union of Mineworkers. Notwithstanding the invitation by conservative and reactionary voices to respond to the AIDS epidemic with moralistic condemnation of homosexuals for ‘swirling in a cesspit of their own making’, as Chief Constable James Anderton notoriously put it, the government pointedly mounted a public health campaign with slogans such as ‘Don’t die of ignorance’ and ‘AIDS is not prejudiced’.88 Nor was it only in the sphere of sexual behaviour that the Thatcher government was willing to indulge such leftish and politically correct language. We have already noted the invocation of 85 R Samuel, ‘Mrs Thatcher’s Return to Victorian Values’ in T Smout (ed), Victorian Values (Oxford University Press, 1992) 22. Thatcher’s electoral success never displaced majority political support for state welfare spending in the UK: see S Edgell and V Duke, A Measure of Thatcherism: A Sociology of Britain (Harper Collins, 1991) 71–4 and 218. 86 Imposing conditions on welfare benefits occurs in the later years of John Major’s government, see P Dwyer, Understanding Social Citizenship (The Policy Press, 2004) 65. Significantly, this occurs only after the turn away from Victorian values: see discussion below. For a summary of the impact of Thatcher’s welfare policy, see E Wilson, A Very British Miracle: The Failure of Thatcherism, 161–3. 87 See G Pascall, ‘Women and the Family in the British Welfare State: The Thatcher Major Legacy’ (1997) 31(3) Social Policy and Administration 298–9. 88 Another more subtle but no less significant example in the field of sexual morals was the government-backed s 28 of the Local Government Act of 1988 that banned local authorities from ‘promoting homosexuality’ as an alternative lifestyle. Given that it was a flagship anti-gay measure, three aspects of s 28 are worth noting. First, it was introduced as a backbench amendment that was supported by the government. Second, whatever the rhetoric surrounding it, s 28 did not seek to revoke the compromise between private and public morality contained in the 1967 Sexual Offences Act, which decriminalized homosexual acts in private. If anything, its formal terms set out to uphold the moral pluralism of the welfare state against a (slightly fanciful) ‘loony left’ effort to undermine it by ‘promoting’ homosexuality. Third, only one unsuccessful attempt was made to enforce the section in the courts, although it had a chilling effect on some educational activities.

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vulnerability as the policy rationale for section 5 of the Public Order Act 1986 enacted at the same time.89 The vulnerability of the individual subject, tacitly assumed by Hayek, began to emerge as the rationale for expanding state power at precisely the moment of his disciple’s greatest political success because, however much ‘Victorian values’ might be invoked in Thatcher’s rhetoric, traditional sources of authority were a non-starter as a political basis for the return of either positive conditions on welfare support or obligations to uphold public order or indeed any other civic obligation.90 The ‘traditional’ values of neoliberal social policy could not prevail over the formal political equality of the postwar order, with its concomitant moral pluralism, its preference for scientific expertise, and its insistence on a degree of social equality. These more recent ‘traditions’ proved just too entrenched. As Nikolas Rose observes, the moral pluralism of the postwar welfare state could not be undone by traditional values that had themselves already been fatally weakened by the experience of that self-same welfare state.91 This limitation on Thatcherite politics was brutally forced on her successor in the fiasco of the 1993 ‘Back to Basics’ campaign, when John Major’s loudly proclaimed commitment to returning to traditional moral values collapsed within weeks, as government ministers were forced to invoke their right to privacy in the face of sexual scandals.92 Even before the ‘Back to Basics’ debacle, the Major government had begun to develop a different idea of citizenship as a defining motif to distinguish itself from Thatcher’s administration. Although much derided at the time, the Citizen’s Charter purported to give citizens individual rights as consumers of public services, and this theme has remained a central aspect of official policy across the public services.93 As Keith Faulks argues, constructing citizens as consumers of welfare services in this way continued the Thatcherite policy of active citizenship in so far as the Citizen’s Charter presented the consumer as an active participant in the provision of the service, given rights to choose and a responsibility to choose wisely. Indeed this conception of citizenship reflects what contemporary critics generally 89

See discussion in Chapter 4. Indeed it has been argued that her opponents were the true defenders of Victorian values against her radical assault on British traditions: see, for example, Samuel, ‘Mrs Thatcher’s Return to Victorian Values’, 22–9. 91 N Rose, Powers of Freedom (Cambridge University Press, 1999) 185. 92 Gertrude Himmelfarb, an advocate of Victorian ‘virtue’, gloomily surveys its absence in the 1990s in G Himmelfarb, The Demoralization of Society: From Victorian Virtues to Modern Values (Institute of Economic Affairs, 1995) 221–43. Some conservative critics of Thatcherism, such as David Green, misunderstand why the ‘Thatcherite revolution was ultimately built on sand’ (D Green, Reinventing Civil Society: The Rediscovery of Welfare without Politics (IEA, 1993) 132–3). Green assumes that despite Thatcher’s assertion of traditional values and duties, overall the political language deployed was too materialistic. But the materialistic aspect of the Thatcherite policy was the only aspect that could succeed. The traditional morality, which Green himself supports, had already lost sufficient purchase in society. The difficulty was not a lack of political energy in promoting Victorian values but a lack of practical policies that could be derived from them of the sort that the economic aspect of neoliberal theory readily provided. 93 A Root, Market Citizenship (Sage, 2007) 44. 90

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assume to be the neoliberal construction of human subjectivity as such.94 The emphasis in the Citizen’s Charter was on the citizen’s rights not duties, but they are the rights of a subject defined as an actor in a market transaction.95 For current purposes, it is important to note that, like the Third Way and communitarianism, both of the neoliberal accounts of active citizenship were part of a critique of the operation of the social rights of an earlier era, since both policies recast the relationship of the citizen to the public services. Under social citizenship, the public services were concerned with the possibility of a universally shared public life; universal rights to welfare services were to be the guarantor of the common membership of all citizens in a single democratic civilization. With active citizenship, by contrast, the citizen’s relation to social welfare is individualized as a question either of moral duty or of consumer satisfaction. But if both earlier and later neoliberal policies represented a critique of social rights, the character of each was significantly different. The Citizen’s Charter gave up on traditional morality as the basis of the proper relation of state and citizen, and instead sought to find it in the choosing character of market relations themselves. The active citizen is reconstructed as a responsible consumer of public services, and this appears to partake in the legacy of state welfarism while at the same time shifting the universalistic aspect of social citizenship into something more conditional. This was neoliberalism without the traditional religiously inspired morality, and it was this approach that accompanied the policy preference for markets and choice in the provision of public services from the early 1990s onwards. This second detraditionalized neoliberal conception of the citizen as consumer, as a self-interested rational calculator, directly invoked the vulnerable subjectivity that lies at the heart of Hayek’s theory. The Citizen’s Charter had a precursor, another charter, published by the Home Office a year earlier: the Victim’s Charter. The content of the Victim’s Charter was then absorbed into the wider Citizen’s Charter. The official construction of the citizen as consumer begins with the consumer-citizen as a potential victim of crime,96 and, as a result, a consumer of the state’s criminal justice services. The axiomatic assumption of the vulnerability of the citizen as individuated rational calculator means that neoliberalism-withoutthe-traditional-morality tends to elide victimhood and citizenship.97 There are two points to note about this crucial moment in the story of the right to security. First, this elision of citizenship and victimhood is ideological in the sense that it is based on a partial truth that obscures as much as it reveals, an aspect we noted in Hayek’s invocation of the vulnerability of the market’s subjects. The citizen is taken

94 See W Brown, ‘Neo-liberalism and the End of Liberal Democracy’ (2003) 7(1) Theory & Event para [13]. 95 Faulks, Citizenship in Modern Britain, 134. 96 Jonathan Simon argues that in American politics the vulnerable consumer as the representative subject of law tended to be ‘squeezed out’ by the victim of crime, emphasizing the change rather than the continuity between the two subject positions, see J Simon, Governing Through Crime (Oxford University Press, 2007), 86–9. 97 See also ibid, 110, and A Young, Imagining Crime (Sage, 1996) 55.

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to be a potential crime victim in ‘a structurally neutral’ way.98 Potential victimhood appears as a representative and universal characteristic of the citizen-as-consumer when, in fact, the risks and the impacts that comprise vulnerability are distributed very unevenly across the population in ways that reflect the economic structure of society.99 The complexities of actual criminal victimization disappear in the representative-citizen-as-victim, just as the impact of an individual’s ownership of property on their vulnerability to the effects of a radically decentralized market are passed over by Hayek’s account of vulnerability. Secondly, the raw material of this ideological position—the citizen as vulnerable consumer—is in immediate need of some ethical working up if it is to serve as a basis for policy, and neoliberalism itself lacks the resources to carry out this development. Once neoliberalism’s contingent ethical moorings in traditional religion are stripped away, as they have been in political practice, the theory loses any distinctive moral grounds for the duties of citizenship,100 and is left with only the unmediated experience of vulnerability to the unknowable, uncontrollable and insecure marketplace. In the neoliberal order there is no alternative to the market, which tends to organize all social relations, but it does so with an impoverished ethical account that is unable to deny that the market does not necessarily produce attractive or just social outcomes for everybody. This represents a significant legitimacy deficit for a neoliberal economic and political order. And governmental policy initiatives such as victim’s or citizen’s charters were too thin to make up for that lack. Other theories were needed to develop some more systematic basis for the development of moral or legal obligations towards the fundamental vulnerability that subjects of market relations were ideologically assumed to experience as a normal and representative characteristic. This legitimacy gap was to be filled initially by New Labour with its Third Way and communitarian notions of active citizenship. Neoliberalism without the traditional morality, with its citizen as consumer, that is to say the citizen as an individuated rational seeker of self-fulfilment is, as we saw above, the starting point of the Third Way: the decline of custom and tradition generating both a new individualism and an ‘ethico-politics’,101 a politics of behaviour, that underpins the liabilities for failure to reassure in section 1 CDA. The political failure of the moralized Thatcherite concept of citizenship provides the key to understanding the circumstances in which a legal liability for a failure to reassure should command such a wide political consensus. The Third Way and communitarian doctrines of vulnerable autonomy that influenced 98

R Mawby and S Walklate, Critical Victimology (Sage, 1994) 174. S Green, ‘Crime, Victimisation and Vulnerability’ in S Walklate (ed), Handbook of Victims and Victimology (Willan, 2007). Moreover the whole representation of the ideal representative citizen as a crime victim glosses the fact that very many actual victims of violent crime are also themselves offenders: see M Dubber, Victims in the War on Crime; The Use and Abuse of Victims’ Rights (New York University Press, 2001) 275–81. 100 See also R Sullivan, ‘The Schizophrenic State: Neoliberal Criminal Justice’ in K Stenson and R Sullivan, Crime, Risk and Justice (Willan, 2001) 44. 101 N Rose, Powers of Freedom (Cambridge University Press, 1999) 170. 99

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the Labour Party in government emerged as a solution to the problem that the Conservative Party governments of the 1990s could not adequately solve: the problem of politically legitimizing broadly Hayekian economic policies. The early days of the politics of ‘anti-social behaviour’ provide the most pointed example of the final demise of old-style moralizing in official rhetoric and its transformation into Third Way vulnerability-talk. Stuart Waiton has shown that while the panic over the return of street beggars to Britain’s streets in the mid-1990s began when Prime Minister Major and other Conservative ministers tried to make capital by attacking street beggars in traditional terms as scroungers and welfare cheats, the issue was successfully hijacked by New Labour who converted the problem into one of ‘aggressive begging’ and the fear that this supposedly invoked in the public.102 In the wake of New Labour’s 1997 landslide election victory the ideology of vulnerable autonomy became a mainstream consensus, and this consensus continues after the apparent demise of New Labour and the Third Way. It continues because it addresses the problem of legitimizing neoliberal policy. It explains the Coalition government’s continued willingness to enforce a liability for failure to reassure, and it can be seen in the political ideas that underlie the Coalition’s Big Society programme, an outlook called civic conservatism.

5.4 Civic conservatism The Big Society programme is an endeavour to position the Coalition government between the free market triumphalism of the Thatcher era and the Third Way of New Labour. Neoliberalism’s legitimacy deficit has, unsurprisingly, generated a mountain of criticism from a political left that favours state-led political mechanisms of redistribution. But the problem of justifying the economic order of market capitalism has not gone unnoticed among conservative thinkers either, notwithstanding conservative parties’ continuing adherence to neoliberal assumptions. The Big Society emerges from trying to think through that problem from a conservative perspective. The right confronts the same essential problem of legitimizing market relations in the absence of traditional sources of authority that New Labour sought to address with the Third Way and responsive communitarianism. And, while there are potentially significant differences, conservatives are forced back on to the idea of social cohesion every bit as much as the left. The decline of the influence of traditional virtues in public and economic life has been a central preoccupation of the ‘neoconservatism’ that gained in influence in the nineties and naughties following the ‘neoliberal revolutions’ in the UK and the US. Neoconservatism’s chief propagandist, Irving Kristol, noted that the market societies of the West have been ‘living off the accumulated moral capital of traditional religion and traditional moral philosophy, and that once 102

S Waiton, The Politics of Anti-Social Behaviour: Amoral Panics (Routledge, 2008) 63–7.

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this capital [is] depleted, bourgeois society [will] find its legitimacy ever more questionable’.103 His argument is that capitalism will necessarily appear unjust unless it is buttressed by the Protestant ethic or some other doctrine that ‘prescribes a connection between personal merit—as represented by such bourgeois virtues as honesty, sobriety, diligence and thrift—and worldly success’.104 Without such a doctrine the market’s distribution of wealth, opportunity and risk is hard, if not impossible, to justify. Kristol criticizes Hayek for rejecting the possibility that the market could be presented as a just system, but he entirely overlooks Hayek’s own recognition that the market order could not be sustained without the supplement of traditional values (albeit for more directly instrumental reasons than the reasons of justice favoured by Kristol).105 For conservatives this is the fundamental problem: how is the highly differentiated distribution of wealth produced by the market’s operation to be morally justified, or at least lived with, without reliance on the moral authority of traditional sources. Writing at the end of the twentieth century, Kristol promoted a religious revival but was wisely cautious about the prospects, even in the US. Certainly in the British context, Kristol’s caution is justified for reasons that we have already discussed. The experience of the postwar welfare state fundamentally entrenched moral pluralism and permanently altered the relationship of the state to those particular substantive moral traditions that Margaret Thatcher was unable to revive. Indeed, as John Gray has argued, the call on the political right and among religious fundamentalists for a revival of religious tradition is more accurately described as atavistic than as ‘conservative’, for it involves not the conservation of existing moral traditions, but a return to social traits that have long died out across most of British society.106 The atavistic character of a social policy based on religious revival makes it an unattractive and improbable political platform in the UK mainstream. As a consequence religion only appears as one of the intellectual sources of the Big Society.107 In his influential account, Jesse Norman comments that the problem with religion is that its ‘emphasis on revelation and tendency to moralize make it unpersuasive to many people’.108 In the Big Society religious themes are combined with two other sources, ‘fraternalism’ and the ‘civic tradition’. Fraternalism ‘focuses on people as social beings, who find identity in relation to each other’, and Norman agrees that communitarianism is one strand of fraternalism. The civic tradition is found in British traditions of constitutionalism and equality before the law. But the way that the Big Society combines these themes leaves the intellectual

103 I Kristol, ‘Capitalism, Socialism and Nihilism’ in I Kristol, Neoconservatism: Autobiography of an Idea (Freepress, 1995) 101. 104 Ibid, 100. 105 See ‘ “When Virtue Loses all her Loveliness”: Some Reflections on Capitalism and the Free Society’ (1970) 21 Public Interest 3, 6–8). The reason for his oversight appears to be that Kristol tends to confuse Hayek with his follower Milton Friedman. 106 J Gray, Enlightenment’s Wake (Routledge, 1995) ch 7. 107 J Norman, The Big Society: The Anatomy of the New Politics (University of Buckingham Press, 2010) 184–5. 108 Ibid, 184.

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content of this programme much closer to the Third Way than its supporters would care to admit. Norman identifies as the theoretical core of the Big Society the ‘idea of a connected society’, a concept that draws heavily on the writings of Michael Oakeshott.109 A connected society is ‘a society understood in terms of affection or personal tie’. Such a society is made up neither of isolated individuals pursuing their self-interest in a vacuum nor of a single enterprise in which everyone is pursuing a common goal. Instead, between these extremes, society is the connections that individuals make between themselves in a host of intermediate institutions from families through local churches, clubs, sports teams to business organizations and cooperatives such as the lost and much-lamented ‘friendly societies’ of the nineteenth and early twentieth centuries. Norman, therefore, rejects both the ‘rigor mortis economics’ of contemporary neoliberalism and what he sees as the interventionist statism of New Labour. The Big Society, because it recognizes the key importance of mediating institutions, does not leave everything to the market, but at the same time ‘involves a willingness by central government to alienate power, and to accept that it cannot and should not intervene in every issue that presents itself on the doorstep’.110 Although the Third Way is rhetorically denounced in this way, one shared theme is marked. In this connected society ‘individuals are associates . . . who collectively belong and recognize each other as belonging, a recognition that creates a degree of mutual respect and obligation between them’.111 Respect and obligation are by now familiar figures. But Norman immediately continues: ‘These associates are equal and free, and the bond each other owes to another derives its value from being freely given.’ The key question for our purposes is what is the nature of the ‘free’ giving of respect and obligation, and what does a society do when individuals refuse to give it. Norman conceives of society as the product of a conversation and notes that ‘any conversation demands a context of mutual respect and order, in short of civility. This is a basic rule of conduct between citizens dealing with each other under the rule of law.’112 It is not clear whether this ‘basic rule of conduct’ means that the Big Society is willing to enforce respect for and obligation towards each other’s subjective security needs. Crime and law and order do not feature heavily in Norman’s account. He refers repeatedly to individual freedom as an important British tradition, but the specific policy consequences are restricted to opposition to ID cards, to the retention of DNA of the unconvicted, to some recent restrictions on freedom of speech and to an overcomplicated tax system. Norman expresses dislike for the ‘ugly panoply of our wider surveillance culture’ but seems unaware that that culture is an aspect of the policy of reassurance in which the respect and civility that he emphasizes have played a key role. The difference between the Big Society and the Third Way is not to be found in the content of their political aims—achieving social cohesion in a detraditionalized 109

Ibid, 102.

110

Ibid, 70.

111

Ibid, 105.

112

Ibid, 111.

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market economy—but in the relative roles of the state and the market in delivering that social cohesion. Given the Big Society’s downplaying of religious themes and the ‘fraternalist’ ground that it shares with communitarianism, it is the combination of fraternalism and civic conservatism that is its distinctive characteristic.113 This synthesis can also be found in David Willetts’s 1995 account of civic conservatism, and here the fundamental difficulty for Big Society conservatives becomes clear. Willetts’s civic conservatism is conservative in its concern to ensure a settled and coherent institutional life for British society, but it nevertheless embraces the market as the only way of organizing economic life and, like Hayek, regards it as ‘non-moral rather than immoral’.114 Willetts does not deny the market’s potential for ‘barbarity and harshness’ but warns against the ‘dangerous temptation’ of imagining that it is possible ‘to opt out of the market environment within which individuals and indeed whole nations must inevitably make their way’.115 This temptation will, he argues, lead back to the Fabian error that all social problems can and should be addressed by the state, with the result that ‘the state has taken over and then drained the lifeblood from a series of institutions which stood between the individual and the government’.116 For Willetts, the Left’s view that the market is the threat to settled values, cultures and institutional life must be reversed because it is the aggrandizement of the state that has led to a loss of mediating institutions between individual and government, and amounts to the biggest threat to ‘collective action’.117 This concern for mediating institutions and the collective action of citizens leads Willetts to criticize neoliberals as well because ‘they simply think in terms of the individual economic agent without any understanding of the institutions, values and ties which are not just good in themselves but are anyway essential for any real free market to thrive.’118 In other words, contemporary neoliberals are inadequately Hayekian. But the key to conservatives’ problem is that Willetts is only able to tie civic conservatism to traditional institutions rhetorically. No more than Margaret Thatcher before him can he actually revive the celebrated traditions. Although he mentions the nation and the family, he cannot make much of them. For example, he observes that 75 per cent of the population still live in a household headed by a married couple, but he does not discuss how these households stand in relation to the traditional patriarchal family, now that divorce is relatively easily obtained and the welfare of the child is paramount in family law proceedings. Indeed, Willetts is forced to celebrate the capacity of market societies to bring ‘people together in new communities of choice rather than of circumstance. It is a change from which many people in our country have derived great benefit.’119 No doubt, but it is a change that has done for tradition. 113 For an account of contemporary Conservative politics that places greater emphasis on the communitarian aspects of the synthesis, see P Blond, Red Tory: How Left and Right Have Broken Britain and How We Can Fix It (Faber and Faber, 2010). 114 D Willetts, Civic Conservatism (Social Market Foundation, 1994) 20. 115 116 Ibid, 26 (emphasis added). Ibid, 21. 117 118 119 Ibid, 24. Ibid, 25. Ibid, 20.

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Like the Third Way and responsive communitarianism, civic conservatism embraces a plurality of reflexive communities but ties this more explicitly and polemically to the idea that it is the market as opposed to the state that can produce these mediating institutions. The market’s potential harshness is not denied. Instead its allegedly decentralizing logic is claimed to be conducive to the creation of localized mediating institutions and forms of collective action, and it is these institutions that give society a settled character. Leaving aside the empirical plausibility of this central claim about the locally empowering effects of the market, civic conservatism’s critique of the centralized Fabian welfare state rests on the same underlying view of the inevitability of the market that generates the theory of vulnerable autonomy. Nothing in Willetts’s civic conservatism suggests dissent from Hayek on this point. Moreover, his civic conservatism embraces the conditionality of citizenship just as much as the Third Way and communitarianism do. Willetts explicitly endorses the mutualism of the founders of the welfare state, and promotes the idea of a welfare contract as a ‘moral arrangement’. He complains that the implicit conditionality of the welfare system has been lost on the one hand to the Left’s universalism and on the other to the Right’s fiscal restraint.120 In these respects it is hard to distinguish civic conservatism and the Third Way. This underlying shared perspective means that the substantive content of the liability for a failure to reassure is broadly consistent with this project in its civic conservative version as much as it is in its Third Way version. What is a wrong against the rights of citizens for the Third Way is equally a wrong for civic conservatism. For both are concerned to ensure social cohesion through mechanisms of civility, respect and conditionality of rights. The difference between the Third Way and civic conservatism is that the latter envisages a more limited role for government. This shift in emphasis is reflected in the Coalition’s move from ASBO to the CBO and CPI. The Home Office’s complaint about New Labour’s anti-social behaviour strategy is not that people should not be restricted and punished for failing to reassure others. It is that an interfering, hyperactive central government has overcomplicated the enforcement ‘toolkit’ and made it impractical for communities to get the results they need. The CPI and CBO are intended to simplify the approach to enforcing the liability for failing to reassure and to give local communities greater influence over the use of them.121 But nothing in the Big Society suggests that this liability should not be enforced. The name of the Third Way’s flagship intervention in criminal justice must be erased, and be seen to be erased, but the substantive liabilities the ASBO imposed are to be retained. There is much talk among Big Society supporters and in the Coalition government about defending traditional liberties from ID cards or DNA databases. And there has been action in respect of these too. But this is not a reference to the liberty of 120

Ibid, 41–3. It is also proposed to provide for a ‘community trigger’ imposing a statutory duty on local authorities to respond to sufficient community concern about a particular source of anti-social behaviour: see Home Office, More Effective Responses to Anti-Social Behaviour (Home Office, 2010) 25. 121

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wrongdoers, and the risking of insecurity is as much of a wrong to the Big Society as it was to the Third Way.

5.5 The ideology of vulnerable autonomy The emphasis of the theories considered here is very different. In particular where neoliberalism and civic conservatism are stridently pro-market, responsive communitarians are generally much more critical of market solutions, while the Third Way compromises those positions with a guarded endorsement of market individualism. Responsive communitarians and civic conservatives profess to be more cautious about coercive legal intervention than the Third Way. But, despite their differences of emphasis, all these theories share some common elements. Firstly they all assume that the market is the only available economic order and, secondly, they each engage in a critique of the postwar political settlement in which civil and social rights were universally and unconditionally distributed to citizens. Each offers instead a vision of active citizenship in place of the welfare state concept, a vision that assumes that the individual subject spontaneously lacks the moral resources required to maintain or achieve autonomous self-control in the face of the hostile or indifferent dispositions of others. Hayek’s theory does not directly support the legal structure of the ASBO, rather that structure has arisen in circumstances that have exposed the inner tension in his ‘Old Whiggery’, and the historical redundancy of its traditionalist aspect. The triumph of the neoliberal vision of economic policy was not accompanied by an equivalent revival of traditionalist views of social obligation or of traditionally conservative social policy. In Britain the final exposure of the political bankruptcy of traditional sources of authority occurred under Conservative governments. Without these moral supplements, neoliberalism imagined citizens in the mode of rational, self-interested actors but these citizens were accordingly also vulnerable to blind market forces. And this vulnerability itself has come to be regarded as a source of citizenship obligations. What is being argued here is that the Third Way and communitarianism should be understood as theories that gained in influence because they endeavour to do the work of rationalizing the market order in the vacuum left by earlier but discredited sources of legitimacy. By the 1990s the list of those discredited sources of legitimacy was lengthening. Laissez-faire economics was discredited as a source of political legitimacy by the disaster of the 1930s (the political success of Hayekian economic ideas should not to be mistaken for a return of laissez faire; contemporary markets are at least as regulated as markets ever have been).122 Keynesianism and the 122 The Thatcherite deregulation of the economy ‘bristled with paradox’ as the privatization of natural monopolies required a vast increase in the scope of official regulation (see D Marquand, The Decline of the Public (Polity, 2004) 105). Steven Vogel concluded from his study of privatization in Britain and Japan that it should be understood as a process of ‘reregulation not deregulation’ (S Vogel, Freer Markets, More Rules: Regulatory Reform in Advanced Industrial Countries (Cornell University Press, 1996) 3). Even the financial crisis of 2008, which is often attributed to the influence of naive

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universal social rights of the welfare state hit the rocks in the 1970s. They were followed by Thatcher’s Hayekian appeals to long-abandoned religious and patriarchal tradition in general and the Protestant ethic in particular. Critical of the claims of all these earlier sources of legitimation, the new doctrines have sought to derive their moral supplement to the market directly from the experience of vulnerability, so widely diagnosed as the condition of existence in market societies.123 Giddens has given this basic idea its most general formulation: ‘We can’t return to nature or tradition, but, individually and as a collective humanity, we can seek to remoralize our lives in the context of a positive acceptance of manufactured uncertainty.’124 By ‘manufactured uncertainty’ he means the uncertainties that are the reflexive product of modern social and technological development. While environmental uncertainties are uppermost in Giddens’s mind, the potential for fear and anxiety about others’ intentions, which he argues has arisen with contemporary society’s loss of traditional certainties and solidarities, fits the bill just as well. The risks to each other’s welfare that our everyday activities are perceived to pose, the ‘uncertainties’ we ‘manufacture’, provide the source of our responsibilities and our rights. Through obligations to be aware of others’ vulnerability in the face of such uncertainties, it is hoped that the lack of social cohesion engendered by the atomistic neoliberal economic and social order might be ameliorated. The consequence of this ideology is that the ‘the neoliberal subject becomes a risk-avoider rather than a risk-taker’.125 With the defeat of New Labour, the Conservative party has sought to reheat Hayek’s marriage of markets and Burkean traditionalism, with its Big Society of ‘little platoons’. But just below the surface we inevitably find the same Third Way themes of achieving social cohesion and respect between ‘communities of choice’. Without the actual revitalization of the Protestant ethic or indeed of any other ancient and venerable institution, the ideology of vulnerable autonomy will remain the essential core of political ideology in a detraditionalized market society.

5.6 Conclusion In recent years the discussion of security has been a political preoccupation. The vulnerability of autonomy provides the normative other side of the instrumentalist faith in the rationality of markets, is understood in the official mind as a problem of ‘regulatory failure’ (see, for example, D Strauss Kahn, ‘A Systemic Crisis Demands Systemic Solutions’, Financial Times, 25 September 2008). For a fascinating discussion of the illusory character of the distinction between ‘free market’ and ‘regulation’, see B Harcourt, The Illusion of Free Markets (Harvard University Press, 2011). 123 A Foucauldian account of the systematic relation between neoliberal economic prescriptions and the development of a moral order that is ‘embedded’ in the market is offered by R Shamir, ‘The Age of Responsibilization: On Market-Embedded Morality’ (2008) 37(1) Economy and Society 1. Shamir does not theorize the normative content of the rights and duties, but he observes that individuals have to moderate their self-interest through concern for interdependency: see ibid, 7–9. 124 A Giddens, Beyond Left and Right, 227. 125 R Ericson, Crime in an Insecure World (Polity, 2007) 217.

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coin of security. And it suggests that it would be a mistake to see the official invocation of vulnerability as nothing more than cynical fear-mongering by the security state or a manipulative governmental technique deploying the contingently fashionable discourse of therapy. The vulnerability of autonomy is an axiomatic proposition of political theories that have enjoyed influence precisely because that axiom offers a normative basis for the duties of citizenship in circumstances in which others have failed.126 As a consequence vulnerability has acquired such normative force that Peter Squires and Dawn Stephen do not exaggerate when they observe that the condition of vulnerability to crime serves to ‘vindicate our own sense of ourselves as moral and worthy: respectable as opposed to disreputable’.127 The politics of security should be understood as the consequence of this structure of political belief. The responsibility to protect the vulnerability of others from the manufactured uncertainty produced by our own behaviour is the ultimate justification of the very broad liability for a failure to reassure that is imposed by the ASBO and its successors. The responsibility to protect the vulnerability of others is the reflex of those others’ right to be free from the fear of crime, which is to say their right to security. This right to security is a fundamental right in this normative structure. 126 For a sociological critique of the ‘construction of the vulnerable citizen’ that, by contrast, discounts the significance of contemporary political ideas in general, and the Third Way in particular, see F Furedi, Culture of Fear (Continuum, 2005). 127 P Squires and D Stephen, Rougher Justice: Anti-Social Behaviour and Young People (Willan, 2005) 10. For a fascinating discussion of vulnerability’s normative force in a different context, see B Doherty, ‘Manufactured Vulnerability: Protest Camp Tactics’ in B Seel, M Paterson and B Doherty (eds), Direct Action in British Environmentalism (London: Routledge, 2000). See also Green, ‘Crime, Victimisation and Vulnerability’, 110.

6 The Right to Security and the ECHR The law’s imposition of a liability for failure to reassure has institutionalized a right to live free from harassment and distress. This legal protection of an interest in subjective security has been officially promoted as a right that is nothing less than ‘the foundation of civic society’. Such a ‘right to security’ is implied by political theories that have influenced mainstream political life. Now we must ask if this right can also be legitimated in the language of human rights. The Human Rights Act 1998 requires the decisions of local authorities and the courts to be compatible with the requirements of the European Convention on Human Rights. The substantive law of the ASBO protects a right to security, and it does so very often by interfering with the rights to private life, rights of association, and freedom of expression that are protected by the Convention. The ASBO’s procedure has come in for a lot of criticism on human rights grounds. But its procedures have withstood the criticism in the courts. Nor has its substantive law been found to violate the Convention. The European Council’s Commissioner for Human Rights, Alvaro Gil-Robles, in his 2004 report on the UK, was highly critical of what he regarded as the excessive use of the ASBO, which he notoriously referred to as ‘ASBO-mania’. But the Commissioner did not object to the ASBO in principle. On the contrary: I do not wish to suggest that ASBOs are necessarily objectionable. Well-drafted orders, prohibiting clearly proven and seriously vexatious behaviour, accompanied by appropriate assistance and supervision may well usefully protect citizens from activity that gravely prejudices their welfare, but which falls outside the scope of effective criminal prosecution.1

The Commissioner’s concern is not with the use of preventive orders, as such, but with their excessive and inappropriate use.2 He sees the possibility of excess as lying in the broad grounds in section 1(1), and in one of his examples he casts doubt on the appropriateness of using criminal law to control behaviour that is merely ‘unpleasant’,3 a problem we considered in Chapter 1. But the Commissioner 1 Report by Alvaro Gil-Robles, Commissioner for Human Rights on His Visit to the United Kingdom 4–12 November 2004 (Council of Europe, CommDH(2005)6) para [111]. 2 The Commissioner also criticized their use against young people, arguing that unnecessary publicity given to ASBO terms would amount to a breach of Art 8 (ibid, para [120]). In relation to the ASBO’s use against young people his argument becomes frankly criminological in character—that it is as likely to increase as to decrease ASB—implicitly questioning the connection between ASBO restrictions and any legitimate aim of public policy: see para [118] and discussion at n 84 below. 3 Ibid, para [116].

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accepts the principle of the substantive power in the ASBO. If the legal protection of the right to security in the form of the ASBO has so far proved to be compatible with the Convention, we need to know why. This chapter will therefore identify where this right to security can be found in the ECHR, and how this right relates to the human rights of those made subject to the controls imposed to protect it. It is important to emphasize the very specific character of the argument that will be made here. I will argue that the legal regime of the ECHR allows considerable scope for the legal protection of a right to security in the form of a right to live free from harassment and distress. I will further argue that owing to the Convention’s quasi-constitutional position it legitimates the protection of such a right, and that this broadly reinforces a communitarian theory of the Convention that is in turn consistent with the ideology of vulnerable autonomy considered in the previous chapter. I will also consider where this leaves the human rights of those who offend against the right to security, and why a right to security is a plausible and predictable outcome of grounding human rights in universal human vulnerability. The point to emphasize is that we are here concerned with human rights as they are in fact protected in England and Wales. We are not concerned with the concept of human rights as such or with human rights as they ought to be. As a consequence, this chapter will not review the many human rights charters or assess a range of theories of human rights to see which, if any, of these charters or theories supports or precludes a right to security. It will rather consider why the substantive law that controls and punishes the causing of harassment, alarm or distress has proved compatible with the ECHR, and then go on to consider only one conception of human rights that does appear to rationalize the right to security that is thereby legitimated. Readers familiar with the legal and human rights literature may assume that this approach is intended to make an argument in favour of the legal protection of the right to security. But that would be to misunderstand its purpose. Consistent with the overall method pursued in this book, our purpose here is to interpret and to understand better the arguments about human rights that are in fact made in courts of law, legislatures and other sites of political deliberation and decision-making, and, in particular, the normative claims that underpin those arguments. The vision of human rights that emerges may or may not be an attractive one depending on the reader’s point of view. The point is that it is an account of human rights that appears to explain the law that we have. To reiterate, the better understanding that is sought here is one belonging, broadly, to a political sociology of penal obligations rather than to moral philosophy.

6.1 The right to security in the ECHR The ECHR sets out no explicit right to security of the sort that the UK’s domestic law of harassment, alarm or distress seeks to protect. Article 5 ECHR states that everyone has ‘The right to liberty and security of the person.’ But the European Court of Human Rights has interpreted Article 5 as

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protecting a right to physical liberty from arbitrary imprisonment,4 and the court has only dealt separately with the right to security of the person in cases where prisoners have disappeared and there is the suspicion of secret execution.5 As Liora Lazarus puts it in her review of the case law, the Court’s interpretation of Article 5 achieves an ‘almost complete elision of the express rights of security and liberty’.6 In practice the ECHR’s protection of the right to security of the person is solely a question of upholding the right to liberty from arbitrary interference by the state.7 Article 2 ECHR protects the right to life and this has been authoritatively interpreted to mean that ‘in certain well defined circumstances’ there exists ‘a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual’.8 The limitations on the scope of this decision clearly fall well short of requiring legislative protection of people’s subjective security in the sense of a freedom from fear for their safety. While there is no right to security explicitly enunciated by the ECHR, the Convention nevertheless presents little obstacle to the protection of such a right by means of the domestic substantive law. The Convention has very little to say about preventive powers,9 and it ‘leaves states free to designate as criminal any act or omission not constituting the normal exercise of the rights that it protects’.10 Acts or omissions that do constitute the ‘normal exercise’ of the rights protected by the Convention include all those protected by Articles 8–11, which is to say, the right to privacy and family life, freedom of thought, conscience and religion, freedom of expression and freedom of assembly and association.11 For the enforcement of any provision of substantive law to meet the Convention’s requirements, it is sufficient that it either does not interfere with any Convention right or, where it does interfere, that it does so within the terms of the qualifications recognized by the Convention in the second part of each of Articles 8–11. That means that an interference must be prescribed by law and be necessary for one of the legitimate aims of a democratic society that these articles allow for. How then do the penal liabilities imposed in order to protect the right to be free of harassment and distress fare under the human rights regime? Some of the most popular types of purely preventive term in an ASBO may not engage a Convention right at all. The exclusion zones and curfews that are frequently imposed in ASBOs will not normally be held to engage the right to liberty,12 4

Bozano v France (1987) 9 EHRR 297. For example, Timurtas v Turkey (2001) 33 EHRR 121, Cicek v Turkey (2003) 37 EHRR 464. L Lazarus, ‘Mapping the Right to Security’ in B Goold and L Lazarus (eds), Security and Human Rights (Hart, 2007). 7 D Harris, M O’Boyle, E Bates and C Buckley, Law of the European Convention on Human Rights (Oxford University Press, 2009) 132–3. 8 Osman v UK (1998) 29 EHRR 245, para [115]. 9 A Ashworth and L Zedner, ‘Defending the Criminal law: Reflections on the Changing Character of Crime, Procedure and Sanctions’ (2008) 2(21) Criminal Law and Philosophy 21, 45. 10 Engel v Netherlands (1979–80) 1 EHRR 647, para [81]. 11 For present purposes we will restrict ourselves to discussion of these. 12 In R (Lonergan) v Crown Court at Lewes [2005] 1 WLR 2570 ASBO curfews were held to be restrictions on movement and not to engage Art 5. (They would rather engage Art 2 of the Fourth Protocol of the ECHR had the UK ratified that protocol, which it has not. Article 2 of the Fourth 5 6

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unless they are too extensive,13 although they will frequently interfere with the right to private and family life.14 Restrictions on associating with named individuals will also not necessarily engage protection of freedom of association under Article 11 unless the behaviour prohibited occurs in the context of a political meeting or demonstration.15 But the terms of ASBOs will nevertheless often interfere with the exercise of defendants’ rights under Articles 8, 10 and 11. Where there is such interference, it must be within the terms of the recognized qualifications to these articles. It is unlikely that laws against causing harassment, alarm or distress will be found not to be prescribed by law. The Strasbourg court has found that measures to control the causing of ‘annoyance’ were definite enough to be prescribed by law.16 Behaviour ‘likely to cause harassment, alarm or distress’, though certainly broad, is not more vaguely (or less subjectively) defined than this. Moreover, in Chapter 2 we noted that an ASBO that is lawfully imposed will have been ruled ‘necessary to prevent further anti-social acts by the defendant’, and that means that it must be proportionate to the risk guarded against.17 This leaves only the question of whether a measure that is necessary to prevent further anti-social acts in fact pursues one of the legitimate aims of a democratic society. For as long as the preventing of ‘harassment, alarm or distress’ to others is in the interests of ‘public safety’, or of ‘the prevention of disorder or crime’, or of ‘the protection of health or morals’ or indeed of ‘the protection of the rights of others’, then any lawfully imposed ASBO will serve to protect the right to subjective security of others while not violating the defendant’s Convention rights. Although ASBOs have been imposed to control the activities of political activists,18 none of them has been successfully challenged on the grounds that the preventing of harassment, alarm or distress that the order was necessary to achieve was not in the interests of public safety, or preventing disorder or crime, or protecting public health or morals, or protecting the rights of others.19 This is not a peculiarity of the ASBO law. Pieter van Dijk et al note that ‘the Strasbourg organs Protocol in any case includes provision for exceptions that are ‘necessary in a democratic society in the interests of national security or public safety for the maintenance of [public order], for the prevention of crime, for the protection of rights and freedoms of others’.) See also Cyprus v Turkey (1976) 4 EHRR 482. 13 The combination of an 18-hour-a-day curfew and tight movement restrictions included in some terrorism control orders has been held to be a deprivation of liberty in violation of Art 5: see Secretary of State for the Home Department v JJ and others [2007] UKHL 45, [2008] 1 AC 385. For further discussion of the control order, see Chapter 7. 14 See, for example, Leeds City Council v Fawcett [2008] EWCA Civ 597. 15 Anderson v UK [1998] EHRLR 218. 16 Chorherr v Austria (1994) 17 EHRR 358. For more discussion see Chapter 8. 17 R v Boness [2005] All ER (D) 153 [38]. 18 See Statewatch’s list of ‘Cases of ASBOs used against protesters’ at . For the use of CrASBOs against English Defence League supporters, see ‘Travel ban for English Defence League Birmingham men’ at and ‘Lincoln man banned from English Defence League meetings’ at . 19 Some have been successfully overturned on the grounds that they were not necessary at all: see Jones and Others [2006] EWCA 2942.

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have very rarely found a violation of Convention rights by reference to the legitimate aim standard’.20 David Harris et al suggest that the reason is that the ‘breadth of most of the grounds for interference is so wide . . . that the state can usually make a plausible case that it did have a good reason for interfering with the right’.21 In respect of the aims of immediate relevance to the interferences that an ASBO represents, the court has given the legitimate aim of preventing disorder a particularly broad interpretation.22 Moreover there is no requirement that in order to serve the aim of protecting the rights of others a decision must protect the Convention rights of others.23 In so far as the rights of others are regarded as including ‘a right of others not to be insulted and distressed’, which is to say, a right to security, the legitimate aim issue is likely to be unproblematic.24 The only question is whether a particular measure is necessary and proportional to the achievement of that legitimate aim. Where an ASBO has been imposed it will have been open to the defendant to prove that his conduct was reasonable.25 Thus where an ASBO is lawfully imposed, the conduct that is to be prevented will not be reasonable. If conduct is not reasonable and causes harassment, alarm or distress, the English case law suggests it is unlikely to be disproportionate in principle to restrict the defendant’s Article 8–11 rights in order to prevent it.26 Providing that the particular prohibitions are drafted proportionately so as to be necessary to prevent further insecurity-causing behaviour, the protection of the right to security by means of limitations on the defendant’s Convention rights in the form of an ASBO will not normally violate those rights under the Convention, and nor will punishment for breaching the prohibition. Very few of the ASBOs imposed on political activists have been successfully challenged as a disproportionate interference with human rights because the scheme of the human rights legislation has effectively been built into the determination under section 1 CDA.27 The proposition that where an interference with a Convention right can be shown to protect the right to security then it will be proportionate to the legitimate 20 P van Dijk, F van Hoof, A van Rijn and L Zwaak (eds), Theory and Practice of the European Convention on Human Rights (Intersentia, 2006) 340. 21 D Harris, M O’Boyle, E Bates and C Buckley, Law of the European Convention on Human Rights (Oxford University Press, 2009) 348. 22 In Dahlab v Switzerland No 4239/98 2001-V DA a ban on a Muslim teacher wearing a headscarf was upheld as an interference with her Art 9 rights that nevertheless served the legitimate interest of preventing disorder, even though nobody other than school inspectors had objected to her doing so. In Association Ekin v France (2002) 35 EHRR 1207 the banning of a book on Basque culture that contained no incitement to violence was held to be in pursuit of preventing disorder (though on the facts the court decided it was not necessary). 23 See, for example, Johanneskirche and Peters v Germany 2001-VIII; X v Netherlands No 2988/66 10 YB 472 (1967); Buckley v UK (1997) 23 EHRR 101. 24 See further discussion of cases under POA 1986, s 5 below. 25 CDA 1998, s 1(5). 26 This is how the reasonableness defence in POA 1986, s 5 has been interpreted: see Norwood v DPP [2002] EWHC 1564, para [37]; DPP v Hammond [2004] Crim LR 851, para [22], discussed below. 27 An indefinite CrASBO imposed on a jailed animal rights activist prohibiting him from participating in any animal rights protests was successfully challenged as disproportionate and reduced to a period of five years in R v Avery [2010] 2 Cr App R (S) 33. Three others were upheld in the same hearing.

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aims of government in a democratic society also helps to explain an otherwise ambiguous line of cases concerning political speech under section 5 of the Public Order Act 1986. Recall that the section 5 offence requires proof not only of the harassment, alarm or distress that is likely to be caused, but also that it is likely to be caused by conduct that is threatening, abusive or insulting and which the defendant intends to be threatening, abusive or insulting or is aware that it will be. Moreover, as with liability to an ASBO, it is a defence for the defendant to prove that his conduct was reasonable. The findings in these cases are therefore instructive with respect to the ASBO because the courts have determined the question of whether or not a section 5 prosecution amounted to a violation of Article 10 on the basis of whether or not the conduct involved was reasonable. In Percy v DPP an anti-war protester was convicted after burning the Stars and Stripes at the entrance to an American airbase in front of American service personnel. The prosecution was held to be in pursuit of the legitimate aim of protecting the rights of others, specifically that there was ‘a pressing social need in a multi-cultural society to prevent the denigration of objects of veneration and symbolic importance for one cultural group’.28 The conviction was nevertheless ruled to be disproportionate to that aim on the ground that when finding that her conduct had been unreasonable the trial court had only taken into account the fact that the defendant could have carried out her protest in some other way and this was not sufficient to render the conviction proportionate.29 Her conviction was therefore in violation of her Article 10 rights, although the decision was reached on the narrowest of grounds.30 By contrast, in the subsequent Norwood v DPP, a BNP supporter in rural Shropshire was convicted of the offence after placing posters in the windows of his house that bore slogans demanding ‘Islam out of Britain’ and ‘Protect the British People’ and images of the burning towers of the World Trade Center. There was no evidence that any person had in fact been caused harassment, alarm or distress. The Divisional Court held that his conduct was not reasonable, that it had gone beyond legitimate expression of political opinion and, therefore, the restriction of his Article 10 rights was necessary for the legitimate aim of protecting the rights of others. Then in DPP v Hammond an evangelical Christian preacher was convicted after preaching in a Bournemouth street under placards that said ‘Stop Immorality’, ‘Stop Homosexuality’, and ‘Stop Lesbianism’. A crowd had gathered around the defendant and become agitated and abusive towards him on account of his placards. Here again the court held that his conduct was unreasonable and the conviction was no violation of his Article 10 rights.31 28

Percy v DPP [1995] 1 WLR 1382, para [30]. Ibid, para [33]. 30 See A Geddis, ‘Free Speech Martyrs or Unreasonable Threats to Social Peace’ (2004) Public Law 853. A veteran campaigner, Lindis Percy, is among the tiny proportion of defendants to have successfully defended an ASBO application made against her. 31 Atheist Harry Taylor was convicted of religiously aggravated causing of harassment, alarm or distress for distributing leaflets mocking religion in an airport prayer room. An ASBO was imposed banning him from carrying religiously offensive material in a public place: see Daily Telegraph, 23 April 2010. 29

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What explains the courts’ protection of the Article 10 rights of Percy but not of the others? On the face of it, Percy’s act is hardly less insulting than Norwood’s and Hammond’s and seems (literally) to be more inflammatory in context than Norwood’s at least. Arguably, the trial judges in Hammond were more careful in their analysis of proportionality than the judge had been in Percy, but the Divisional Court was nevertheless decidedly uneasy about the Hammond decision, though it was upheld.32 The appearance of arbitrariness disappears, however, if the harassment, alarm or distress caused or likely to be caused in these cases is understood from the standpoint of the right to security. Though proving the offence in itself does not require that the harassment, alarm or distress included any element of apprehension for personal safety,33 the harassment, alarm or distress that is likely to have been caused to others by Norwood’s or Hammond’s signs may have included those others (Muslims in the former, homosexuals in the latter) feeling exposed to future wrongs in some way.34 To make such a claim with respect to any distress caused to American service personnel by Percy’s actions would lack credibility. Neither American service personnel nor their families could credibly claim to fear that persecution or violence against them would be encouraged by the activities of peace protesters. For that reason it seems the harassment, alarm or distress caused to the servicemen failed to provide sufficient reason to limit Percy’s Article 10 rights, it was not proportionate to the legitimate aim of protecting others rights, while limiting Hammond’s and Norwood’s rights was proportionate.35 Andrew Geddis suggests that the courts’ approach in these cases can be designated as being ‘pro-civility’ in its aspirations. . . . Shaping or conditioning of the realm of public discourse in this fashion reflects a communitarian ethos; the rights of individual speakers should not be allowed to trump the wider collective social interest in establishing standards that govern what is an acceptable contribution to the public debate over matters of common, current importance.36

These are English cases decided in the Divisional Court and, therefore, may have limited authority. But their logic was confirmed by the Strasbourg court’s refusal of Norwood’s application, on the grounds that by linking Muslims to grave acts of terror Norwood’s action was ‘incompatible with the values proclaimed and guaranteed by the Convention, notably tolerance, social peace and non-discrimination’ and was, therefore, covered by Article 17 which prohibits Convention rights being invoked so as to abuse the rights of others.37 A right to be tolerated and enjoy social

32

DPP v Hammond [2004] Crim LR 851, paras [32] and [34]. Chambers and Edwards v DPP [1995] Crim LR 896. The argument is made explicitly by counsel in Norwood, para [30]. In Hammond, the evidence of insulted homosexuals in the crowd is noted by the court: para [5]. 35 See Percy paras [30]–[33]. 36 A Geddis, ‘Free Speech Martyrs or Unreasonable Threats to Social Peace’ (2004) Public Law 853, 869. Although if that is right, then it seems that the Divisional Court’s view of civility rules out the public expression of Hammond’s opinion (on the streets of Bournemouth at least). See also Abdul v DPP [2011] EWHC 247. 37 Norwood v United Kingdom No 23131/03. 33 34

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peace seems to imply a right not to be exposed to the future wrongs that intolerance threatens: a right to security, in other words.38 The enforcement of a right to security by interfering with Convention rights through special criminal prohibitions or punishment will not in principle violate several of the Convention rights even where it interferes with them. The right to security is compatible with the Convention either because it is a legal right, the protection of which is in itself recognized by the ECHR as a legitimate restriction on Convention rights, or because its protection serves one or more of the legitimate aims of ensuring public safety or preventing crime or disorder, or both. We can now see that Lord Steyn made no legal error when he adjudged that freedom from fear of crime is a ‘fundamental right’.39 For in many cases the legal right to security will override Convention rights. Though it is not explicitly mentioned in the ECHR, it turns out that this right to security is indeed basic to the structure of rights that the ECHR legitimates. It seems that when Jack Straw, in recommending the ASBO to parliament, asserted that ‘everyone should enjoy that most basic of human rights: the right to live life free from fear and free from crime’, his statement was more than mere political rhetoric.40 Straw may not have been entirely accurate legally, but he was not far off the legal position. Within the framework of the ECHR, such a broad right to security is not legally a ‘human right’ because an individual cannot take action against a state for failing to protect it. Nevertheless, within the framework of the ECHR, the right to security can be called ‘fundamental’ since an individual has no cause for complaint if their human rights are interfered with when the interference is necessary to uphold another’s right to security. The right not to be tortured seems to have a better claim to be the ‘most basic of human rights’ in the scheme of the ECHR: we may not be tortured (or indeed enslaved or killed) to ensure others’ security.41 Nevertheless our liberty may be limited, and our right to express our opinions or associate with others may be restricted in order to protect a right to security. The right to security is enforced by means of a liability for failure to reassure others, and this liability implies a positive obligation to be aware of what will cause others insecurity. It seems that this positive obligation is entailed in the enjoyment of our human rights under the ECHR. This was very much the view held by the

38 For a theoretical argument grounding a right to respect for cultural identity in the capacity for self-realization, see M Pinto, ‘What Are Offences to Feelings Really About? A New Regulative Principle for the Multicultural Era’ (2010) 30(4) Oxford Journal of Legal Studies 695–723. The close connection between contemporary tolerance and the right to security is observed by Slavoj Zizek: ‘My duty to be tolerant towards the Other effectively means that I should not get too close to him, intrude on his space. In other words, I should respect his intolerance of my over-proximity. What increasingly emerges as the central human right in late-capitalist society is the right not to be harassed, which is a right to remain at a safe distance from others’ (S Zizek, Violence (Profile, 2008) 35). 39 R (McCann and Others) v Crown Court at Manchester and Another [2003] 1 AC 787, 806. 40 J Straw, HC Report, 8 April 1998 vol 310 col 370 (emphasis added). 41 Interferences with the rights protected by Art 3 cannot be justified by reference to the need to fight terrorism or organized crime: see, respectively, Tomasi v France (1992) 15 EHRR 1 [115] and Selmouni v France (1999) 29 EHRR 403.

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New Labour government when it enacted the Human Rights Act, to which I now turn.

6.2 Vulnerable autonomy and the Human Rights Act David Faulkner has pointed out that the New Labour government introduced the Human Rights Act 1998 and the Crime and Disorder Act 1998 believing both to be expressions of the same political philosophy. Both were steered through parliament at the same time by the Home Secretary, Jack Straw. Ministers were, therefore, particularly irked by criticism of the ASBO on human rights grounds.42 From the New Labour point of view the political philosophy of which both ASBO and HRA form a part is the notion of a contract between government and governed in which the enjoyment of rights is dependent upon the performance of certain duties. The previous chapters examined how this contractual view of government is institutionalized in the substantive law of the ASBO and finds theoretical sources in the Third Way and, more controversially, in responsive communitarianism. Straw read the Human Rights Act in exactly the same way. In closing the debate on the HRA in the House of Commons he commented: I talk about a human rights culture. One of the problems in Britain in recent years is that people have failed to understand from where rights come. . . . The truth is that rights have to be offset by responsibilities and obligations. There can and should be no rights without responsibilities and our responsibilities should precede our rights.43

The reasons why Straw felt confident that the HRA could be read in this way are two-fold. In the first place, the structure of most of the Convention rights is to state a right to be enjoyed by all individuals and then follow that with a series of caveats and qualifications. The satisfaction of many obligations (such as those imposed by the substantive criminal law) can, therefore, limit the enjoyment of the right. Moreover: The practice of implying individual duties through limitation clauses on qualified rights is unobjectionable from the perspective of a rights-based approach. This is because it simply defines and establishes the scope of well-understood restrictions on qualified rights. Furthermore, the practice does not undermine the status of the qualified right.44

The European Court of Human Rights has repeatedly made clear that ‘a search for the fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s human rights’ is ‘inherent in the whole of the Convention’.45 As Francesca Klug, an influential academic 42

D Faulkner, Crime, State and Citizen (Waterside Press, 2001) 143. Cited in F Klug, Values for A Godless Age: The Story of the United Kingdom’s New Bill of Rights (Penguin, 2000) 63. 44 L Lazarus, B Goold, R Desai and Q Rasheed, The Relationship Between Rights and Responsibilities, Ministry of Justice Research Series, 18/09 December 2009. 45 Soering v UK (1989) 11 EHRR 38, para [63]. 43

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supporter of the HRA, observes: ‘the case law developed by the European Court of Human Rights has established that the principle of “proportionality” is pivotal in finding the balance’.46 And Klug draws out the significance of this balance and proportion: The human rights values in our new Bill of Rights should not . . . be misrepresented as a set of strictures. They are not a Ten Commandments for the twenty-first century. . . . Instead they set a framework in which to debate the difficult issues of our age.47

Moreover, ‘anyone can join in this debate once they appreciate its terms’.48 Murray Hunt, another of the Act’s supporters, elaborates the second reason for Straw’s reading of the HRA in his discussion of its constitutional character. He alights on the HRA’s maintenance of parliamentary supremacy, its endeavour to bring about ‘reconciliation’ between the judiciary and the legislature on the interpretation of the Convention rather than simply giving the judges power to strike down legislation.49 The latter approach would have implied a ‘liberal’ model of rights, whereas, for Hunt, the actual scheme of the Act indicates that the HRA ‘is based on a more communitarian notion of the citizen as a participative individual, taking an active part in the political realm in which everything is accepted to be the proper object of deliberative action, and there are none of the no-go areas for collective action which liberalism has made it its project to demarcate’.50 His point is that the Act establishes the basis for a dialogue between the judges and the elected legislature on what is a proportionate balancing of individual rights both against the rights of others and the collective interest, and that in a democracy of active citizens there is no need for anything to be beyond the limits of this discussion. Hunt spells out what he regards as the overall effect: It is clear from the Act’s own provisions . . . that it is designed to introduce a culture of rights that is more communitarian than libertarian in its basic orientation. In such a human rights culture the individual citizen is more than the mere bearer of negative rights against the state, but is a participative individual, taking an active part in the political realm and accepting the responsibility to respect the rights of others in the community with whom he or she is interdependent.51

We saw in the previous chapter that the communitarian requirement that subjects ‘respect the rights of others’ with whom they are ‘interdependent’ will include respect for their right to security that is derived from the vulnerability of their autonomy.52 For Jack Straw, this vision of human rights as a question of the 46

47 48 Klug, Values for a Godless Age, 32. Ibid. Ibid. M Hunt, ‘The Human Rights Act and Legal Culture: The Judiciary and the Legal Profession’ in L Clements and J Young (eds), Human Rights: Changing the Culture (Blackwell, 1999) 89–90. 50 Ibid, 90. 51 Ibid, 86. 52 The theme of responsibilities ensuring security remained prominent in more recent debates about reform to the scheme of human rights protection in the UK, see Ministry of Justice, Rights and Responsibilities: Developing Our Constitutional Framework (Ministry of Justice, 2009) paras [1.16] and [2.3]. But it is important to recognize that this theme is not new but was implicit in the official rationale for the HRA. 49

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relations of interdependent subjects is one that is as much about extending the state’s power as restraining it. In the parliamentary debate on the bill, he argued that existing freedoms ‘need to be complemented by positive rights that individuals can assert when they believe that they have been treated unfairly by the state or that the state and its institutions have failed properly to protect them’.53 The right to security entails a positive right, albeit in the ‘horizontal’ form of a liability imposed on other individuals for failure to reassure. This vision of the Convention and the HRA invokes what Conor Gearty calls ‘a weak version of rights, riddled with exceptions’,54 and indeed with conflicts between rights. The arguments of Straw, Klug and Hunt are not conclusive as to the nature of the ECHR or the HRA, and theirs is far from the only interpretation. The point is rather that theirs is the interpretation of the Convention and the HRA that underlay the Labour government’s view that the enjoyment of Convention rights is inseparable from the performance of the duties of the active citizen, the same view that underpins section 1 CDA. Crucially, for our purposes, it is a view that is borne out by the approach of the ECHR to substantive laws that protect the right to security. We might leave the discussion of human rights there, concluding that it is unsurprising that a communitarian theory of the ECHR would legitimate a right to security, since that theory also assumes the vulnerability of the subject of law, and the fact that the ECHR does appear to recognize such a right tends to support the communitarian account of human rights protection in Europe. But we cannot leave the subject without saying a little more about the human rights of those who violate the right to security. Their liberties can be limited by special penal obligations imposed on them by means of an administrative procedure in which their rights to confront witnesses against them are significantly limited. The claim that this interference with their rights is legitimated by the Convention in the name of the interdependence of vulnerable subjects might seem ironic in so far as those found to violate the right to security are very often themselves particularly vulnerable individuals. The question this poses is how a right to security that is founded on the vulnerability of the law’s interdependent subjects can result in harsh limitations of the rights of those that many regard as among its most vulnerable subjects. In principle there is no contradiction here. If you set out from universal vulnerability and as a consequence seek to protect a fundamental right to security then violations of that right to security are public wrongs against the rights of citizens and they remain public wrongs irrespective of who commits them. From this perspective the fact that the defendant is themselves also vulnerable would not make it wrong to try to prevent them from committing the wrong of causing 53 Cited in S Macdonald, ‘ASBOs and Control Orders: Two Recurring Themes, Two Apparent Contradictions’ (2007) 60(4) Parliamentary Affairs 601, 612 (emphasis added). Macdonald claims that this passage is at odds with a ‘benevolent view of state power’, defying Straw’s plain meaning, see ibid, 613. 54 C Gearty, Can Human Rights Survive (Cambridge University Press, 2006) 14.

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insecurity, or punishing them when they do.55 However, this is not the way that the problem is viewed by many of the ASBO’s critics. Nor does it seem to be consistent with one theory of human rights that seeks directly to derive them from human vulnerability. If we clarify the source of this confusion we can better understand why criticism of harassment law based on the vulnerability of those controlled has proved so ineffective, and begin to understand the basis for the wider legal protection of the right to security beyond the ASBO.

6.3 Two types of vulnerability A key objection to the ASBO made by its critics is that it is routinely used against ‘vulnerable groups’, which is to say, children and juveniles, the homeless, the mentally ill, the drug-addicted and prostitutes.56 The critics’ objection is factually well founded.57 But the two sides of the argument are each invoking different meanings of vulnerability against the claims of the other. While the authorities invoke a vulnerability that is an assumed or representative characteristic of the ordinary citizen, a characteristic that is taken to be a universal one, the ASBO’s critics invoke a vulnerability that is a characteristic of individuals bearing some particular disadvantage. For the critics those bearing the particular disadvantages that make them members of a ‘vulnerable group’ are in need of care by the state, and the provision of such care is seen as a question of their welfare rights.58 But where the right to security is a fundamental right, other rights, including both the civil rights and the welfare rights of those bearing particular disadvantages, are made relative to the prior responsibility to respect ‘vulnerable’ others’ feelings of (in)security.59 These different senses of ‘vulnerability’ need to be unpacked. Bioethicist Michael Kottow points out a significant difference between the two social conditions that are often conflated by the deployment of the word ‘vulnerability’.60 Kottow defines the vulnerability that is thought to be universal as ‘the 55

My thanks to Charlie Webb for pressing this point on me. See, for example, M Foot, ‘Scrap the ASBO’ (2007) 36(2) Index on Censorship 131; A Brown, ‘Anti-Social Behaviour, Crime Control and Social Control’ (2004) 43 Howard Journal 203; R Smith, Youth Justice: Ideas, Policy, Practice (Willan, 2007) 76. See also Gil-Robles (n 1 above). 57 At one point approximately 40% of ASBOs were being imposed on persons under 17, about a third of whom had a mental disability or learning disorder: see M Watson, ‘Anti-Social Behaviour Orders: Some Recent Evidence’ (2007) 17(11) Justice of the Peace 188. For a review of the literature see G Manders, ‘The Use of Anti-Social Behaviour Powers with Vulnerable Groups: Some Recent Research’ (2009) 9(1) Social Policy & Society 145. 58 Alex Gask, for example, emphasizes the specific needs of children in his criticism of the ASBO power. He concludes: ‘Children are not simply smaller adults. Treating them as such, rather than offering them assistance, education and simple care, is a betrayal of our responsibilities.’ A Gask, AntiSocial Behaviour Orders and Human Rights (Liberty, 2004) 9. 59 This is, of course, a way of restating the structure of conditional citizenship propounded by New Labour that we have discussed in previous chapters. 60 Kottow is responding to what he sees as this conflation in Onora O’Neill’s distinction between a universal ‘species vulnerability’ and a ‘variable and selective vulnerability’ upon which she grounds certain ethical obligations, see O O’Neill, Towards Justice and Virtue: A Constructive Account of Practical Reasoning (Cambridge University Press, 1996) 192. 56

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dignified awareness of permanent menace to one’s integrity’,61 which is to say, the absence of Giddens’s ‘ontological security’.62 But, Kottow argues, where vulnerability to some injury is indeed a universal experience, the disadvantage suffered by those described as suffering from a particular vulnerability arises from the materialization of one or more of the risks to which all are vulnerable. Kottow suggests replacing the term ‘vulnerability’ with the term ‘susceptibility’ when talking about the particularly disadvantaged. For Kottow, the difference between the two conditions is that ‘the vulnerable are intact but at risk . . . .The susceptible are already injured, they already suffer from some deficiency that handicaps them, renders them defenceless and predisposed to further injury.’63 Kottow’s terminology is not ideal, since ‘vulnerable’ and ‘susceptible’ are almost interchangeable in ordinary usage. He also uses the term ‘vulnerated’, from the obsolete verb to vulnerate meaning to wound.64 But either way the point is clear enough. Although the ‘susceptible’ or ‘vulnerated’ are no doubt still vulnerable (indeed, more vulnerable) to injury, they stand in a different relation to the materialization of risks than do the universally vulnerable. The injury that the vulnerated have already suffered puts them in a different social condition implying different needs, and to describe their condition as one of vulnerability tends to obscure this.65 The willingness to conflate two different experiences by the promiscuous use of vulnerability speaks to the considerable normative force that the concept has acquired.66 It may also explain why criticism of ASBOs in terms of the ‘vulnerability’ of those subjected to them has had relatively little political impact. It is a criticism that, in its choice of language, seeks to promote the interests of the ‘vulnerated’ while either tacitly or unwittingly accepting the normative priority of the security of the vulnerable upon which the ASBO power is premised. And this may be a problem for the wider theory of human rights. At first sight, unpacking the meaning of vulnerability in this way seems only to give further emphasis to the irony of human rights law legitimating the deployment of the condition of the ordinary ‘vulnerable’ subject as a stick with which to beat the especially ‘vulnerated’ subject. For many human rights advocates, human rights are meant to protect the powerless and disadvantaged from the abuses or indifference of the powers that be. They are not generally supposed to legitimate their criminalization.67 From this point of view, legitimating the right to security appears to be

M Kottow, ‘Vulnerability: What Kind of a Principle Is It?’ (2004) 7 Medicine, Health Care and Philosophy 281, 284. 62 And, as Kottow points out, it is this description of human experience that lays the basis of ‘the ethical prescription of respect and protection’: ibid, 286. 63 M Kottow, ‘The Vulnerable and the Susceptible’ (2003) 17 Bioethics 460, 464. 64 While this term better denotes his intended meaning, it draws attention to the difference between the condition of children and the other ‘vulnerable groups’. It seems strange to say that children are necessarily ‘wounded’ by the particular relation to the rest of society they are in. See Kottow, ‘Vulnerability’, 283. 65 M Kottow, ‘The Vulnerable and the Susceptible’, 463. 66 See discussion at the end of Chapter 5 above. 67 See for example Gask, Anti-Social Behaviour Orders. 61

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subversive of human rights.68 But it is important to recognize that the compatibility of the right to security with human rights is predictable when human rights are grounded in a theory of vulnerable autonomy, such as communitarianism, which makes rights conditional on the fulfilment of prior responsibilities. This connection is strikingly illustrated if we consider the problem from the standpoint of Bryan Turner’s theory of human rights. Turner seeks to derive the rationality of human rights protection directly from universal human vulnerability and at first sight seems to confirm the view that human rights should not uphold security interests at the expense of the interests of the ‘vulnerated’.

6.4 A human right to security? Turner sets out from a ‘sociology of the body’, in which individual human life is conceived as ‘ontologically vulnerable’.69 All humans are ‘members of a community of suffering from which they cannot escape’, Turner claims.70 He goes so far as to suggest that ‘we are human because we are vulnerable’.71 Like Giddens, Turner gives a historically specific account of this universal vulnerability in the experience of ‘modernization’. In place of the security of expectations achieved by the shared rituals of traditional societies, modern social institutions are marked by our reflexive consciousness of their uncertainty and ‘precariousness’.72 For Turner it is ‘because of this frailty, and the precarious nature of social reality, [that] human beings require the protective security of general human rights’.73 The recognition of this universal frailty provides the rational basis for the mutual sympathy upon which human rights may be extended to all and, especially, the reason why the powerful might cede them to those who are less advantaged: ‘Rational human beings want their rights to be recognized, because they see in the plight of others their own (potential) misery.’74 On the face of it, Turner’s assumption that the awareness of universal vulnerability will generate the mutual sympathy upon which human rights will be extended to the disadvantaged seems not to offer much support to a right to security that is protected at the expense of the rights of some particularly disadvantaged people. Critics may be tempted to take this apparent tension between the inclusiveness of the vulnerability theory of human rights, on the one hand, and the legitimation of the right to security by human rights case law, on the other, as

Lazarus, ‘Mapping the Right to Security’, 344. B Turner, Vulnerability and Human Rights (Penn State Press, 2006) 29. B Turner, ‘Outline of the Theory of Human Rights’ (1993) 27(3) Sociology 489, 503. Like Giddens’s Third Way, Turner also develops his theory from a critique of the Marshallian sociology of citizenship but adopts the terms of Arnold Gehlen’s anthropology: see ibid, 489. 71 Turner, Vulnerability and Human Rights, 38. 72 Ibid, 26. 73 B Turner, ‘Forgetfulness and Frailty: Otherness and Rights in Contemporary Social Theory’ in C Rojek and B Turner (eds), The Politics of Jean-Francois Lyotard: Justice and Political Theory (Routledge, 1998) 37. 74 Turner, Vulnerability and Human Rights, 41. 68 69 70

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indicative of the superficiality of official commitment to human rights. Andrew Ashworth makes this point in his criticism of Lord Hutton in McCann. Recall that Hutton had declared that the balance of interests between the procedural rights of the defendant and the rights of the community, which in his view is represented by the ‘vulnerable’ complainants, favoured the latter. Ashworth argues that from a human rights perspective the judgment is incorrect ‘because it implies that defendants are “outside” the community’.75 But Hutton’s failure to reason from the asserted universal vulnerability to an inclusive sympathy for the powerless does not represent official backsliding. It rather suggests a fundamental weakness with the vulnerability theory of human rights. Setting out from universal vulnerability does not necessarily provide the ground for an inclusive sympathy for the especially disadvantaged—indeed there is every reason to expect the opposite outcome. A more complete account of Turner’s theory reveals the problem. Turner recognizes that if his ‘normative sociology’ of human rights is correct, so that it is rational for the powerful to recognize the rights of the disadvantaged, then his theory must also be able to account for the general persistence of violence and the abuse of the human rights of the powerless. How can upholding the human rights of the disadvantaged be rational and yet those rights be so widely ignored? The existence of this problem, he argues, ‘suggests that the claims of vulnerability need some further argumentative support from the role of moral education’.76 Here Turner turns to Richard Rorty’s theory of human rights, but his attempted synthesis of the vulnerability theory with Rorty’s sentimental theory of human rights does not work, and in its failure the fundamental problem for the vulnerability theory of human rights is laid bare.77 Rorty too sets out from the universal human capacity for suffering, but also from a universal capacity for sentiment, and argues that a combination of ‘security and sympathy’ is what makes human rights possible; that the absence of that combination is characteristic of the parts of the world where human rights violations occur; and that it is the sentimental capacity of humans for sympathy, and the ‘progress of sentiments’ that this capacity gives rise to, that is the context of a ‘human rights culture’.78 The goal of this ‘progress of sentiments’, for Rorty, is ‘to expand the A Ashworth, ‘Social Control and “Anti-Social Behaviour”: The Subversion of Human Rights?’ [2004] 120 Law Quarterly Review 263, 291. 76 Turner, Vulnerability and Human Rights, 39. 77 Ibid, 40–1. Turner is ambitious in hoping to ‘reformulate’ a theory arising from Rorty’s ‘relativist epistemology’ to make it consistent with his own universalist commitments. Turner traces the contemporary theoretical concern for vulnerability back to Martin Heidegger’s account of ‘the vulnerability of human beings as beings who are bound to death through the inexorable passage of time’ (B Turner ‘Forgetfulness and Frailty’, 25–6). On the basis of a shared sympathy for Heidegger’s approach, Turner suggests that a bridge might be built over the apparent chasm between his universalist theory of human rights and the ‘postmodern ethical stance’ that consists ‘in the idea of care for marginal or powerless groups’. Margrit Shildrick also notes that a vulnerable self is implied in the entire theoretical discourse of postmodernism since ‘the postmodernist understanding of discursive instability speaks to the intrinsic vulnerability of all bodies and indeed all embodied selves’: M Shildrick, Embodying the Monster: Encounters with the Vulnerable Self (Sage, 2002) 79. 78 R Rorty, ‘Human Rights, Rationality and Sentimentality’ in S Shute and S Hurley (eds), On Human Rights (Basic Books, 1993) 127–9. 75

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reference of the terms “our kind of people” and “people like us”’, people to whom the shared sympathy applies.79 For Turner, as this progress of sentiments occurs, the universally vulnerable will come to extend the protection of human rights to more and more of Kottow’s vulnerated. Rorty points out that ‘if we hand our hopes for moral progress over to sentiment, we are in effect handing them over to condescension’, the condescension of those powerful enough already to enjoy the capacity to define who is on the inside of shared sympathy and who therefore is on the outside.80 To whom and to what interests human rights extends is a question of these people’s ‘condescending’ moral sentiment. Nevertheless, by adopting Rorty’s ‘progress of sentiments’, Turner’s theory seeks to reconcile the underlying rationality of respecting others’ human rights with the fact that they are not respected over much of the world—the progress of moral sentiments still has some way to go. But this marriage of universal vulnerability and progress of moral sentiments cannot work in the way that Turner would like it to. Turner overlooks Rorty’s initial assumption that the powerful, who inhabit the ‘human rights culture’, enjoy a position of security from which they may condescend to those who do not.81 It is precisely this assumption that is thrown into doubt by the invocation of universal vulnerability and precariousness found in the terms of Turner’s own theory of human rights (and in the political theories of vulnerable autonomy, and the law of harassment, alarm or distress). If, as Turner argues, ‘the evolution of human legislation and culture’ is driven by ‘the dynamic and dialectical relationship between institutional precariousness and ontological vulnerability’,82 then the conditions of relative security, assumed by Rorty to characterize Western society, do not obtain. In so far as the normal condition of human being is represented and understood to be one of vulnerability, of dignified awareness of permanent menace to one’s integrity, then the basis for Rorty’s progress of sentiments will not exist, especially where the security of the vulnerable is understood to be threatened by the aggression of the ‘vulnerated’. In this construction, responsibility to the security of the vulnerable will come first. It might be possible to argue that, in so far as the ‘threat’ from the disadvantaged is a consequence of the material or other social disadvantages endured by them, the aim of protecting the security of the vulnerable is best served not by imposing on the civil rights of the already marginalized, but by ensuring their human rights in the broadest sense—that is their social and economic rights (and indeed their procedural rights when they are accused of wrongdoing). In other words, to argue, contrary to the balancing engaged in by Lord Hutton in McCann,83 that the relation of the human rights of the vulnerable and the ‘vulnerated’, complainant and defendant, is not a zero-sum game. Nevertheless, the implication of this argument is that the human rights of the disadvantaged are instrumental to a wider ‘social security’, that it is the security of the vulnerable that has normative 79 82 83

80 81 Ibid, 123. Ibid, 129. Ibid, 127–8. Turner, Vulnerability and Human Rights, 32. See discussion in Chapter 3 above.

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priority, and this must leave the precise distribution of rights as a contingent question of political argument engaging issues such as the efficient distribution of resources and the effective distribution of duties.84 Crucially, as Turner recognizes, the argument from universal vulnerability makes a much stronger case for the protection of social and economic rights as human rights than it does for protecting civil rights such as those restricted by the substantive law of harassment, alarm or distress.85 The argument from vulnerability provides strong reasons for protecting the social and economic rights of the disadvantaged (and it is this that motivates the ASBO’s critics), but it also supplies reasons for protecting the right to security of the vulnerable by imposing on the liberties of those who violate it (and it is this that justifies the ASBO’s liabilities). In other words, it is an argument that is in principle entirely consistent with the official understanding of the conditionality of citizenship, with the contract between state and individual citizen that we considered in Chapter 4: where the state provides minimum welfare guarantees and opportunities for education and training, nobody has an excuse for failing to fulfil their side of the deal—and that includes their responsibility to ensure an environment in which others’ opportunities are not limited by fear of crime. Human vulnerability cannot provide an argument from its first principle that leads to the conclusion that protecting the civil liberties, procedural or substantive, of (vulnerated) subjects is a necessary condition of protecting the all-important right to security of the (vulnerable) subject. Where universal vulnerability is the starting point, Rorty’s progress of sentiments is likely to be inhibited by the threat posed by the disadvantaged because ‘our hopes for moral progress’ rest with the condescending sentiments of those now themselves understood to be vulnerable. Human rights will continue to require the vulnerable to decide who is ‘like us’ and who is not, who is inside and who is outside ‘the community’, who is of it and who is a threat to it. In so far as human rights find their ground in ontological vulnerability, they can in principle support a right to security. From this standpoint, Lord Steyn’s positing of the right to security as a ‘fundamental right’ is not an illegitimate deployment of human rights talk, however much some proponents of human rights may think it unattractive and recognize the danger it represents to the explicitly protected rights. Human rights based on ontological vulnerability do not give an unambiguous answer as to the propriety of the law of ‘harassment, alarm or distress’ and the positive obligation towards others’ subjective security that that law imposes. On the contrary, human rights are wide open to an interpretation that is consistent with that obligation, and therefore to the logical priority of the right to security over the civil rights of those who fail to 84 The determination of the scope of civil rights by policy considerations in this conception of human rights might account for Commissioner Gil-Robles’s seamless integration of pure criminological policy arguments into a critique of the ASBO on human rights grounds: see n 1 above. 85 Turner, Vulnerability and Human Rights, 36–7. Turner can only find grounds for the protection of the civil rights of liberalism in their instrumental contribution to ensuring a political culture that respects social and economic rights. In so far as freedom from fear is seen as a welfare right, as Giddens’s theory constructs it, then civil rights are made relative to that right to be free of fear.

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reassure. The most that might be said is that human rights based on ideas of human vulnerability will provide a legal-political arena in which these competing claims will be fought out.86 Given the wider political influence of the theories of vulnerable autonomy, it is entirely predictable that human rights will in practice be understood as legitimating a right to security. Indeed, other judicial voices have recently gone further than Lord Steyn, suggesting extra-judicially that there ought to be an explicit human right to security, and pointing to its very orthodox source in the 1941 Atlantic Charter and the Universal Declaration of Human Rights.87

6.5 Conclusion Human rights exhibit a marked theoretical overdetermination. They are a ‘floating signifier’,88 supported by an ‘overlapping consensus’89 between many different and often strongly contrasting political and moral theories.90 Each particular theory of human rights has different implications for the scope and distribution of the legal rights that should result from an instrument like the ECHR. In recent times human rights have enjoyed immense political prestige, but at the same time the intellectual authority of the original sources of the ‘overlapping consensus’—religious natural law, Enlightenment liberalism and socialism—has ebbed away. Gearty describes this experience as a ‘crisis of authority’ for human rights.91 It is particularly striking that in this crisis the universal vulnerability of humans to pain and suffering has appeared as one leading candidate to underpin human rights’ eroded foundations.92 For while it may be that some foundations preclude recognition of a right to security, universal human vulnerability does not. 86 Cf C Gearty, Can Human Rights Survive? (Cambridge University Press, 2006) 86–98. Gearty too finds his grounds for human rights in Rorty’s observations about human suffering, but he casts the human rights discourse that arises on these grounds in a language of compassion rather than Rorty’s condescension (ibid, 42–50). 87 Stephen Sedley of the English Court of Appeal comments that ‘[i]f the European Convention were being written today, a number of additional rights would almost certainly find their way into it’. The first in his list of likely additional rights is ‘Roosevelt’s right to live free from fear’ (S Sedley, ‘Bringing Rights Home: Time to Start a Family?’ (2008) 28 Legal Studies 327, 332). James Spigelman, Chief Justice of New South Wales, argues that Roosevelt’s freedom from fear reflects a long line of Enlightenment political thought and that it is explicitly identified as one of the four freedoms that represent ‘the highest aspiration of the common people’ in the second recital to the Preamble to the Universal Declaration of Human Rights of 1948 (J Spigelman, ‘The Forgotten Freedom: Freedom from Fear’ (2010) 59 International and Comparative Law Quarterly 543). 88 C Douzinas, The End of Human Rights (Hart, 2000) 255. 89 J Donnelly, Universal Human Rights in Theory and Practice (Cornell University Press, 2003) 40. 90 Ibid, 20. 91 C Gearty, Can Human Rights Survive? (Cambridge University Press, 2006) ch 2. 92 Ibid. On the importance of the status of vulnerability or vulnerable group in international human rights law, see A Morawa, ‘Vulnerability as a Concept of International Human Rights Law’ (2003) 6(2) Journal of International Relations and Development 139–55. Thinking about human rights as an instrument of ‘human security’ has been very influential in the international human rights field. Turner developed his theory just as the United Nations gave its backing to the concept of ‘human security’ in its 1994 Human Development Report. Proponents of the human security concept understand human rights to ‘constitute a normative framework and a conceptual reference point which must

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This analysis throws doubt on the political effectiveness of the argument that the problem with measures that enforce the right to security is their use against the vulnerable. Without at least carefully unpacking and critiquing the relation of particular vulnerabilities to the postulated universal vulnerability, the critics’ argument will merely invoke the same assumptions as official policy, and will, without more, only tend to reinforce the official position to the detriment of those groups who are the object of the critics’ concerns. It is the language of vulnerability that constructs the ordinary vulnerable subject as being at risk from the threatening subject.93 And this constructed opposition is particularly likely to identify the ‘vulnerated’ as a threat in the neoliberal, post-welfarist conditions in which it has arisen. When welfare guarantees are weakened and working conditions and livelihoods more unstable, it is the vulnerated (unemployed youth, the homeless, drug users, prostitutes, migrants and so on) who will tend to be the object of the fears of the ordinary citizen precisely because the former ‘are the living and threatening incarnation of the generalized social insecurity produced by the erosion of stable and homogeneous work’.94 The vulnerated embody an injury that the vulnerable feel vulnerable to, and their ‘lifestyles’ are, therefore, likely to be the object of fear and loathing in advance of any particular conduct engaged in by individuals. Deploying the language of vulnerability only adds fuel to the inferno of insecurity. More broadly, the ECHR’s recognition of a right to security potentially legitimates a very expansive criminal law. The problem of ‘overcriminalization’ is now widely recognized and the ECHR seems to do little to prevent it. In the next chapter I will look at the wider criminal law beyond the ASBO that has grown up to protect the right to security. necessarily be applied to the construction and implementation of the notion of Human Security’ (Commission on Human Security, Human Security Now: Protecting and Empowering People (Commission on Human Security, 2003)). 93 See also M Lee, Inventing Fear of Crime (Willan, 2007) 151–2. 94 See L Wacquant, Punishing the Poor (Duke University Press, 2009) 4 (emphasis original).

7 The Right to Security Beyond the ASBO The ASBO offers very explicit protection of a right to security from any action that is experienced by others who are not of the same household and that might cause them insecurity without good reason. The right to security is an axiomatic commitment of influential political theories and a right that turns out to be at least as fundamental as most of the rights guaranteed in the ECHR. The protection of this right, therefore, is likely to explain more of our extensive criminal legislation than just the prohibitions on the causing of harassment, alarm and distress. This chapter investigates the protection of the right to security by the broader substantive law since the ASBO was enacted. I will consider just some of the criminal offences enacted since the ASBO—those that can be explained as protecting the interests in subjective security possessed by subjects whose autonomy is vulnerable to hostility or indifference. I begin by looking at the wider category of civil preventive orders, of which the ASBO is only one example. After that I examine the vetting and barring scheme. One of the most extensive administrative licensing schemes backed by criminal penalties outside of road traffic regulation, it was enacted by New Labour but significantly restricted by the Coalition government that followed it. Then I will turn to some of the wide range of preventive criminal offences enacted since the ASBO in the fields of terrorism, sexual offences and money laundering. Next I will review developments in some offences of longer standing that have in recent years acquired a distinctive pre-emptive or security aspect, in particular fraud, theft and assault. In all but one of these offences, I will be interested in the assumption of normal ontological vulnerability as opposed to the protection of specific vulnerabilities that we raised in the last chapter. The exception is theft, where the case law stands ambiguously poised between the two. Finally I will argue that the power of imprisonment for public protection imposed a liability not dissimilar in content to the criminal offences reviewed. Only some of these offences explicitly target the causing of feelings of insecurity as the ASBO does. Most of them are clearly intended to lower the risk of actual criminal victimization by empowering ‘early intervention’ by the authorities to preempt criminal plans before they can come to fruition. They can, therefore, be thought of as protecting ‘objective’ security interests, which is to say freedom from actual dangers. Nevertheless, these offences do not require any proof of a setback to interests in objective security but only of a setback to interests in ‘subjective’ security, the freedom from the perception of danger or the feeling of insecurity. Unless the state that implemented these offences has simply dispensed with the

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notion of criminal wrong altogether, then it is wrongs against subjective security, the wrong of failure to reassure, that justifies their substantive scope. The chapter is not meant to be comprehensive, but rather to demonstrate that most of the new preventive offences that have been identified can be explained in terms of the protection of vulnerable autonomy.1 Once we have surveyed the range of recently enacted offences that can be understood in terms of the liability for failure to reassure and the right to security, we will go on in the next chapter to ask about the criminal law before the ASBO.

7.1 Civil preventive orders The ASBO is only one of a wider family of orders that give legal protection to the right to security. Here they will be called civil preventive orders (CPOs).2 There are a number of generic features to these orders: • they are granted in civil proceedings, or administratively with some judicial supervision; • they are granted on satisfaction of some undesirable conduct, often, though not always, including conduct that is not criminal; • their terms may be any prohibition (or mandatory term in some cases) deemed necessary to prevent future instances of the undesirable conduct on which they are grounded; • breach of any of their terms is a criminal offence of strict liability. The precise conduct covered by both the grounds for and the permissible terms of these orders varies. CPOs have been enacted in the fields of terrorism,3 serious crime,4 violent offences,5 domestic violence,6 sexual offences,7 football hooliganism8 and binge drinking,9 as well as anti-social behaviour. The procedural details vary too, with some orders available only against a convicted offender, some only on application and some in either way. But the basic formal similarity is indicative of the shared technique of administrative distribution of penal liabilities and the shared character of the liability they impose—the liability for a failure to reassure. 1 See also the categories of offence identified by A Ashworth and L Zedner, ‘Just Prevention’ in RA Duff and SP Green, Philosophical Foundations of the Criminal Law (Oxford University Press, 2011). 2 The term is derived from Stephen Shute’s civil preventative orders in S Shute ‘The Sexual Offences Act 2003 (4): New Civil Preventative Orders’ (2004) Criminal Law Review 417. 3 Control order: see Prevention of Terrorism Act 2005, ss 1–4 and discussion below. 4 Serious crime prevention order: see Serious Crime Act 2007 (SCA 2007), ss 1–37 and discussion below. 5 Violent offender order: Criminal Justice and Immigration Act 2008, ss 98–106. 6 Non-molestation order: Domestic Violence, Crime and Victims Act 2004, s 1. 7 Sexual offence prevention order: see Sexual Offences Act 2003, ss 104–113; foreign travel order: Sexual Offences Act 2003, ss 114–122; risk of sexual harm order: Sexual Offences Act 2003, ss 123–129 and discussion below. 8 Football banning order: Football (Disorder) Act 2000, Sch 1. 9 Drink banning order: Violent Crime Reduction Act 2006, ss 1–14.

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In this way, all can be understood as protecting a right to security. Let us consider three of them in a little detail to see how they achieve this.

Control order Enacted in 2005 with the purpose of controlling terrorist suspects who could not be prosecuted, the control order’s procedure and evidence rules proved hugely controversial, allowing as they did the use of secret evidence and special advocates, who acted for the defendant but whom the defendant could not instruct.10 The Coalition government moved quickly to replace them, but with an order called the terrorism prevention and investigation measure (TPIM) that was only very slightly narrower in its substantive scope. Let us look at the control order first before considering the changes introduced by the TPIM. At first sight the control order seems to be focused on preventing conduct amounting to some of the most serious criminal wrongs, but the way that this is done is by imposing a liability for failing to reassure. There were two types of control order, one that involves derogation from Article 5 ECHR and one that does not, and they had slightly different procedures.11 Derogating control orders were, on their face, emergency powers, and I will focus here on the non-derogating orders only. Non-derogating orders had one of the formal characteristics of an emergency power—they were subject to annual renewal by parliament.12 Nevertheless they are an important example of the wider form of the CPO because they invoke the normative assumptions common to all of them. The grounds for imposing a non-derogating control order were found in section 2(1) Prevention of Terrorism Act 2005, which allows the Home Secretary to place individuals under specific criminal law obligations where she (a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and (b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.

The grounds therefore constituted a risk assessment of the clinical type in which the Home Secretary evaluates the individual concerned to represent a ‘risk of terrorism’; with the result that that individual’s future behaviour may be controlled.13 The imposition of any control order had to be reviewed by the High Court and the order, or any particular requirement it contains, could be invalidated if the court

10 L Zedner, ‘Preventive Justice or Pre-Punishment? The Case of Control Orders’ (2006) 59 Current Legal Problems 174. The evidence rules eventually ran into serious trouble at Strasbourg. For a review of the cases see A Kavanagh, ‘Special Advocates, Control Orders and the Right to a Fair Trial’ (2010) 73(5) Modern Law Review 836. 11 Prevention of Terrorism Act 2005, ss 1–4. 12 Prevention of Terrorism Act 2005, s 13. We will return to their relationship to emergency in Chapter 10. 13 Secretary of State for the Home Department v MB [2006] EWCA Civ Div 1140, para [57].

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found that the Home Secretary’s decision was ‘obviously flawed’ in some relevant respect.14 To avoid the reasonable suspicion of the Home Secretary, a person would need to take care not to do that which might create reasonable suspicion, they would need to ensure that they did not fail to reassure the Home Secretary. The double negative indicates the subtlety of the positive obligation created by the CPO. Liability to a control order did not impose a positive duty requiring citizens actively to reassure the Home Secretary; rather it gave citizens notice that if they wished to avoid liability, they needed to think about what would not reassure the Home Secretary, and would therefore create reasonable suspicion, and act accordingly. Failure to reassure the Home Secretary resulted in an order that may impose ‘any obligations that the Secretary of State or (as the case may be) the court considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity’.15 Breach of that order was a criminal offence.16 These obligations, particular to the defendant, could prohibit or mandate conduct, and they would certainly include prohibiting and restricting the conduct that gave rise to the suspicion, the conduct that failed to reassure in the first place. By imposing controls on their movements, activity, association, and susceptibility to official surveillance, controls that were specific to the controlled individual, these obligations constructed the individual who has failed to reassure as a specific threat—a potential ‘terrorist’.17 The purpose of the legislation may have been to prevent serious criminal wrongs—it is aimed at the ‘threat’ of terrorism— but that threat is controlled by means of individualized penal obligations prohibiting activity that fails to reassure. The purpose of the control order was plainly to prevent a person from engaging in activity that might put the public at risk of an act of terrorism. By pre-emptively prohibiting all kinds of activities that could be connected to terrorist activities the order, in so far as it was obeyed, served to incapacitate the suspected terrorist. Should the order not be obeyed, any breach of its terms would be relatively easily detected and proved for the purposes of the more robust incapacitation offered by a period of imprisonment. In these respects the control order seems to be oriented not to subjective security, that is to say freedom from fear of harms to ‘first order’ interests,18 but to objective security, freedom from actual harms to first order interests. But this pre-emptive incapacitation was to be achieved by imposing a substantive liability to special penal controls for failure to reassure the Home Secretary by 14

Prevention of Terrorism Act 2005, s 3(3)(b). Prevention of Terrorism Act 2005, s 1(3). 16 Prevention of Terrorism Act 2005, s 9. 17 ‘The PTA seeks to achieve this object by empowering the Secretary of State to impose control orders on those suspected of being terrorists.’ Secretary of State v MB [2006] EWCA Civ Div 1140, para [6] (emphasis added). 18 Hyman Gross classifies security interests as ‘second order’ to distinguish them from the firstorder harms, the prospect of which is the subject of matter of the second-order security interests: H Gross, A Theory of Criminal Justice (Oxford University Press, 1979) 125. 15

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giving reasonable grounds for suspicion. To obtain a control order there was no need to prove actual involvement in ‘terrorism-related activity’, only reasonable grounds for suspecting involvement. Punishment for breach of a control order could not therefore be justified on the basis of the terrorist atrocities that were actually prevented by it since the order might involve conduct quite unconnected from any eventual offence, perhaps because the intelligence services had misinterpreted the facts and the person controlled while giving reasonable grounds for suspicion was not in fact involved in ‘terrorism-related activity’. Even if the individual was in fact involved in ‘terrorism-related activity’, the breach of the order might nevertheless be some act extremely remote from any eventual atrocity (talking to other militants, accessing the internet, breaking a curfew and so on). Such an act would give legal grounds for punishment for breach of the order although it might never have eventuated in an atrocity. Of course, the breaching conduct could conceivably be a part of the deliberate planning and preparation of a specific atrocity, and in some cases was likely to have been, but the pre-emptive offence of breach of a control order did not require the Crown to prove that. It required only that the Crown prove that the defendant did an act that he had been prohibited from doing on the ground that the prohibition, if obeyed, offered the reassurance that he could not practically be involved in terrorism—reassurance that the defendant had not himself been able or willing to offer. The defendant who breached a control order was punished because his conduct failed to reassure. The Coalition has reformed the control order by replacing it with the terrorism prevention and investigation measure (TPIM). The TPIM maintains the basic structure of the control order with the following changes to its substantive law. The Home Secretary will now have to show ‘reasonable belief’ instead of ‘reasonable suspicion’. There will be limits to the terms that can be imposed ruling out internal exile, long curfew hours and some other restrictions on communicating. The maximum duration will be limited to two years. Both the grounds for imposing and the potential scope of these orders are therefore to be narrowed slightly. But a person who causes the Home Secretary to reasonably believe that he is involved in terrorism-related activity has failed to reassure albeit in a slightly more pronounced way. The control order and TPIM indicate that the very form of the CPO—administrative risk assessment leading to any necessary preventive obligations—creates a substantive liability for failure to reassure, even where the content of the order is not directly concerned with the causing of feelings of insecurity, as it is in the case of the ASBO. A brief look at two more CPOs that pre-empt quite different types of criminal conduct further illustrates the point.

Risk of sexual harm order A risk of sexual harm order (RSHO) can be granted by a magistrates’ court where it is satisfied that the defendant has on at least two occasions engaged with a child in a very widely defined range of conduct that is related in some way to sexual activity or

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‘sexual communication’ with a child,19 so that, as a result, ‘there is reasonable cause to believe that it is necessary for such an order to be made’.20 Again the procedure amounts to a risk assessment of the clinical type. Like the ASBO and the control order, the conduct that lays the ground for the order21 includes conduct that would be a criminal offence in any case and conduct that would not. What links these two different groups into a single set of grounds for imposition of the order is that they all lend sufficient credibility to the judgment that the defendant represents a risk of sexual harm to children so that a preventive order is necessary to protect against that risk. The terms of the RSHO itself may prohibit any conduct, prohibition of which is necessary to protecting children under 16 generally or any particular child under 16 from harm from the defendant.22 Many acts prohibited under the terms of the RSHO will in fact create a risk of sexual harm and might also be inchoate or complete sexual offences. But, since there need only be reasonable cause to believe that the order is necessary, there is no requirement that the prohibited acts in fact create any risk, only that they create reasonable cause to believe that there is a risk. Such acts are those that in the case of the particular defendant fail to reassure the public that he is not creating a risk of sexual harm even when he is not in fact doing so. By specifically prohibiting these acts, the terms of the RSHO construct the person subject to them as a specific threat of sexual harm to children. The reassurance aspect of these grounds for the order is reinforced when the precise definition of sexual activity and sexual communication for the purposes of the RSHO is taken into account. An activity or communication is sexual if a reasonable person would in all the circumstances, but regardless of any person’s purpose, consider it to be sexual.23 This means that activity that is in fact sexually motivated but which a reasonable observer would not perceive to be does not create grounds for an order and vice versa.24 What is manifest to the reasonable observer, not actual sexual motive, is the substantive key to liability.25 The rationale is preventive in that the pre-emptive liability under the terms of the order is much more extensive than in the ordinary criminal law. But again the conduct concerned is defined as that which represents a risk of harm in the minds of the magistrates. In other words, the order is appropriate where the magistrates harbour a reasonable suspicion that the defendant will cause sexual harm to children in the future. The defendant is liable to the order and the order is necessary because his conduct fails to reassure the magistrates that he represents no threat.

19

Sexual Offences Act 2003, s 123(1)(a). Sexual Offences Act 2003, s 123(1)(b). 21 Set out in detail in Sexual Offences Act 2003, s 123(3). 22 Sexual Offences Act 2003, s 123(6). 23 Sexual Offences Act 2003, s 124(5) and (7). 24 R Card, Sexual Offences: The New Law (Jordan, 2004) 239–40. 25 Although it should be noted that this is a long-standing feature of the offence of sexual assault in England and Wales: see R v Court [1989] AC 28. 20

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Serious crime prevention order The serious crime prevention order (SCPO) applies the same logic to people thought to be involved in organized and/or serious crime. The High Court in England and Wales may make an SCPO where: (a) it is satisfied that a person has been involved in serious crime . . . ; and (b) it has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime. . . . 26

A person is involved in serious crime if he has committed a serious offence or ‘facilitated’ the commission of a serious offence by another person or ‘has conducted himself in a way that was likely to facilitate the commission by himself or another person of a serious offence . . . (whether or not such an offence was committed)’.27 The order can contain any term that the ‘court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person concerned in serious crime’.28 Failure to comply with the order is an offence,29 with a maximum penalty of five years’ imprisonment.30 Once again a person may avoid liability by not doing anything that a court might be satisfied amounted to conduct ‘likely to facilitate the commission by himself or another person of a serious offence’ or by reassuring the court that notwithstanding such conduct there is insufficient reason to think that an SCPO is necessary to protect the public in future. Liability to an order therefore arises for conduct that fails to reassure because it can be interpreted as manifesting a continuing risk that the defendant might facilitate serious criminal offences in the future. Since the order will include only terms that are appropriate for protecting the public from the defendant’s disposition to involve himself in serious crime, failure to comply with any of them, even if it does no other harm, confirms the defendant’s disposition to cause insecurity in others. The same basic structure (although with differing details about the circumstances in which an order can be obtained and the precise range of possible effects of an order) can be found as well in drink banning orders31 and football banning orders.32 They are each grounded on a finding that the defendant has done something that may or may not be criminal but discloses a credible risk that he may do something undesirable in the future. This justifies the imposition of an order breach of which is a criminal offence. Although the specific conduct 26

SCA 2007, s 1(1). SCA 2007, s 2(1). An unquashed conviction is necessary to prove that an offence has been committed. There are reasonable conduct defences to the elements of facilitation and conduct likely to facilitate: s 4(2)–(3). 28 SCA 2007, s 1(3). 29 SCA 2007, s 25(1). 30 SCA 2007, s 25(2). 31 Violent Crime Reduction Act 2006, ss 1 and 3(2). 32 Football (Disorder) Act 2000, Sch 1, s 14B. 27

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controlled does not refer directly to causing insecurity in the way that the ASBO does, all of them concern involvement in some activity that will cause insecurity in others—for the most part because it is associated with criminality even if it is not directly criminal. The orders seek to impose the obligation to reassure by prohibiting exactly that conduct that fails to reassure. Other CPOs—such as violent offender orders,33 sexual offences prevention orders,34 and the foreign travel order35—are like the Criminal Behaviour Order (that has been proposed as the ASBO’s replacement) insofar they require the court to be satisfied that the individual is an offender before the preventive order may be imposed. With these, too, the offender is to be subject to any prohibition necessary to protect the public. While breach of these orders will in many cases involve conduct that would in any case amount to a criminal offence, in many cases it will not. The gravamen of the breach offence is the insecurity caused by failure to abide by obligations deemed necessary to protect the public. The CPO is the most distinctive legal innovation of the period following the enactment of the ASBO that is its archetype. The CPO explicitly subordinates the penal law to the administrative power of risk assessment. In so doing, its very form imposes a liability for a failure to reassure irrespective of the precise nature of the conduct concerned. But the CPO is not the only form of administrative regulation enforced by penal sanctions for non-compliance that might be said to impose a liability for failure to reassure and to enforce a right to security.

7.2 Vetting and barring scheme The CPO derives penal obligations from an administrative assessment of an individual. This arrangement is characteristic of licensing schemes in general. One administrative licensing scheme imposing liabilities for failure to reassure is the vetting and barring scheme enacted in the Safeguarding Vulnerable Groups Act 2006.36 In May 2010, faced with increasing criticism of the scheme’s scope, the new Coalition government in the UK announced a review of the scheme introduced by the Act and promised ‘to scale it back to common sense levels’.37 At the time of writing, the new government had published a bill that would repeal the more far-reaching aspects of the law.38 But it is worth thinking about the scheme as it was originally enacted because it passed through parliament in 2006 with very little controversy, and it provides a very clear picture of where the influence of the ideology of vulnerable autonomy can lead. 33

Criminal Justice and Immigration Act 2008, ss 98–102. Sexual Offences Act 2003, ss 104 and 107. 35 Sexual Offences Act 2003, ss 114 and 117. 36 The Act’s provisions only began to come into force in October 2009. 37 Her Majesty’s Government, The Coalition: Our Programme for Government (Cabinet Office, 2010) 20. 38 Protection of Freedoms Bill 2010–11. 34

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The Act required anybody who regularly came into contact with children or ‘vulnerable adults’ in either the course of their employment or of organized voluntary activities to be registered with the Independent Safeguarding Authority (ISA).39 Doing any such work with children or ‘vulnerable adults’ without being ‘subject to monitoring’ by the ISA was a criminal offence.40 Restricting our discussion to children for the present (the rules for vulnerable adults are broadly similar), being ‘subject to monitoring’ meant that the ISA would receive information about any convictions or cautions from the Criminal Records Bureau and could also consider information from any other source, including police or members of the public, about the risk of harm that a person may represent to children. The ISA has the power to bar people from working with children not only where the person has been convicted or cautioned of a criminal offence, but also where ‘it appears to the [ISA] that the person . . . may (a) harm a child, (b) cause a child to be harmed, (c) put a child at risk of harm . . . ’.41 A barred person who works with children commits a criminal offence carrying a maximum penalty of five years in prison.42 The Act gives to the civil servants and expert specialists who will staff the agency the power to impose a hugely stigmatic bar on people coming into contact with children or vulnerable adults on the basis of an administrative risk assessment. Those who are officially judged to be a risk of harming children will have their rights restricted accordingly. The scheme was to have been enforced by imposing criminal liability on anyone who fails to reassure the authorities, either by working with children and not making themselves ‘subject to monitoring’ or doing so when the official risk assessment has barred them. The registration of most of the 11 million people it was estimated would need to register was to have been routine and the ISA would have had to make serious assessments of relatively few of these.43 Nevertheless the scheme amounts to a licence to work with children (and other ‘vulnerable groups’) and failure to have that licence is a criminal offence. Although the scheme is plainly intended to contribute to the protection of children from abuse, it is important to recognize that it also alights on the vulnerability of all parents to their children being harmed when they are in the care of others. The licensing scheme served to protect parents’ interest in the security of their children through a system of legal obligations in which those others who wish to work with their children are under an obligation to register and be subject to official monitoring, and can be prosecuted if they fail to do so or comply with any barring instructions from the monitoring authority. The 39 The Independent Safeguarding Authority is called the Independent Barring Board in the Safeguarding Vulnerable Groups Act 2006 but was renamed by the Policing and Crime Act 2009, s 81. 40 Safeguarding Vulnerable Groups Act 2006, s 8. The maximum sentence is a fine. 41 Safeguarding Vulnerable Groups Act 2006, Sch 3 para [5]. 42 Safeguarding Vulnerable Groups Act 2006, s 7. The maximum penalty is five years’ imprisonment. 43 Subsequent tweaking of the scheme by New Labour reduced the Home Office estimates to 9 million: see Ed Balls, Ministerial Statement to Parliament, 14 December 2009 (available at accessed December 2011).

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criminal liabilities that enforce the vetting and barring scheme were in effect liabilities for a failure to reassure by complying with it. The Coalition government’s proposed reform repealed the registration and monitoring requirements in the original scheme, and with them the criminal offence of working voluntarily with children while not being registered. Criminal records checks on people doing paid work and the barring of those assessed as a risk remain. The most extreme aspect of this scheme has been withdrawn, although the licence to do paid work with children remains in effect. Unlike the licence requirements to drive a car or to practise medicine, this licence does not prove that the person licensed has adequate capacity with respect to intrinsically dangerous practices. It only provides reassurance that they have not committed relevant criminal acts, reassurance about their character and their dangerousness—that they are not a dangerous person. Unlike a licence to own a firearm or to sell alcohol—licences that will also be concerned with an assessment of a person’s dangerousness—the activity licensed, working with children, does not involve responsibility for the control of intrinsically dangerous objects. But the licence provided by the vetting and barring scheme nevertheless constructs the ordinary relations of adults and children as if they were as intrinsically dangerous as driving a car or practising medicine. When the law requires a licence to engage in a particular practice, it is constructing the possibility of harm not as an aberrant deviation from normality but as a routinely present possible incident of the activity that must be routinely guarded against. But in this case the danger constructed as routine is not the ignorance or incompetence of an unlicensed driver or medical practitioner, but the criminal dispositions of unsupervised, unlicensed adults in the company of children. As with the CPOs, the vetting and barring scheme sought to prevent actual criminal victimization of children by imposing on adults who wished to work with children liabilities for failing to reassure the authorities that they were not a threat. While apparently aimed at protecting ‘objectively’ vulnerable groups like children, the liabilities imposed actually served to reassure ‘subjectively’ vulnerable parents that the routine danger of criminal victimization of their children by unsupervised adults had been pre-empted—a point explicitly conceded by New Labour’s responsible minister of state.44 The vetting and barring scheme dramatically illustrates the potential scope of the liability for failure to reassure that arises once the vulnerability of autonomy is accepted as the norm. Although, like any licensing 44 Responding to criticism that the scheme would protect agencies rather than prevent child abuse, Meg Hillier said: ‘No-one is ever going to say that this scheme stops all child abuse. That’s not what it is about. What it is doing is that it’s playing the rightful role of government, drawing a line about how far we go, but I think it is fair to have that line when you give your children over to people in a professional setting you can have some assurances and quite strong assurances in this case that they are safe to work with your child.’ (‘Are You a Danger to Kids’ Panorama, BBC, 8 February 2010). When the Tory Home Secretary Teresa May announced a review of the scheme, Hillier defended it, saying: ‘The scheme was designed to ensure that parents could be certain their children were safe when in the care of professionals and regular volunteers who may be unknown to them.’ ‘Child abuse vetting scheme cancelled as Draconian’ BBC News, 15 May 2010 .

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scheme, it was restricted to those who want to engage in a particular activity, this is a particular activity that is supremely ordinary and everyday. The scheme created liabilities that would have touched the majority of the population, at some point in their lives. The CPO and the vetting and barring scheme both seek to pre-empt criminal harms by imposing liabilities for failure to reassure. These administrative schemes have preventive aims oriented to objective security but pursue them through the imposition of reassurance liabilities. This theme can also be found in a range of stand-alone criminal offences.

7.3 Preinchoate offences The right to security is not only imposed through penal enforcement of administrative regulations that directly prohibit actions demonstrating a disposition that fails to reassure. Stand-alone criminal offences can do this as well. For convenience these offences can be divided into two categories: preinchoate offences and complete offences with inchoate (or indeed preinchoate) content. The first category includes preparation offences, possession offences and offences of failure to report information. The term preinchoate is borrowed from Ashworth, who uses it to describe offences in which the conduct element could amount to almost anything.45 Although that applies to some of the preparation offences, the term is used in a slightly more specific way here to cover conduct that, like the conduct involved in breach of a CPO, may constitute an initial stage of a complete offence but does not necessarily constitute a dangerous act in its own right. Preinchoate in this sense is to be distinguished from what criminal lawyers conventionally refer to as inchoate offences. Inchoate offences, like some but not all preinchoate offences, are deliberate acts done with the ulterior intention or belief that a complete offence will be committed. The main categories of inchoate offence are attempt, conspiracy and encouragement. Like preinchoate offences, they may or may not constitute a stage in a course of conduct leading up to a complete offence, but, unlike preinchoate offences, attempt, conspiracy and encouragement are defined in English law by conduct that consists only of dangerous acts, either directly dangerous or dangerous in the sense that they are capable of encouraging others to make choices that increase the risks of harms in a way that the offender can no longer control, even if she subsequently abandons her criminal intentions. In English law an attempt is only committed by a person who does ‘an act more than merely preparatory’ to an offence. This has been interpreted by the courts in such a way as to require an act involving some confrontation between the offender and the object or victim of their offence.46 Such a confrontation serves to manifest 45 A Ashworth, ‘Criminal Law, Human Rights and Preventative Justice’, in B McSherry, A Norrie, and S Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Hart, 2009) 88–9. 46 C Clarkson, ‘Attempt: the Conduct Element’ (2009) 29(1) Oxford Journal of Legal Studies 25, 26–8.

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the defendant’s criminal intentions in public.47 Such public manifestation is a dangerous act since intended victims, third parties and the offender are now necessarily involved in coercive relations with each other or third parties in a way that is no longer under the offender’s control.48 Even if the defendant subsequently changes his mind with respect to the intended offence, once he has committed the more than merely preparatory act and manifested his culpable choices in public, he has raised the objective risk of harm if only to the extent that it would be normal and reasonably foreseeable that another person present will form a belief in the necessity of action to prevent a crime or to effect an arrest, and the use of at least some force against the defendant would normally be reasonable and lawful in these circumstances.49 Conspiracy requires proof of an agreement between persons that ‘a course of conduct will be pursued which, if carried out in accordance with their intentions will necessarily amount to or involve the commission of an offence by one or more of the parties to the agreement’.50 Unlike attempt, conspiracy is potentially quite remote in time and place from any eventual offence but again it is marked by a dangerous loss of control of the outcome of any conspirator’s intentions. In agreeing to the commission of an offence, a conspirator encourages others to commit the offence and, even if she subsequently changes her mind, she cannot take back the encouraging effect of her earlier act. In this sense conspiracy is a special case of encouragement more generally, for which it is enough that a defendant does ‘an act capable of encouraging or assisting the commission of an offence and he believes that the offences will be committed and that his act will encourage or assist its commission’.51 Again the act of encouraging may or may not result in the eventual offence but the encourager has lost control of the outcome of his intentions whatever he chooses to do subsequently. The inchoate offences in English law may protect subjective security interests, but only in the way that any criminal offence does. The conduct that they define as wrong is not conduct that manifests a disposition that fails to reassure. It is conduct that objectively creates a danger because, at minimum, it either encourages others to do a criminal wrong or confronts others with the prospect of an imminent criminal wrong. It is the absence of this requirement that the prohibited act be an objectively dangerous act that distinguishes preinchoate offences from inchoate offences, as these terms are understood here.

47 On attempts as ‘attacks’ see RA Duff, Criminal Attempts (Clarendon Press, 1996). The analysis in terms of ‘confrontation’ or ‘attack’ applies only metaphorically to offences of deception since by their nature these seek to avoid apparently wrongful and coercive transactions and to keep criminal intentions from public view. 48 P Ramsay, ‘Preparation Offences, Security Interests, Political Freedom’ in A Duff, L Farmer, S Marshall, M Renzo and V Tadros (eds), Structures of Criminal Law (Oxford University Press, 2011). 49 Criminal Law Act 1967, s 3(1). 50 Criminal Law Act 1977, s 1. 51 SCA 2007, s 45. In this respect the common law offence of incitement that the encouragement offence replaced in 2007 was broadly similar if a little narrower, requiring an intention that the offence encouraged be committed.

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Preparation offences The most significant of these is the offence of intentional preparation of terrorist acts. The Terrorism Act 2006, section 5 states that ‘(1) A person commits an offence if, with the intention of—(a) committing acts of terrorism, or (b) assisting another to commit such acts, he engages in any conduct in preparation for giving effect to his intention.’ The maximum sentence is life imprisonment. The preparation offence appears to be straightforwardly preventive. By allowing the authorities to intervene, arrest and prosecute at an early stage of criminal preparations the eventual harm to ‘first order’ interests will be avoided. But of course a person who merely prepares an offence may have desisted without any official intervention before proceeding to carry out the intended offence. In many cases of preparation it will be impossible to know beyond reasonable doubt that prosecution and conviction have prevented the intended offence.52 Certainly the Crown is not required to prove that an atrocity was avoided by arrest and incapacitation of the defendant. All the Crown is required to prove is that the defendant did a preparatory act intending to commit or to assist another to commit a terrorist act. But the defendant’s act might be almost anything (for example, buying equipment, learning necessary skills, acquiring necessary background knowledge and so on).53 These acts are likely to be intrinsically innocuous. Only the ulterior intention with which they are done converts such acts into criminal acts. In other words, by contrast with a criminal attempt, the Crown is not required to prove that the defendant committed an intrinsically dangerous act, but rather that the defendant was a dangerous person by virtue of the intentions with which the preparatory act was done. Only a wrong of manifesting a disposition of hostility to the legally protected interests of others, a wrong of dangerousness in other words, could justify every conviction for preparation. Section 5 nevertheless does not require evidence that the defendant’s preparatory act did in fact cause any insecurity. It might be argued that most or even all of the conduct that would in practice be punished is incapable of causing others to experience harmful insecurity since, in the nature of terrorist preparations, only members of specialist police bureaucracies will know of the threat. Perhaps we can or should assume that the state’s security forces are made of sterner stuff. But, even if they are, it is plain that when the police know of preparations being made and yet lack the power to intervene, and must instead risk waiting until they have an act more than merely preparatory (or proof of conspiracy), the danger to the public will

52 There may be some cases where preparations had advanced to a stage very close to attempting to commit the act and the record and commitment of the defendant was such as to convince a jury beyond reasonable doubt that the offence would have been attempted as planned. This is the chief anxiety surrounding the English law’s ‘more than merely preparatory’ test. Some cases that fail to meet that test leave little room for doubt that an offence would have been committed. See Geddes [1996] Crim LR 894 CA. 53 See, for example, R v Roddis [2009] EWCA Crim 585.

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be increased.54 In so far as the public is aware of this increased danger, the argument goes, it will cause an insecurity that will coerce vulnerable citizens and violate their rights. Such an offence can be described as one that criminalizes the causing of remote harm in which the relation of the conduct to the harm is what Andreas von Hirsch refers to as ‘accumulative’ or ‘conjunctive’.55 The contribution of any one offender to the harm to be avoided might not be significant but the offender ‘cannot draw a moral distinction between his behaviour and that of the others who contribute to the injury’.56 In this respect section 5 is not unlike the element of the ASBO that permits control and punishment of behaviour that is only ‘likely to cause harassment, alarm or distress’. There is no requirement to prove actual causing of insecurity. The liability imposed is a liability for the disposition to cause insecurity as much as the actual causing of it. The interest in subjective security is upheld by protecting the recognitional infrastructure of vulnerable autonomy as such, the intersubjective field upon which particular individuals’ feelings of security are thought to depend. From the standpoint of vulnerable autonomy anyone who has reason to fear that an act or acts are being carried out with the intention of committing a terrorist atrocity is going to be caused to fear that the threatened atrocity may materialize. This may coerce them into making choices that they would not otherwise make, choices that may frustrate their own life plans or even lead them to interfere with the choices of others.57 The offence of preparation of terrorism appears on the face of it to be different to the offences of breaching a CPO in that it imposes no positive obligation. The failure to reassure that is the wrong committed against vulnerable autonomy is committed only by a deliberate act that is prohibited. But it shares an important element with the CPO: almost any act could potentially constitute the conduct element of the offence. It is only the dangerous disposition that the act manifests (by means of proof of intention in the one case, by the ‘necessity to prevent’ assessment in the other) that converts what might in other circumstances be an innocuous act into a criminal one. The conduct element in this offence is emptied of any wrongfulness. The gravamen of the offence is not anything the actor has 54

This is the explicit argument for longer detention without charge periods in terrorist cases: G Hindle, ‘Protecting the Right to Security—The Case for Pre-charge Detention’ (2008). The Law Commission has also advanced this argument for a new general offence of criminal preparation, although with a much more limited scope of preparation than the s 5 offence: see Law Commission, Conspiracy and Attempts (Law Com No183, 2007) paras [12.19]–[12.21]. 55 A von Hirsch ‘Extending the Harm Principle: “Remote” Harms and Fair Imputation’ in AP Simester and ATH Smith, Harm and Culpability (Oxford University Press, 1996) 265. Accumulative is renamed ‘conjunctive’ in AP Simester and A von Hirsch, Crimes, Harms and Wrongs: On the Principles of Criminalisation (Hart, 2011). 56 Ibid. Von Hirsch gives pollution offences as an example. 57 In the aftermath of the London bombings in July 2005, official concern quickly alighted on the possibility of an anti-Muslim backlash, though none was forthcoming it seems: see the report of the European Union Agency for Fundamental Rights, ‘The impact of 7 July 2005 London bomb attacks on Muslim Communities in the EU’ (2005) (available at ).

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done but only what she intends to do. Her acts render her liable only in so far as they manifest her wrongful intentions. Ashworth notes that ‘all the arguments against criminalizing mere thoughts are brought into play by such a wide provision’.58 Another way of making the same point is to observe that in both the CPO and the preparation offence a subtle pressure is brought to bear on the law’s subjects. In circumstances in which there is any possibility that their actions might cause others’ insecurity, they would be wise to ask themselves how any particular, even intrinsically innocuous, act might be interpreted by other subjects or by officials. If that act were to cause others to feel insecure or officials to have reasonable suspicions, then the right to security protected by these laws will be infringed, and it will certainly empower officials to ask questions and maybe more. I will return to these implications in Chapter 10. It might be thought that section 5 is an emergency response to terrorism. But the offence is nevertheless to be found in an ordinary statute. Certainly, the narrow policy explanation for the enactment of the offence is probably to be found in the UN Security Council Resolution 1373, which was a response to the events of 11 September 2001.59 The resolution declared that all states should, among other things, make preparation of terrorism a criminal offence. But it also declared that punishment for the offence should ‘duly reflect [ . . . ] the seriousness of such terrorist acts’. But, as we have seen, we can only establish a secure connection between the seriousness of terrorist violence and mere preparations in terms of the insecurity caused by the possibility of that violence. In other words, whatever its immediate source, the offence serves to protect the norm of vulnerable autonomy. Moreover, it is not unique. The Sexual Offence Act 2003, section 14 creates a more narrowly defined preparatory offence with respect to child sex offences. A person commits the offence if ‘a) he intentionally arranges or facilitates something that he intends to do, intends another person to do, or believes that another person will do, in any part of the world, and b) doing it will involve the commission’ of a child sex offence. Though more narrowly defined than the preparation of terrorism offence, the effect of the section 14 offence is still very broad. The Court of Appeal in R upheld the conviction of a defendant who asked a prostitute to find him a 12-year-old girl for sex, ruling that even if his request did not amount to an arrangement or facilitating of the intended offence, it certainly amounted to an attempt to commit the offence.60 The same considerations of remoteness in a preinchoate offence that applied to the preparation of terrorism offence seem to apply to this offence as well. There would in many cases (such as R) be no way of proving whether arrest and conviction in fact prevented the eventual child sex offence intended at the time of the facilitation or arrangement. In some cases, the defendant’s acts could also be

58 59 60

Ashworth, ‘Criminal Law, Human Rights and Preventative Justice’, 89. B McSherry, ‘Expanding the Boundaries of Inchoate Crime’ in B McSherry et al, ibid, 141–2. R v R [2009] 1 WLR 713.

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intrinsically innocuous (unlike those in R), and everything would then turn on his intent. The gravamen of the offence is the manifestation of the dangerous disposition and the violation of a right to subjective security. Under the Fraud Act 2006 section 7(1) a person is guilty of an offence if he makes, or adapts, supplies or offers to supply any article (a) knowing that it is designed or adapted for use in the course of or in connection with fraud, or (b) intending it to be used to commit, or assist in the commission of, fraud. A person who is liable for supplying an article has arguably committed a specialized offence of encouragement. But a person who has made or adapted has committed a preparatory offence. Again the same considerations of remoteness and preinchoateness apply. The adaptation of the article may in itself only acquire any criminal aspect by virtue of intention and it will in many cases be impossible to know beyond reasonable doubt that any harm was avoided by official intervention. Again the gravamen of the offence is the manifestation of the dangerous disposition and the violation of a right to subjective security. By now it should be clear that the interests of the vulnerable citizen will justify a very wide scope of criminal liability. The citizen’s vulnerable autonomy implies a positive obligation to consider the type of conduct that may cause insecurity to other citizens and then to refrain from it, even if that conduct is externally innocuous and only creates anxiety by virtue of the intentions with which it is done and its accumulative effect when considered together with such conduct generally. Perhaps we would do better to ask what criminal offence the right to security cannot justify? As it happens, the arsenal of Britain’s recent anti-terrorism legislation did throw up an example of a preinchoate offence that did not seem to define any harm or wrong, even to the security of others. Interestingly, however, the courts interpreted it more narrowly so as to convert it into an offence of failing to reassure. Section 58(1) Terrorism Act 2000 prohibits the collection or recording of information likely to be of use to a terrorist. It is a defence for a person accused to adduce evidence of a reasonable excuse for collecting the information, evidence that the prosecution cannot disprove.61 But there is no explicit requirement for the prosecution to prove a terrorist purpose in collecting the information and the section therefore appears to define no identifiable harm or wrong since collecting all kinds of innocuous information for all kinds of innocuous reasons provides the ground for the offence, and this seems arbitrarily to throw a burden of proof on to anyone who happens to have collected something that would more probably than not be useful to a terrorist (a public transport map, a train timetable or an MP’s surgery times, for example).62 The House of Lords has, however, interpreted section 58 to mean the collection of information that ‘must, of its very nature, be designed to provide practical assistance to a person committing or preparing an act or terrorism’.63 It must be 61 62 63

See Terrorism Act 2000, ss 58(3) and 118. V Tadros, ‘Justice and Terrorism’ (2007) 10(4) New Criminal Law Review 658, 675–6. R v G ; R v J [2009] UKHL 13, Lord Rodger para [43].

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information collection of which is so intrinsically suspicious that it ‘calls for an explanation’ in the form of the defence of reasonable excuse, and information that might be of use to a terrorist but might equally be of use to anyone else, such as a street map, is insufficient.64 This decision leaves an offence that prohibits conduct potentially more remote from any eventual atrocity than the preparation offence, since it does not require proof of intentional preparation, merely the collection of intrinsically suspicious material without reasonable excuse. But the House of Lords’ interpretation of the offence is one that renders it consistent with the protection of the subjective security interests of the vulnerable. Where the defendant has collected or recorded the sort of information that ‘of its very nature’ raises suspicions about terrorism and he cannot give a reasonable explanation of his action then he will not reassure others about their safety. The degree of remoteness of the conduct found in the preinchoate offence of collecting or recording information is similar in kind to that found in possession offences.

Possession offences There are many possession offences, some of which I will discuss in greater detail in the next chapter. Here let’s consider two recent additions to the roster. Section 57(1) Terrorism Act 2000 makes it an offence for a person to possess ‘an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism’. The Court of Appeal has interpreted these words to mean that the Crown must prove that there is a reasonable suspicion that the defendant intends to use the article for the commission, preparation or instigation of a terrorist act.65 The offence appears to be very similar to the collecting or recording of information likely to be useful to a terrorist offence in its degree of remoteness from any eventual atrocity, except that there is no need to prove any conduct at all, merely the possession of suspicious items. Moreover, unlike the collecting offence, the items possessed might in principle have other innocent uses. It is enough to prove that suspicions about the terrorist purpose of possession are reasonable for the person accused to bear the burden of disproving it.66 Like the preparation offence there will rarely be proof beyond reasonable doubt that an eventual atrocity was in fact avoided by early intervention and the offence is once again marked by its accumulative protection of subjective security interests by the imposition of liability for failure to reassure. The Fraud Act 2006, section 6(1) makes it an offence for a person to have ‘in his possession or under his control any article for use in the course of or in connection with any fraud’. Once again providing the article is for use in a fraud then liability arises for possessing it notwithstanding that it may never be used in a fraud so that the eventual harm caused by the fraud cannot serve as the wrong justifying punishment without relaxing the burden of proof. Instead the possession of 64 65

R v G ; R v J [2009] UKHL 13, Lord Rodger para [43]. 66 Zafar [2008] QB 810. Terrorism Act 2000, s 57(2).

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intrinsically innocuous articles that are to be used in a crime manifests the dangerous disposition that will cause insecurity in others.

Money laundering The connection between money laundering and the right to security is less immediately obvious than it is with the terrorism offences because it is still more remote. Nevertheless the offence is also one that is aimed at both preventing crime and protecting security and seeks to achieve these aims by criminalizing conduct that manifests indifference or hostility to others’ security needs. Money laundering is prohibited by the Proceeds of Crime Act 2002, section 327, which makes it an offence to ‘conceal’, ‘disguise’, ‘convert’ or ‘transfer’ any ‘criminal property’. Property is criminal property if ‘it constitutes a person’s benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and . . . the alleged offender knows or suspects that it constitutes or represents such a benefit’.67 Many cases of money laundering can plausibly be understood as a specialized type of encouraging other criminal offences. The practice of laundering generally makes the criminal offences that generate the property more attractive and practicable in future, and frequently directly facilitates those future offences by providing for improved and enlarged funding arrangements.68 However laundering itself will not necessarily do so in every case—for example, the laundered proceeds of a particular criminal act might simply be consumed and the offender who does the consuming might subsequently desist from any further offending. There is no requirement to prove any encouraging effect. In this sense the offence is preinchoate with respect to any criminal offences it might have the effect of encouraging. But how does it serve to cause insecurity? The properly inchoate offence of encouragement also has no requirement to prove any actual encouraging effect only an act ‘capable of encouraging or assisting’.69 But there is a requirement to prove either intention that the offence encouraged be committed or at least belief that it will be committed.70 With the money laundering offence, however, not only is there no requirement to prove any encouraging effect, but nor is there any requirement to prove any intent or belief with respect to the offence that money laundering is capable of encouraging. The money laundering offence is therefore committed even if it has no encouraging effects and was not expected or intended to have any such effect. What wrong has the defendant committed in such a case? Unless the laundering is in some way capricious, the launderer will in all cases have deliberately facilitated the enjoyment of the benefit of the proceeds of crime. In other words, the defendant will have helped crime to pay. And if crime is seen to pay then security will be undermined. 67

Proceeds of Crime Act 2002, s 340(3)(c). T Millington and M Sutherland Williams, Millington and Sutherland Williams on the Proceeds of Crime (Oxford University Press, 2010) 528. 69 70 SCA 2007, ss 44–46. Ibid. 68

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According to a Cabinet Office policy document, the Proceeds of Crime Act was deliberately intended by government to ‘send out the message that crime does not pay’.71 The then Prime Minister’s foreword to the document explained why it was necessary to do this by criminalizing money laundering: it simply is not right in modern Britain that millions of law-abiding people work hard to earn a living, whilst a few live handsomely off the profits of crime. The undeserved trappings of success enjoyed by criminals are an affront to the hard-working majority.72

Blair’s point is that it is a wrong against the self-respect of the law-abiding that some live off the profits of illegal business. He goes on to argue that this is not only wrong in itself but that it undermines the authority of the law, asserting that the new offences will ensure that criminals cannot keep their unlawful gains and in so doing ‘enhance confidence in the law by demonstrating that nobody is beyond its reach’.73 The implication is that money laundering undermines confidence in the law, if for no other reason than it allows criminals to enjoy the benefits of their crimes. And where confidence in the law is lacking and criminals seem to be able to enjoy the benefits of their offending, insecurity will be a consequence. In so far as maintaining a ‘criminal lifestyle’ depends upon the activities prohibited by section 327, those activities contribute materially to undermining the security of the vulnerable. In the view of the government that caused the offence to be enacted this is a wrong against subjective security. Money laundering is remote from this harm in the same way as the preparation offence. It is accumulatively connected to the insecurity in that the contribution of any particular act may be very small but it cannot be morally distinguished from other acts that accumulatively undermine confidence, even if it might be disassociated from specific future offences. The money launderer, even if he lacks intention or belief in further offences, has by helping criminals enjoy the benefits manifested an indifferent attitude to the security needs of the law-abiding. As with the preparation of terrorism, the structure of vulnerable autonomy requires that we show an awareness of what will cause vulnerable citizens the insecurity that limits their autonomy. Not to do so is wrongful in this structure. If we do cause others to experience insecurity, we have wrongfully failed in that obligation. The prevention of money laundering is practically enforced not so much by the money laundering offence itself as it is by an offence of failing to report money laundering by others. The positive obligation to maintain an attitude of concern for the security of others is particularly marked in this offence that is still more remote from the actual harm.

71 Cabinet Office Performance and Innovation Unit, Recovering the Proceeds of Crime (2000) 5. The government added three further policy rationales: ‘[to] prevent criminals from funding further criminality; remove negative role models in communities; and decrease the risk of instability in financial markets’. The first we have already considered. The second is closely related to sending out the message about crime not paying. The third is mysterious. 72 73 Ibid, 3. Ibid, 4.

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Failure to report offences The Proceeds of Crime Act 2002, section 330 prohibits the failure to disclose as soon as is practicable any information that comes to a person in the course of business activities in the ‘regulated sector’ if that information causes them to know or suspect, or to have reasonable grounds to know or suspect, that another person is engaged in money laundering. The regulated sector includes much of the financial services industry, as well as accountancy and legal services, estate agents and casinos.74 This offence clearly creates a strong positive obligation to report suspicions and, what is more, to be alert to what will give the reasonable person grounds to suspect that money laundering is taking place. Failure to maintain this alertness creates potential criminal liability. Of all the preinchoate offences considered so far, this omission offence is the one with the widest impact and criminalizes conduct with the greatest remoteness from any primary criminal harm. A failure to disclose might involve the deliberate covering up of money laundering by organized criminals seeking to finance both further offending and lavish lifestyles. But since liability attaches to a person for negligent failure to report an objectively suspicious transaction there is no requirement for the prosecution to prove that the defendant’s omission in fact covered up, facilitated or assisted actual money laundering, let alone money laundering that itself encouraged further offences. All that the prosecution has to prove is a failure by the defendant to adopt sufficient concern for the subjective security interests of others, interests that are arguably damaged (albeit remotely) by money laundering. The key here is the way in which the interests of the vulnerable citizen entail positive obligations. The core wrong against vulnerable citizenship is indifference or inattention to the vulnerability of citizens—the lack of awareness of the conditions of security. From this standpoint, it is the indifference of those in business to the provenance of the property they deal with, when that is objectively suspicious, that contributes to the insecurity of law-abiding working people who must endure the example of the ‘criminal lifestyle’ in their midst. The offence of failing to report objectively suspicious transactions is necessitated by this threat to security. Once this is understood then, as Peter Alldridge points out, the derivative offence of money laundering itself is necessitated by the more practically significant enforcement offence of failure to disclose. Without criminalization of the conduct that the law’s subjects are put under a penal obligation to report then the duty to report would lack a rationale and its subjects might not attach enough seriousness to the failure to report it.75 Broadly similar duties to report suspicions about terrorism that arise in the course of business activity are established in the Terrorism Act 2000, sections 19 and 21A. A more general protection of the right to security is offered by the Terrorism Act 2000, section 38B(1), which makes it an offence for a person who

74 75

See Proceeds of Crime Act 2002, Sch 9. P Alldridge, Money Laundering Law (Hart, 2003) 69.

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‘has information which he knows or believes might be of material assistance in preventing the commission by another person of an act of terrorism’ to fail ‘to disclose that information as soon as reasonably practicable’ to a police officer. There is a reasonable excuse defence. In some cases the failure to report may indeed materially contribute to a failure to prevent an atrocity but there is no requirement to prove that the defendant’s omission in fact materially contributed to a failure to prevent the commission of an act of terrorism. All that the Crown must prove is that the defendant failed to report something that he believed might be of material assistance. Like the other offences considered here, the policy purpose is preventive but the substantive law is drafted so as to create a liability for manifesting a dangerous disposition.

7.4 Complete offences with inchoate content Fraud by misrepresentation Our discussion of money laundering has taken us out of criminalizing conduct that failed to reassure in respect of physical security as such. The undermining of security is supposed to arise from a general undermining of the law’s authority. The trend to protecting the security interests of the vulnerable has also appeared in the development of property offences. The first offence to consider is fraud.76 The Fraud Act 2006, section 2, created the offence of fraud by misrepresentation. To gain a conviction the prosecution must be able to prove that the defendant dishonestly made a false representation intending to make a gain or cause a loss to another, and a representation is false if it is ‘untrue or misleading’ and the defendant knows that it is untrue or misleading or that it might be. What is apparent is that there is no need for the prosecution to prove that the defendant made a gain or that anyone was caused to suffer a loss. Indeed the fraud offence replaced that of obtaining by deception, which required proof that property had been obtained by means of a false representation.77 The fraud offence is preinchoate. While this offence in practice protects an interest in property, it goes much wider than that since there need be no setback to anyone’s interest in their property for the offence to be made out. Rather, as David Ormerod puts it: ‘The wrong seems to be the act of lying or misleading with intent to gain or cause loss; the harm might be construed as one of destabilizing society’s processes of property and financial transfers.’78 Such an act could be constituted by something that would have fallen short even of attempted obtaining, since the making of the misrepresentation might be a merely preparatory act to obtaining. The scope of the new offence, therefore, appears to have absorbed acts that would previously have amounted to attempted obtaining by deception and a good 76 On the policy concerns regarding security of property behind the 2006 Act, see V Tadros ‘Crime and Security’ (2008) 71(6) Modern Law Review 940, 952. 77 Theft Act 1968, ss 15–16. 78 D Ormerod, ‘Criminalizing Lying’ (2007) Criminal Law Review 193, 196.

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deal more in the way of preparatory conduct into the complete offence. Ormerod suggests that this leaves the scope for a charge of attempted fraud ‘severely limited, except perhaps where D, having prepared documents containing false statements, is apprehended before having posted them or where D unwittingly makes a true representation’.79 As he comments, ‘With substantive offences this wide, who needs inchoates?’80 The scope for attempted fraud may be limited in practice but it is nevertheless significantly broader in theory than attempted obtaining. The significance lies in the fact that a more than merely preparatory act to the complete offence of fraud by misrepresentation could only have been a merely preparatory act to obtaining by deception. In other words, it is enough that a person does something—anything—that is preparatory to intentionally making a dishonest gain for them to violate the law. And as we noted in relation to preparation of terrorism, to be liable it is enough that the defendant represents a threat by virtue of her intentions; the particular act is indifferent. The offence of obtaining by deception was aimed at the sort of action that ‘characteristically affects the confidence one may have in property exchanges’.81 But the complete offence protected this confidence only in so far as property was actually obtained dishonestly. In the old law it was dishonest transfers of property or trying to transfer property dishonestly that were the occasion for the law’s intervention against acts that undermined confidence in the system. With the new fraud offence the emphasis is reversed. In many cases the defendant’s misrepresentation will have resulted in actual wrongful interferences with property rights but the gravamen of the wrong is now the lying with intent, the threat to the system rather than actual interferences with other’s property rights. The law constructs the substantial aspect of the offence as the dishonesty, and the interest protection of which will invoke official intervention is no longer actual loss or gain but a threat to the security of the system. It is the potential vulnerability of market actors that calls forth the protections of the penal law and not just their actual exposure to dishonestly caused losses. It is a right to security from all threats to the system of property transfers, and not just the property rights themselves, that is protected by the new fraud offence. Interestingly this statutory development comes some years after the House of Lords appeared to interpret the offence of theft in a broadly similar way.

Theft Theft is another complete offence that is inchoate in content. The controversial expansion of the law’s scope in the case of Hinks is at the outer limit of our discussion of the right to security in the substantive law. But it is worth considering because in Hinks we see the emergence of vulnerability as a specific interest protected by the most frequently committed offence in the criminal law and, 79

80 Ibid, 198. Ibid. AP Simester and GR Sullivan, ‘On the Nature and Rationale of Property Offences’ in RA Duff and SP Green, Defining Crimes (Oxford University Press, 2005) 189–90. 81

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moreover, we can see in the judgment the theoretical potential, at least, for the law to interpret this protected interest as a universal vulnerability. Theft is committed when a person ‘dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it’.82 ‘Appropriates’ is defined in the Theft Act 1968 as ‘any assumption by a person of the rights of an owner’.83 This phrase has long been given a wide interpretation by the courts, so that acts falling well short of a taking of property without the owner’s consent (the traditional idea of theft) will constitute the offence if they are done with the required dishonesty and intention permanently to deprive. Included in that wide definition of thieving are strictly fraudulent acts where the defendant deceives the owner into consenting to the transfer of the property in circumstances where the owner would not have consented had she not been deceived.84 This created a huge overlap between theft and obtaining by deception. In 2000 the House of Lords ruled in Hinks that ‘appropriation’ also included an assumption of the rights of the owner where the owner not only consented, but was not deceived so that the defendant acquired indefeasible title to the property.85 The result is that the defendant was liable to theft notwithstanding that she had received a valid gift and was the lawful owner of the property so that the civil courts would not recognize that the ‘victim’ of the theft had any right to it. The decision has been controversial as a consequence. The defendant had befriended a Mr Dolphin who had given her about £60,000 that he had inherited. Dolphin was a man of ‘limited intelligence’, described by an expert witness as ‘naive and trusting’. While the evidence suggested that Dolphin ‘understood the concept of ownership’ and that he was ‘capable of making a gift’, it was accepted that he had ‘no idea of the value of his assets or the ability to calculate their value’.86 The trial judge ruled that a valid gift could amount to an appropriation for the purposes of theft. Hinks’s conviction then turned on whether or not the jury believed that Hinks had been dishonest in accepting the gift from Dolphin. The test of dishonesty being whether the jury thinks the defendant’s acts were dishonest by the standards of reasonable and honest people, and that the defendant must have realized that they were dishonest by these standards, the jury decided that she had been dishonest and convicted her. Both the Court of Appeal and the House of Lords upheld the conviction on the grounds that Hinks had dishonestly assumed the rights of an owner in accepting the gift and that this was all that the statute required. Since she had acquired indefeasible title to the property Hinks’s action could not be accounted a violation of property rights. She was therefore liable for her dishonesty as such in exploiting Mr Dolphin. It is the disposition manifested in her conduct that is the source of the criminal wrong. Lord Hutton dissented from the majority judgment. He agreed that a valid gift would amount to an appropriation but argued that if Dolphin had made a valid 82 84 86

83 Theft Act 1968, s 1(1). Theft Act 1968, s 3(1). 85 Lawrence v MPC [1972] AC 626. R v Hinks [2001] 2 AC 241. Ibid, 245.

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gift then there were no legal grounds for a finding of dishonesty. The judge summed up the question the jury had to answer in the following terms: ‘Was Mr Dolphin so mentally incapable that the defendant herself realized that ordinary and decent people would regard it as dishonest to accept that gift from him?’87 But Lord Hutton observes that section 2(1)(b) states that a person is not to be regarded as dishonest ‘if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it . . . ’. If Mrs Hinks did indeed receive a gift then it would appear impossible for the Crown to prove beyond reasonable doubt that she did not believe that the owner would have consented if he knew of the appropriation and its circumstances.88 It was common ground that Dolphin did know of the appropriation, he was not deceived as to the circumstances, and he did in fact consent by giving her the property. Lord Steyn, for the majority, does not respond to this argument directly, relying instead on the more technical points that the dishonesty issue was not raised before the House of Lords and that the House had not reviewed the evidence in detail.89 But he expresses himself as having no doubts about the safety of the conviction.90 Although Lord Steyn does not try to explain it, is it possible to recognize the force of Lord Hutton’s argument and yet be satisfied that the conviction of Hinks is safe? In other words, is there a circumstance attending the appropriation which Dolphin was unaware of, and which would have rendered open to doubt any claim by Hinks to have believed that Dolphin would have consented to the appropriation if he had been aware of that circumstance? There clearly is one such circumstance given in the evidence that the House of Lords did review: Dolphin did not know the value of the property by virtue of his limited intelligence. If this lack of knowledge of the value of the property were a circumstance of the appropriation unknown to Dolphin that could render Hinks’s belief that Dolphin consented to be a dishonest one, then the trial judge’s summing up on dishonesty makes more sense, even if it is still technically deficient. If Hinks knew of Dolphin’s limited capacity (which she clearly did) then she either knew, or suspected, that he did not know the value of the property, in which case the prosecution would have less difficulty proving her dishonest, notwithstanding that an indefeasible title had been transferred. The problem this raises is that very many profitable and hitherto lawful business dealings (involving no deception as such) depend on one party not knowing the true value of what they are parting with or of what they are acquiring, while the other party does know both the true value and that the first party does not know it.91 Examples of such transactions were raised by counsel for the appellant, and Lord Steyn considers them explicitly.92 He concludes that ‘in such cases a prosecution is hardly likely and, if mounted, is likely to founder on the basis that the jury 87

88 89 90 Ibid, 246. Ibid, 256–7. Ibid, 253. Ibid, 253–4. It is even argued that such transactions are the basis of success in business: see M Gladwell, ‘The Sure Thing’ The New Yorker, 18 January 2010. 92 Hinks [2001] 2 AC 241, 251–252. 91

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will not be persuaded that there was dishonesty in the required sense’.93 But it is not clear why the jury should not be persuaded. The putative victims in these cases do not know the true value of the property concerned, just as Mr Dolphin did not, while the putative thieves know or suspect that the victims do not know. On the logic of Lord Steyn’s judgment, why should these exploiters of others’ ignorance not be regarded as dishonest too? Whether or not a defendant’s actions are dishonest is a question for the jury who must decide whether they are dishonest according to the ordinary standards of reasonable and honest people.94 Perhaps Lord Steyn’s intuition is that a jury will only find dishonesty where a defendant is exploiting the ignorance of a person who like Dolphin lacks the capacity to know the value of the property. That is certainly implied in the trial judge’s words in summing up, and Lord Steyn’s observation that the jury ‘found that she had acted dishonestly by systematically raiding the savings in a building society account of a vulnerable person who trusted her’.95 But it is not clear that Lord Steyn’s category of ‘vulnerable person’ is exhausted by those who, like Dolphin, lack capacity to know the value of property. To disallow Lord Hutton’s argument that section 2(1)(b) rules out a claim of dishonesty, so that the issue of dishonesty could go to a jury, all that is required is that the ‘victim’ does not in fact know the value of the property, not that he or she lacked capacity to know the value of the property. And if one party’s lack of knowledge of a property’s true value is sufficient to impugn an otherwise lawful transfer of property, a lot of everyday market transactions are on thin ice. Everything will depend on what a jury (and a prosecutor second-guessing a jury) will regard as dishonest, which is to say, unfair.96 It is this that underlies the other major doctrinal anxiety about Hinks, the conflict between the criminal law and the civil law that the judgment creates. Perfectly legal transactions at civil law can amount to criminal offences. Lord Steyn was unconcerned, arguing that if the criminal law were restricted to upholding civil law principles then people like Hinks who deserve punishment would be able to avoid it. For Lord Steyn the aims of the criminal law and the civil law are just different. We have already seen what Lord Steyn’s view of the aims of the criminal law is. For Lord Steyn, the criminal law is aimed at preventing fear of harm to person or property as much as actually preventing that harm. Translating this proposition into the field of property rights, the criminal law does not exist to protect property rights as such. At best Hinks can be described as an indirect defence of property rights in so far as the threats of the dishonest will tend to ‘undermine property rights . . . by weakening [the] established system of property rights’.97 Moreover, this indirect defence is one that is willing to ignore the actual property rights of individuals where necessary in defence of the system as a whole. 93

Hinks [2001] 2 AC, 252. 95 Ghosh [1982] QB 1053. Hinks [2001] 2 AC 241, 253. The Concise Oxford English Dictionary defines honesty as ‘Fair and righteous in speech and act, not lying, cheating, or stealing.’ 97 S Shute, ‘Appropriation and the Law of Theft’ [2002] Criminal Law Review 445, 455. 94 96

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The law of theft after Hinks might more simply be described as protecting the interests of those who are vulnerable to the threat that dishonest people will exploit their ignorance or gullibility.98 What is protected is a right to security from the threat posed by dishonest market actors who might manipulate our choices. Defending the decision, Alan Boggs and John Stanton-Ife have explained why the criminal law need not be limited by the fact of Dolphin’s consent: ‘One of the conditions of autonomy is that a person enjoys an adequate degree of independence. The condition of independence holds to some extent that one’s choices “must be free from coercion and manipulation by others.” ’99 The language of vulnerable autonomy is apparent here.100 The dishonest manipulation of Dolphin’s vulnerability means that the consenting choice that he made can be discounted by the law. The price of this broad protection offered by the law of theft is that dishonesty in business transactions has become a criminal wrong. Any manipulation of the ignorance of the other party to a transaction might be criminalized if both prosecutors and a jury regard it as dishonest. Lord Hobhouse, dissenting in Hinks, regarded this as creating a two-fold problem. First the line between immoral and criminal conduct in this area has been erased—all market behaviour that reasonable people would disapprove of becomes open to criminal sanctions. Second there is an absence of legal certainty in that the law effectively states that doing anything that a jury would regard as dishonest will render your conduct liable to sanctions.101 Given that so much ordinary business conduct relies on exploiting others’ ignorance, the theoretical effect of this uncertainty is to throw a positive obligation on market actors to think carefully about how a jury might consider their conduct. Consistently with the broader theory of vulnerable autonomy, a burden of reassurance is thrown on to the market actor who wishes to be free of liability, an obligation to be sure that whatever they do will not be regarded as dishonest by reasonable and honest people. Hinks may be interpreted as a decision to protect the particularly vulnerable (the vulnerated) whose lack of knowledge of the circumstances of a transaction arises from a limitation in their capacity to know them. But its logic seems open to the possibility that theft protects the potentially universal condition of vulnerability to exploitation of inferior market knowledge by those with superior market knowledge. That the theft offence seems to be open to an interpretation that permits it to protect a right to security in relation to property transfers is significant in itself. In this respect the Theft Act 1968, like all the preinchoate offences, conforms strongly to what George Fletcher dubbed the ‘subjective pattern of criminality’, in which the conduct element of criminal offences tends to lose any distinctive substantive role other than to provide evidence of criminal intentions.102 But this 98 A Boggs and J Stanton-Ife, ‘Protecting the Vulnerable: Legality, Harm and Theft’ (2003) 23(3) Legal Studies 402. 99 Ibid, 417 (citing Joseph Raz). 100 Recall particularly Etzioni in Chapter 5 (text at n 63). 101 Hinks [2001] 2 AC 241, 262. 102 G Fletcher, Rethinking Criminal Law (Oxford University Press, 2000) 119.

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indicates that the law’s capacity to criminalize dangerousness is of longer standing than the recent period since the ASBO. I will investigate this connection more in the next two chapters. The subjective pattern’s influence has been significant in the higher echelons of the legal profession. In the person of Lord Steyn, at least, it seems to have received powerful judicial backing. This subjectivism is just as striking in his interpretation of another equally fundamental criminal offence.

Assault Common assault is a common law offence of violence against the person that has been judicially expanded in recent years so as to encompass protecting an interest in security from fear of violence. Traditionally the essence of common assault was to cause the victim to apprehend an immediate application of unlawful force. Although it could be committed without any actual force it was understood as an offence of violence because of the immediacy of the threatened force, with many convictions effectively serving to punish inchoate batteries. The immediacy requirement had been interpreted flexibly to include, for example, a man looking in through the window of an elderly woman’s house at night,103 but in 1997 the House of Lords significantly relaxed the immediacy element by allowing that assault could be committed by repeated silent telephone calls. For Lord Hope, it was enough that the calls created an ‘apprehension of immediate and unlawful violence’ in the recipient.104 In his judgment, Lord Steyn uses the word imminent as much as immediate, and concluded the silent calls could be interpreted as meaning ‘I will be at your door in a minute or two’,105 and, if it was interpreted in that way by the victim, that would satisfy the conduct element: ‘The victim is assailed by uncertainty about his intentions. Fear may dominate her emotions, and it may be the fear that the caller’s arrival at her door may be imminent. She may fear the possibility of immediate personal violence.’106 This seems to confirm an earlier ruling of the Court of Appeal that to be liable for common assault it would be enough that the prosecution proves that the defendant knows that their conduct might cause another person to fear unlawful violence at some time ‘not excluding the immediate future’.107 As Ashworth comments these decisions taken together indicate a loosening of the meaning of imminence and perhaps suggest ‘the gentle drift of assault towards an offence of creating fear that does not require . . . proof of immediacy in a strict sense’.108 The offence of assault is no longer defined by the immediacy of the force threatened but by the perception of its possible immediacy in the mind of the person threatened. Though the offence will continue to serve to protect people from the application of unlawful force it will do so by prohibiting the causing of 103 104 105 106 107 108

Smith v Chief Superintendent of Woking Police Station (1983) 76 Cr App R. R v Ireland; Burstow [1998] AC 147 at 166. Ibid, 162. Ibid. R v Constanza [1997] 2 Cr App R 492. A Ashworth, Principles of Criminal Law (Oxford University Press, 2006) 317.

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fear of force that might be immediate, by protecting a right to freedom from that fear. This offence falls just short of the right to security protected by the ASBO for it is limited to acts in which the causing of fear is deliberate,109 but it indicates the direction of travel in the law.

7.5 Imprisonment for public protection The chief subject of this book is the protection of a right to security by substantive criminal offences. That right to security is protected by substantive laws that permit the punishment of people not for their dangerous acts but for their dangerousness. But imprisonment on the grounds of dangerousness was also facilitated by a sentencing power introduced in the period that we are covering. Imprisonment for public protection (IPP) provides such a sharp illustration of the effect of the ideology of vulnerable autonomy on the development of criminal justice that a brief discussion of it needs to be included in our review of the criminal law.110 Moreover, like the vetting and barring scheme, IPP provides an example of the Coalition government taking a practical step back from the protection of the right to security without giving up on it in principle. Under the provisions of the Criminal Justice Act 2003 (as amended by the Criminal Justice and Immigration Act 2008), any offender who was convicted of one of a specified range of violent or sexual offences and was judged to represent ‘a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences’, was liable to a life sentence, ‘imprisonment for public protection’ or an ‘extended sentence’ depending on the precise nature of the offence. For the sake of clarity, I will consider only IPP in detail here although the same considerations applied to the discretionary life sentence. A life sentence or a sentence of IPP could be imposed where the offender who had been adjudged to represent a significant risk of serious harm had also been convicted of an offence that carries a maximum penalty of 10 years or more. An IPP sentence could be imposed where the maximum is less than life or the court did not consider the offence serious enough to justify a life sentence.111 However an IPP sentence could only be imposed if at the time the offence was committed the offender had previously been convicted of one of the specified range of serious offences or the notional minimum term of the IPP sentence was two years or more.112 The IPP sentence itself consisted of a minimum term determined by what was proportional to the seriousness of the offence after which the offender remained 109

The mens rea requirement for assault is recklessness (Savage and Parmenter [1992] 1 AC 699). I have considered IPP in greater detail elsewhere: see P Ramsay, ‘Imprisonment Under the Precautionary Principle’ in GR Sullivan and I Dennis (eds), Seeking Security (Hart, 2012); P Ramsay, ‘A Political Theory of Imprisonment for Public Protection’ in M Tonry (ed), Retributivism Has a Past: Has it a Future? (Oxford University Press, 2011). 111 Criminal Justice Act 2003, s 225(3). 112 Criminal Justice Act 2003, s 225(3A) and (3B). 110

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in custody until the Parole Board was ‘satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined’.113 The test of ‘significant risk’ that is the trigger for the sentence required that the court must be satisfied that the defendant posed a risk to others of death or serious personal injury (whether physical or psychological) that is ‘noteworthy’ or of ‘a considerable amount or importance’.114 If the risk an offender posed was noteworthy it would be reasonable to describe him as dangerous and it would be straining language to do so if the risk he posed was not noteworthy. In other words, as with the imposition of the CPOs, this sentence would be imposed administratively where a court assessed an offender to be dangerous. Equally the detention would come to an end when the parole board was ‘satisfied that it is no longer necessary for the protection of the public’; in other words, when the dangerousness of the offender is no longer sufficient to necessitate detention. IPP served to imprison dangerous offenders for as long as they were assessed as dangerous. This indeterminate period of detention that the offender served on the grounds of dangerousness was by definition in excess of the sentence’s minimum term that was proportional to the seriousness of the offence committed. Traditionally justifications for this type of incapacitation have been sought in utilitarian calculations of the discounted benefits of possibly reduced crime against the costs to the offender. But much like the connection between preparatory acts and eventual complete offences, the connection in IPP between the offence that manifests dangerousness and some later wrongful harm that the offender will go on to commit is essentially speculative. There is no certainty that the dangerousness of the offender will eventually lead to later dangerous or harmful acts. The problem of false positives is notorious in the prediction of future offending.115 But, arguably, as with preparatory acts, a more certain connection between dangerousness and harm can be made if the dangerousness manifest in the offence is regarded as making an accumulative contribution to a climate of insecurity. For as long as a serious offender is dangerous, his being at liberty will make just such a contribution. Once being dangerous is constructed as a wrong, as it is by the ideology of vulnerable autonomy,116 it is for the offender to purge the wrong by reassuring the parole board that he is safe to release—he must endure a presumption of dangerousness.117 There is no problem of false positives because, for as long 113

114 Crime Sentences Act 1997, s 28(6)(b). R v Lang [2006] 1 WLR 2509. These calculations are notoriously unreliable due to the inherent uncertainty that applies to making clinical prediction about an individual’s future offending or, equally to actuarial prediction applied to individual offenders. (For a discussion see L Zedner, ‘Erring on the Side of Safety: Risk Assessment, Expert Knowledge, and the Criminal Court’ in Sullivan and Dennis (eds), Seeking Security.) Moreover this problem becomes more acute, the more serious the offending that officials are trying to predict (see R Wollert, ‘Low Base Rates Limit Expert Certainty when Current Actuarials Are Used to Identify Sexually Violent Predators’ (2006) Psychology, Public Policy and Law 12, 56). 116 Interestingly, this was also the justification for protective sentencing of the dangerous made by Jean Floud and Warren Young in their 1981 report on sentencing: see Ramsay, ‘Imprisonment Under the Precautionary Principle’. 117 Although the courts denied it, academic commentators were united in viewing the effect of the IPP sentence as imposing an effective presumption of dangerousness on the offender, one that is extremely difficult to overcome in practice (see Ramsay, ibid). 115

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as the offender does not purge the wrong by reassuring, his imprisonment (over and above that which was proportionate to the primary wrong of the initial offence itself) is justified as a protection of the right to security. Here we see very clearly the merger of backward-looking retributive punishment and forward-looking incapacitation achieved by the theory of vulnerable autonomy when it justifies state coercion on the grounds of the wrong of causing insecurity. For as long as the offender remains officially dangerous, his incapacitation is proportionate both to the wrong of causing insecurity and to preventive necessity. Although IPP applied only to offenders and its effects were more severe, its substantive structure reflected that of the CPO. Preventive incapacitation was triggered on the basis of a substantive test of failure to reassure, and successful reassurance brought the incapacitation to an end. At the time of writing, the Coalition government has put statutory amendments to parliament that abolish IPP.118 The Ministry of Justice plan is to replace IPP with a combination of extended determinate sentences for dangerous offenders and a mandatory life sentence for a smaller group of very serious offenders. These sentences preserve state coercion and imprisonment for the wrong of dangerousness. Most offenders who meet the IPP criteria will now be subject to extended determinate sentences. They will be required to serve two-thirds of their nominal sentence, where a normal offender will be eligible for release halfway through.119 And they will be released subject to licence and immediate recall for a maximum period of five years for violent offences and eight years for sexual offences.120 The extra minimum period means that prisoners are still to be imprisoned for the wrong of dangerousness, but for a fixed period. The presumption of dangerousness will also persist for a determinate period in so far as they will also be controlled and have their liberty limited by prolonged licence conditions after release that could, if the offender breaches them, result in a return to prison. But they will no longer be imprisoned indefinitely on the basis of their presumed dangerousness beyond the full period of their sentence. For a few very serious offenders, the presumption of dangerousness remains in place for an indeterminate period. In essence the proposal is that any offender convicted of a second violent or sexual offence where the sentence imposed for both offences on grounds of offence seriousness was 10 years or more must be given a life sentence unless it would be unjust in the particular circumstances to do so.121 The threshold for imposing the sentence is not explicitly one of dangerousness, but the life sentence is explicitly to be imposed on prisoners for whom something less than a life sentence would be the appropriate sentence on grounds of offence seriousness. The Minster of Justice, Ken Clarke, made the underlying justification perfectly clear in parliament: ‘the new mandatory sentence is mainly intended to reassure those who . . . are worried that the worst offenders might 118 119 120 121

Legal Aid, Sentencing and Punishment of Offenders Bill, cll 113–117. Legal Aid, Sentencing and Punishment of Offenders Bill, cl 116(3). Legal Aid, Sentencing and Punishment of Offenders Bill, cl 115(8). Legal Aid, Sentencing and Punishment of Offenders Bill, cl 114.

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occasionally get out’.122 The reassurance consists of the fact that the life prisoner who is beyond their tariff will not be released until imprisonment is ‘no longer necessary for the protection of the public’. Mandatory life sentences retain the essential normative structure of IPP. Extended determinate sentences mitigate the severity of IPP for most of the offenders who would have been subjected to them, but they still add extra incarceration and a period of subjection to a preventive order for those assessed as dangerous.

7.6 Conclusion Since 1998 the legislature has enacted a range of offences of very broad scope that are all explicable in terms of the protection of the right to security that the ASBO made explicit and was derived from the theories of vulnerable autonomy. The House of Lords has also interpreted a couple of very long-standing offences in a way that is consistent with this right. In the theft and fraud statutes the right to security extends beyond protection from those who manifest a disposition that fails to reassure with respect to physical security to those who manifest a dishonest disposition and a willingness to exploit others’ vulnerability for gain. The potential for the interpretation of criminal laws in terms of the protection of vulnerable autonomy was seen to be present in the subjective pattern of liability found in the Theft Act 1968. This draws our attention back to the fact, already observed with respect to harassment offences, that the protection of subjective security interests has roots that go back further than the ASBO. The next chapter looks at the earlier protection of these interests. 122

HC Deb, 1 November 2011 col 788.

8 Security Interests in the Criminal Law The penal protection of subjective security interests was not entirely novel in 1998. In this chapter I will consider the position before the ASBO was enacted. The ASBO’s immediate precursors, the harassment offences in the Public Order Act 1986 and the Protection from Harassment Act 1997 were considered in Chapter 3. Here the focus will be on criminal laws of longer standing, the purpose to identify the ways in which earlier forms of penal protection of security interests differed from those that have come after New Labour’s flagship. This chapter is not intended to be a comprehensive account of every potentially relevant offence. Rather it is intended to show the main ways in which threats of punishment could be used to protect subjective security interests, and to argue that although these interests enjoyed protection, the earlier criminal law never amounted to the explicit or comprehensive protection of a right to security offered by the later development under New Labour. I will begin with some truly ancient preventive powers that functionally overlap with the ASBO and have survived into the modern era: vagrancy offences and the bind over. After that I turn to the state’s power to control nuisances and in particular draw attention to one civil preventive order that is much older than the ASBO. Then I move on to offences that explicitly target the causing of fear before finally examining some earlier preinchoate offences dividing them into preparation and possession offences. I will conclude the chapter by assessing the development of this earlier law from the standpoint of the law’s present scope.

8.1 Vagrancy Powers to control the movement of homeless and unemployed labourers stretch back to the Middle Ages. In their ‘modern’ form they are to be found in the Vagrancy Act 1824. The essence of the offence contained in section 3 is begging in public. The section provides that any person convicted of this offence ‘shall be deemed an idle and disorderly person’. Such a person was subject to a maximum of one month in prison until the 1980s when the penalty was reduced to a fine.1

1

Criminal Justice Act 1982, s 70.

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Much more sweeping is section 4 of the 1824 Act, an offence covering repeat offenders against section 3 and anybody found sleeping rough and ‘not giving a good account of himself’. Section 4 provides that such a person ‘shall be deemed a rogue and a vagabond’ and be subject to a maximum of three months in prison. The offence was amended by the Vagrancy Act 1935 so that only rough sleepers who have been directed to ‘reasonably accessible accommodation’ and failed to apply for or refused that accommodation shall be subject to the penalty. According to section 5 repeat offenders already deemed rogues and vagabonds ‘shall be deemed incorrigible rogues’ and made subject to an increased penalty of up to a year in prison.2 These catchall powers clearly target the indigent who are to be feared for their potential involvement in other crimes. They are ancient crimes of dangerousness. But their antiquated substantive language makes explicit the traditional moral order that they threatened. In section 3 the wrongs defined are those of idleness and disorderliness. This language connotes both moral failure (in idleness) and dangerousness (in disorderliness). The wrong of begging is poised between these two mischiefs. We have already noted how in the 1990s the panic about the return of begging to Britain’s streets shifted from a moralized discourse of idleness and scrounging into a panic about the danger posed by ‘aggressive beggars’.3 The wrong in section 4 seems on the face of it to be dangerousness, albeit a dangerousness that is imputed by virtue of the status of (persistent) homelessness. With the abolition of villeinage and the decline of indentured labour, it is hard to conceive of another wrong that could be involved in rough sleeping that is not separately actionable as trespass. But if the failure to reassure is the only remotely plausible wrong to be found in the criminalized status of homelessness, the language of section 4 is aggressively moralized. The persistent beggar or the rough sleeper is a ‘rogue’ (according to the Shorter Oxford English Dictionary, ‘a dishonest or unprincipled person . . . a mischievous person’) or a ‘vagabond’ (originally meaning a criminal but later, according to the OED, ‘a disreputable, idle or worthless person’ as well as ‘a homeless person who wanders about from place to place’). Persistent vagabondage and roguery attracts the label ‘incorrigible’ (meaning ‘incurably bad or depraved’ according to the OED). These may functionally be offences of dangerousness applied in the particular context of homelessness. But their substantive language is not concerned with security but with moral worth. This language betrays their origins in a predemocratic order that has passed away. Enacted at the moment when the customs of rural England were giving way to the industrial revolution, the Vagrancy Act offences permitted the local magistrate to control the threatening armies of landless labourers who, unleashed by the enclosure of agricultural land and robbed of all means of subsistence, could not ‘give a good account’ of themselves. The language of these offences evokes the traditional authority of the gentry who staffed the magistrates’ bench at a time of greater formal social stratification. Their traditional authority routinely involved the moral evaluation of the ‘character and reputation’ 2 3

Vagrancy Act 1824, s 10. See discussion in Chapter 5 (text at n 102).

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of an accused as part of the determination of his criminal responsibility.4 With vagrancy, the rough sleeper is assessed to see if he could ‘give a good account of himself ’. What counts as a ‘good’ account is a matter for the magistrate’s evaluation. And we can say that it is a matter for the magistrate because the wrongs of roguery and vagabondage are still in force, and from time to time they are still enforced against the homeless.5 If they stand out as anomalous now that is because, outside the courts, ‘incorrigible rogue’ and ‘vagabond’ have acquired a wholly ironic usage, denoting that these ‘wrongs’ have lost their moral force. They are vestiges of a vanished moral and political order. In their form the CPOs are a return to the assessment of a defendant’s attitudes and disposition, such as we see in vagrancy.6 Initially the assessment is to determine the necessity for a preventive order, and possibly at a later stage to assess the appropriate punishment for breach of such an order. But, by contrast to vagrancy, the explicit criteria of that assessment have been de-moralized. The question is not presented as a matter of the ‘goodness’ or otherwise of the defendant’s character, but of whether the defendant’s manifest disposition is such as to present a risk of future harm. Moreover, rather than being controlled by a moral criterion, the application of the CPO power depends directly and explicitly on the fears, suspicions or anxieties that the defendant’s behaviour in fact generates. Even if subjective insecurity was always the interest functionally protected by vagrancy laws, the ideological terms on which it is protected have now been reversed. Where once others’ vulnerability was protected in terms of a moral assessment of character,7 now character is morally assessed in terms of the risk of harm it represents to vulnerable others, which is to say by reference to their right to security. This ideological shift is a subtle one, but no less significant for that. The wider decline in traditional sources of authority has had a significant legal impact on an even older preventive power than vagrancy law. The ancient power to bind over persisted into recent times. But it then ran into trouble at the very historical moment that we have been considering, the moment during which the law of harassment, alarm or distress began to emerge.

8.2 The bind over The bind over is a very broad discretionary power that certainly permitted the control of the mere failure to reassure, but its justification was in quite different and 4 See N Lacey, ‘Responsibility and Modernity in Criminal Law’ (2001) 9 Journal of Political Philosophy 249–57. 5 In 1989 there were just fewer than 1,500 prosecutions for vagrancy offences in England and Wales. Over 1,200 were in London and all but 24 were for the begging offence (Parliamentary written answer, HL Deb, 22 May 1991 vol 529 cols 12-3WA). 6 Nicola Lacey discusses this as one example of a wider contemporary tendency in ‘The Resurgence of Character: Responsibility in the Context of Criminalisation’ in RA Duff and SP Green, Philosophical Foundations of Criminal Law (Oxford University Press, 2011). 7 Albeit a ‘moral’ assessment that strikes the contemporary mind as unjust and obnoxious.

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traditional terms. In the period leading up to and immediately after the ASBO’s enactment, the traditional justification for the bind over came under sustained pressure in both English legal circles and the European Court of Human Rights. The story of the bind over provides a legal parallel to the decline of traditional sources of authority in the late twentieth century that was discussed in Chapter 5. And it sheds significant light on the emergence of the right to security in the criminal law. The bind over can be counted the oldest of the state’s powers of ‘preventive justice’.8 The English courts’ power to bind over can be traced back in one form or another to the tenth century and was first given some statutory authority in the Justices of the Peace Act 1361.9 It survived into the present, becoming known as the ‘bind over to keep the peace and/or be of good behaviour’. The modern bind over has a statutory procedure under the Magistrates’ Courts Act 1980, section 115, which permits a justice of the peace to require any person before a court to enter into a recognisance, with or without sureties, to keep the peace or be of good behaviour for a specified period. Failure to keep the peace or be of good behaviour results in forfeiture of any surety. The bind over has been used extensively in magistrates’ courts primarily as a means of preventive control against defendants who are acquitted of criminal charges or against whom charges are dropped, but also as a sentence on conviction for minor offences.10 The essence of the bind over power is ‘an acknowledgement by the person bound over of his indebtedness to the sovereign in the sum of the recognisance’,11 although a power to imprison anyone who refuses to make the recognisance as ordered, or until they comply with the order, was added to the modern bind over.12 The bind over to keep the peace and the bind over to be of good behaviour are two separate powers. Both have traditionally been deployed to catch actions on the edge of illegality that might escape criminal liability.13 For a long time the grounds for the exercise of the two powers, and the definitions of what constituted conduct contra pacem and contra bonos mores, were equally vague and overlapped. A breach of the peace required something more than a mere threat,14 and, although it had long been held that alarming a neighbourhood by making a menacing noise and disturbance would be enough,15 by the 1980s the courts had ruled that breach of the peace had to be related to actual violence or, at least, the threat of violence: there is likely to be a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.16

8

W Blackstone, Commentaries on the Laws of England, vol 4 (University of Chicago Press, 1979)

248.

9

10 11 12 13 14 15 16

Law Commission, Binding Over (Law Com No 222, 1994) 7. Law Commission, Binding Over: The Issues (Working Paper 103, 1987). AP Carr and AJ Turner (eds), Stone’s Justices Manual (Butterworths, 2007) [3]–[360]. Magistrates’ Courts Act 1980, s 115(3). The maximum is six months. L Farmer, Criminal Law, Tradition and Legal Order (Cambridge University Press, 1997) 114. Ingle v Bell (1836) 1 M&W 516. Howell v Jackson (1834) 6 C&P 723. R v Howell [1982] QB 416, 427.

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Fear here is one among the harms that the bind over sought to prevent, fear of harm arising from acts of public disorder. The meaning of actions contra bonos mores, on the other hand, was entirely within the magistrates’ discretion. As one commentator observed of the bind over’s history: ‘Good behaviour came to mean keeping the peace and something more. How much more has never been determined . . . .’17 In the High Court in 1988 Lord Justice Glidewell ruled that: . . . contra bonos mores means contrary to a good way of life. What is a good way of life is for the magistrates to decide . . . contra bonos mores is conduct which has the property of being wrong rather than right in the judgment of the vast majority of fellow citizens.18

Like the ASBO, the bind over is a procedurally ambiguous order that prohibits nuisances that are very broadly defined and certainly extend well beyond criminal conduct, and that therefore allows the maximum flexibility and scope to the authorities and discretion to the courts. The ASBO occupies ground adjacent to and overlapping with the bind over since, as District Judge Paul Tain observes, ‘there are very few categories of bind over behaviour which do not fit into the categories challenged by anti-social behaviour legislation’.19 In particular the breadth and vagueness of breach of the peace before the 1980s, and of behaviour contra bonos mores throughout, allowed the bind over to capture conduct that would have presented no intrinsic risk of harm beyond mere failure to reassure the authorities.20 There are numerous differences between the ASBO and the bind over, but for our purposes the most significant difference lies in their substantive language.21 While the bind over power could be used to control conduct causing the more general insecurity that is targeted by the language of harassment, alarm or distress in the POA 1986, section 5 and subsequently in the ASBO, the language of the Queen’s peace and of good behaviour indicated a different source for the liability than the security of a vulnerable subject. That source was the duty to uphold the good order guaranteed by the sovereign or the ‘good way of life’ as defined by the sovereign’s justices of the peace. This difference in concept has proved to be of great legal significance in recent years.

17

D Williams, Keeping the Peace (Hutchinson, 1967) 89. Hughes v Holley (1988) 86 Cr App R 130, 139. P Tain, ‘Keeping the Peace’ (2003) 147(28) Solicitors’ Journal 839. 20 The most notorious examples being the extensive use of bind overs to prevent striking miners from moving around the country in pursuit of their dispute with the National Coal Board in 1984–5 (see L Christian, ‘Restriction Without Conviction’ in B Fine and R Millar, Policing the Miners’ Strike (Lawrence & Wishart, 1985) 120 and 132–3). 21 The other differences include the clearly defined procedure for the ASBO that the bind over lacks; the link between the scope of an ASBO and the conduct complained of, since the grounds for granting an order include the requirement that it is ‘necessary’ to protect people ‘from further antisocial acts’ by the defendant—by contrast there is no such connection required in imposing a bind over to be of good behaviour and such a connection was introduced only latterly with respect to the bind over to keep the peace (Law Commission, Binding Over 14–17); and the ASBO permits a much greater intrusiveness into the lives of those subject to it, arising from the power to lay down specific prohibitions, which could not be done with a bind over (see R v Randall (1986) 8 Cr App R (S) 433). 18 19

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Having persisted for more than a millennium, in the late twentieth century the bind over became increasingly controversial among lawyers in the UK. In 1994 the official advisory body on law reform, the Law Commission, published a report recommending the abolition of the bind over without replacement.22 The ancient power was not without its supporters. Of the judges consulted by the Law Commission, all but two ‘rejected the assertion that there was anything unconstitutional in a court having power to restrict, by the imposition of custodial or financial sanctions, the repetition of conduct which, although it may not be criminal, is socially objectionable’.23 Moreover, the report admits that this was the view of the majority of organizations and individuals ‘who had experience of the way those powers operated in practice’.24 Nevertheless the Law Commission recommended abolition. The Law Commission had many procedural criticisms but at the heart of its case for abolition was substantive vagueness. With respect to the bind over to be of good behaviour the Commission’s objection was that ‘the width and vagueness of the notion of being of good behaviour’ rendered it ‘difficult, if not impossible, to define the limits of this power of control’.25 Such an order ‘fails to give sufficient indication to the person bound over of the conduct which he or she must avoid in order to be safe from coercive sanctions’.26 Keeping the peace was subject to a more restricted variant of the same criticism, given that its definition was generally clearer, but still contained potential vagueness in the idea of conduct causing another to apprehend harm to his person or property. In a series of appeal cases following the Law Commission report, the courts narrowed further the definition of conduct that breached the peace to mean conduct that causes a threat of imminent violence,27 and a very restrictive approach to the use of the bind over to keep the peace against otherwise lawful behaviour was endorsed.28 When the bind over to keep the peace came to be challenged at the European Court of Human Rights, the Strasbourg court upheld the power on the ground that the concept of breach of the peace had by then been clarified by the English courts with the degree of precision required by the Convention.29 But it also ceased to be a power that could be used against behaviour that merely failed to reassure. That was still a possibility under the bind over to be of good behaviour, but this power has not fared so well at Strasbourg. In 2000, in Hashman and Harrup v UK, the ECHR took the Law Commission’s view and ruled that the power to bind over on the ground that a person’s actions were contra bonos mores violated Article 10(2) of the European Convention on Human Rights.30 In that case protesters against fox hunting had been bound over, and the court ruled that contra bonos mores was simply too vague to be regarded as 22

23 Law Commission, Binding Over, 15. Ibid, 30. 25 26 Ibid, 4. Ibid, 41. Ibid, 42. 27 Redmond-Bate v DPP [1999] Crim LR 998. 28 Foulkes v Chief Constable of Merseyside [1998] 3 All ER 705; see also Percy v DPP [1995] 1 WLR 1382; Selvanayagam v DPP (1996) JP Reports 155. 29 Steel and Others v UK (1999) 28 EHRR 603, 637. 30 Hashman and Harrup v UK (2000) 30 EHRR 241. 24

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an interference with the right to free expression, which was truly ‘prescribed by law’ as Article 10(2) of the Convention requires. The legal basis of the power to bind over to be of good behaviour is therefore now in doubt since, by virtue of section 6 Human Rights Act 1998, UK courts are required to act compatibly with the European Convention on Human Rights.31 The problem for the European Court of Human Rights (ECtHR) in Hashman was that for a restriction on human rights to be prescribed by law then it must be sufficiently precise to be ‘foreseeable’ on the part of persons subject to it. The court compared the definition of contra bonos mores with an Austrian provision, which impugned conduct ‘likely to cause annoyance’, and which the Strasbourg court had upheld in the case of Chorherr v Austria. The court had ruled that the Austrian power was prescribed by law within the meaning of the Convention because the behaviour concerned was described ‘by reference to its effects’— namely ‘annoyance’.32 By contrast, ‘conduct which is wrong rather than right in the judgment of the majority of fellow citizens . . . is conduct which is not described at all, but merely expressed to be “wrong” in the opinion of a majority of citizens’.33 While this reasoning disapproves of the bind over to be of good behaviour, it seems to create no problems for the ASBO since the grounds for imposing an ASBO though subjective and very broad are, nevertheless, like the power in Chorherr, defined by reference to the effect of conduct—namely ‘harassment, alarm or distress’.34 The Hashman court’s reasoning is a pointed rejection of the idea that, when it comes to controlling threats to the collective welfare, the substantive definition of what is in the interests of the people can be left solely to the discretion of the magistrate. For the Strasbourg court, the scope of this ancient power defined in these traditional terms is not determinate enough to be prescribed by law. But, in the court’s view, a broad discretionary power is sufficiently determinate, if it is defined in terms of its subjective effects on other citizens, as the ASBO power is. It is this moral ‘pluralization’ of the grounds for the power’s exercise that is the key substantive change, and it indicates the subtle shift in the moral content of the behaviour that is controlled by the ASBO when compared with that controlled by the bind over. Where the bind over required people not to do ‘wrong’ as defined by the sovereign’s justice of the peace, the ASBO specifies the wrong as a disposition 31

See Stone’s Justices Manual [3]–[540]. It does not follow that binding over to be of good behaviour would necessarily violate the Convention in all cases, but the lack of a clear connection between the behaviour complained of and that to be avoided so as to comply with the bind over would make many bind overs vulnerable to the effects of the Hashman ruling. The Home Office responded to the Hashman decision and the Law Commission report with a consultation document that recommended remodelling the bind over on the model of the ASBO: see Home Office, Bind Overs: A Power for the Twenty-First Century (TSO, 2003). 32 Hashman and Harrup v UK (2000) 30 EHRR 241, 257. 33 Ibid, 257–8. 34 Moreover, the Court of Appeal has ruled that the prohibitions in the ASBO itself must be clearly stated if they are to be ‘necessary’ to prevent future anti-social behaviour by the defendant: see R v Boness and Others [2006] 1 Cr App R (S) 120.

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that fails to respect others so as to cause them feelings of insecurity. The ASBO power endeavours to enforce reassuring behaviour, and this shift marks an important alteration in the rationale of the state’s power, one that seems to escape the legal problems encountered in recent years by the bind over power. With the ASBO in particular, the subject’s liability to the sovereign with respect to security turns not on abiding by a shared substantive morality defined by the sovereign’s authority, but on not undermining the perception of security among the sovereign’s other subjects. The state devolves to its many individual subjects a part of the moral authority to determine what behaviour serves the welfare of the people. It has also reformulated what constitutes the welfare of the people in a more explicitly instrumental language. The people’s moral welfare appears as a matter of individuals’ peace of mind and self-esteem, of whether or not others reassure them or undermine these feelings, rather than a question of any shared substantive morality as such. This new version of moral welfare might even be thought a de-moralized language except that the theory of vulnerable autonomy provides a theory of right and wrong in terms of respect for others’ vulnerability. Of course the authorities still enjoy a very wide interpretive discretion, provided both by the ASBO’s availability on the grounds that a person has behaved in a manner only ‘likely to cause harassment, alarm or distress’ and by the discretion to ignore conduct that the defendant can show to be reasonable (which creates a very broad interpretive discretion towards any particular behaviour). A de facto social norm may be officially constructed and imposed in this way; the ultimate determination of what is not reassuring remaining with the sovereign’s representatives. But it is a discretion to decide what will fail to reassure some others, not to decide what is good for all. The grounds for the exercise of the power are pluralized and contain no specific universally asserted substantive content, not even what would be ‘wrong rather than right in the judgment of the vast majority of fellow citizens’. The ASBO’s grounds require only that each individual must respect the actual sensibilities of others regardless of what the content of those sensibilities consists (except where it is reasonable not to do so). The moral welfare of the people is explicitly presented as a question of what in fact makes them feel (in)secure. The state’s role is presented as supporting them in ensuring what is necessary for them to feel subjectively secure, by enforcing the conditions of this pluralized welfare and tempering them with considerations of reasonableness. The bind over was a broad power. So broad that it could control behaviour that was likely to cause fear or anxiety on the grounds that it was morally wrong. The ASBO, by contrast, is a power to define and control behaviour as wrong because it is likely to cause fear and anxiety. The justification of the state’s power has been stood on its head. Between the moralized power of traditional authorities and the contemporary right to security lies the modern penal law. This too has been deployed in the service of subjective security interests. I will deal first with the broad penal powers that have been based on the law of nuisance.

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8.3 Nuisance Public nuisance The common law offence of causing a public nuisance is a public welfare offence of some antiquity and defined in a notoriously vague and broad way.35 One commonly relied on definition is that public nuisance is any ‘act not warranted by law or an omission to discharge a legal duty, which . . . obstructs or causes inconvenience or damage to the public in the exercise of rights common to all of His Majesty’s subjects’.36 This definition can certainly be construed to include the causing of fear or anxiety.37 But the offence originates in part in the adapting of private nuisance to apply to injuries suffered in common by a class of subjects.38 What would be a private nuisance to one person’s enjoyment of their property becomes a public nuisance only if suffered by ‘a representative cross-section of the class’ of persons,39 either because it affects their enjoyment of property in the same way or because it affects public property. This common injury is essential to the publicness of public nuisance, so that an injury caused severally to separate individuals, still less to a single individual, could never constitute the offence.40 Public nuisance can, therefore, encompass feelings of insecurity, but it is not an offence of mere causing of fear, still less of failing to reassure. Although fear and anxiety might be sufficient to endanger comfort or amenity, it must be fear or anxiety that is suffered by a representative cross-section or significant part of the community. It cannot be targeted at or only experienced by a particular person. Although public nuisance is flexible, it is not context-dependent in the same way that anti-social behaviour is. The subjective fear caused will not constitute public nuisance unless it is proved that it has been experienced by a representative crosssection, giving it some objective quality. Or, to put it another way, nuisance requires proof of an injury to comfort that is more than the injury that would be suffered by the most sensitive. Nuisance law does not make the vulnerable representative of the community. Although public nuisance is vague and permits a great deal of discretion to prosecutors and judges, it is discretion about what causes a public nuisance and that is not the same as violations of others’ security interests as such, although the categories overlap. Public nuisance does not protect a right to security. It is this substantive difference that also distinguishes the ASBO from its most obvious formal and functional predecessor. 35 For the history of the offence see JR Spencer, ‘Public Nuisance: A Critical Examination’ (1989) 48 Cambridge Law Journal 55. For a more recent discussion and reform proposal, see Law Commission, Simplification of Criminal Law: Public Nuisance and Outraging Public Decency (Law Com Consultation Paper No 193, 2010). 36 A-G v PYA Quarries Ltd [1957] 2 QB 169 per Romer LJ. 37 See Madden [1975] 1 WLR 1379. 38 Spencer, ‘Public Nuisance’. 39 A ‘question of fact in every case’: PYA Quarries [1957] 2 QB 169, Romer LJ at 184. 40 Rimmington [2006] 1 AC 459, HL, Lord Bingham at para [37].

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Statutory nuisance abatement notice The statutory nuisance abatement notice powers have a long history stretching back into the nineteenth century but in their contemporary form are to be found in the Environmental Protection Act 1990. Functionally the abatement notice can be regarded as an anti-social behaviour power;41 there are some situations where it could be used as an alternative to the ASBO,42 and it would have been a legal tool familiar to the local government officials who innovated the original proposals that eventually became the ASBO. Moreover the basic formal structure of the abatement notice is strikingly similar to that of the ASBO. Although the difference between the substantive law of nuisance and that of the ASBO, which we have already noted in relation to public nuisance, differentiates the two orders, it is worth just briefly considering their formal similarities. Section 79(1) Environmental Protection Act 1990 lists a number of circumstances that may constitute a ‘statutory nuisance’. These include, for example, ‘any premises in such a state so as to be prejudicial to health or a nuisance’;43 ‘smoke emitted from premises so as to be prejudicial to health or a nuisance’;44 fumes; dust; noise; and other undesirable things escaping from premises ‘so as to be prejudicial to health or a nuisance’. This statutory ‘nuisance’ has been held to have the same meaning as nuisance at common law,45 while ‘prejudicial to health’ is further defined by statute as ‘injurious, or likely to cause injury, to health’.46 The Act empowers a local authority that is satisfied that a statutory nuisance exists, or is likely to occur or recur to serve ‘an abatement notice imposing all or any of the following requirements: requiring abatement of the nuisance or prohibiting or restricting its occurrence or recurrence; requiring the execution of such works, and the taking of such steps, as may be necessary for any of those purposes . . . ’.47 Failure to abide by the notice requirements is a criminal offence of strict liability allowing a defence of reasonable excuse48 or, in the case of some but not all of the nuisances, that the best practicable means to abate the nuisance have been employed.49 The penalty for failure to comply with the notice is a fine or application by the local authority for a High Court injunction.50

41

See S Collins and R Cattermole, Anti-Social Behaviour: Powers and Remedies (Sweet & Maxwell, 2004) 238 and 242. 42 For a notorious example of an ASBO imposed after repeated breaches of an abatement notice, see ‘Women arrested for breaching “noisy lovemaking” Asbo’, Daily Telegraph, 24 April 2009. 43 Environmental Protection Act 1990, s 79(1)(a). 44 Environmental Protection Act 1990, s 79(1)(b). 45 NCB v Thorne [1976] 1 WLR 543, 547–8. 46 Environmental Protection Act 1990, s 79(7). 47 Environmental Protection Act 1990, s 80(1). 48 Environmental Protection Act 1990, s 80(4). 49 Environmental Protection Act 1990, s 80(7)–(8). 50 Environmental Protection Act 1990, s 80(5)–(6).

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This basic structure is very similar to the ASBO. The EPA 1990, like section 1 CDA 1998, allows the imposition of an order on grounds of a finding that the person is responsible for conduct that may be: • a criminal wrong (that is, a public nuisance); or • a civil wrong (a matter such as noise or smells or smoke that interfered with a private claimant’s enjoyment of their property); or • not an actionable wrong at all but for the effects of the EPA 1990 (for example, something merely prejudicial to health). These grounds include circumstances in which the harm at which the power is aimed has not in fact been caused but is nonetheless ‘likely to occur’. The order or notice imposes specific criminal law obligations on a particular legal or natural person. Failure to comply is an offence of strict liability subject to a reasonable excuse defence. The terms of the notice are explicitly preventive and may be very specific. The conduct required of the person subject to the notice is in effect derived from the risk of further nuisance that the person represents. The abatement notice is issued by the local authority, with the person subject to it having 21 days to appeal to the magistrates’ court under its civil jurisdiction to contest the notice on the grounds, among others, that it is not justified, it is unreasonable or that it is served on the wrong person.51 Although the abatement notice is more plainly an executive power under administrative law, just as with the CPOs, criminal law duties are imposed by means of administrative processes, and ‘the criminal law is . . . in a subsidiary capacity to administrative controls (that is, to the regulatory system)’.52 The critical difference with the ASBO is that statutory nuisance, like public nuisance, is not a context-dependent category in the way that anti-social behaviour is. A statutory nuisance exists on the grounds of a nuisance at common law only in so far as the use of premises is unreasonable in the context of its locality53 and its duration,54 and in so far as the use of the land affected is not a hypersensitive one.55 In other words, the occurrence of a nuisance depends upon whether particular reactions to it are reasonable rather than on whether a particular reaction was likely to occur at all. The dependence on context exhibited by statutory nuisance is mediated by reasonableness, not by hypersensitivity, as it is with anti-social behaviour. Of course, the reasonableness of uses, especially in relation to geographical context, will import a social context and a great deal of official discretion, but this context influences the adjudication in a different way to the influence of context in anti-social behaviour. Taken at its broadest, the issue in statutory nuisance is not that the public authority must take action because a person has a disposition to cause insecurity, but that it must do so because the person has caused or is likely to 51 52 53 54 55

Statutory Nuisance Appeals Regulations 1995 (SI 1995/2644). S Bell and D McGillivray, Environmental Law (Oxford University Press, 2000) 213. Sturges v Bridgman (1879) 11 ChD 852. Harrison v Southwark and Vauxhall Water Co [1891] 2 Ch 409. Robinson v Kilvert (1889) 41 ChD 88.

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cause insecurity that, in its context, any person might be expected to experience. As with the public nuisance the reactions of particular individuals to the defendant’s conduct are subjected to a normalizing standard—not the other way around. Similar considerations apply in a matter ‘injurious, or likely to cause injury, to health’, which the courts have found to be an objective standard of the likely effects on the health of the average person disregarding hypersensitivity,56 and this requires some expert evidence to prove.57 In practice, although statutory nuisance overlaps with the injuries to subjective security interests that the ASBO targets, it is not defined by them but by injury to objectively defined interests, modelled on private property interests, albeit interests that can be enjoyed in common. However, if the substantive content of nuisance differs from that of harassment, alarm or distress, the statutory nuisance abatement notice still has the form of a CPO and that allows, at least in theory, for liability for a failure to reassure. A local authority may impose penal obligations for failure to do something that is necessary to prevent a nuisance that is only likely to occur or recur. In so far as such a failure creates insecurity rather than actually causes the nuisance then that could be seen as a failure to reassure. Of course, it is open to doubt that the perception of a risk of a mere nuisance would ever be enough to create insecurity of the sort that a failure to reassure with respect to a terrorism, sex or other serious criminal offence could. But it is interesting that the CPO’s liability for failure to reassure is anticipated in the nuisance prevention powers of the welfare state. Statutory nuisance anticipates the form of the CPO but its substantive law is, like that of public nuisance, tied ideologically to the proposition that the relations of subjects can be defined in terms of their interests as property holders and these are objectively defined by standards of reasonableness.58 This is a hugely discretionary jurisdiction but it is not one that is oriented directly or explicitly to the protection of a right to security.

8.4 Fear offences Public order offences We have already considered the ASBO’s immediate precursors in the Protection from Harassment Act 1997 and the POA 1986. We noted that they formed part of the trend to understand citizens as vulnerable consumers and potential crime victims that emerged with the weakening grip of traditional forms of authority, a trend for which the ASBO provided the penal flagship. The offence under section 5 POA 1986 prohibited the causing of harassment, alarm or distress by conduct that was intended to be threatening, insulting, abusive or disorderly or where the 56

Cunningham v Birmingham City Council [1998] Env LR 1. London Borough of Southwark v Simpson [1999] Env LR 553. Another way of putting this would be to say that the statutory nuisance does not define welfare in a purely psychological sense as recommended by Giddens and achieved by the law of harassment, alarm or distress. 57 58

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defendant was aware that it might be. In its scope, the offence fell short of the ASBO’s targeting of conduct that failed to reassure but nevertheless the explicit rationale for the offence was, like that of the ASBO, the need to protect the vulnerable from the intimidating effects of anti-social behaviour. The section 5 offence was motivated by government at the time on the explicit ground that there was no available public order offence or other power that covered the mischief that this offence was aimed at. This mischief occurred, as the 1986 white paper put it, where ‘the fear engendered is not directed to any specific result likely to follow from the conduct but instead consists of a more general state of anxiety or alarm’.59 It is freedom from this generalized fear of crime that the ideology of vulnerable autonomy upholds as a right of citizenship. The problem in the mid-1980s was that the causing of this more general state of anxiety was likely to escape the scope of existing public order offences precisely because it ‘may not be likely to cause fear of violence to people and property’.60 The other offences in the POA 1986—violent disorder, affray and so on—all required some such specific effect, as had their common law and statutory predecessors. These offences also generally required that the conduct would cause fear to a person of reasonable firmness.61 Even the broadest available public order offence before 1986 required that conduct be intended or likely ‘to provoke a breach of the peace’.62 Though the power was broad, we have already noted in respect of the bind over that breach of the peace had to be related to actual violence or, at least, the threat of violence.63 Prior to the 1986 Act, the Home Office position was that there was no criminal offence that explicitly prohibited or prevented the causing of the sort of generalized anxiety targeted by section 5, and subsequently the ASBO. That is not to say that subjective security interests were not protected at all by public order law before 1986. But they were protected only from deliberate threats of violence rather than from the mere causing of insecurity as with section 5 POA 1986, and still less were they protected from the mere manifestation of a disposition that fails to reassure that characterizes the ASBO, the CPOs and the preinchoate offences.

Threat offences It has long been an offence to threaten to kill another intending that the other believe that the threat will be carried out.64 More recently it was made an offence to engage in bomb hoaxes that are intended to be believed.65 These are threats that given their likely consequences are on the borderline of dangerous acts, although they still lack the requirement of immediacy found in the old assault law or in the 59 60 61 62 64

Home Office, Review of Public Order Law (Cmnd 9510, HMSO, 1985) para [3.25]. Ibid. See the definitions of affray, violent disorder, unlawful assembly in the Public Order Act 1986. 63 Public Order Act 1936, s 5. Howell [1982] QB 416. 65 Offences Against the Person Act 1861, s 16. Criminal Law Act 1977, s 51.

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law of criminal attempts, and they remain mere threats. But the gravamen of these offences is a deliberate threat of violence made specifically against a person’s most vital interest and a threat that is intended to be credible. It is no mere failure to reassure and requires a lot more than a mere manifestation of the defendant’s hostility to another’s security interests. Further away from the borderline with dangerous acts are threats to damage property.66 But again this offence requires a deliberate threat intended to be believed against a specific interest. The offence of harassment of a debtor ‘with demands for payment . . . calculated to subject him or members of his family or household to alarm, distress or humiliation’ also protects subjective security, but in the very specific context of the bullying of people into making payment.67 Less specific interests in subjective security have enjoyed protection in the area of written communications, by the prohibition of threats communicated either by letter,68 or by electronic means.69 Once again these offences prohibit necessarily deliberate acts containing specific threats or menaces, and threats by letter must be made with the purpose of causing distress or anxiety.70 However, unlike the other threat offences, where electronic means are used there is no need to prove an intention to cause any sort of fear and these offences are clearly capable of prohibiting conduct that merely manifests a disposition of indifference to others’ security interests. Indeed, as there is no requirement for the threat to be seriously intended at all, entirely innocently intended remarks manifesting no such disposition are covered.71 Various threat and public order offences protected subjective security interests before the 1990s but, with the partial exception of threats by electronic means and section 5 of the Public Order Act 1986, they did so in a way that fell short of protecting a right to security. Like the nuisance powers, they do not assume that the normal subject’s autonomy is vulnerable to a general anxiety about those who do not reassure. Rather they treat threats as specific attacks on specific security interests.

8.5 Preinchoate offences In the previous chapter we distinguished preinchoate offences from the properly inchoate offences of attempt, conspiracy, and encouragement on the grounds that the inchoate offences required proof of an objectively dangerous act, while the 66

67 Criminal Damage Act 1971, s 2. Administration of Justice Act 1970, s 40. Malicious Communications Act 1988, s 1. 69 Telecommunications Act 1984, s 43, subsequently replaced by Communications Act 2003, s 127. 70 Malicious Communications Act 1988, s 1(b). 71 This is the reason why the conviction of Paul Chambers became a minor cause celebre in 2010. He had joked on Twitter that he would blow up an airport that had frustrated his travel plans when it closed temporarily due to bad weather. By no stretch of the imagination could Chambers be said to have manifested a dangerous disposition (merely, in contemporary circumstances, a foolish one). See ‘Twitter Joke Trial: Paul Chambers Loses His Appeal Against Conviction’, Guardian, 11 November 2010. 68

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preinchoate offences only required proof of a subjectively dangerous actor. In so doing the inchoate offences might protect subjective security interests but they did so by prohibiting and punishing the creation of objective threats rather than merely unreassuring conduct. Preinchoate offences by contrast permit the punishment of the merely unreassuring and they were not unknown before 1998. In these offences, mostly of twentieth-century vintage, the early signs of what was to become the right to security begin to emerge.

Preparation offences The common law offence of doing an act tending and intended to pervert the course of justice, although generally deployed against actual interference with or bribery of witnesses, the destruction or concealment of evidence, the making of false allegations, and so on, also covers actions that are only logically preparatory and may not in fact involve any actual perversion of the course of justice. Assisting a person to evade arrest would count, for example, and there is no need to prove the guilt of the person assisted.72 Conviction for such an act could conceivably be for manifesting a disposition of hostility to the law. Another preinchoate offence was going equipped under the Theft Act 1968, section 25. It was an offence for a person ‘when not at his place of abode’ to have with him ‘any article for use in the course of or in connection with any burglary, theft or cheat’.73 Going equipped must be counted preinchoate in so far as the offence appears to be one of preparation and does not require proof that any choice to violate the law be manifest to others. Going equipped replaced the Larceny Act 1916, section 28, which had prohibited a number of narrower, more specific preparatory acts or possessions with ulterior intent that occurred by night. These offences were on the borderline with the properly inchoate offences. Going equipped moved the law away from the borderline. The wrong that is effectively prohibited is the disposition to burgle, steal or defraud albeit only on the occurrence of a particular incident of that disposition and away from the defendant’s home. Here we see rather precisely the move towards Fletcher’s subjective pattern of criminality and away from what he calls the ‘manifest pattern’ in which an intrinsically wrongful act is a distinct aspect of liability.74 The older offences in the Larceny Act targeted specifically defined actions that by virtue of occurring by night were objectively suspicious. The Theft Act offence targets a form of possession that will usually be objectively innocuous but indicate the subjective dangerousness of the actor. Another recently enacted preparation offence was being knowingly concerned in or taking steps with a view to fraudulent evasion of VAT.75 72

See Thomas [1979] QB 326. Theft Act 1968, s 25. The provision with respect to cheat ceased to have effect in 2007 when that element was replaced by the much broader possession offence in s 6 of the Fraud Act 2006. 74 G Fletcher, Rethinking Criminal Law (Oxford University Press, 2000) 115–18. 75 Value Added Tax Act 1983, s 39(1). 73

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Handling stolen goods The shift into the subjective pattern is apparent also in the Theft Act 1968, section 22, which created a very broad offence of handling stolen goods. The policy behind the offence was to ‘combat theft by making it more difficult and less profitable to dispose of stolen property’.76 While the law certainly punishes the activities of professional fences, who directly and knowingly encourage the commission of theft offences, it is defined in terms so wide as to punish conduct that is very remote from any actual offence. Handling replaced a much narrower offence of receiving stolen goods knowing them to be stolen contained in the Larceny Act 1916, section 33, an offence that required proof of actual possession.77 At its widest, handling, by contrast, punishes a person for dishonestly ‘arranging to receive’ stolen goods or dishonestly ‘undertaking or assisting in their retention, removal, disposal or realization’ (although they must do so knowing the goods to be stolen and ‘for the benefit of another person’ and not for themselves). This includes conduct that at best could be described, like money laundering, as abstract encouragement— manifesting an attitude of indifference to the future security of others. Moreover, a person could be made liable for conspiring, encouraging or attempting to ‘arrange’ or ‘undertake’ to carry out one of these remote activities!

Impossible attempts Another more recent preinchoate offence is impossible criminal attempt, an offence created by the Criminal Attempts Act 1981. At common law, a defendant who falsely believed that she was committing an offence because she was mistaken about the factual circumstances could not be liable for an attempt.78 The Criminal Attempts Act changed that allowing that an attempt would be committed even though the commission of the complete offence would have been impossible in the circumstances, providing it could be proved that the defendant intended to commit the offence on the basis of the facts as he believed them to be.79 Many impossible attempts would outwardly manifest all the characteristics of an attempt or complete offence and thus meet the ordinary criterion of the ‘more than merely preparatory’ test in section 1(1).80 But, theoretically at least, impossible attempts would include circumstances where nothing about the defendant’s act would amount to a public manifestation of his criminal intentions. A defendant might employ entirely inappropriate means to try to commit an offence and yet be liable if the prosecution could prove that he believed them to be appropriate. In such circumstances a defendant would be liable for the dangerous disposition even though it resulted in an innocuous act.

76 77 79

Criminal Law Revision Committee 8th Report (1966) para [127]. 78 Frost and Hale (1964) 48 Cr App R 284. Haughton v Smith [1975] AC 476. 80 Criminal Attempts Act 1981, s 1(2)–(3). See for example Shivpuri [1987] AC 1.

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Possession offences There are numerous possession offences. I will consider only some of the more prominent. A preinchoate possession offence much like the terrorism and fraud offences enacted since 1998 is to be found in the Criminal Damage Act 1971, section 3: possession of anything with intent to destroy or damage property.81 Like the other possession offences of ulterior intent the object possessed can be literally anything and the wrong targeted is nothing other than the disposition revealed by the ulterior intent. Another example is the possession of anything intended to be used ‘for the purpose of making a counterfeit of a currency note or of a protected coin with the intention that it be passed or tendered as genuine’.82 But the classics of the possession genre are possession of firearms without a certificate,83 and possession of controlled drugs.84 These offences have been around in one form or another since the 1920s. In both cases there is no need to prove ulterior intent, although such aggravated offences also existed, for example possession of a firearm with intent to endanger life,85 or possession of a controlled drug with intent to supply.86 All possession offences prohibit a status rather than conduct and the pure possession offences prohibit this status alone.87 The pure possession offences are highly preinchoate since there is no need even to prove intent to do harm. In so far as there has been a consistent identifiable theme in firearms regulation in the UK, it appears to be a policy of preventing firearms falling into the wrong hands—those of children, the mentally ill and criminals.88 The mentally fit, respectable adult could gain a certificate, although in practice increasingly few categories of firearm would be so licensed.89 Though supporters of this policy invoke the aim of lowering the actual risk of harm done by the misuse of firearms, there appears to be little empirical support for the effectiveness of regulation in this respect.90 The weapons that are used in the course of criminal offences are usually illegally held and there appears to be no shortage of illegal weapons.

81 The offence appears to originate in the Law Commission’s report Malicious Damage (Law Com No 23, 1969) and to be modelled on going equipped but with a scope widened on the grounds that ‘in the context of damage to property, the mischief in relation to dangerous articles lies in the fact of possession rather than in the fact that they are carried about’ (ibid, 37 n 71). 82 Forgery and Counterfeiting Act 1981, s 17. 83 Firearms Act 1968, s 1. The theoretical argument with respect to this offence and that of going equipped discussed above will between them serve to cover a number of other offences such as possession of offensive weapon in a public place (Prevention of Crime Act 1953, s 1) or having an article with a blade or a point in a public place (Criminal Justice Act 1988, s 139). 84 Misuse of Drugs Act 1971, s 5(2). 85 Firearms Act 1968, s 16. 86 Misuse of Drugs Act 1971, s 5(3). 87 M Dubber, ‘The Possession Paradigm: The Special Part and the Police Power Model’ in RA Duff and SP Green, Defining Crimes: Essay on the Special Part of the Criminal Law (Oxford University Press, 2005). 88 See C Greenwood, Firearms Control (Routledge and Kegan Paul, 1972). 89 See especially the Firearms Act 1937, Firearms (Amendment) Act 1988, Firearms (Amendment) (No 2) Act 1997. 90 For critiques see Greenwood, Firearms Control, 242–8 and R Munday and J Stevenson, Guns and Violence: The Debate Before Lord Cullen (Piedmont, 1996) 38–58.

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The effect of firearms control in this context is, as Markus Dubber argues, as much a question of identifying dangerous people as it is of lowering objective risk.91 The person who possesses a firearm without a certificate is someone who has been unwilling to subject their possession of a lethal weapon to the surveillance of the authorities and that would appear to be conduct that fails to reassure. Firearms possession offences are like preparation offences: in so far as they lower objective risk, they do so by identifying a state of affairs that constitutes a person’s dangerousness and punishing people for their dangerousness where they permit such a state of affairs to exist. The arguments with respect to drugs possession are a little more confused. In the case of drugs, access to the controlled substances was restricted to medical practitioners, researchers and others licensed by the Secretary of State.92 As with guns, the fact of unlicensed possession reveals at best a willingness to permit the unlawful state of affairs to persist in defiance of the regulation.93 What is less clear is why this willingness should be regarded as constituting a dangerous disposition apart from the fact of defiance. What is dangerous about possessing drugs? The introductory text to the Misuse of Drugs Act 1971 states that the substances controlled by the Act are ‘dangerous or otherwise harmful’. Assuming for the sake of argument that this claim is factually correct, in so far as possession of these dangerous or harmful substances is a preinchoate circumstance with respect to consumption of them, and that consumption is dangerous or harmful, then the offence serves to protect the possessor from the potential for harm that they represent to themselves. The harms drug users do to themselves have long been an aspect of drug policy. Such a justification for the offence and for punishing its commission appears to have been paternalistic: that people were to be protected by the possession laws from harming themselves. While there are important normative objections to paternalistic laws, and it should be noted that pure possession is preinchoate even with respect to a possessor harming herself, this justification does not directly raise the security interests of other subjects as a justification for the offence. But that is not the end of the story. Although not all drugs controlled under the Misuse of Drugs Act 1971 are necessarily addictive, the focus of drugs regulation has from the beginning been on the problem of addiction.94 And addiction is a problem that presents risks of harm not only to the drug user, but also to the wider community. Since the 1980s, UK policy has shifted away from paternalism and towards a stance more like that of firearms regulation: preventing drugs from getting into the wrong hands, the hands of the ‘problem drug-user’.95 The reason is that drugs regulation under the Misuse of Drugs Act 1971 has failed to prevent the Dubber, ‘The Possession Paradigm’, 113–14. Misuse of Drugs Act 1971, s 7. 93 There is no need to prove that a defendant knew that a possessed substance was a controlled drug, only that the fact of possession was known: Warner v Metropolitan Police Commissioner [1969] 2 AC 256. 94 V Berridge, ‘Drugs and Social Policy: The Establishment of Drug Control in Britain 1900–30’ (1984) 79(1) British Journal of Addiction 17. 95 T Seddon, A History of Drugs: Drugs and Freedom in the Liberal Age (Routledge, 2010) 81–5. 91 92

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growth of widespread drugs consumption especially among young people, and the experience of this widespread consumption has been that the majority of illegal drug use does little significant physical harm.96 The policy emphasis has, therefore, shifted away from the intrinsic harmfulness of drugs towards a focus on a minority of problem drug-users, on the opportunities that these drug-users miss out on, and on the undoubted harm that they do in already disadvantaged communities.97 But, while the paternalistic justification has ebbed in the face of the continuing consumption choices of millions, the blanket prohibition of possession has remained. Let us consider how the broad possession law, with its extremely restrictive licensing conditions, might serve the policy of preventing drugs getting into the hands of problem users. The policy appears to rest on the proposition that all the law’s subjects acquire an obligation to refrain from supporting the illegal market so as to prevent leakage to problem drug-users.98 If obeyed, the effect would be to choke off the market in drugs and make it less likely that problem drug use will arise.99 Leaving aside the doubtful empirical plausibility of such a policy, the normative structure implied is one in which the majority of non-problem users have a duty to desist from an activity in order to pre-empt the harm that others will do if they attempt the same activity.100 This structure implies a very extensive duty towards others’ welfare 96 The House of Commons Select Committee for Home Affairs concluded that, of the 4 million people who used illegal drugs each year, only about 250,000 problem users caused significant harm to themselves or other people: see House of Commons Select Committee for Home Affairs Third Report, May 2002, paras [21]–[23] (available at ). 97 It is a shift in emphasis in which harms done to the user still play their part. In its 1994 consultation document, the government emphasized that ‘Drug use damages not only the individuals involved but also their families and the wider community. Drug use can cause under-achievement, ill health, suffering and sometimes death. Families can experience much stress and even breakdown. In the wider community drug-related crime makes a major impact both in respect of crimes committed to support drug habits and through drug trafficking, with its links to violent and organized crime’ (Tackling Drugs Together (HMSO, 1994) 9). By 2010, something called ‘societal harm’ had come to the fore and the harm to the user had receded, appearing almost to be one of the effects of this societal harm: ‘This strategy sets out the Government’s approach to tackling drugs and addressing alcohol dependence, both of which are key causes of societal harm, including crime, family breakdown and poverty. Together, they cause misery and pain to individuals, destroy families and undermine communities.’ (Home Office, Drugs Strategy 2010: Reducing Demand, Restricting Supply, Building Recovery: Supporting People to Live a Drug Free Life, Ministerial Foreword.) 98 See D Husak and P de Marneffe, The Legalization of Drugs: For and Against (Cambridge University Press, 2005) 124. 99 ‘Everyone’s aim must be to put the drug barons out of business and protect our people from the misery and waste that drugs produce’: Tackling Drugs Together (HMSO, 1994), Introduction by the Prime Minister. 100 ‘When Edmund Hilary succeeded in scaling Mount Everest, he unwittingly created a cottage industry in which unskilled climbers by the thousands attempted to duplicate his feat. Hundreds have died—a fate worse than the mere loss of opportunities. What should we think about Hillary’s influence? We might differ about whether he merits our praise and admiration. But no one would conclude that Hillary deserved to be punished for his deed. Why is heroin so different?’ (D Husak in Husak and de Marneffe, The Legalization of Drugs, 37). The answer appears to be that the risks attendant on heroin use are regarded as an aspect of a broader social disadvantage in a way that the risks of mountain climbing are not thought to be. Why the tail of drug use should be thought to wag the dog of social inequality is another question.

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interests, an obligation enforced by penal laws. The general threat of conviction and punishment for possession of controlled drugs serves to enforce a liability for failing to desist from a pleasure in order to prevent others from harming themselves and others. Given that prominent among the harms committed by problem drug-users are criminal offences, this liability is comparable in its remoteness to that implied in the duty to report financial transactions that raise reasonable suspicions of money laundering. Possessing drugs is a failure to take the security of disadvantaged (or vulnerable) communities into account in the making of the possessor’s consumption choices. In this way the offence of drugs possession has paralleled the experience of the bind over, tending in the same recent period to move away from a justification in terms of the state’s traditional paternal powers—not unlike the authority of the King’s justices to determine the good way of life—and towards the broadest of duties not to make the remotest of contributions to the supply of substances that lead others to commit crime and cause the fear of crime. Not exactly a failure to reassure, but a yet broader failure to take the welfare of others into account. Drugs and firearms regulation is then formally similar to the abandoned vetting and barring scheme. A licence is needed in respect of some potentially dangerous state of affairs, the possession of guns, drugs or working with children. Any particular individual might enter into that potentially dangerous state of affairs without a licence and have no direct effect on actual harms caused. But their willingness to do so can be understood as a failure to reassure others (in the case of gun possession or working with children) or at the very least an indication of indifference to others’ security interests (in the case of drugs possession or a failure to be subject to monitoring). These preinchoate offences anticipate the right to security. They are essentially speculative and arbitrary uses of state power except in so far as they identify dangerous individuals and punish them for their indifference to others’ security. The drugs laws stretch that logic to its breaking point.

8.6 Conclusion Before 1986 there were many powers that protected security interests but very few that explicitly protected a freedom from fear as such. The earlier laws tended either to punish the deliberate making of specific threats or, where they were wide enough to cover the mere causing of insecurity, that behaviour was controlled either as a nuisance (and therefore as a generalized and objectivized harm to a property interest), or as a wrong against traditional order as with the bind over or vagrancy. These laws all protected security interests but without institutionalizing a right to security as such because they did not impose an obligation not to cause insecurity in its own terms. Rather the justification of those powers that were wide enough to target the mere causing of insecurity was linked ideologically either to property interests or to the traditional hierarchy of authority, under which the local gentry on the magistrates’ bench upheld the good order of the King. Before the right to

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security, serious violations of purely subjective security interests were protected piecemeal and less serious violations in terms of other values. The traditional discretionary power of the sovereign to uphold good order and morals has proved vulnerable to legal challenge over precisely the period in which the right to security has emerged. There were nevertheless preinchoate preparation and possession offences that imposed liability on conduct or possessions that amounted to no more than a failure to reassure by revealing a disposition of indifference to others’ security. Although these offences were targeted at preventing various harms, they were strongly marked by the ‘subjective pattern’ of criminality and allowed for the punishment of acts or states of affairs that are harmless in themselves and do no more than reveal a threatening disposition. Offences conforming to the subjective pattern are commonly enacted in the later period of the 1960s and 1970s. But possession laws go back further. Drugs possession offences present a particularly interesting case in so far as the underlying policy has exhibited a shift away from the older paternalist justification of protecting people from harming themselves and towards becoming, in effect, offences of remote indifference to others’ security interests. These preinchoate offences certainly anticipate the later development. Before the 1990s, the law might be said to have been pregnant with a right to security. Over the course of a century or more, the law had accumulated a diverse range of offences protecting different subjective security interests—threat offences, weapons possession, going equipped, handling, eventually section 5 of the POA 1986—offences that overlaid the older preventive powers of public nuisance, vagrancy and the bind over. But it is only with the ASBO and the rapid enactment of security laws that came after it that this embryonic development bursts out, kicking and screaming, as the freedom from fear as such. Since 1998, the law has laid down, in the form of the CPOs, explicit obligations not to cause insecurity to others by failing to reassure over a very wide range of conduct and it has rapidly expanded the range of implicit liability for failure to reassure in the preinchoate offences. The normative catalyst of this development was the rise of the ideology of vulnerable autonomy to political influence after the decline of the welfare state consensus. The effect of these theories has been to inspire new offences and tie long-standing offences into the broad proposition that citizens have a right to feel safe and, therefore, to expect that the authorities will intervene to pre-empt crime at the earliest opportunity. The next chapter asks how this transformation of the haphazard protection of security interests into a full-blown right to security fits into existing theories of criminal law and what those theories tell us about it.

9 The Right to Security in Criminal Law Theory The right to security has been institutionalized in the UK through a massive expansion of the scope of the criminal law. More and more conduct has been made subject to threats of state punishment. Whatever normative view we take of the criminal law’s protection of the right to security, it seems superficially at least that these laws ‘belong to the history of liberal political orders rather than to selfconsciously authoritarian regimes’.1 The UK’s current political regime might be described in numerous ways but it would be absurd to describe it as fascist or a theocracy or a military dictatorship. If the justification of these laws can be explained in terms of the theories of vulnerable autonomy, as has been argued here, are these theories and their accompanying institutions to be understood as authoritarian and anti-liberal? Or can they be explained within an essentially liberal framework?2 In the next two chapters I will consider the relationship of these laws to liberal political order. Here I view them through the lens of normative criminal law theory, asking how different recent theories of criminal law characterize the protection of the right to security. It will be argued that these laws bring the liberal order into a self-contradiction by upholding certain basic liberal commitments at the cost of undermining the system as a whole. In the next chapter, the implications and historical sources of this paradoxical construction will be investigated. First I will look at what ‘orthodox’ normative criminal law theory has to say about substantive protection of the right to security. I will focus in particular on Douglas Husak’s theory of the limits of criminalization and find that in the final analysis this theory gives us no compelling reasons for rejecting the security laws unless it is supplemented by considerations of political theory. I then turn to some political theories of criminal law. Gunther Jakobs’s theory of the enemy criminal law is briefly reviewed, before moving on to a more detailed examination of Markus Dubber’s ‘new police science’. Both theories provide some compelling reasons for rejecting the substantive protection of the right to security, but only by making assumptions that fail to provide an adequate account of the right to 1

Adapting J Simon Governing Through Crime (Oxford University Press, 2007) 15. Different views have been taken on this by other writers: Helen Reece, for example, describes Giddens’s theory, communitarianism, and feminism as ‘post-liberal’ theories (H Reece, Divorcing Responsibly (Hart, 2003)); Nikolas Rose describes the Third Way, communitarianism, and neoliberalism as ‘advanced liberalism’, operating on the freedom of subjects rather than against it: see N Rose, Powers of Freedom (Cambridge University Press, 1999). 2

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security as we have found it constituted in contemporary UK criminal laws. After that I turn to Alan Brudner’s political theory of the penal sanction. Brudner’s richer account of autonomy and of the criminal law allows us to identify both the broad sources of the idea that it is legitimate to punish for failure to reassure and the sense in which this brings liberal society to the point of self-contradiction. The analysis in this chapter seeks to understand the liability for failure to reassure others from the perspective of liberal criminal law theory. The discussion is not intended to be a normative assessment of that liability in the philosophical sense, but rather to illustrate the ambiguous and contradictory relationship between liberal order and the right to security.

9.1 The moral philosophy of criminalization The dominant form of theorizing about the criminal law analyses it in terms of the categories of moral philosophy. This style of theorizing asks whether the threats made by the criminal law and more particularly punishment of individuals for violating it can be morally justified. In the broadly liberal tradition, the major divide in this sort of theory is between the utilitarian preference for ensuring that criminal sanctions serve to maximize the welfare of society and the opposing view (one that has enjoyed a theoretical ascendancy in the common law world at least since the 1960s) that even if punishment is imposed as a way of preventing harm, it must be limited to those individuals who deserve to be punished. From a utilitarian perspective, the harm involved in causing insecurity is the key to justifying these laws. If the fear of victimization that is avoided and prevented by punishing people who cause it amounts to a greater harm than the harm that is inflicted by the control and punishment of those who cause it, then the punishment is justified. Much will, therefore, depend on the facts about insecurity—the extent to which fear of crime causes harm. I will not attempt to answer the question of whether or not the protection of the right to security by means of this or that substantive law meets utilitarian criteria. It is certainly possible to conceive of a situation in which utilitarian criteria would be satisfied. But to know for sure would require a hugely complex consideration of the extent and effects of insecurity relative to the harms imposed by the control of those who are the source of it. I will leave that calculation to any utilitarians who might be interested and think the calculation is a practical possibility. Rather than pursue that line of enquiry, in the next chapter I will instead consider the very significant political implications of concluding that overall welfare is increased by the extent of the protection of the right to security through the liability for failure to reassure. For present purposes it is more interesting to consider whether the protection of the right to security by substantive law meets the criteria of the recently more influential theory that punishment ought to be restricted to those who deserve it. Douglas Husak has provided a theory of criminalization and its proper limits that draws heavily on this tradition of penal theory. His is far from the only one and not

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all theorists will support his particular conclusions.3 However we can deploy Husak’s theory to ask whether or not the substantive laws that protect the right to security are compatible with the values upheld by this tradition. Husak’s account is particularly useful because he develops his structure of limiting constraints from two sources of considerable legal significance. One group of constraints he calls ‘external’ because they are derived from US constitutional rights jurisprudence. They broadly parallel the constraints offered by the ECHR and I will return to them below. The other group he calls ‘internal’ because they are all drawn from what criminal law theorists refer to as the ‘general part’ of the criminal law. The general part refers to those aspects or elements of the criminal law that normative theorists believe ought to apply to every offence. In this way, his theory of the limits of the criminal law is drawn directly from the core values of normative criminal law theory. To summarize Husak’s elegant argument very briefly, the internal constraints on the enactment of criminal offences are that: (1) the offence must prohibit behaviour involved in the causing of a non-trivial harm or evil (on the grounds that justificatory defences found in the general part make no sense unless this requirement is present);4 (2) the potentially harm-causing behaviour addressed by the offence must also be wrongful (on the grounds that the criminal law’s excusatory defences make no sense unless this requirement is present, for if there is nothing wrong in the conduct there is nothing to excuse); (3) any punishment for violation of the criminal law must be deserved (since undeserved punishments are unjustified);5 and (4) the burden of proof in justifying any penal law lies with the legislator who proposes it (on the grounds that persons enjoy a prima facie ‘right not to be punished’, and any ‘laws backed by the penal sanction are presumptively unjust’).6 It will be immediately apparent that, if the assumptions of the theory of vulnerable autonomy are accepted, most or all of the security laws covered here can, in principle, fulfil all four of these criteria. All the laws that we have considered prohibit the causing of the non-trivial harm of insecurity, of fear and anxiety at the possibility of future criminal victimization at the hands of the offender. Of course it is possible to dispute that this is a non-trivial 3 Husak’s theory has generated considerable debate; for references to the literature and his response see D Husak, ‘Reservations about Overcriminalization’ (2011) 14(1) New Criminal Law Review 97. 4 In other words, to say a person is justified by reason of self-defence is to say that their prima facie criminal act avoided the very harms that the criminal law is intended to prevent. Husak argues that the defence of necessity is a balancing of evils, under the moral philosophy of criminalization no issue of consent arises unless a ‘victim’ may have consented to harm and de minimis implies some harm has been done (ibid, 67). 5 The third constraint derives from the Kantian commitment to distribute punishment on a retributive basis although it is one so basic that Husak argues most conequentialist theorists would claim to share it (ibid, 83). 6 Ibid, 99–100.

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harm, but not if you accept the theories of vulnerable autonomy. Ontological insecurity is a significant restriction on autonomy in these theories and therefore a significant harm. Contributing to that insecurity is also wrong in this outlook. The theory of vulnerable autonomy implies that in principle persons ought not to cause each other insecurity by failing to reassure. From the standpoint of this theory causing insecurity by failing to reassure is, therefore, wrong. The upholding of vulnerable autonomy implies a moral duty on us not to fail to reassure. Punishment for the wrongful causing of harm is thought to be deserved by a particular defendant if its occurrence can be shown to be the defendant’s fault. Fault elements usually take the form of explicit mens rea requirements. At first sight the civil preventive orders appear not to have any fault elements but the appearance is deceptive. The key to understanding this is to grasp the element of positive obligation in the CPO. If the wrong is the failure to reassure, then manifesting a disposition of indifference to others’ security where a reasonable person would not or, so as to create a reasonable suspicion in the mind of an official, is a failure to do what (from the standpoint of the theory of vulnerable autonomy) the reasonable person would do, that is a failure to think about others’ security needs and act only on that basis. Where the failure to reassure is not intentional hostility, it amounts to a form of negligence.7 Furthermore, where a person has committed the wrong of failing to reassure, the authority imposing the order is nevertheless required to consider the necessity of the order. An order will not be necessary unless there is sufficient evidence to suggest that the failure to reassure is the consequence of some settled disposition to ignore or to prey upon the vulnerability of others. A person who exhibits such a disposition and, therefore, consistently fails to do what the reasonable person would do, such that the order is necessary, is a person who (in the communitarian idiom) is at fault for failing to assess her actions in the light of the intersubjective constitution of her own autonomy, or (in Giddens’s idiom) to fulfil the responsibilities that are the constitutive basis of her rights. In other words, a preventive order will be deserved for this negligent wrong. It is because of this prior fault that no mens rea is required in the criminal offence of breach of a CPO. An order is only imposed where this fault has occurred. The order will consist of highly specific and individualized prohibitions that are communicated directly to the defendant, who is put on notice of the consequences of failure to provide that required reassurance. The courts have insisted that these obligations be clear and comprehensible to the person they are imposed upon.8 For normative theory, the purpose of culpability requirements in the criminal law is to protect individual autonomy by ensuring that individuals are given the opportunity freely to conform their conduct to the criminal law’s requirements, and are not arbitrarily punished for accidentally violating them.9 In this sense the prohibitions 7

My thanks to Nicola Lacey for pointing this out. R v Boness [2005] All ER (D) 153. 9 On this distinctive characteristic of criminal law, see HLA Hart, The Concept of Law (Clarendon Press, 1997) 39. 8

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in a CPO are formally similar to obeying a red traffic signal. The law’s requirements are so specific, and those subject to them are so clearly warned that failure to know that you are breaching them, where there is no reasonable excuse, is negligent. Removing culpability requirements from the offence of breach of a preventive order in this way is to construct the person subject to the order as a specific threat, as opposed to a formally autonomous subject presumed capable of freely adjusting her conduct to the general criminal law. This construction of the subject of a CPO as a mere threat is given in the very existence of the conduct element of the offence of breach of a CPO. A fault requirement in the offence of breach would be morally nugatory, whatever its practical benefits to defendants. This construction is the consequence of the finding of prior fault in the dispositional indifference to others’ security interests and is consistent with the theory of vulnerable autonomy. With highly inchoate preparatory offences of terrorism, child sex or attempted fraud and theft the position is arguably simpler. These offences require proof of ulterior intention. A properly convicted offender will have known that they have done the wrong of undermining security and deserve their punishment. In both CPO and preparation offence the defendant is at fault for deliberately or negligently manifesting a disposition of indifference to the security needs of others. Resistance from within moral philosophy to the view that offences such as preparation and possession can amount to culpable wrongdoing sufficient for criminalization has tended to come from ‘objectivists’. These theorists have argued that criminal liability should only attach to dangerous acts and not to dangerous people as such—a distinction we have considered at length in the previous two chapters. ‘Subjectivists’, by contrast, tend to argue that any culpable choice that results in a wrongful increase in the risk of a first-order harm is an appropriate target for punishment. Indeed, Husak himself has argued persuasively that the ‘project of integrating the criminal law with moral philosophy’ would be promoted by the substitution of a ‘control requirement for the act requirement’.10 His point is that a person may fairly be held morally liable for any state of affairs that she controls, her acts, her omissions, her possessions and, indeed, her intentions or her thoughts. There is thus no objection in principle to a subjectivist account of attempts and the preparation offences it implies. Anything that supplies compelling evidence of a firm intention that the defendant could be said to have within her control will do.11 Providing there is a risk of harm that arises from some state of affairs controlled by a culpable defendant, a moral wrong has been done and there is no need for a particular act at all before punishment would be deserved. One of the key objectivist counter-arguments to this line of thinking is that a person who has not done something objectively dangerous, who has not manifested dangerous intentions or negligent attitudes to others’ objective security in the public sphere, could still repent her moral wrong before doing anything that does 10 D Husak, ‘Does Criminal Liability Require an Act’ in RA Duff (ed), Philosophy and the Criminal Law (Cambridge University Press, 1998) 77. 11 Ibid, 90. He gives the example of an immediate, uncoerced and unambiguous confession after arrest.

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amount to a dangerous act.12 This is not a denial that such a person has done something morally wrong, but rather an argument that, for as long as this person has the opportunity to repent her wrongful act before doing anything objectively dangerous to others, punishing her would be to fail to take her seriously as a moral agent capable of adjusting her conduct to the law’s normative demands.13 This argument has force in so far as preparations are criminalized on the ground of their remote connection to eventual first-order harms. To ignore the intervening choices that the person must make between the preinchoate conduct or circumstance and the occurrence of any eventual first-order harm is to ride roughshod over that person’s moral agency. But the argument loses its force if harms to the subjective security interests of the vulnerable are taken into account. Not only are we now interested in a different harm, but the remote relation of the unreassuring conduct to the harm is different. The connection between the conduct and the harm becomes, as we saw in the previous two chapters, an ‘accumulative’ or ‘conjunctive’ connection: even though a particular instance of the conduct concerned might not cause insecurity, the conduct is of a type that is morally indistinguishable from other actions that taken together do cause insecurity. Once ‘accumulative’ wrongs to security interests are introduced, the contribution to the harm of insecurity is done by the preparer when she acts or even the possessor of a dangerous object when she knowingly possesses it. There is space still to repent the first-order harm but no longer any to repent the type of act that contributes to insecurity—that has already been committed. Even the CPO liability for indifference to others’ security could in this way be rendered acceptable providing negligence was regarded as an acceptable standard of fault. And HLA Hart has offered persuasive arguments for the moral acceptability in principle of negligence liability.14 Husak maintains that simple possession offences cannot be justified because, without culpability with respect to an ulterior harm, mere possession is not wrong, since in itself the possession has not in any way increased risk.15 However, once the harm of insecurity is introduced, it is not clear that a supporter of the ‘control requirement’ should reject all mere possession offences on this ground. Protection from insecurity as such implies liability for the failure to reassure and this includes liability for failure to abide by the requirements of schemes designed to identify and reduce risk, schemes like firearms possession, money laundering reporting requirements or the vetting and barring scheme. In all these cases people are made liable who might have no culpability with respect to the eventual first-order harms that the schemes aim to prevent. But, if it is fair to punish people for risk-increasing states of affairs that they control, why should they not be liable for the harm of

12 This is a summary of the general objectivist approach: for a detailed account see RA Duff, Criminal Attempts (Clarendon Press, 1996). 13 Ibid, 387–9. 14 HLA Hart, Punishment and Responsibility (Clarendon Press, 1968). 15 See his discussion of possession offences in ‘Overcriminalization’, 174.

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insecurity that they accumulatively contribute to when they fail to cooperate with risk-reduction schemes?16 Moral philosophy it seems is at least open to an argument for the fairness of punishing violations of the right to security. Everything then turns on whether causing insecurity is seen as wrongful and non-trivial. Here we come up against Husak’s final internal constraint, drawn from the general part. This is that the burden of proof as to whether the constraints are satisfied is borne by the proponent of enacting any offence. It is a general principle of liberal criminal law that the burden of proof should lie with the prosecutor, and Husak concludes from this that punishment is presumptively wrong, unless it has been proved otherwise. There is a presumptive right not to be punished. If that is true in the individual case, it is also true in general. If we should be unwilling to convict an individual where we lack proof that punishment is deserved for the doing of a wrongful harm then we should be unwilling to enact a criminal offence unless it is proved that the offence prohibits the culpable doing of a wrongful harm. But whether or not a person is satisfied that this has been proved will turn on their beliefs with respect to the vulnerability of autonomy to insecurity. In so far as the basic proposition of the theory of vulnerable autonomy is accepted then it will be wrong to cause the harm of insecurity and the case for criminalizing the causing of insecurity will be proved.17 Certainly, as a practical political question, Husak’s constraints will have no impact on these offences in so far as the theory of vulnerable autonomy is in fact the dominant paradigm of political thinking among legislators. The categories of harm, wrong and desert deployed by normative criminal law theory are so capacious and indeterminate that they cannot tell us much about the emergence of a right to security. Causing the harm of insecurity is plausibly a moral wrong and, once that is recognized, criminal offences can be constructed that prohibit culpably causing or risking the causation of this wrongful harm. This problem of theoretical vagueness is just as striking in Husak’s three external constraints on criminalization. 16 Drugs possession without ulterior intent seems to raise a different issue. Drugs possession is, formally at least, much more tightly restricted than firearms in that drugs cannot be possessed for mere leisure purposes. As Husak has pointed out (see discussion in Chapter 8) to find that mere possession is wrong it is necessary to hold the possessor liable for supporting an illegal market in substances that will lead other people (problem drug-users) to do harm. This requires either breaking with the law’s doctrine of causation (that an intervening voluntary act by another party relieves the first party of causal responsibility) or to adopt the view that addicts do not make voluntary choices to consume—a view so far not adopted by the English courts (in a different context see Kennedy (No 2) [2005] 2 Cr App R 348). 17 This constraint might be read as returning us to the empirical problem of assessing the extent and impact of fear of crime. Is it really a non-trivial harm that justifies the use of the penal sanction and, moreover, have the proponents of these laws proved it? Here Husak’s account of normative theory does seem to throw up a potential limit to these security laws. Given the difficulties of assessing the real impact of fear of crime, a normative theorist may be justified in saying that the case is not proven. But that conclusion will be coloured by theoretical commitments: a person’s evaluation of the data on the significance of fear of crime will inevitably be coloured by their normative commitments. Moreover this position of ‘policing the facts’ allows for the possibility that if fear of crime were empirically proven to be non-trivial then there would be justification for the security offences.

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Husak’s external constraints set out from the presumptive ‘right not to be punished’, which he derived from the general part to provide his fourth internal constraint. He argues that this right ought to be treated as a constitutional right and so made subject to the doctrines of US constitutional law. Any infringement of such a right not to be punished would, according to Husak, only be constitutional if (1) there is a substantial state interest in the law that infringes the right; (2) the law directly advances that substantial interest; and (3) the law is no more extensive than necessary to achieve its purpose.18 It will be seen immediately that in broad terms these constraints are similar to those that the ECHR places on the substantive law where that law infringes one of the rights protected by the Convention. Any infringement must be necessary in a democratic society in the pursuit of one of a number of very broadly drawn legitimate aims of government. We have already seen how the ECHR has little difficulty in accommodating the protection of a right to security by substantive law and arguably these security laws would meet Husak’s constitutional constraints too.19 Critically Husak accepts that the state will have a substantial interest in anything that we define as a ‘public wrong’—a matter that goes beyond the interests of the individuals who may be concerned in it, and is of concern to and directly engages the interests of the entire community. But then the key normative question for our purposes is should the causing of insecurity to the vulnerable count as a public wrong. How do we or how should we define a public wrong as opposed to a private one? As Husak concedes this is a question of political theory, of the precise relation of individual and government that it is believed should prevail.20 What this analysis suggests is that like the principles of human rights, Husak’s moral philosophy does not get us very far in thinking about the right to security, when that right is protected by means of substantive criminal wrongs. In so far as subjective insecurity is understood as a serious harm then the culpable causing of it is a plausible candidate for criminalization. From this standpoint the laws of vulnerable autonomy meet the liberal test but only providing the causing of insecurity can be thought of as a public wrong. And to test that proposition we need to look to political theories of the scope and form of criminal law. I will consider here three recent theories of this broad type.

9.2 Enemy criminal law Perhaps the most explicit and provocative formulation of laws that protect a ‘right to security’ has been provided by Gunther Jakobs who has proposed that much of contemporary criminal law can be characterized as ‘enemy criminal law’, a legal Husak, ‘Overcriminalization’, ch 3. A point argued in P Ramsay, ‘Overcriminalization as Vulnerable Citizenship’ (2010) 13(2) New Criminal Law Review 262. 20 Husak, ‘Overcriminalization’, 137. 18 19

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form that he contrasts with ‘citizen criminal law’.21 The present discussion of this theory carries the health warning that it is reliant on a few secondary accounts of it, Jakobs’s own work not having been translated into English. Nevertheless the idea is important and has been influential in civil law countries and is worth briefly noting even at the risk of errors of interpretation. In the ‘enemy criminal law’ punishment precedes actual harms, is disproportionate to any wrong actually done and the defendant’s procedural rights are suppressed.22 The reverse is true in ‘citizen criminal law’. The reason for adopting the approach of the enemy criminal law is precisely that those who manifest a disposition that is hostile to the norms of the criminal law are to be treated as a threat to be controlled rather than as a citizen whose basic loyalty to the law’s norms can be presumed, and who must be punished proportionately so as to communicate the moral wrong they have done. Jakobs explicitly justifies enemy criminal law in terms of citizens enjoying a right to security.23 Jakobs’s conception is striking in that it alights on the way that laws upholding a right to security, like those discussed in previous chapters, serve to identify persons who represent threats and then treat them differently from citizens under citizen criminal law who are treated as persons who have, as it were, made a criminal error. His use of the term ‘enemy’ is compelling because it draws attention to the aspect of these security laws that stigmatizes and separates the dangerous from the lawabiding and incapacitates them on the basis of the disloyal attitude of hostility or indifference to the law’s norms that their acts demonstrate. Those controlled and punished by these laws are indeed constructed by them as enemies of the citizenry, subject to special and particularized coercion. Nonetheless the underlying theory does not explain the laws adequately. Jakobs’s argument only seems to work in so far as it is addressed to ‘objective’ security. Where the state punishes terrorist preparations or breaches of a control order on the grounds of the later atrocities it claims to have prevented it is punishing in advance of the harm that justifies the punishment or, to put the same point another way, disproportionately to what has in fact been done. And it has suppressed the defendant’s procedural rights by relieving the prosecutor of the burden of proving that the eventual harm would have occurred (an impossible burden to meet). But, as we have seen, these characteristics of enemy criminal laws are formally eliminated if we punish the defendant on the grounds of the subjective insecurity caused by their preparations or by their failure to reassure the Home Secretary that they are not involved in terrorist preparations or indeed their failure to reassure other citizens that they are not a threat to them. Punishment is now meted out for the harm of subjective insecurity; it is (or at least in principle could

21 C Gomez-Jara Diez, ‘Enemy Combatants vs. Enemy Criminal Law’ (2008) 11(4) New Criminal Law Review 529. See also M Dubber, ‘Citizenship and Penal Law’ (2010) 13(2) New Criminal Law Review 190; D Ohana, ‘Trust, Distrust and Reassurance: Diversion and Preventive Orders Through the Prism of Feindstrafrecht’ (2010) 73(5) Modern Law Review 721. 22 Gomez-Jara Diez, ibid. 23 Ibid.

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be) proportionate to the wrong of causing others to feel insecure; and the state is required to prove that acts relevant to these harms were committed. The protection of a right to security, encompassing, as it does, the harm of insecurity, suggests that Jakobs’s account is one-sided in emphasizing only the difference between his enemy criminal laws and his citizen criminal laws. Once viewed through the prism of the right to subjective security the distinctive elements of the enemy criminal law lose their distinctive quality. This is not to say that the Jakobs model is entirely wrong. Jakobs remains correct to suggest that these laws do tend to construct those punished under them as enemies rather than citizens, in the sense that under these laws offenders are controlled as dangerous persons. But they are at the same time being punished for wrongful acts, and that punishment could in principle be proportionate to the wrong. The acts are wrongful precisely because they manifest the offender’s dangerousness. The two paradigms of enemy and citizen are less clearly distinguished in practice than Jakobs’s theory appears to suggest. Another theory that emphasizes the deployment of criminal law powers to control people constructed as threats is Markus Dubber’s critique of the ‘police power’ that he has called ‘the new police science’.

9.3 The new police science The new police science is a theory of criminal law that sets out from the fact that criminal punishment is ‘a form of state coercion’. It is, therefore, ‘in the end a problem of state theory (or political theory)’.24 For Dubber, ‘criminal law is the solution to the problem insofar as it legitimates what would otherwise be the absurd spectacle of the state harming precisely those whom it exists to protect’.25 To succeed in legitimating punishment, however, the criminal law must restrict its threats of punishment so as to respect ‘the confines of personhood . . . which are ultimately set by moral theory’.26 On this basis he divides the state’s threats of penal coercion into two types: ‘law’ and ‘police’. Law consists of those legal threats that meet these moral criteria of personhood; police consists of those that do not.27 Dubber identifies ‘police’ and ‘law’ as two ‘basic modes of state governance [which] can be traced throughout the history of Western political thought and practice’.28 Dubber relates them to each other in the following way: ‘From the 24 M Dubber, ‘Criminal Police and Criminal Law in the Rechsstaat’ in M Dubber and M Valverde (eds), Police and the Liberal State (Stanford University Press, 2008) 95–6. 25 Ibid, 96. 26 Ibid. 27 Dubber’s new science of police is drawing on the old ‘science of police’ that was developed in early modern Europe to understand the state’s powers to promote public welfare, and the ‘police power’ remains a concept deployed in the background of US constitutional law. But, in practice, and especially in the UK, most of the powers that were once discussed in terms of a broad ‘power of police’ have come to be understood in terms of the administrative law. 28 M Dubber, The Police Power: Patriarchy and the Foundations of American Government (Columbia University Press, 2005) 3.

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perspective of law, the state is the institutional manifestation of a political community of free and equal persons’ that serves ‘to protect the autonomy of its constituents’; ‘From the perspective of police, the state is the institutional manifestation of a household. The police state, as paterfamilias, seeks to maximize the welfare of his—or rather its—household.’29 These contrasting functions imply different relations between the state and its citizens. The law state is one of self-government in which there is no formal distinction between government and governed or between the subjects and objects of government. In the law state the citizenry are sovereign and its principle is the autonomy of the individual.30 Police, on the other hand, is a question of household management, of economics broadly conceived, in which there is a sharp distinction between the subject of government and its objects. In the police state the sovereign governs both persons and things (animate or inanimate) as the heteronomous objects of welfare, much as a patriarch would govern his household.31 Indeed Dubber demonstrates that patriarchy is the historical foundation of the state’s power of police just as he argues that democracy is the ultimate foundation of the law state’s respect for personhood.32 The two modes may not be clearly distinguished in the practice of government. As Dubber argues, much of what is conventionally described as American criminal law is better understood as police power,33 and his analysis can be applied to the British criminal law with ease. It is important to note that a single theoretical figure unites these two otherwise contrasting modes of governance—the figure of the sovereign. Under the governance of the democratic legal mode, autonomous individual subjects or citizens are ultimately sovereign in the political community of the state, since it is for the citizens to determine which of them shall make the laws and on what political basis. Under the older governance of the patriarchal mode, the state as sovereign exercises the police power over those same individual citizens in the name of their collective welfare. But, notwithstanding this ultimate unity, there is clearly a fundamental tension between these two ‘modes of governance’. From the basic distinction of police-heteronomy versus law-autonomy can be derived a whole matrix of contrasts between the realm of law and that of police. Dubber distinguishes the two along the lines of: the different types of interference associated with police and law (prevention and remedy), the different objects of that interference (threats and persons), the different styles of government (informality and formality, flexibility and definiteness), the different types of scrutiny applied (effectiveness and justice) and—perhaps most important—the different relationships between the subject and the object of government that characterise police and law as modes of governance (hierarchy and equality).34

29

Dubber, The Police Power, 3. 31 32 Ibid, 4. Ibid, 8. Ibid, 4–46. See M Dubber, Victims in the War on Crime: The Use and Abuse of Victims’ Rights (New York University Press, 2002). 34 Ibid, 158. 30 33

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Punishment for breach of criminal ‘law’ is an after-the-event remedy that must treat both victim and offender as a person, and this requires formal and definite substantive rules and criminal procedures. In this way the sovereignty of individual persons and the equality of the governed and the government is maintained. Dubber’s law is founded on the theory that what defines persons is ‘the capacity for autonomy, broadly conceived as self-government’.35 In the ‘law’ model, a crime can only be an autonomous violation of another’s capacity for autonomy.36 Dubber follows Kant in arguing that where a person does deliberately violate another’s personhood in this way punishment reaffirms the victim’s personhood without violating the offender’s, since the state’s penal violation of the capacity for autonomy respects the offender’s own autonomous will (that is, the offender’s will that personhood should be violated) and therefore the offender’s rights.37 By contrast the realm of police power lacks this legitimating aspect of respect for personhood. People and things are assessed as threats to welfare and dealt with prudentially. For Dubber, since the capacity of persons for autonomy is the only basis of legitimacy, criminal ‘police’ does not engage with legitimacy at all, and is not so much illegitimate as ‘alegitimate’.38 Dubber’s moral theory sets narrower bounds for legitimate penal power than Husak’s more orthodox moral philosophy. For Dubber, the only sort of moral wrongs that are legitimately punished by the state are autonomous violations of the capacity for autonomy. Under Dubber’s ‘law’, a person can only be liable for willed attacks on others’ personhood. All the classical interpersonal criminal offences, providing they require proof of subjective mens rea requirements, are therefore encompassed by criminal ‘law’. On the other hand, deliberate conduct that merely manifests dangerousness but creates only a remote risk mediated by further choices of the dangerous actor will not be enough (possession or criminal preparations, for example). Nor will negligent acts, which do interfere with another’s capacity for autonomy but not deliberately so.39 The state’s control of manifest dangerousness and its punishment of negligence belong to the police power.40 In other words, Dubber’s theory regards only those offences with an objectivist definition of conduct as criminal law; offences with subjective conduct definitions belong to police. Moreover only those powers with intention or subjective recklessness as fault requirements belong to law: offences requiring only proof of negligence belong to police. The liabilities for failure to reassure discussed in this book belong, therefore, on Dubber’s analysis, to the police of persons as threats to the public welfare, specifically the intangible good that is ‘security’. The CPOs, for example, when viewed

35

Dubber, Victims in the War on Crime, 153. Dubber ‘Criminal Police’, 102. 37 Ibid, 102–3. See also M Dubber ‘The Right to Be Punished: Autonomy and Its Demise in Modern Penal Thought’ (1998) 16 Law & History Review 113. 38 Dubber, ‘Criminal Police’, 98. 39 Ibid, 104. 40 Ibid, 107–8 (on possession) and 233 n 50 (on the test for attempts in the Model Penal Code). 36

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from an orthodox criminal justice perspective, appear to be a good fit with each of Dubber’s distinguishing criteria of the police power. Their purpose is explicitly preventive. They assess persons from the point of view of the threat that they represent and lack explicit fault elements. The vast discretion at every point in the grounds for imposition of an order indicates that the power provides the authorities with flexibility rather than the citizens with a definite description of their potential liability. The emphasis in the process, especially the relative informality and evidence rules of civil procedure, is effectiveness rather than justice to the defendant, at least in the traditional sense of criminal justice where the defendant has a right to confront witnesses who give evidence against her. The power to grant an order is substantively a discretionary power under administrative law to vary the penal obligations of individuals in pursuit of the aims of public policy. There is no requirement for the authorities to prove a criminal offence or even to prove behaviour that is in any way unlawful, except as a consequence of the authorities’ exercise of its discretion to seek an order. The relationship between the defendant of CPO proceedings and the authority and the court is therefore hierarchical. However, as soon as the validity of protecting interests in subjective security on the grounds of subjects’ vulnerable autonomy is accepted, the position on at least three of these criteria changes. First, although the order is preventive, it is also a remedy for the wrong of causing insecurity. Second, as we saw above, from the point of view of vulnerable autonomy the person subject to a CPO is at fault for their failure to consider, or their deliberate violation of, the security needs of others. They are, therefore, treated as autonomous from the point of view of vulnerable autonomy. Third, justice and effectiveness are not as clearly distinguished once justice implies a positive obligation to show concern for the security of another, a concern that the defendant is said to have failed in. Similarly the preparation and possession offences only fit the police power model on the assumption that the law has no place protecting subjective security interests. As a protection of objective security interests, the offence is indeed preventive, the person is at fault for an act that in itself merely manifests a threat, and, since few ordinary persons will have cause to complain about mere preparations, the authorities in practice enjoy a broad discretion as to whom and how vigorously to investigate. The procedure, however, is relatively inflexible and the offence is broadly one of equal application across the population, which implies that, even as an offence against objective security interests, the fit with the police model is only partial. But when subjective security interests are included on grounds of the vulnerability of autonomy, punishment for the offence is no longer merely preventive but remedial, manifesting the threat is a moral wrong, and proof of intention implies subjective culpability. Dubber’s police power model does not fit well at all. The theory of vulnerable autonomy breaks down the clear distinction between law and police and between autonomous persons and threats that Dubber’s account maintains. While these security laws can be understood to criminalize persons as threats, they can also be understood as protecting autonomy providing you believe that self-government is vulnerable to heteronomous determination. The difference of perspective between Dubber’s Kantian theory of punishment and that of the

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theory of vulnerable autonomy seems to be that where, for Dubber, the protection of personhood, which is to say, the capacity to govern oneself, exhausts the proper sphere of what can be protected by means of penal coercion, the theory of vulnerable autonomy regards self-government as such, and not merely the capacity to govern oneself, as an interest that can be protected by threats of punishment. A subject who makes choices that are motivated by the fear of criminal victimization and the need to avoid it is exercising the capacity to govern themselves, but, as we saw in Chapter 5, they are not are not making self-determined choices, but heteronomously determined choices. Though their capacity for self-government may be intact, fear prevents them from being actually self-governing. The person who causes insecurity is similarly heteronomously determined in so far as their own actual self-government depends on maintenance of the recognitional infrastructure that their indifference to others’ security undermines.41 Dubber’s theory does not seem to recognize actual self-government or autonomy (with its attendant vulnerability) as either a possible source of ‘law’ or ‘police’; only the capacity for self-government can be legitimately protected by state coercion. On the other hand, Dubber’s theory recognizes only one source of powers that do protect anything other than the capacity for self-government—the sovereign as patriarch with his police power. The possibility that police powers might find legitimating rationales through a concept of vulnerable autonomy is closed to his theory for it is based normatively on a particular account of personhood that does not regard the subject’s actual experience of autonomy as a legitimate interest of a state that respects freedom and self-government. This may be a respectable normative position—we might call it classical liberalism—but it does not help us to understand the concept of autonomy that is actually followed in our practical politics. On Dubber’s normative ground, law and police can be kept quite distinct, but as soon as the normative basis upon which British society has actually been operating is introduced, the distinction between them is much less clear. For all Dubber’s attention to history his theory is ultimately a normative one, and his categories, like those of Jakobs, do not get to grips with the penal protection of an interest in subjective security. Dubber’s ‘law’ and ‘police’ mark a normative distinction that does not map onto the specific character of our current liabilities for failure to reassure. This creates two explanatory difficulties for Dubber’s theory that are relevant for us. The first is that his theory of police power as the work of a patriarchal sovereignty cannot explain the particular police powers found in our present offences of insecurity. The clearest example of this problem can be seen in the coincidence of the enactment of the ASBO with the demise of the bind over to be of good behaviour.42 Analysis of this experience demonstrates that, on the one hand, the patriarchal concept of police power is inconsistent with enforceable human rights doctrine while, on the other, the ASBO’s substantive liability is inconsistent with a patriarchal concept of power. 41

See discussion in Chapter 5.

42

See discussion in Chapter 8.

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Dubber treats the bind over as the classic police power precisely because it permitted the sovereign’s justices to control persons as threats to public order on the basis of a discretionary evaluation of the defendant’s conduct. Its vagueness and evaluative character gave full rein to the sovereign’s discretionary judgment. It will be recalled that for Lord Justice Glidewell in Hughes v Holley in the late 1980s (and the large majority of judges consulted by the Law Commission at around the same time) not only was behaviour ‘contrary to the good way of life’ sufficiently clearly defined as to raise no question as to the constitutionality of the bind over power, but it was equally unproblematic that the Crown’s loyal justices of the peace could be relied upon to know such behaviour when they saw it. Lord Justice Glidewell asserted that whatever the historical origin of the power ‘it rests on the maxim or principle “salus populi suprema lex”’ (‘the welfare of the people is the supreme law’).43 In rationalizing the bind over power in these traditional terms, he simply assumed both the moral homogeneity of the people, as if they were indeed a single household, and the propriety of the wise discretion of the sovereign householder in protecting their welfare. This is the unquestioned and barely articulated source of the unbroken power which, it will be remembered, the Law Commission traced back to King Athelstan, and which Dubber identifies as patriarchal. But it is precisely this quality of the bind over that was found to violate the ECHR in the Hashman judgment because the outcome of such a deliberation could not be described as being ‘prescribed by law’.44 The Hashman court’s reasoning is a pointed rejection of the idea that, when it comes to the power of police (though the court does not call the bind over that), the substantive definition of the moral welfare of the people can be left solely to the discretion of the sovereign householder in the shape of his justices of the peace. The purely patriarchal justification of threat control therefore runs counter to contemporary legal doctrine. Moreover, just as patriarchal discretion is unacceptable where human rights are engaged, the substantive language of the (human rights-compatible) ASBO power that steps into the functional space vacated by the ancient bind over cannot be derived from the idea of a patriarchal household. For the Strasbourg court, the ancient power defined in traditional terms is not determinate enough to be prescribed by law, but a similarly broad discretionary power becomes sufficiently determinate, if it is defined in terms of its subjective effects on other citizens, if it is morally ‘pluralized’, as the ASBO power is. But, unlike the traditional justifications of the power of police in terms of the right of the householder-sovereign to ensure the welfare and security of the objects and persons who make up his household, the discretionary police power given to magistrates by the ASBO is explained as the means to protect the rights of persons who make up the sovereign’s household, at least the rights of those defined as both ‘vulnerable’ and ‘decent’. From the standpoint of patriarchal state authority, police powers protect persons considered as heteronomous objects whose welfare is the sovereign’s care and 43

Hughes v Holley (1988) 86 Cr App R 130, 137 (citing Fitzgerald J, in Feehan v Justices of Queens County (1882) 10 LR Ir 294). 44 See discussion of the bind over in Chapter 8.

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concern. It is ‘law’ not ‘police’ that protects the rights of persons as autonomous subjects from wrongful interference by others. The patriarchal police model does not fit the ASBO’s substantive law. It might be argued that the rights of the ‘vulnerable’ are merely a way of describing the duties of the sovereign under the maxim salus populi suprema lex from the point of view of their object. Since protection from threat has always been at the heart of the sovereign’s police power, the vulnerability of the objects of police power was always implicit in that power. But even if that is correct, the substantive content of the liability for a failure to reassure, and of the interests it protects, indicates that patriarchal sovereignty would be an unlikely source of this particular power. The ASBO’s construction of the ordinary citizen as intrinsically vulnerable and in fear of crime, and its moral pluralization of the police power, which displaces the sovereign’s explicit moral authority (when compared with the bind over), together suggest that the ASBO is consistent with a high degree of uncertainty concerning the state’s moral authority. In so far as the ASBO power and its official rationale construct ordinary citizens as in a condition of ‘ontological vulnerability’ or ‘dignified awareness of permanent menace to their integrity’, so as to require preemptive prohibition of behaviour that fails to reassure, this power can only be understood as a sovereign power in a very particular sense. For the sovereign as patriarch, threats and harms to his household arise on a contingent basis, and it is his duty and right to deal with them on that basis. Even if it follows from the existence of this patriarchal duty of police that, in this connection, the members of the household are necessarily vulnerable to threats, it would be perverse to understand the human members of a patriarch’s household as essentially vulnerable to each other. To pose mutual vulnerability as characteristic of citizenship does not evoke an image of a well-ordered household, quite the reverse. If anything, it evokes the image of the subjects of Hobbes’s state of nature.45 The law’s construction of the representative subject as a vulnerable potential victim is compelling evidence, if it were needed, of the demise of any patriarchal order. I will return to this critical point in the next chapter but for now the key point is that the ASBO’s moral pluralization of police, and the broader construction of representative vulnerability that serves to explain the liabilities for failure to reassure, cannot be squared with the idea that these powers are patriarchal in origin. Dubber’s police model, therefore, fails to account for the substantive justification of the ASBO because it can only imagine police powers as patriarchal. This is not to say that Dubber is wrong to identify a patriarchal source of police power. On the contrary, the story of the bind over suggests that this was an effective source of coercive authority for many centuries and that it is only in very recent times that this source of authority has come unstuck. The bind over story echoes our account in Chapter 5 of the political development of the ideology of vulnerable autonomy. Those theories came to enjoy political influence once the demise of traditional 45

T Hobbes, Leviathan (Penguin, 1968) ch 13.

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sources of authority had become inescapable, and the legal institutions of vulnerable autonomy have substituted for the coercive powers of patriarchal tradition at around the same time. Dubber’s model forces history into the model’s ideal types of law and police, and into the normative dichotomy of legitimacy and alegitimacy that it constructs on the ideal types. But the history is more complex than this essentially normative theory can allow for. In Chapter 5 we saw that the demise of patriarchal authority and the rise of vulnerable autonomy was a process mediated by the intervening regime of the democratic welfare state. And the second explanatory difficulty for Dubber’s theory is that it struggles to incorporate this experience as well. Dubber excludes the possibility of negligence liability from law on the grounds that only intentional or reckless attacks on another’s interests amount to ‘an attempt by one person to subjugate, or objectify, another’.46 However serious the harm suffered by the victim of a negligent act, it can never amount to a denial of the victim’s personhood. To violate a wrongdoer’s personhood by punishing them for a negligent wrong, in which they have not willed an attack on personhood, is to abandon the respect for personhood upon which legitimate state punishment depends. The problem with this is that while it would be possible to critique a great deal of contemporary criminal law for its overuse of objective standards of liability, it is unconvincing to consign all of the criminal law of negligence to the category of alegitimacy. It seems particularly unconvincing to argue, as Dubber effectively does, that negligence liability, in belonging to police power, contravenes standards of autonomy whose source is democracy. Negligence standards are found in a great deal of the regulatory criminal laws that are used to ensure high standards of conduct in private industrial and commercial activity and in the provision of public services. Moreover while police regulation of these activities had much longer roots, the contemporary forms of the regulatory state are associated with the rise of universal suffrage and democratic government. The theory of the democratic welfare state was that the state must ensure that those relatively disadvantaged by a liberal economic order were nonetheless sufficiently protected from the ill-effects of labouring for wages, or, worse, of not being able to labour for wages, from dangerous working conditions, from pollution, from dangerous products, from disease, from ignorance, and so on. Sufficient protection was protection that enabled all citizens to play a full part in the life of a democratic political community.47 Enforcing high standards of conduct on private actors through ‘public welfare offences’ based on negligence and strict liability standards has been a key element of the powers taken by the democratic welfare state.48

Dubber, ‘Criminal Police’, 104. TH Marshall, Citizenship and Social Class (Pluto Press, 1992). This is not to claim that democratic citizenship is the only reason for the rise of regulatory law, but there is a logical relationship between regulatory laws with objective fault standards and democracy. For an account, see P Ramsay, ‘The Responsible Subject as Citizen: Criminal Law Democracy and the Welfare State’ (2006) 69(1) Modern Law Review 29. 46 47 48

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The proposition that private businesses or individuals should never be coerced by the state into taking steps to avoid negligent and dangerous practices involving remote risk creation may be a tenable normative position, but it is a position that is very much at odds with the modern liberal understanding of a democratic culture. If the power of police is now being deployed in the service of security, it has long been deployed in the service of what liberal democratic societies have called social security.49 Police powers have been wielded extensively by statutory agencies in the name of the welfare of consumers and workers. For social democrats and modern social liberals (as opposed to classical liberals),50 social security has been a key normative commitment. The point here is that what for Dubber is alegitimate police power has long enjoyed a (social-)democratic source of legitimacy, over and above the surviving patriarchal aspects of police authority (such as could be found in the bind over power). The democratic sovereignty, as well as the patriarchal, seems to have found uses for the police power. It did so because the formal autonomy of personhood was seen to offer an inadequate account of freedom. Many of Dubber’s police offences are undoubtedly of dubious democratic legitimacy not least, as I shall shortly argue, the contemporary offences of insecurity discussed in this book.51 But this is not true of all of them. Dubber’s theory delegitimizes the ASBO, the terrorism preparation offence and protection of the right to security generally. But it also implicitly delegitimizes the use of penal laws to regulate working hours or food quality standards or road traffic.52 Dubber’s theory reminds us that the state’s coercive police powers arose historically from kingly authority and were for some centuries the work of absolute sovereignty in which the state’s patriarchal responsibility for the public welfare was largely unchallenged. Among the many things that this source of power allowed for were bind overs and vagrancy laws. This source of power was never overthrown and is reflected in a wide range of threat-control powers some of which we examined in the previous chapter. But in the UK at least that source of authority has been gradually worn away. Many of its regulatory police powers, although not the bind over or vagrancy laws, acquired democratic authority; some but not all have fallen victim to the assertion of the values of legality. Dubber’s theory is also important because it identifies the preinchoate preparation and possession offences as examples of the patriarchal police power at work in criminal law. But with the exhaustion of patriarchal tradition these laws must seek out normative order in subjectivist moral philosophy and later in the ideology of vulnerable autonomy. But Dubber cannot account for these later developments.

49 See M Neocleous, ‘Theoretical Foundation of the New Police Science’ in M Dubber and M Valverde (eds), The New Police Science: The Police Power in Domestic and International Governance (Stanford University Press, 2006). 50 See A Ryan, ‘Liberalism’, in R Goodin and P Pettit (eds), A Companion to Contemporary Political Philosophy (Blackwell Publishing, 1995) 291. 51 See Chapter 10 below. 52 Dubber recognizes this potential problem for his theory (see his discussion of Lochner v New York in The Police Power, 215).

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The categories of Husak’s normative criminal law theory tend, in their focus on moral philosophy, to indifference towards the specifics of the theory of vulnerable autonomy and, in their breadth and vagueness, towards the legitimation of the public wrongs of insecurity that vulnerable autonomy entails. Critically they lack specific criteria of what ought to turn a moral wrong into a public wrong. They therefore cannot tell us much about what is at stake in the emergence of a right to subjective security in the substantive law. For that we need political theory. Dubber’s political theory, by contrast to Husak, very definitely excludes the public wrongs of insecurity from legitimacy but throws the baby out with the bathwater. It relies on a narrow Kantian legitimating concept of personhood at a time when the actual practice of liberal democratic societies has long regarded that concept of personhood as insufficient to the needs of a liberal democratic political community and sought to ground state power in a richer account of autonomy.53 To understand the implications of the new criminal laws for the relationship of state and citizens, we need a political theory of legitimate criminal law that is able to incorporate the richer concept of autonomy that liberal societies have actually lived by, as orthodox normative theory does, but also gets us closer than orthodox theory can to specifying the characteristics that convert moral wrongs into public wrongs in the name of self-government. Alan Brudner’s magisterial theory of dialogic community explicitly includes just such a richer concept of autonomy.

9.4 Punishment in a dialogic community The significance of Brudner’s theory is that it offers a sophisticated rationalization of the penal practice of the liberal welfare states of the twentieth century and in particular of the legitimacy conditions of the penal law under the concept of political freedom that those states aspired to uphold. Brudner gives us a set of concepts through which we can precisely locate our current security laws with respect to the experience and aims of those democratic political communities. I will, therefore, first elaborate in a little detail those elements of Brudner’s theory that are relevant to our concerns before considering the right to security in the light of them. Like Dubber, Brudner sets out from the fact that penal coercion is state coercion and punishable crimes are ‘wrongful from the standpoint of a political sovereign claiming a monopoly on legitimate coercion’.54 Brudner immediately develops this thought into a theory of public wrong. Since penal coercion is a question of wrongs to the sovereign, legitimate penal coercion must serve what Brudner calls ‘public reason’, which he defines as any ‘interest that is necessarily rather than contingently shared—that is, shared by all subjects just by virtue of their possessing some common nature’.55 Only these shared interests when protected by the sovereign’s 53 The Kantian concept is insufficient, but as we shall see in our discussion of Brudner’s theory below, far from irrelevant. 54 A Brudner, Punishment and Freedom (Oxford University Press, 2009) 21. 55 Ibid, 22.

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coercion can be understood to be public rather than merely the private interests of the sovereign or any other person. Brudner calls these public interests ‘public reason’ because ‘it is an interest imputed by reason rather than inferred from behaviour or gleaned from self-reports’.56 The assumption that the interests that are common to all can be imputed by reason is a critical move in Brudner’s theory. I will return to criticize it below,57 but in order to understand the implications of the right to security for Brudner’s theory, I will take it at face value for the present. The first component of this public reason is that ‘penal action by public officials is permissible force rather than wrongful violence only if it could be accepted by the sufferer, considered as a free and independent person, as being consistent with his or her freedom’.58 Legitimate state force is that which respects the end status of the individual it is used against. That individual cannot be used as a means to others’ ends but only to ends that he or she could recognize as consistent with their freedom. Brudner’s conception of freedom, like Dubber’s, sets out from respect for personhood, but Brudner’s is more complex. The penal law that will be consistent with this freedom is ‘a unity of three distinct legal paradigms or frameworks, each of which is organized around a particular conception of freedom, which nonetheless needs the others for its coherence’.59 This unity is ‘complex’ because the three conceptions of freedom in the three different paradigms are antagonistic to the extent that the ‘immoderate’ pursuit of any one of them would conflict with the protection of the others. But this pluralism nevertheless remains a ‘unity’ because the coherence of each concept of freedom depends upon the satisfaction of the others, and so the immoderate pursuit of any one of them would result in the undermining of that particular conception of freedom as well as the others. These paradigms he calls ‘formal agency’, ‘real autonomy’ and ‘communal solidarity’, and their overall unity he calls ‘dialogic community’. By arguing for the mutual interdependence of these paradigms, Brudner’s theory allows us to understand the unity of what appears to Dubber to be the irreconcilable antagonism between law and police, while, at the same time, not giving carte blanche to the sovereign. Formal agency is that aspect of human freedom which Brudner describes as ‘the negative capacity for nondetermination’60 and which is better known as negative liberty, the ‘capacity to have chosen otherwise than one did’.61 It does not matter to this conception of freedom why the agent makes any particular choice as opposed to another, whether these choices are impulsive, motivated by mere satisfaction of appetites or whether they are motivated by reasoned reflection by the agent about their own purposes in choosing. By contrast, in the real autonomy paradigm ‘Freedom . . . consists in actualizing the agent’s potential for self-determination. Thus, an agent is free only if it acts from ends that are self-authored.’62 In this way Brudner directly incorporates not only the capacity for self-government, but actual self-government too, into his conception of freedom. 56 59 61

57 Ibid. See Afterword. Ibid, 6 (emphasis original). 62 Ibid, 5. Ibid, 138.

58

60

Brudner, Punishment and Freedom, 2. Ibid, 299.

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In the formal agency paradigm, criminal offences punish the willed interference with another’s capacity to choose. This paradigm maps on to Dubber’s category of law. Punishment for any deliberate interference with another’s capacity to choose is self-willed by the offender because by his own actions the offender has denied the formal rights of negative liberty and the punishment treats him in a way that accords with his will that these formal rights be denied. In this way punishment upholds the formal agency of the offender while vindicating that of the victim and indeed all the law’s subjects. For punishment to be justified the offender’s interference with another’s autonomy must be willed, or it does not amount to a denial of the right to formal agency and any punishment cannot be understood as self-willed. This retributive justification for punishment mandates that the penal law maintain subjective fault categories of intention, knowledge and recklessness. In the real autonomy paradigm, however, it is actual self-determination that is at issue, and the criminal law is concerned to protect those interests that are ‘essential to realizing the agent’s potential for acting from self-authored ends’.63 This has a number of important implications for criminal law, including the ordinal proportionality of punishment of offences against formal agency. But for our purposes the important aspect of this paradigm is that these interests may be protected by public welfare offences. By enforcing adequate standards in working conditions, housing, product quality and many other areas of everyday life these offences serve to eliminate or ameliorate those threats to agents’ potential for acting from selfauthored ends that lie beyond what they can control through the exercise of their formal agency. These offences, unlike criminal law proper, do not require willed interference with another’s interests. Punishment is here justified by reference to the conception of freedom as pursuing self-authored ends. Negligence will be adequate to these offences because the reason for punishment is not a retributive response to an antecedent denial of rights, but designed ‘to deter excessive risk taking’. Any sanction is ‘neither deserved nor undeserved’ and is better called regulatory than criminal, although, significantly, Brudner argues that where an agent knowingly commits a public welfare offence, the defiance of the law’s authority is rights-denying and punishment can be retributively justified.64 The limit on the real autonomy paradigm is not that of retributive justice but is provided by the ‘non-contradiction proviso’: ‘the public good of autonomy cannot coherently be pursued by penal means that secure autonomy for some by denying it to another, for these instruments turn the public good into a special interest’.65 Brudner argues that these two paradigms entail the other for their own coherence. The reason is that respect for formal agency provides a necessarily incomplete account of human freedom. It is possible for an agent to make undetermined choices that are inconsistent with their freedom as ends in themselves, by making choices that reduce themselves to the mere means to another’s end (for example, by voluntarily agreeing to slavery). Respect for formal agency ends up denying the very value that it exists to protect. However a choice to be a slave would never be 63

See Afterword, 138.

64

Brudner, Punishment and Freedom, 177.

65

Ibid, 184.

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consistent with real autonomy because it would prevent the self-authoring of ends.66 If respect for formal agency is to be preserved, the formal agency paradigm is not enough; its own deficiencies logically necessitate the more robust view of freedom as ‘actualized potential for self-determination’. At the same time, there is no logical imperative for the real autonomy paradigm to override that of formal agency since there can be no pursuit of self-authored ends without ‘the capacity for non-determination’ that comprises formal agency. To determine and make all punishments a question of preventing harm to agency goods would deprive someone of their liberty merely on the ground of excessive risk, and without retributive justification, that would be to violate their formal agency without their implicit authorization. The two paradigms are logically unified. Brudner goes on to ask about ‘the nature of the whole revealed by the interdependence of formal agency and real autonomy’.67 He argues that the interdependence of these paradigms ‘is the idea of a political community that is alive in the civic-mindedness of free agents and of free agents whose dignity rests on active citizenship’.68 This he calls dialogic community, a particular sort of political community whose authority is recognized by its citizens on the basis of the community’s reciprocal recognition of their morally self-determining agency.69 A dialogic political community has the end status of the individuals who comprise it as its own end, the authority of its laws depends on respect for that end, and so it will be a political community that respects the interdependence of the two paradigms. This unity grounds a third paradigm of criminal justice, that of communal solidarity, the implications of which I will return to shortly. The value of Brudner’s theoretical account is that it explains how the different and apparently contradictory aspects of the penal law can be reconciled, if we understand it as the law of a dialogic community. In particular from the standpoint of dialogic community what Dubber calls personhood should be understood as simply one incomplete aspect of freedom: formal agency or liberty. To the extent that we live in a liberal dialogic community, much of Dubber’s police power, in so far as it serves to protect the real autonomy of the law’s subjects, can also be legitimated. Brudner’s liberal dialogic community, with its respect both for formal agency and real autonomy, a respect that is enforced in different ways by penal law, offers a highly plausible normative account of the legitimacy claim made by democratic welfare states.70 I will return to the question of whether or not Brudner’s attempted reconciliation of these antagonistic elements is ultimately convincing. But for present purposes we can take it that, to the extent that our criminal laws depart from Brudner’s theory, and in particular the extent to which the police power is overextended, our political community falls short of the ideal liberal dialogic community.

66

67 68 69 Ibid, 297–9. Ibid, 305. Ibid, 305–6. Ibid, 307. It is an idealization of the historical experience of democratic welfare states. Brudner’s dialogic community has no place for the strict liability that is so prevalent in practice in the public welfare offences. 70

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So how does criminal law’s protection of a right to security fare in Brudner’s concept? Brudner does not address the issue but it is instructive to try to understand our liabilities for failure to reassure through the categories of dialogic community. Brudner gives a strongly objectivist account of inchoate liability for the offences of attempt and conspiracy on the retributive ground that punishment is not deserved without a manifest choice to deny rights.71 This would appear to rule out the preparation and preinchoate offences. But this objectivist response takes no account of the claim that preparatory acts make an accumulative contribution to the harm of fear and insecurity that undermines the self-government of vulnerable subjects. Understood from this point of view, preparation offences would belong to Brudner’s paradigm of real autonomy. Certainly some minimum guarantee of subjective security would seem to count as an agency good, because, if I lack it, I will too often be compelled to act in such a way as to evade threats and ‘my choice will fail to realize my potential of acting from self-authored ends because the only available options are those that have been imposed on me by circumstance and that I would not choose were I empirically able to set ends for myself ’.72 In so far as my fears have been ‘imposed on me by circumstance’, I am deprived of an essential agency good, much as I am deprived by ill-health or industrial accidents. If causing others insecurity damages an essential agency good, then can the doing of this harm be made subject to a penalty without violating the autonomy of the putative offender? If we assume, in the manner of the theory of vulnerable autonomy, that the causing of insecurity to others cannot be an autonomous act, but can only be a heteronomously determined act, then securing real autonomy by coercing agents into avoiding such acts would not deny those agents autonomy, nor would incarcerating them for the rights-denial involved when they knowingly break a relevant security law. Here then we have the element of continuity between the right to security protected by our offences of insecurity and the long-standing commitments of welfare states to the provision of a broad ‘social security’. It is worth noting that the general proposition that upholding real autonomy requires the protection of positive freedom in the form of agency goods is not a peculiarity of Brudner’s theory. It is an influential idea in legal theory,73 and also in criminal law theory. Ashworth describes it as the ‘principle of welfare’,74 and Lacey specifies ‘personal safety’ as one of the welfare interests that criminal law may protect.75 It is this element of continuity that explains the relative openness of moral criminal law theory to the right to security. But Lacey, for example, in discussing the question, also refers to ‘very basic goods’ and to ‘physical security’.76 The question is whether subjective security as such can be treated as an agency good consistently with the dialogic community? 71 72 73 74 75 76

Brudner, Punishment and Freedom, 121–30. See Brudner’s discussion of the threat of starvation as frustrating real autonomy (ibid, 28–9). See, for example, J Raz, The Morality of Freedom (Oxford University Press, 1986) 425. A Ashworth, Principles of Criminal Law (Oxford University Press, 2009) 26. N Lacey, State Punishment (Routledge, 1988) 104. Ibid.

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In the first place it might be argued that only the causing of some, but not all, subjective insecurity violates Brudner’s criterion of ‘public reason’. Public reason is only those interests that all agents necessarily share because that interest can be ‘imputed to them by reason’ rather than by empirical observation. The interest in subjective security that is necessarily shared among all agents is only the prevention of that degree of insecurity that reason tells us would interfere with the autonomy of others. A particular agent might feel afraid in some situation, but with some greater or lesser degree of courage nevertheless discount her fear as a reason to choose one course of action or another, preferring instead to act on self-authored reasons. The degree of insecurity that would interfere with the real autonomy of an agent so as to provide public reason for the sovereign to coerce agents into not causing it is only that degree of insecurity that would interfere with the reasonable person’s real autonomy. Arguably it is the prohibition of causing this degree of insecurity that explains much of the law that protected subjective security interests before the 1980s and 1990s. It is plausible to argue that the ‘reasonable person’ will be affected by threats to specific protected interests that are intended by their maker to be credible threats.77 Moreover it will be recalled that the statutory nuisance abatement notice required that nuisance be unreasonable in the context. But just how sensitive to threats and how risk-averse is the reasonable person? There is no requirement in the ASBO for the harassment, alarm or distress to be anything but serious enough to amount to insecurity to the most vulnerable person likely to be present. There is no control for hypersensitivity.78 Equally, in respect of the insecurity caused by terrorism preparations and possessions, does the reasonable person allow the terrorist intentions of cranks and aspiring teenage martyrs to influence their own choices (notwithstanding the possibility that some of these wannabes will in fact pull off an attack from time to time), or does the reasonable person discount those remote possibilities? The same applies with greater force to the less serious and more remote preinchoate offences. The assumption of the theory of vulnerable autonomy is that the representative subject of law does indeed feel so insecure that a duty on others not to cause insecurity is a condition of real autonomy. It is not clear on the face of it whether Brudner’s theory should accept this assumption. So let us consider what his theory tells us either way: firstly, if the assumption is rejected, and, secondly, if it is accepted. In Chapter 5, the assumption that vulnerable autonomy was the representative condition was described as ideological because of its partiality, its discounting of the actual pattern of criminal victimization. The pattern of victimization is very unevenly distributed and so only some have reason to be afraid of the sort of threats involved in anti-social behaviour, for example. If the assumption of normal representative vulnerability is rejected on this ground, then the laws based on it simply violate Brudner’s non-contradiction proviso because the penal law has been rendered a coercive threat restricting the autonomy of all in the service of the 77

See the discussion of threat offences in Chapter 8. Reasonableness it will be recalled is only relevant in so far as the defendant can prove the conduct causing harassment alarm or distress was reasonable (CDA 1998, s 1(5)). 78

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private interests of only some citizens—those who are hypersensitive. What is the position if, on the other hand, the ideological claim of vulnerable autonomy is incorporated in Brudner’s theory? For Brudner’s theory to legitimate the scope of the liabilities encompassed by our present right to security, we would have to be able to argue that reasonable agents necessarily feel so insecure that the possibility of criminal victimization is routinely factored into their plans in such a way that it interferes with their real autonomy. Remember that this is not an empirical question.79 Rather, the question is under what conditions would the reasonable person feel routinely vulnerable to criminal victimization. Under what conditions could we assume that all agents would take others’ failure to reassure seriously enough as to allow the fears generated by that failure to motivate their own choices? For only in these conditions would the liability for failing to reassure amount to a ‘public reason’ for punishment rather than merely serve the private interests of the unusually insecure. Those conditions would be ones where it was reasonable to interpret any manifestation of hostility or indifference as a prelude to attack requiring anticipatory or pre-emptive restraint or evasion. But those would be conditions under which there was very little restraint on potential attackers’ conduct other than whatever could be offered by the potential victim herself. In other words, these would be conditions of anomie in which people experience, or at least believe, that there is an absence of norms of social conduct, or at least that these norms will not be effectively enforced.80 But, if that is right, then what has happened to the authority of the sovereign who claims legitimacy for the laws threatening punishment for the causing of insecurity? And where is the dialogic community of mutual recognition over which the sovereign rules? The construction that legitimates the sovereign’s punishment of agents in the paradigm of real autonomy for the causing of insecurity is premised on the view that those agents do not recognize the effective authority of that same sovereign. It is premised on the breakdown of the dialogic community. This breakdown of dialogic community is also implied in the way that the right to security can be understood as an immodest assertion of Brudner’s third paradigm of communal solidarity. As Giddens’s discussion of ontological security implied, security is not just any old agency good. Without enough of it individuals will find it very hard to pursue any other interest. Security, as we noted at the outset in the Introduction, is what Ian Loader and Neil Walker call ‘a constitutive public good— one whose actualization or aspiration is so pivotal to the very purpose of community that at the level of self-identification it helps to construct and sustain our “we-feeling”—our very sense of “common publicness”’.81 In other words, without sufficient security there is no community that subjects can identify as belonging to. 79 Although it is significant that the most influential criminal justice theory of recent times does indeed hold that the threat of crime has become a routine aspect of modern consciousness (see the discussion of Garland’s Culture of Control in Chapter 10). 80 R Dahrendorf, Law and Order (Stevens & Sons, 1985) 21. 81 I Loader and N Walker, Civilizing Security (Cambridge University Press, 2007) 164.

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Ontological security, it will be recalled, requires the maintenance of Anderson and Honneth’s ‘recognitional infrastructure’, and this infrastructure maps on to Brudner’s dialogic community that is achieved by subjects’ willing membership of a political community in which all respect the liberty and self-determination of other citizens and are in return respected. Just as in the theory of vulnerable autonomy, active citizenship is the key to freedom in the paradigm of communal solidarity. But the subjective and dispositional definitions of criminal conduct that protect our right to security impose liability for mere manifestation of an attitude of hostility to the law’s norms, and this, according to Brudner, is to demand communal solidarity at the expense of individual autonomy. The reason that individual autonomy is overridden in this construction is that for a liberal dialogic community to maintain itself individuals must ‘freely accept communal authority’.82 However, these criminal laws, in so far as they prohibit harms to the recognitional infrastructure of communal solidarity by demanding that subjects not manifest a hostile or indifferent attitude to the law’s norms, effectively coerce manifestations of disloyalty. In so doing, these offences subordinate the paradigms of formal agency and real autonomy to that of communal solidarity. They cannot be the work of a dialogic community since such a community is premised on recognition of the status of its members as ends in themselves, and it therefore cannot coerce mere expressions of disloyalty.83 To summarize, if the theory of vulnerable autonomy is rejected on the grounds of its ideological one-sidedness then Brudner’s theory suggests that our penal laws of vulnerable autonomy seek to uphold real autonomy, but in a way that violates the non-contradiction proviso, and goes beyond the limits of what a liberal dialogic community may set out to do. If this is the case we will need to be able to explain why our actual laws have departed from those of a liberal dialogic community and in particular why they have done so in the form of an overextension of one of that community’s inner principles. Just as interesting, for our present purposes, however, is that if vulnerable autonomy with its infrastructure of mutual recognition is seen as an aspect of dialogic community, then the penal laws it supports present a paradox: their claim to legitimacy as penal law is premised on the absence of sovereign authority. In other words, the substantive law assumes a breakdown in the very dialogic community that is its own basis because the law assumes that the community’s coercive authority is not thought by subjects to be effective. And the law’s response is to assert a penal protection of the conditions of communal solidarity at the expense of the protection of formal agency and real autonomy. From the standpoint of Brudner’s theory, these laws give the state penal powers that, one way or another, bring the liberal dialogic community into self-contradiction. Understanding the laws that protect a right to security from the standpoint of

82

Brudner, Punishment and Freedom, 310. ‘Community is genuinely dialogical—genuinely respectful of the individual agent’s independence—only in awaiting spontaneous recognition from the individual who, standing outside the communal solidarity, lays claim to dignity as a nomadic agent.’ (Ibid, 312). 83

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Brudner’s theory tells us that there is a profound problem of authority in the liberal order, one that has produced a political response that endeavours to coerce the conditions of communal solidarity. Moreover, we have seen that this coercive response cannot be a traditionalist one since the substantive premises of these offences of insecurity are inconsistent with patriarchal order as well.

9.5 Conclusion Husak’s normative criminal law theory presents few obstacles to a liability for a failure to reassure providing that that failure can be understood as causing a harm that amounts to a public wrong deserving of punishment. Once the theory of vulnerable autonomy is adopted as a specific way of understanding the political relationship between citizens and between citizens and the state then the failure to reassure can be understood as such a public wrong: moral philosophy does not give us concepts that allow us to think about the specific scope of public wrong. Dubber’s classical liberalism constructs the liability for failure to reassure as an alegitimate exercise of police power, but it misreads both these laws and the wider tradition of regulatory law as the work of a patriarchal sovereign. Older regulatory powers may have been the work of the undemocratic hierarchical state power that Dubber calls patriarchal. But, on the one hand, the welfare state has given socialdemocratic legitimacy to some of these powers and, on the other, the contemporary security laws assume a level of disorder that is inconsistent with the idea of traditional patriarchal order. Brudner’s Hegelian liberal theory explains the limitations of the other two theories. It demonstrates that Dubber’s theory maintains too narrow a concept of public wrong because it does not recognize the modern liberal doctrine that the protection of personhood does not exhaust the conditions of political freedom. Moral philosophy, on the other hand, recognizes the existence of a wider category of wrongs such as those against real autonomy, but is unable to specify conditions under which they should be treated as public wrongs. Brudner’s theory of dialogic community, by contrast, does specify conditions in which enforcement of a public wrong will serve real autonomy and those in which it will not. It, therefore, gives us a mechanism to assess the normative legitimacy of acting on the theory of vulnerable autonomy and the laws the theory supports. And what that tells us is that the adoption in practice of the theory of vulnerable autonomy into the penal law will bring the liberal state to the point of self-contradiction. Neither Dubber’s nor Brudner’s theories are historical theories. But they help us to understand the logic of the emergence of the right to security out of an earlier period in which protection of subjective security was piecemeal or justified in other terms. The patriarchal sovereignty always maintained broad powers of police, from the ancient bind over to the modern possession laws. And these were overlain by the public reason of dialogic community that emerged historically with universal political citizenship. This structure sought to protect agency goods including such subjective security interests that were matters of public reason because common to all. Some of the police powers always sat in an uneasy relationship with the

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democratic order. Possession offences and the continued use of vagrancy offences were marked with controversy from time to time. But it is only with the historical demise both of the citizenship arrangements of the welfare state and the influence of older traditions that ‘public reason’ comes to be understood in the terms of vulnerable autonomy. It is only then that the essential agency goods that are held to be common to the autonomy of all are defined by the needs of the most vulnerable, and the law comes to protect a right to security. In this way, the welfarist paradigm of real autonomy has been overextended so as to be inconsistent with the authority, not only of the dialogical community but of the patriarchal sovereign as well. In the next chapter I will explore this practical self-contradiction of liberalism in the UK and further specify the connection between the ideology of vulnerable autonomy, the right to security and the demise of the authority of the liberal state.

10 The Insecurity State The civil preventive orders and preinchoate offences protect the right to security by permitting the assessment of subjects’ manifest attitude to the norms of communal solidarity and, where this is deficient, incapacitating them according to the requirements of preventive necessity. The incapacitation is more finely graded with the CPOs, but the same assessment of dangerousness and proportionate response to dangerousness characterizes both of them. Reviewing these penal laws in terms of liberal political theory showed that they are not consistent with the authority of a state that recognizes individual freedom as the raison d’etre of the political community. But neither can they be counted as an example of backsliding to an older patriarchal form of illiberal authority, or as a failure to escape from traditional authority. They seem to be better regarded as an extension of some of the powers that a liberal state will take to uphold the real autonomy of citizens and to ensure the community’s solidarity, but an extension that goes beyond the limits of the authority of a liberal state. How is this overextension to be understood? Why has it come about? We get a big clue from the particular way in which the security laws depart conceptually from the authority of both patriarchal and dialogic sovereignties. From the patriarchal standpoint, the law’s premise of a normal ontological vulnerability implies too great a disorder; from the dialogic standpoint, the authority of the sovereignty that emerges from the mutual recognition of free subjects has given way to an oppressive enforcement of the conditions of communal solidarity. Laws that construct this degree of disorder and offer an oppressive response seem to imply some abnormal state of affairs. One perspective in which we might view them is that of emergency. Emergency powers are very often powers of preventive necessity like the laws we are considering. It will be recalled that Prime Minister Blair spoke about the ASBO in terms of ‘disturbing normal legal process’.1 But none of these security laws is formally an emergency power. All are enacted in normal statutes.2 The ASBO is a ‘disturbance’ that has gone on for more than a decade already and the substantive liabilities it imposed have not gone away. More significantly, all these powers can be understood in terms of the norm of vulnerable autonomy, of respect for others’ security needs, and they threaten punishment as a response to the wrong involved in violating those security needs. Describing them in these terms brings to mind the influential recent 1 2

See Chapter 4, text at n 73. With the exception of the non-derogating control order. See discussion in Chapter 7.

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arguments that emergency powers are indeed becoming the norm.3 By understanding how these powers fit into the idea of the ‘normalization of the state of exception’, we can get a clear picture of the nature of the loss of authority they reveal.

10.1 The dialectic of norm and exception In the state of emergency, legal norms cease to apply and the state’s agents are permitted to act for reasons of state, which is to say on the grounds of what is necessary for the defence of the state against its enemies. In the state of emergency, necessity is the rationale of the state’s coercive action and respect for individual subjects’ formal agency or autonomy interests may be suspended to a greater or lesser extent. However, it has been widely noted that over the course of the twentieth century the emergency powers that have been taken by ostensibly liberal states during wartime or other national emergencies have remained in force long after the passing of the exigencies that brought them into being.4 This process has been described as the ‘normalization of emergency’,5 or, deploying the language of the influential political theory of Carl Schmitt, the ‘normalization of the state of exception’.6 The criminal laws that we are concerned with here seem, however, to represent the obverse process to normalizing the state of exception. In the normalization of the state of exception, the emergency powers and improvised extra-legal measures taken by a state seeking to protect itself from the threats posed by its enemies become the norm. The liability for failure to reassure presents the reverse aspect. Contained in ordinary statutes, these criminal offences effectively subject individuals to an assessment of their disposition towards the interests protected by the legal system. If this assessment indicates disloyalty to those interests, the individual is controlled accordingly, although in the form of punishment for the wrong of causing insecurity that she has committed. Rather than explicit emergency powers becoming normalized, these explicitly normal legal powers exhibit the characteristics of emergency powers. Both of these processes can be understood as expanding the state’s power over the law’s subjects by expanding its capacity for threat assessment and incapacitation on the grounds of preventive necessity.7 But to see only this shared quality would be to overlook something distinctive in the process accounted for in this book. This debate was ignited by the American experience of ‘war on terror’ that, on the one hand, appeared to lack any clear criteria for victory (and, therefore, any prospect of an end) while, on the other hand, brought with it an emergency regime of detention without trial and torture. 4 K Scheppele, ‘Law in a Time of Emergency: States of Exception and the Temptations of 9/11’ (2004) 6 University of Pennsylvania Journal of Constitutional Law 1001; G Agamben, State of Exception (University of Chicago Press, 2005); M Neocleous, Critique of Security (Edinburgh University Press, 2008) ch 2. 5 Neocleous, ibid. 6 Agamben, State of Exception. 7 On the contribution of ‘enemy criminal laws’ to the normalization of the state of exception see S Krasmann, ‘The Enemy on the Border: Critique of a Programme in Favour of a Preventive State’ (2007) 9(3) Punishment and Society 301, 304. 3

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Understanding the distinctive element allows us to see the relationship between these security laws and liberalism in a new light, to see something that might be missed if the relationship is perceived from the standpoint of the normalization of emergency powers. The normalization of emergency is a process that represents a challenge to traditional liberalism. Liberal states, at least in theory, try to maintain the separation between the normal condition of the rule of law and the exceptional conditions of emergency. Mark Neocleous has argued persuasively that many leading thinkers in the liberal tradition have recognized the ultimate priority of security over liberty, and that, from John Locke onwards, the rule of law has always ultimately depended upon the existence of the emergency power.8 Neocleous suggests that for liberalism the project of liberty has always been ‘wrapped in’ the project of security.9 It is this underlying (and underplayed) commitment that explains the defencelessness of liberal societies in the face of the demands of security.10 Neocleous traces the steady transformation of the martial law of the nineteenth century into the emergency powers of the twentieth, powers that were to become an increasingly permanent feature of the legal regime of apparently liberal societies. However, as he points out, notwithstanding this real historical development, the presentation of the question by liberalism has always emphasized the exceptional character of emergency powers. Even if emergency powers have long in fact been the rule, the idea of the rule of law remains essential to the liberal worldview. As a result, Neocleous argues, ‘liberalism seeks to ideologically separate “normal” constitutional order from emergency rule, thereby preserving the constitution in its pristine form while providing the executive with the power to act in an emergency’.11 The separation is ‘ideological’ because the appearance of separation serves to disguise an underlying reality in which constitutional rights are in permanent coexistence with emergency power. But this appearance of separation between the normal and exceptional, that for Neocleous is characteristic of liberalism, is exactly what is abandoned in the ideology of vulnerable autonomy. In the new ideology, the enforcement of what is necessary in the name of security is not even represented as an exceptional moment that ‘temporarily’ overrides the norm. Rather than appearing to be exceptional, preventive necessity appears as the norm itself—the right to security. Neocleous argues that to speak of the normalization of emergency is to set out from the essentially liberal ideological standpoint of norm and exception.12 But the ideology of vulnerable autonomy has already eliminated the liberal distinction from its premises. The new ideology drops any pretence of the exceptional character of what liberals might have called emergency power. Instead, the power’s very permanence appears as the condition of freedom: the reflex of a citizen’s ‘right to security’ is the obligation not to fail to reassure 8 Locke referred to it as the prerogative, the ‘power to act according to discretion, for the public good, without the prescription of law, and sometimes even against it’ (J Locke, Two Treatises of Government (JM Dent, 1990) 190). 9 M Neocleous, Critique of Security, 22. 10 11 12 Ibid, 32. Ibid, 72. Ibid, 71.

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others of your good intentions. This is not so much the normalization of the exception, more the exceptionalization of normality! That something as apparently fundamental to the liberal ideology as the separation of normality and emergency should be eliminated by the justification of penal laws in terms of vulnerable autonomy implies a significant shift in the character of nominally liberal political orders. Indeed, the disappearance of this distinction suggests that a still more fundamental category of classical liberal political theory may be put in doubt by the ideology of vulnerable autonomy.

10.2 Hollow sovereignty The enforcement of a right to security empowers state action rather than limits it. On the face of it, powers to deal with threats such as the penal laws discussed here fit the model of sovereign action perfectly. So it has been very tempting to reach for Thomas Hobbes and to find the hand of Leviathan in the extensive deployment of the state’s penal power effected in the name of protecting an insecure public.13 This tendency to understand the invocation of security in terms of sovereign power has been strengthened by the widespread influence of Schmitt. For Schmitt, sovereignty was defined by the power to decide on the exception.14 By granting to prosecutors and judges the power to decide who should be made subject to the exceptional status of threat or enemy and controlled accordingly, the liabilities for failure to reassure, therefore, seem to be the epitome of sovereign action.15 But, in so far as these powers are normalized and justified in terms of the protection of the right to security, enjoyed because of the citizenry’s vulnerable autonomy, an assumption has been made that is radically at odds with Hobbes’s account of Leviathan’s sovereignty. Hobbes was unquestionably a theorist of mutual vulnerability. Natural equality between individuals was such that no ‘one man can thereupon claim to himselfe any benefit, to which another man may not pretend, as well as he’; and, moreover, ‘the weakest has strength enough to kill the strongest’.16 The state of nature was therefore, and notoriously, a war of ‘every man against every man’.17 Of all the disastrous consequences of this condition ‘worst of all [is] continuall feare and danger of violent death’.18 It was this vulnerability that made it rational for all to contract with each other to exchange their natural liberties for the security offered by obedience to a sovereign—the mighty Leviathan, upon whom they ‘conferre all their power and strength’.19 And this sovereign was authorized by the subjects to do what ‘he shall think expedient, for their Peace and Common Defence’.20 Since

13

See Introduction, text at nn 10–12. C Schmitt, Political Theology (University of Chicago Press, 2005) 5. ‘Like the decision to wage war, the decision to . . . extend police powers exemplifies the sovereign mode of state action.’ Garland, Culture of Control, 135. 16 See T Hobbes, Leviathan (Penguin, 1968) 183. 17 18 19 20 Ibid, 184. Ibid, 186. Ibid, 227. Ibid, 228. 14 15

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Hobbes’s view of punishment was avowedly consequentialist,21 it might seem that the security gains offered by the liability for failure to reassure might well lead a Leviathan to countenance such a measure. But for Hobbes ontological vulnerability as a representative or normal experience was precisely something that belonged to the state of nature. To justify the normal penal laws by reference to the security benefits of the vulnerable is an admission of defeat for Hobbes’s sovereign. From the consequentialist standpoint, to be certain that the marginal security gains from these laws outweigh both the loss of liberty to those controlled and punished by them, and the coercion of everyone else made liable for a failure to reassure, requires us to assume that law-abiding subjects are so anxious about dangerous people that their freedom is or would be significantly affected by the knowledge that the dangerous are at liberty and entirely uncontrolled. This anxiety must be sufficient to justify the anticipatory force of the various offences of insecurity. A moment’s thought reveals that this anxiety must be very significant if it is to provide the consequential justification for punishment—and in the theory of vulnerable autonomy such anxiety is the default position of subjects. The high degree of anxiety about potential threats to security is a psychological condition that Hobbes described as ‘diffidence’; and it is a condition that for him was characteristic of the subjects of the state of nature.22 In other words, the assumption upon which the security benefits of our present liabilities may justify enforcing them is that the law-abiding endure the psychological condition of the state of the nature. But if that is right then the sovereign’s claims for its penal laws are hollow, for its laws assume that its subjects lack confidence in its authority. For the true Leviathan this is inconceivable since his rule is authorized by none other than the subjects for the purpose of protection. The laws enforcing a right to security assume that the subjects are not convinced that the sovereign has succeeded in entirely excluding the state of nature. The claim being made here is not that the subjects of UK law are actually in some ‘state of nature’. For that to be true there would have to be no state authority with the capacity to enforce penal laws.23 Nor is it being claimed that British citizens necessarily endure the psychological condition of the state of nature.24 Rather, the specific claim is that the official understanding of the representative citizen as someone who feels intrinsically vulnerable to criminal victimization has been institutionalized as the premise of the substantive law. And if the feeling of Ibid, 210. For an account of Hobbes’s theory of punishment see A Ristrophe, ‘Respect and Resistance in Punishment Theory’ (2009) 97 California Law Review 601. 22 Hobbes, Leviathan, 184. 23 In any case truly anomic disorder is short lived on a large scale: see W Weyrauch, ‘The Experience of Lawlessness’ (2007) 10(3) New Criminal Law Review 415, 439. 24 It is not necessary for present purposes to investigate the actual extent or quality of fear of crime. If it is true that ontological insecurity is the representative normal condition then it would be the case that wherever basic civility is absent the normal citizen assumes that the worst may be the outcome. There is evidence that, in some neighbourhoods, subjects believe that offenders enjoy immunity (see A Bottoms, ‘Offence and Social Order in Residential Communities’ in A von Hirsch and A Simester (eds), Incivilities (Hart, 2006)). But this is a long way from establishing that this is anything like a universal condition. See discussion of Garland’s theory below. 21

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vulnerability to other citizens really is representative of us as citizens, then the implication must be that the normal citizen does not believe that the ordinary, existing criminal law has much (or at least sufficient) preventive effect; the law’s premise is that the representative citizen does not believe that the sovereign’s threat to punish those who might commit an offence is worth very much, or at least not enough to make that representative citizen feel secure. If the ordinary citizen really does feel vulnerable, then, it seems, she is not reassured by the presence of the ordinary criminal law’s threats. In other words, these new threats of punishment, aimed at creating security by protecting citizens’ sense of vulnerability, are based upon, and incorporate in their substantive legal terms, the assumption that the state’s threats of punishment do not inspire confidence in the population because they are inadequate to deter offenders. For the liberal order, the rule of normality in civil society was premised on the exclusion of the permanent emergency that is life in the state of nature. To ensure that exclusion, emergency rule would no doubt be necessitated from time to time by serious internal or external threats. But the norm of vulnerable autonomy implies a more radical merger of the commonwealth and the state of nature, the state of war and the state of peace. When penal protection of the right to security is incorporated into the normal legal system, it is being assumed that the law cannot take for granted that its subjects are either sufficiently loyal to the sovereign or sufficiently cowed by the sovereign’s threats for law-abiding citizens to be confident in the authority of the sovereign’s normative order. Hobbes’s sovereign might have faced rebellion or emergency from time to time, but the ideology of vulnerable autonomy converts at least some of the conditions of the state of nature into the normal conditions of civil society. Since, for the parties to it, the ‘finall Cause, End or Designe’ of the contract is ‘getting themselves out from that miserable condition’ that is the state of nature,25 the law effectively assumes that its subjects doubt that Leviathan is up to the job, and that the social contract, at least as Hobbes imagined it, has been a failure. The content of these new laws amounts to an authoritative statement of the law’s lack of authority. Richard Ericson got it right when he observed that contemporary security practices, including laws like the ASBO, ‘signify the transformation of the state as Leviathan. The Hobbesian Leviathan as a state that expresses the liberal imaginary of physical security and prosperity begins to break down.’26 Indeed the paradoxical character of the normative content of these laws invites us to go a step further. Whatever else we can say about the state that enacted the ASBO, the serious crime prevention order, the Fraud Act and so on, we can be confident (if that is the word) that this state is no Leviathan. Schmitt’s theory is one-sided. Even if the power to decide on the state of exception is characteristic of sovereign power, to rule only by means of this decision, to make this decisionism the ‘norm’ and place the state on a permanent emergency footing, is to expose the fragility of state authority. As Otto Kirchheimer put it: 25 26

Hobbes, Leviathan, 223. R Ericson, Crime in an Insecure World (Polity, 2007) 202.

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‘emergency in permanence becomes the genuine symbol of the very absence of that system of coordination to which history traditionally affixes the attribute of sovereignty’.27 The penal enforcement of the right to security provides just such a symbol: a hyperbolic performance of sovereignty similar to the one that Wendy Brown observes in the current building of physical walls along national borders, like that between the US and Mexico. These walls, she notes, ‘like all hyperbole . . . reveal a tremulousness, vulnerability, dubiousness, or instability at the core of what they aim to express—qualities that are themselves antithetical to sovereignty and thus elements of its undoing’.28 This is a fundamental problem with political authority experienced in the real world, and it is not necessary to be a signed-up Hobbesian to recognize it. It was reviewing Dubber’s account of patriarchal authority and Brudner’s mutual recognition theory of obligation that drew attention to the problem. When the legislature enacts penal laws that protect the right to security, when it merges emergency and normality, when it identifies enemies as an everyday presence within the commonwealth, it gives judges and administrators sweeping powers to control threats, but it also exposes a lack of belief in its sovereign authority in the very attempt to exercise that authority. The hollowing out of the state’s sovereign authority is just as much an abandonment of liberal tradition as is the erasure of the distinction between emergency and normality. Liberalism’s emphasis on the liberties that are only enjoyed under the rule of law is often counterpoised to the absolute law-making power implied by sovereignty. Where the sovereign enjoys a monopoly of legitimate coercion, civil liberties are precisely the limitation on that power of coercion that renders it legitimate. But, as Franz Neumann pointed out, the very possibility of liberal theories of the rule of law depends on the state enjoying that unchallenged monopoly of legitimate coercive power that comes with Leviathan’s sovereignty. It is only with that unchallenged monopoly that ‘restraints on sovereignty will no longer lead to [the state’s] disintegration’ so that civil rights are rendered conceivable.29 Sovereignty, therefore, though it appears to be the ‘negation’ of the liberal idea of freedom under the rule of law is in reality ‘its very presupposition’.30 The weakening of sovereignty is, therefore, a profound threat to the liberties traditionally claimed by liberal political orders. Enforcing the right to security reduces the state’s claim to sovereignty to a hollow formality that reflects the hollowness of its claims to be a liberal political order. By enforcing the right to security, governments institutionalize their own ideological 27 O Kirchheimer, ‘In Quest of Sovereignty’ in F Burin and K Shell (eds), Politics, Law and Social Change: Selected Essays of Otto Kirchheimer (Columbia University Press, 1969) 191. 28 W Brown, Walled States, Waning Sovereignty (Zone Books, 2010) 24. 29 We can see here the logical connection between sovereignty and the sovereign’s respect for normative order and legal certainty that Schmitt overlooks. Not only is the sovereign’s unchallenged monopoly on coercion the condition of civil rights, but respect for civil rights is not a threat to the sovereign’s authority. It is rather the affirmation of the existence of that authority. See F Neumann, ‘The Concept of Political Freedom’ in W Scheuerman (ed), The Rule of Law Under Siege: Selected Essays of Franz L Neumann and Otto Kirchheimer (University of California Press, 1996) 213. 30 Ibid, 214.

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assumption that citizens do not believe in the authority of the state, and expose government’s own lack of confidence in the integrity of the political community.

10.3 A nation no more? The fragility of the UK’s national life in the imagination of the nation’s rulers was most forcefully and explicitly demonstrated in the course of argument in one of the most important UK security cases of the twenty-first century’s first decade—the Belmarsh case in which the House of Lords declared that the detention of foreign terrorist suspects without trial was incompatible with the ECHR.31 The legal response to that case was the enactment of the control order regime, a response we have already discussed, and one that demonstrates how the underlying decline of governmental authority is normalized by the ideology of vulnerable autonomy, with its right to security. The Anti-Terrorism, Crime and Security Act 2001 gave the Home Secretary the power to imprison foreign nationals who were reasonably suspected of being terrorists and believed to be a threat to national security. These provisions required derogation from Article 5 ECHR under Article 15 grounds of a ‘public emergency threatening the life of the nation’. Several people detained under the power in HMP Belmarsh contested its lawfulness. The issues for the House of Lords were whether the derogation itself was justified under Article 15 and, if it was, whether the detention power was ‘strictly required by the exigencies of the situation’. The majority of the House of Lords was unwilling to dispute the government’s claim that there was an emergency threatening the life of the nation and that the derogation power was, therefore, properly exercised because it was the executive that enjoyed the ‘relative institutional competence’ to make such a decision, and the ECHR allowed executives a considerable ‘margin of appreciation’ before the courts would interfere in their judgment. The majority nevertheless declared that the detention power was incompatible with the Convention because it was not ‘strictly required’ by the exigencies of the emergency. On the one hand, the power both allowed persons regarded as terrorists to be deported on a voluntary basis (and so continue to represent a threat), while, on the other, it affected only foreign nationals (leaving UK nationals who might also be terrorists unaffected). The power, therefore, simply discriminated against foreign nationals in violation of Article 14 ECHR from which the government had not derogated.32 However, Lord Hoffmann’s dissenting judgment contested the government’s claim that there was an emergency, and noticed a significant implication that was 31

A v Secretary of State for the Home Department [2004] UKHL 56. In these respects the Belmarsh decision is a striking example of the legal thinking involved in the normalization of emergency. The court does not dispute the emergency but nor does it leave the conduct of the emergency to executive decision alone. The ECHR gives the judges some jurisdiction over emergency powers, preventing those powers from being simply a question of the executive’s unguided power to decide. Rather their exercise must satisfy the judge’s reasoned assessment of what is necessary in the situation. 32

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entailed in the claim. Among the conditions that the government had to satisfy to sustain their claim that derogation from Article 5 was justified on the grounds of public emergency were the following: ‘(1) [The threat] must be actual or imminent. (2) Its effects must involve the whole nation. (3) The continuance of the organized life of the community must be threatened.’33 In his evidence, the Attorney-General had submitted that ‘an emergency could properly be regarded as imminent if an atrocity was credibly threatened by a body such as Al-Qaeda which had demonstrated its capacity and will to carry out such a threat, where the atrocity might be committed without warning at any time’.34 Lord Hoffmann’s objection was that the Attorney-General’s submission ‘treated a threat of serious physical damage and loss of life as necessarily involving a threat to the life of the nation’.35 The true position, Lord Hoffmann believed, was that ‘The life of the nation is not coterminous with the lives of its people. The nation, its institutions and values, endure through generations.’36 He therefore doubted that the life of the nation could be threatened by the mere occurrence of terrorist atrocities. In this regard, he contrasted Islamist violence with the campaign of the Provisional IRA to force Britain out of Northern Ireland. The latter he regarded as an emergency because the IRA’s violence ‘threatened the life of that part of the nation and the territorial integrity of the United Kingdom as a whole’.37 But the government’s claim in respect of Islamist terrorism was no more than the existence of a realistic threat of serious acts of violence. Lord Hoffmann, therefore, concluded that the Attorney-General had to be mistaken about the existence of an emergency: ‘There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom.’38 It is significant that Lord Hoffmann’s analysis was isolated in lonely dissent. The majority was content to accept the executive’s view that a threat to the lives of nationals did indeed amount to a threat to the life of the nation; that the UK was indeed too ‘fragile or fissiparous’ as a nation to withstand an atrocity; and that the government’s claim on this ground that there was a public emergency therefore justified the derogation from Article 5. Both the Attorney-General’s claim and the House of Lords’ acceptance of it indicate the degree of fragility that is officially assumed to characterize the UK’s political community. Lord Hoffmann’s dissent went further. He concluded his judgment by stating that ‘The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these.’39 There is no need to share his patriotic assumption that Britain’s national life really was traditionally marked by a respect for the liberty of the person in order to recognize the force of his point. It is compelling because it was the government’s argument that put the lives of nationals in the place once occupied by institutions such as habeas corpus and the presumption of 33 34 35 38

The Greek Case (1969) 12 YB 1, para [153]. A v SSHD [2004] UKHL 56 cited by Lord Bingham, para [25]. 36 37 Ibid, para [95]. Ibid, para [91]. Ibid, para [93]. 39 Ibid, para [95]. Ibid, para [96].

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innocence—institutions that had long been officially claimed as distinctively British institutions.40 Official policy undermines national identity because in the governmental imagination, the vulnerability of the population’s physical life has been substituted for key symbols of the life of the nation as a political community. The government’s response to the Belmarsh judgment was to enact the control order regime. As we have seen the non-derogating control order also coerces those whom the Home Secretary reasonably suspects of being terrorists. But by restricting controlees’ liberty rather than depriving them entirely of it, by controlling the terms of those restrictions by reference to preventive necessity, and giving judges the power to review the proportionality of those restrictions, the substantive law of the control order survived human rights scrutiny. By contrast to the naked claim of emergency required to support the original detention power, the non-derogating control order imposed the threat-assessment regime characteristic of emergency but within the order of normality—the normality of vulnerable autonomy.41 But the ‘exceptional normality’ of vulnerable autonomy contains the same assumption of fragility as the government’s argument for the detention power. Only now that assumed fragility of the life of the nation is institutionalized as normal, in the form of the CPO and the other laws protecting the right to security, and, in the same moment, obscured from legal view.42

10.4 The decline of representative government Parliament, executive and courts all agree that the nation’s political community is fragile, that its population doubts the state’s authority and is, therefore, in need of reassurance. This waning of sovereignty, although parliament still enacts and ministers and judges continue to decide, reinforces the view that sovereignty is not a quality that belongs to the formal normative supremacy of some constitutional body or arrangement, nor as Schmitt argued, to any person with the capacity to suspend that constitutional order,43 but is rather, as Martin Loughlin argues, an attribute of the political sphere arising from the reflexive relations of accountability between people and government.44 The right to security is a vivid expression of the

40 It is not only criminal laws that manifest the decay of these national institutions. Immigration detention powers are another example of laws that are explicitly motivated as a defence of the British way of life but subvert the very institutions that the British establishment has long claimed as its own: see S Wolton, ‘Immigration Policy and the Crisis of “British Values” ’ (2006) 10(4) Citizenship Studies 453. 41 The point stands I think, although it could be argued that the non-derogating control order stood on the borderline of the normalized emergency power, since unlike the other security laws we have considered in the present work it did require annual renewal (Prevention of Terrorism Act 2005, s 13). 42 The control order certainly seemed successfully to obscure the underlying claim of fragility from Lord Hoffmann: see his judgment in Secretary of State for the Home Department v MB [2007] UKHL 46. 43 C Schmitt, Political Theology, 5. 44 M Loughlin, The Idea of Public Law (Oxford University Press, 2003) 83–6.

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weakening, in the imagination of political actors at least, of the relationship that constitutes the sovereign power of the political sphere. The source of the weakened confidence in their authority among those who govern is, therefore, not a simple failure of nerve on their part. It derives from a weakening in the chief source of their sovereign authority, their relationship with the governed. Formal legislative sovereignty is vested in the Queen in Parliament. In this way the UK’s constitution explicitly and directly combines the two modes of state authority identified by Dubber: the patriarchal and the democratic. Both these modes of relationship between government and governed have been transformed in the recent past. With the loss of empire and global influence from the 1950s onwards, the majesty associated with the British monarchy has been reduced to a remnant of glittering rituals and upmarket soap opera that are a mainstay of the tourist industry and the popular press. The monarchy retains significant affection among much of the nation, but it is not the locus of the state’s imperial grandeur and patriarchal authority that it once was. In addition to the decline of the political authority of monarchical tradition, we have also noted in Chapter 5 the decline suffered by traditional sources of moral authority in social policy. This process of disintegration of the authority of long-standing institutions is often recognized by one of its consequences and described as a ‘pervasive decline in deference to authority’.45 The sphere of criminal justice policy making has been one arena in which the decline of deference appears to have been particularly marked.46 And if the authority of the state’s criminal justice institutions is in decline then it should not come as a surprise that the political authorities find themselves enacting laws that are inconsistent with the image of the state as the protecting father of the nation. This decline in traditional sources of authority may in the past have been associated with the appearance of the democratic political culture of the welfare state in the mid-twentieth century, but no longer. In the wake of the demise of the authority provided by the monarch and other traditional sources, the authority of parliament as the representative of the nation has declined too. Here the waning of sovereign authority consists in the attenuation of the relationship between the representatives and those they represent. The political sphere in which the sovereignty of the British state has been engendered in recent centuries is one characterized by representative government. Between 1832 and 1945 representation was gradually universalized, extending citizenship to all adult nationals, and Britain became something that can be called a representative democracy. A British government’s formal claim to legitimate authority is based on its control of a legislatively supreme parliament elected by all adult nationals. And yet the evidence of public disenchantment with and withdrawal from representative politics since the early 1990s is incontestable.

45

P Norris, Critical Citizens: Global Support for Democratic Government (Oxford University Press, 1999) 237. 46 See J Pratt, Penal Populism (Routledge, 2007) 37–49.

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The quantitative aspect of the decline in political participation is well known.47 The crucial issue is qualitative, however. Political action is widely regarded as powerless in relation to the processes it endeavours to control.48 It will be recalled that the ideology of vulnerable autonomy arises as the dominant outlook only once traditional conservative values had been exposed as bankrupt following the decisive triumph of the so-called neoliberalism over its state socialist and liberal welfarist rivals. This mutual ruin of the old political movements has denuded mainstream politics of significantly different visions of society, and reduced competition between the parties to point scoring over tax and spend, and the best technical mix of public and private service provision. Critically, parties have ceased to represent clearly defined communities of interest formed around adherence to their distinctive programmes. New Labour is the most straightforward example of this. The 1995 abandonment of Clause IV of the party’s constitution (committing it to ‘the common ownership of the means of production, distribution and exchange’) was the key symbolic moment in transforming the Labour Party into New Labour, and it ended the articulation of British politics in terms of conflicting class interests. The adoption of the Third Way outlook was an attempt to resolve the political identity crisis but its political foundation was the severing of the old representative relation to organized labour. The relationship between the Conservative Party and its traditional base has become equally problematic. Where the market is the only alternative, politics becomes an essentially ‘post-democratic’ charade characterized on all sides by the ‘managerial practice of bowing to commercial necessity’.49 Public contempt for an apparently impotent and self-serving political class reached a crescendo with the parliamentary expenses scandal in 2009–10. Given the attenuation of the political relations of representation that had supplied the state’s source of legitimate authority, it is perhaps unsurprising to find that the legal protection of the right to security that is an incident of that attenuation should also be inconsistent with representative government. This is most apparent with the CPOs, which on their face violate the conditions for the representation of the people because they contain criminal prohibitions ‘enacted’ by courts rather than a legislative body such as parliament. As Simester and von Hirsch observe this undermines the separation of powers.50 The deliberation upon and adoption of individualized criminal prohibitions, though carried out by judicial officials, is in its nature not a legislative function, since there is no pretence to

47 Between 1992 and 2001 participation in general elections plummeted from 77.7% to 59.1%, recovering in 2010 to 65.1%. Far more significant is the decline in party membership. The membership of the three main parties declined from 3.8% of the electorate in 1983 to 1.3% by 2005, and it aged dramatically in the process: see J Marshall, ‘Membership of UK Political Parties’, House of Commons Library Standard Note: SN/SG/5125 (2009). 48 The evidence of political disenchantment is summarised in C Hay, Why We Hate Politics (Polity, 2007) 11–39. See also Pratt, Penal Populism, 49–55. 49 J Ranciere, Disagreement (University of Minnesota Press, 1998) 112. See also C Crouch, PostDemocracy (Polity, 2004). 50 AP Simester and A von Hirsch, ‘Regulating Offensive Conduct Through Two-Step Prohibitions’ in A von Hirsch and AP Simester, Incivilities (Hart, 2006) 180.

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promulgate a law,51 nor an adjudication, since there is not even the pretence of interpreting and applying a general and specific rule.52 It is based on a risk assessment, and as such is a wholly discretionary judgment of character and disposition, and an executive function, whoever carries it out.53 The CPO effectively collapses legislative and adjudicative functions into the executive function, and hands it over to the person of the magistrate or sentencing judge, subject to review by the higher courts.54 Simester and von Hirsch also draw attention to a second, and more fundamental, aspect of this collapse of the different branches of government. With the CPOs, citizens can no longer even in theory be said to be both author and addressee, subject and object, of the penal obligations, since the scope of their liability to penal coercion can be decided at the discretion of an official rather than by their elected representatives.55 Moreover in making that decision the official will be pursuing the aims of security policy.56 The effect is that the scope of a citizen’s civil rights can be restricted at the discretion of unelected officials on grounds of public security. For parliament to abandon its monopoly on the distribution of the civil rights of citizens, and hand that distribution over to administrative discretion (even with judicial oversight), is incompatible in theory with the conditions in which the political majority can be constituted by representation.57 To be certain that political representatives are in fact representative of the electorate, the voters cannot be subject to discretionary administrative distribution of civil rights. The equal distribution of civil rights under terms laid down by the representative body itself is the only basis upon which we can be sure that the conditions of deliberation under which the political process that produced the representative body are free and equal.58 Once civil rights are in the hands of administrative discretion, so too are the conditions under which electoral politics are conducted, and the integrity of the representative process is put in doubt. It might be argued that those who cause harassment, alarm or distress or who are reasonably suspected of being terrorists or 51

R v Nicholson [2006] All ER (D) 218. See L Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353 and discussion in Chapter 1. 53 P Ramsay, ‘What Is Anti-Social Behaviour?’ [2004] Criminal Law Review 908. 54 Ibid, 920. 55 Simester and von Hirsch, ‘Regulating Offensive Conduct’. 56 See discussion in Chapter 1. 57 This is to be distinguished from the discretion in practice enjoyed by officials of the criminal justice bureaucracies of the state which may be deployed to produce a systematically discriminatory distribution of civil rights, the most notorious example being the institutionalized racism found in the practice of the police (see, for example, W Macpherson, The Stephen Lawrence Inquiry (TSO, 1999) para [6.45]). The difference is that the formal equality of the general law enacted by the elected legislature provides the democratic grounds upon which discrimination in practice can be criticized. It is this democratic basis for criticism of discrimination that is eliminated in the structure of the CPO. 58 As Neumann put it: ‘There can be no formation of the national will on the basis of equal suffrage without freedom of the person and without free communication. By definition, therefore, any abrogation of personal or societal rights necessarily involves an intervention with political rights— though not vice versa.’ F Neumann, ‘The Concept of Political Freedom’ in W Scheuerman (ed), The Rule of Law Under Siege: Selected Essays of Franz Neumann and Otto Kirchheimer (University of California Press, 1996) 208; cf J Habermas, Between Facts and Norms (Polity, 1998) 473 and FA Hayek, Constitution of Liberty (Routledge & Kegan Paul, 1960) 109. 52

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organized criminals are not likely to be heavily engaged in representative politics. But that is to beg the question, for so much official discretion is at work in making that determination. Of course, there are many other obstacles to truly representative government. But the significance of these penal laws is that they amount to a formal denial by parliament that its political authority depends on the equal distribution of civil rights under its own enactments, the only form of distribution that recognizes the independence of all citizens, whom parliament claims to represent.59 The preinchoate offences are less obviously inconsistent with representative government, but nevertheless achieve a subtle subversion of the political relation of representation. Although apparently general legislative rules that are adjudicated upon by the courts, these laws also make an offence of dangerousness as such. Their substantive liability evades the burden of proof with respect to first-order harms, requiring the authorities to prove beyond reasonable doubt only that a person represents a potential threat. This criminal liability licenses and legitimizes the most invasive surveillance of the population’s private lives in order to identify the intentional preparations and possession or other acts or omissions that manifest hostility to the law’s norms. If it is an offence to do any preparatory act intending to commit another criminal act such as terrorism then logically at least the police are entitled to arrest a person whom they have reasonable grounds to suspect is about to do such an act.60 But to be about to do a purely preparatory act is to be thinking about it. Under these criminal laws, there is no sphere of individual existence that is logically free of justified state surveillance and coercion should official suspicions be aroused: even the purely mental arena is in principle open to surveillance and coercion, whatever the practical difficulties.61 These are offences of disloyalty to the legal system.62 Even if the practical effect of these theoretically vast powers is only to chill the activities of extremist anti-democrats, would-be child abusers and professional criminals, the ideology that is institutionalized by this permanent emergency is one in which there is no sphere of existence in which citizens are formally permitted to be independent of the surveillance and coercive power of the government that claims to represent them. Since a liability for failure to reassure and the enforcement of such a liability is theoretically inconsistent with representative government, such a liability was ideologically marginalized in UK law for as long as the UK enjoyed the sovereignty of a representative democracy. That is not to say that feelings of security were not 59 This is not to suggest that the delegation of regulatory powers is entirely new. Such powers are frequently effectively delegated to specialized agencies. What was new in the ASBO was the scope of this delegated power, and its impact beyond the regulation of clearly circumscribed areas of social activity, and on civil rights beyond the right to property. The scope of these delegated powers is widened still further by the other CPOs. 60 Police and Criminal Evidence Act 1984, s 24(1)(c). 61 As Ashworth and Zedner note, police investigating their reasonable suspicions are empowered by these offences to focus their questioning of suspects entirely on opinions, attitudes and intentions because the conduct element is banal (A Ashworth and L Zedner, ‘Just Prevention’ in A Duff and S Green (eds), Philosophical Foundations of Criminal Law (Oxford University Press, 2011) 286). 62 See G Fletcher, Basic Concepts of Criminal Law (Oxford University Press, 1998) 180.

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protected by law at all, but, as we saw in Chapter 8, this protection was piecemeal, falling well short of the explicit liability for a failure to reassure that is now institutionalized; and, where broader protection was available, it was articulated in traditional terms as a remnant of the patriarchal prerogative to uphold public order and welfare, such as that found in the ancient power to bind over. None of this should be read as an argument that postwar British society was the highest achievement of democratic political order imaginable or that political engagement in that period was everything that a democrat would like it to be. It is not intended as a normative assessment of Britain’s democracy at all. It is only a claim that democratic politics was sufficiently vigorous to supply the sort of political relationship that guaranteed the state’s sovereignty. Britain’s democratic sources of authority have, from the constitutional settlement of the late seventeenth century onwards, always been explicitly diluted by monarchical claims. Both these sources of political loyalty and sovereignty have been in steep decline. We have only touched upon the causes of this decline here. The critical point for our purposes is to understand that this decline in both its democratic and monarchical-patriarchal modes is the context and precondition of the emergence of the right to security. In summary, as electoral representation was evacuated of the political content that had animated it, the authority of the British parliament waned. The old theories of state socialism and conservatism, of welfare liberalism and Hayekian liberalism, theories that had previously mobilized the population, were exhausted and abandoned. The exhaustion of these outlooks has exposed both the decay of traditional authority and the emptiness of electoral majorities. In their place, the ideology of vulnerable autonomy emerged and with it crime has become ‘the preoccupation of a world no longer enchanted and animated by political vision(s)’.63 The new ruling ideology seeks to address the disengagement of the population, the perceived breakdown of political community, and the loss of moral order that is apparently entailed, by emphasizing the significance of mutual respect and minimal duties of active citizenship. But the very influence of this ideology and the enactment of the laws that it legitimates, are a symptom of the state’s loss of authority. Its premise is sovereignty’s failure, its normality is permanent emergency, and its institutions are the insecurity state.

10.5 The paradox of the insecurity state The argument here is that parliament, executive and the courts all operate on the assumption that the population doubts the strength of the political community and the authority of the state. This is not an argument that the political community, or popular confidence in the state, ‘really’ are as fragile as they are officially believed to be. However there is bound to be an element of self-fulfilling prophecy when it is the organs of state that doubt their own authority. It should perhaps come as no 63

I Loader, ‘The Anti-Politics of Crime’ (2008) 12(3) Theoretical Criminology 405.

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surprise that ASBOs have not been taken very seriously by those on whom they were imposed. Or that they failed to inspire much confidence in the apparently insecure population they were supposed to protect. Their substantive law betrays the weakness and bluster on which they are founded. The insecurity state, therefore, presents us with the paradox of state power that claims legitimacy on the basis of its own lack of power. Its laws are authoritative statements of the law’s lack of authority. There are two different senses of authority in play here. On the one hand this power seems to enjoy practical consent to the extent that officials are willing to deploy it and the electorate to re-elect governments that propose to retain it. We can regard the laws of the insecurity state as authoritative in so far as they enjoy both formal and substantive sources of legitimacy. They are the work of our elected legislature and they institutionalize substantive beliefs about the nature of our society, and the rights and obligations it entails, that are shared across the spectrum of mainstream political life. These laws enjoy legitimate authority in the sociological sense that people consent to them because the laws ‘can be justified in terms of their beliefs’.64 However, this apparently successful legitimacy claim presumes that the normal situation is one in which the same population that consents to the state’s coercive laws does not believe in their effectiveness. The law assumes the state’s limited power to get its subjects to do its will. In a different sense of authority, the law declares its own lack of authority. This second sense of authority is the more basic one, described by Richard Sennett as ‘an image of strength. . . . strength that is solid, guaranteed, stable’.65 Any claim of strength made with respect to the right to security lacks substantive foundations. The insecurity state is the institutionalization of the claim to coerce legitimately on the grounds of the state’s weakness. But what can account for the survival of this weak insecurity state with its vulnerable citizenship? We have seen that the immediate source of vulnerable citizenship is the dereliction of political citizenship, and it this same dereliction that supplies the historical condition for the persistence of the insecurity state’s paradox of legitimate power that lacks authority. This state power enjoys only the authority that persists in default of there being an alternative to it, and nothing more. The political sphere that is premised on the lack of political alternatives to the order of the market has been robbed of its lifeblood. It has been reduced to pleading a collective ineffectiveness and powerlessness as its rationale and legitimacy. This assumed weakness leaves normal subjects, as the law constructs them, conscious of their permanent exposure to the risk of criminal victimization.66 In 64

D Beetham, The Legitimation of Power (Macmillan, 1991) 11. R Sennett, Authority (Faber and Faber, 1980) 19. 66 This focus on the construction of vulnerable subjects by post-democratic ideology is not meant to deny that the concept of fear of crime emerged from the campaigns of the political right from the 1960s through to the 1980s (for an account see S Farrall, J Jackson, and E Gray, Social Order and the Fear of Crime in Contemporary Times (Oxford University Press, 2009) ch 2). It is rather to draw attention to the terms in which the fear of crime has been constructed since then by the ideology of vulnerable autonomy and the institutionalized right to security that it promotes. 65

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this construction the normal representative subject is a person who has reason not to trust the state’s guarantees of peace and order and whose autonomy is, therefore, vulnerable to a lack of reassurance from those who might be threatening. In this respect the normal subject is supposed to be like an actual victim of crime, a person who has in fact experienced the failure of the criminal law to prevent crime. It is only in an insecurity state, under the ideology of vulnerable autonomy, that crime victims could become ‘the representative subjects of our time’.67 And, as Jonathan Simon has pointed out, once they have become the representative subjects, the vulnerabilities of crime victims come to stand for the interests of all citizens, and their needs come to ‘define the appropriate conditions for government intervention’.68 As citizens, we are defined by the fact that we are potential crime victims. Nothing could more clearly demonstrate the ruin of Hobbes’s commonwealth. It is this critical point that is obscured in David Garland’s ‘myth of the sovereign state’ thesis. Garland has argued that the idea that ‘the sovereign state is capable of delivering “law and order” and controlling crime within its territorial boundaries’ has been eroded by the fact of ‘high crime rates as a normal social fact’.69 This has left governments with the ‘predicament’ that it makes sense to retreat from any claim to be ‘to be the primary and effective provider of security and crime control’ but that the likely political costs make this strategy impossible.70 The political cost will be so high because of ‘public outrage, media criticism and electoral challenges over the subject of crime’.71 As a consequence governments, on the one hand, adopt policies that quietly adapt to managing high crime rates while, on the other, they make much of tough-on-crime policies that, according to Garland, either deny the state’s limits or hysterically act out the emotions generated by popular insecurity. ‘State sovereignty over crime is simultaneously denied and symbolically reasserted. The limits of police and punishment are recognized in one policy only to be ignored in another.’72 The present analysis confirms Garland’s view that sovereignty has been simultaneously denied and asserted. But this dichotomy is not only something that occurs between different policies. In so far as the law protects a right to security, the same policy both recognizes and ignores the limit; indeed the premise of its reassertion of state power is the denial of state power’s effectiveness. The difference is not just a question of the tension that Garland identifies in the experience of the early 1990s deepening into a full-blown paradox by the time New Labour took power.73 Our 67 J Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear. (Oxford University Press, 2007) 75. See also D Garland, Culture of Control: Crime and Social Order in Contemporary Society (Oxford University Press, 2001) 11–12. Simon is writing about the US, but the point stands. The specific articulation of the hollowing out of sovereignty will be different to the one offered here in respect of the UK. 68 Simon, ibid, 76. 69 Garland, Culture of Control, 109. 70 Ibid, 110. 71 Ibid, 134. 72 Ibid, 138. 73 Garland’s account is based largely on the experience of the 1980s and 1990s when, as we have seen, the attempt to reinvigorate older sources of political authority was indeed only exposing their bankruptcy.

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normative analysis of the security laws suggests that they result not from high crime rates exposing the myth of penal sovereignty, but from the actual loss of political sovereignty and the substitution of the ideology of vulnerable autonomy as the legitimating rationale of state power in a post-sovereign order. It is this ideology that constructs the representative citizen as a victim of crime and necessitates the protection of that citizen’s vulnerabilities. Garland identifies a key aspect of the problem—the state’s weakness—but misdiagnoses its cause as persistent high crime rates rather than the political and ideological changes that have sapped the state’s sources of authority. Even if crime rates are higher than they once were, that is not why our postdemocratic politics have been dominated by insecurity about crime and hardline penal responses. There are many possible responses to higher crime rates and the ones that have been taken are ultimately political choices.74 Post-democratic politics is focused on crime because its ideology, the belief system that legitimates the state power it deploys, constructs citizens as either vulnerable to predatory threats or as the source of those threats, as if they were the subjects of the state of nature.75 Actual crime rates are not entirely irrelevant but they only acquire any broader political significance in the context of the particular ideological lens through which they are viewed. Indeed, since, from the consensus point of view of post-democratic politics, citizens are above all understood to be potential crime victims, the politics of insecurity have persisted despite the fall in crime rates since the mid-1990s.76 Garland’s claim, on the other hand, rests on the view that crime has become such ‘a routine part of consciousness’, and confidence in the criminal justice system has declined so much, that politicians feel the need to restore public confidence.77 It is this that poses both the political need to be seen to do something and the high political cost of abandoning the myth of penal sovereignty. In other words, his theory makes precisely the same assumptions about the condition of the population that the right to security is premised upon. Garland identifies the political problem of the ‘culture of control’ as one of adherence to a ‘myth of sovereignty’ and the ‘Hobbesian solution’ that it produces.78 But once it is understood that the ‘culture of control’ has arisen in an ‘insecurity state’, the problem appears in a different light: 74

M Tonry, Punishment and Politics (Willan, 2004) 70. For a compelling if dense philosophical account of the necessary relation between post-democracy’s requirement for social cohesion and a rediscovered war of all against all, see J Ranciere, Disagreement, esp 117. 76 For a discussion of the falling crime rate and persistent fear of crime see R Reiner, Law and Order: An Honest Citizen’s Guide to Crime and Control (Polity, 2007) 62–73. 77 Garland claimed too much when he wrote that ‘For most people, crime is no longer an aberration or an unexpected, abnormal event’ (D Garland, ‘The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society’ (1996) 36 British Journal of Criminology 445, 446). It may well be that some offences, such as burglary and offences involving vehicles, cannot be described as entirely ‘unexpected’. Nevertheless, for ‘most people’, the actual experience of crime, especially serious crime, was never more than infrequent, ‘abnormal’ and an ‘aberration’. For a fascinating discussion of the victimization data, see T Hope and A Trickett, ‘La Distribution de la Victimation dans la Population’ (2004) 28(3) Déviance et Société 385. 78 Garland, Culture of Control, 202. 75

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not adherence to a myth of sovereignty but the actual loss of sovereignty, and the very un-Hobbesian non-solution that results from this loss—the right to security. The right to security is a ‘non-solution’ because, notwithstanding its persistence, the default authority of the insecurity state is absurd. The state’s legitimating claim to protect the vulnerable potential victims of crime is premised on the incapacity of the state to protect the vulnerable potential victims of crime. And this absurdity explains the insecurity state’s voracious appetite for new preventive laws. Governments that assume their own weakness can see only threats. Potential catastrophe lurks at every turn of events and must be anticipated. To adapt an observation made by Ian Loader and Neil Walker, security becomes ‘pervasive’ in the public laws that form the state’s surface, precisely because insecurity has become the ‘axiomatic’ condition at the state’s political core.79 Sociologically, this loss of authority is characterized by what Stuart Waiton describes as ‘institutionalized panic’ about safety.80 Afflicted by institutionalized panic the weak state writes laws in the hope that these will reassure citizens about their security. It writes laws imposing positive obligations towards security in the hope that this will recruit citizens to the task of strengthening it. Driven by the lack, the absence of authority at its core, the insecurity state teeters on the edge of a vicious circle of penal insatiability. Once the protection of vulnerability is the justification for penal law, any perceived instrumental ineffectiveness in existing security laws only creates demand for more extensive and intrusive security laws. The most extreme development of the insecurity state so far provides a good example. After more than a decade of new laws seeking to prevent child sex offending with registers, CPOs, new offences and so on, a single murder case in 2003 sent New Labour scurrying for the statute book to come up with the vetting and barring scheme contained in the Safeguarding Vulnerable Groups Act. The legislation passed with barely a murmur through parliament and it was only as the scheme was nearing practical implementation that the Act’s implications aroused widespread opposition outside parliament. The Coalition government has drawn back from the original plans, but it is important to recall just how extreme these were. As originally enacted, the scheme would have subjected some 11 million people, more than 10 per cent of the population, most of them parents, who wished to engage in some of the most ordinary, everyday activities with the children of their friends and neighbours, to the preliminary administrative surveillance measures of a regime that has been called, without exaggeration, enemy criminal law. It would have exposed them to penal liability if they failed to cooperate with this surveillance. Its effect would have been to institutionalize distrust and suspicion among ordinary people concerning each other’s intentions towards their children. The 79

I Loader and N Walker, Civilizing Security (Cambridge University Press, 2007) 168. S Waiton, The Politics of Anti-Social Behaviour: Amoral Panics (Routledge, 2008) 121. As Waiton argues this panic about safety can no longer be thought of as ‘moral panic’ precisely because it no longer concerns anxiety about traditional morals and values. Waiton adopts the striking term ‘amoral panic’, although ‘demoralized panic’ might be more accurate. 80

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Safeguarding Vulnerable Groups Act reduced the ideology of vulnerable autonomy to the absurd. In so doing, it exposed the falsity of Giddens’s claims for a citizenship built on a right to security. Whatever the benefits that might be achieved by requiring millions of ordinary law-abiding citizens to accept the ‘manufactured uncertainty’ constituted by others’ anxiety that they might be sex offenders or potential sex offenders, ‘remoralizing our lives’ was not going to be among them. It is hard to imagine a scheme that could have been more carefully calculated to demoralize the population, or that could have rendered the population more susceptible to the very feelings of vulnerability that it was supposed to be protected from. The retreat from the most extensive implementation of this scheme is a step back away from the condition that Ericson described as ‘the unravelling of civil society’.81 But such an unravelling is likely to be the effect of any permanent emergency, and while the UK government may have stepped back a little, the underlying structure of the insecurity state remains in place. In the first 18 months of its existence the new government moved to repeal only one of the other powers discussed in this book—imprisonment for public protection. And it is hard to be certain whether or not this reform represents a move away from enforcing a right to security. After the vetting and barring scheme, IPP was perhaps the second most extreme of New Labour’s security laws in its practical effects. The rapid accumulation of prisoners serving indeterminate sentences put considerable strain on the prison service at a time when the Ministry of Justice was required to cut 25 per cent from its budget.82 Although Minister of Justice Ken Clarke condemned IPP as presenting an ‘impossible problem’,83 and for being ‘a stain on the system’,84 the problem appears to have been one of the numbers involved as much as the principles.85 Crucially, Clarke proposed to replace imprisonment for public protection with new sentencing powers that, while they were less severe for most dangerous offenders, would nevertheless continue to imprison and control for the wrong of being dangerous; and, for the most serious offences, the reforms amounted to a sentence for dangerousness just as severe as IPP.86 The Coalition’s reforms of sentencing for dangerous offenders, therefore, join all the other laws we have discussed in demanding that others not fail to reassure us. Most pointedly, although the Coalition government disliked the ASBO because it 81 R Ericson, Crime in an Insecure World (Polity, 2007) 213. In the context of anti-social behaviour, Waiton elaborates an interesting sociological account of this unravelling: see S Waiton ‘Asocial not anti-social: the “Respect Agenda” and the “therapeutic me” ’ in P Squires (ed), ASBONation: The Criminalisation of Nuisance (Policy Press, 2008). 82 IPP sentences had been handed down at the rate of 800 a year. By 2011 more than 6,500 offenders were in prison under their terms, more than 3,000 of them were beyond their tariff and the Ministry of Justice calculated that these offenders would comprise more than 10% of the prison population by 2015 (K Clarke, Minister of Justice, HC Deb, 1 November 2011 col 787). 83 Clarke, ibid. 84 Ibid., col 792. 85 See P Ramsay, ‘Imprisonment Under the Precautionary Principle’ in I Dennis and R Sullivan (eds), Seeking Security (Hart, 2012). 86 See Chapter 7.

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was a New Labour flagship and was widely regarded as a failure instrumentally, the new government had no ideological alternative to the substantive liabilities the ASBO imposes, so it proposed to rebadge the orders and make them easier to obtain.87 These powers continue to institutionalize the suspicion of others’ motives that permanent emergency rule entails. While Coalition ministers have made occasional nods in the direction of some long-standing principles of criminal justice,88 the Coalition has no more solved the historic demise of political authority that it inherited from a previous political generation than did New Labour before it.

10.6 Conclusion Looked at from the standpoint of the insecurity state, humanity is reduced to two of its characteristics. Either we are potential crime victims marked by our vulnerability or we are threats marked by our indifference or hostility to others’ vulnerability, or conceivably we are both. This is a radically pessimistic vision of human existence. The ‘right to security’ that the potential crime victims need in order to control the threats serves to institutionalize insecurity, distrust and suspicion. This can only have a deeply demoralizing effect that corrodes the underlying conditions for social order. But if the insecurity state is a demoralizing structure then that is because it arises from a political outlook that is demoralized. The insecurity state is the liberal state hollowed out by the mutual ruin of the substantive ideologies whose rivalry animated the political relationship that constituted the content of its sovereignty. Unlike the liberal state, the default legitimacy of the insecurity state’s permanent emergency lacks that crucial aspect of authority in which power presents an image of strength, the aspect of authority that symbolizes ‘a defiance of history, a defiance of time’.89 The best the demoralized insecurity state will ever do is to survive its own weakness. There is a world of possibility in this. Vulnerable autonomy enjoys influence not because a politically engaged population believes in it passionately, but because it is the default outlook of a politically disengaged society. The insecurity state is what came after the long historical experience of the liberal state. It is fitting that the moral qualities of the regime that has inherited the ruin of the liberal state should be so precisely summarized by Benjamin Constant’s 87

See Chapter 3. Ken Clarke’s rhetorical pot shots at the principle of IPP were perhaps unsurprising given his reputation as an old school penal liberal. More remarkable was Coalition Home Secretary Teresa May’s comment when announcing the review of the vetting and barring scheme. She criticized the scheme because ‘You were assumed to be guilty until you were proven innocent, and told you were able to work with children’ (see ‘Child abuse vetting scheme cancelled as “draconian” ’, BBC News, 15 May 2010 ). The presence of liabilities for failure to reassure the authorities in the rest of the substantive law seems not to have been brought to her attention. The much-vaunted Protection of Freedoms Bill reformed or repealed none of the other offences discussed here. 89 Sennett, Authority, 19. 88

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description of the political order that liberal states long ago supplanted. The ancien regime was, Constant wrote, made up of ‘vicious governments, which without being strong, were repressive in their effects; absurd in their principles; wretched in action; governments which had as their strength arbitrary power; for their purpose the belittling of mankind.’90 90 B Constant, ‘The Liberty of the Ancients Compared with that of the Moderns’ in B Fontana (ed), Benjamin Constant: Political Writings (Cambridge University Press, 1988) 317.

Afterword: On the Future of Authority This investigation of the right to security presents us with a vision of the securitization of the criminal law that may be ugly and uninspiring, but it is not a deterministic dystopia. The insecurity state is repressive because it is politically feeble. Its enfeeblement is a product of human actions and beliefs. It is within the grasp of the human imagination to change it. I have sought to explain the normative structure of the insecurity state and its penal laws: why those laws enjoy legitimacy in practice, and the paradoxical implications of that legitimacy claim. To conclude I will assert the skeleton of an argument about how criminal law theorists might respond to the development. The decline of representative government; the waning of sovereignty; the emergence of political outlooks that legitimate that process and institutionalize the right to security: these are ultimately problems of political subjectivity and of socioeconomic forces that lie beyond the capacity of criminal law theory to resolve. But penal regulation is one of the insecurity state’s chief instruments. As a result, criminal law theorists can, and will, make some contribution to solving the problem—and to exacerbating it. If there is anything at all to the theory offered in this book, we have reason to think that it is the ‘foundations’ of the insecurity state that are the problem. Neither reform nor moderation of the laws protecting a right to security are likely to have much purchase without critique of the basic characteristics of the insecurity state. Those who set out from the basic assumption of the insecurity state—the victim of crime as the representative citizen—will find it hard to moderate the tendency towards an ever-expanding scope of criminal law. The person defined as vulnerable to the effects of fear will perceive that danger and threat are everywhere. When the law’s threats are premised on the law’s weakness, a vicious circle is always likely to form in which the demonstration of any particular security law’s ineffectiveness only incites calls for sterner, more effective, repression. What is needed to arrest and reverse this process is a source of authority not just in the sense of legitimate power, but also of power that is confident enough of its own strength not to feel the need for the extensive and intrusive coercion and surveillance required by our insecurity state. Criminal law theorists might make some contribution to solving the problem if we can develop and clarify theories of criminal law that rely on sources of authority that, in theory at least, might have some potential to solve it. Moreover, we can avoid exacerbating the problem by not promoting theories of criminal law that rely on bankrupt sources. We could begin that task, and end this book, by briefly revisiting

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the sources of authority that have been cast aside in the course of arriving at the insecurity state and ask how they would fare in such an approach. What contribution to solving the state’s authority deficit might be made by reviving patriarchy or liberalism or representative democracy as the normative ground of the penal law? There is no need to spend much time on the prospect of a revival of patriarchal traditions. The politics of the 1970s and 1980s was punctuated by a long series of moral panics around the themes of declining standards of youth behaviour, fear of the effects of immigration (especially in respect of young men of Caribbean origin) and relentless anxiety about sexual morals. These panics invoked the authority of family values, imperial patriotism and religious morality. But, as we saw in Chapter 5, the failure of the otherwise triumphant neoliberal governments of the 1980s and 1990s to reimpose these traditional sources of authority supplied one of the conditions for the emergence of the insecurity state’s ideology of vulnerable autonomy in place of traditional values. Those governments failed because patriarchy was already dead when Margaret Thatcher tried to invoke ‘Victorian values’. Neither God the Father, the Fatherland nor the familial father produces realistic policy proposals.1 Support for these values now exists only at the margins of British politics. This is not to say that there is no possibility of claims to political authority being made that are based in religious dogmatism, xenophobia, or misogyny—or some combination of all three. But these claims can no longer draw strength from the idea of the inherited institutional authority of monotheistic doctrine or of imperial nationalism or of the strictly patriarchal domination of fathers over women and their children (as opposed to the dominance of men over women). Indeed, it is increasingly unusual for the sympathizers of these sources of authority to lay claim to inherited tradition. Instead, it is common for the arguments of religious lobbies, right-wing populists and fathers’ rights activists to combine nostalgia with the argument that ordinary people are being victimized by secularists, abortionists, immigrants, anti-racists, feminists or gay activists. The tendency of would-be conservatives to play the vulnerability card arises because the traditionalist claim of institutional authority has been foreclosed by the extent of institutionalized social change wrought by modern pluralism. Traditionalists must now compete as one among many ‘communities of choice’, and, as a result, they have been locked into the dominant ideology even as they try to resist it. The link between conservatism and patriarchal tradition has been decisively broken. Any invocation of God or family values or national superiority as a basis for state authority is not conservative, but atavistic, seeking to revive institutions that have already died out—public religion, empire or patriarchal family.2 For these atavistic tendencies to gain the kind of political influence required to provide the state’s punitive power with practical political legitimacy, they will have to overcome 1 This demise of this trinity as effective sources of authority in postwar Europe was pointed out by A Mitscherlich, Society Without the Father: A Contribution to Social Psychology (Tavistock Publications, 1969). 2 See discussion in Chapter 5 and J Gray, Enlightenment’s Wake (Routledge, 1995) ch 7. John Gray’s own solution is hostile to the humanist beliefs that are the foundation of democratic authority (see J Gray, Straw Dogs (Granta, 2002).

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the formidable barrier posed by the very economic, social and intellectual developments that demolished their customary credibility in the first place. Those developments rendered the moral norms of these traditions, not to mention their coercive imposition by the state, a deeply unattractive and impractical prospect for significant sections of all social classes. The atavistic tendencies of the right do, however, provide a foil to the insecurity state—a ready supply of threats to be contained, of intolerant enemies, fascist and fundamentalist alike. But they are enemies who themselves lack firm ground for any alternative to the official ideology of vulnerability, and readily adapt to it. Nevertheless, given the weakness of the state, perhaps nothing should be ruled out. The bare possibility that the repression of the insecurity state could conceivably rework its legitimacy through an atavistic, postmodern version of the old traditions only sharpens the need to attend to alternative potential sources of authority. A much more significant problem for critics of the insecurity state is posed by liberalism and the relationship between modern liberalism and democracy. For liberalism is the obvious place to go in defence of political freedom when the scope of state coercion expands as it has in the insecurity state. But the account I have given here suggests that liberalism too is exhausted and compromised by the development of the insecurity state. For reasons already discussed, classical liberalism is no more probable a source of authority for the future than is patriarchy. Brudner’s theory of dialogic community demonstrates the philosophical shortcomings of classical liberalism’s account of freedom as formal agency, and shows that the recognition of the end status of individual human subjects entails the protection of both formal agency and real autonomy. This Hegelian philosophical critique of formal agency has both helped to inspire a powerful modern or social liberal movement and to rationalize the institutions of the welfare state that that political movement brought into being. The political downfall of the citizenship structure based on the Hegelian ideology has not been sufficient to revive the fortunes of classical liberalism as a source of political authority. On the contrary, from its earliest days, supporters of the classical liberal backlash to the growth of the welfare state have had to recognize, tacitly or in practice, the force of the Hegelian criticism of formal freedom. It was a critique that was reinforced by the devastating experience in the 1930s of the many millions who enjoyed formal freedom without the capacity to make self-determined choices. As a consequence, Hayek sought to articulate a source of political legitimacy lying outside formal equality: the now defunct traditional authority. But the Hegelian theory, superior as it is, has problems of its own and does not give us much reason to believe that modern or social liberalism might be revived as a practical political source of authority so as to resolve the problem of the insecurity state. There are two aspects to this problem. The first is that the liberalism of the dialogic community was only one aspect of the sovereign authority of the democratic welfare state in any case. A full account of that authority must integrate liberalism with democracy, something missing in Brudner’s account. The second is that once severed from democracy, the complex modern liberal account of freedom tends towards the very construction of vulnerable autonomy that undermines the

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state’s authority. It is democracy rather than liberalism that remains as the source of a potential solution. Let us look at each of these points in turn. Brudner explains the authority of the state’s penal coercion by relying on the dualism between a thinking or reasonable Agent and an empirical agent.3 The state’s coercion of the empirical agent is legitimate in so far as that coercion is guided by public reason because the ‘thinking Agent’ could accept it ‘on the empirical agent’s behalf ’.4 This acceptance can be imputed to the thinking Agent because ‘public reason’ amounts to those interests that all subjects have in common. The sovereign is, therefore, authorized by the subject in so far as the law accords with public reason. Adherence to public reason is the source of the state’s authority in Brudner’s dialogic community. The ‘thinking Agent’ is just the mediation between that public reason and empirical subjects. Public reason is doing all the authorizing work. The problem with this theory is that public reason is those interests that are ‘imputed by reason’ to ‘all subjects just by virtue of their possessing some common nature’.5 But this position discounts the significance of history, and history in modern times has been animated above all by disagreement about what constitutes our ‘common nature’, and by the conflict between different constructions of that nature that have informed our politics. Central to that disagreement has been the significance of the category of real autonomy, and it provides an excellent illustration of what the ahistoricism of Brudner’s dialogic liberalism leaves out of the picture. One of the ways in which Brudner demonstrates the philosophical inadequacy of formal agency is through the example of the contract for slavery. But in the historical world of industrial capitalism, it was not the voluntary making of contracts for chattel slavery that undermined the legitimacy of a law grounded in formal agency. It was the making of contracts for free wage-labour that achieved that. The ‘wage slave’ was dominated by what Brudner calls ‘fate’: her voluntary choice to labour for others was compelled by the threat of destitution or worse if she chose not to work. That was the ‘fate’ of wage labourers because they lacked their own means of subsistence, and were, therefore, both formally free and practically compelled to work for wages. The nightmare of Dickensian capitalism that resulted gave political force to the Hegelian argument that formal agency was inadequate unless there was some protection of the capacity to make self-determined choices. This argument was one of the ideas that inspired social liberals and social democrats to argue for, and progressively to achieve, the protection of agency goods—public healthcare and education, social security, trades union rights and the legal regulation of all aspects of market relations.6

3

For a critical account of this metaphysics see A Norrie, Law, Ideology, Punishment (Kluwer, 1991). A Brudner, Punishment and Freedom (Oxford University Press, 2009) 322. 5 Ibid, 22. 6 There were other philosophical sources of social liberalism in Britain, particularly John Stuart Mill, but Hegel’s thought directly influenced the movement especially through the work of TH Green (see P Harris and J Morrow, ‘Introduction’ in TH Green, Lectures on the Principles of Political Obligation (Cambridge University Press 1986) 1). 4

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The real dialogic community of the democratic welfare state did not fall from the heavens of rationality. If Brudner’s theory provides an idealization and rationalization of the law of the actual welfare state that is not because ‘reason’ authorized the sovereign to uphold a dialogic community. It is rather because ideas like these engaged the subjectivity of living human agents from all social classes. They were inspired to adopt this reasoning about what was common to them all and to act on it. These human agents of history created a social order based on this conception. The critical mediation of that process was the struggle of disenfranchised subjects for universal political citizenship. It was only in a society in which all had the right to vote and sit in the legislature that the dialogic community of mutual recognition became a practical necessity for the state.7 The ‘mutual recognition’ by the state of our ‘common nature’ as formally free subjects with a capacity for real autonomy and a right to certain agency goods was historically bound up with the advance of representative government. The real state that Brudner’s dialogic community idealizes did not gain the authority to enforce its laws from ‘reason’ expressed through the assent of a metaphysical ‘thinking Agent’. The democratic welfare state was authorized by concrete living agents who over the course of more than a century of thinking, and of putting their thinking into political practice, came collectively to adopt something like Brudner’s dialogic community as their public reason. Moreover, as an evolutionary achievement of human beings, it was an imperfect process. It only very slowly divested the powers of the state of their patriarchal integument and it contained tensions all of its own. As a consequence of the political conflicts that the welfare state settlement engendered, the authority of the dialogic community was undermined. If liberal reason was never an independent source of the state’s authority, then nor can it provide a way back to political authority. The ideology of vulnerable autonomy that articulates the decline of political authority seeks directly to mobilize the risks we are supposed to represent to each other as a source of obligations. It must be kept in mind that this ‘acceptance of manufactured uncertainty’ is an idea that extends the inner logic of the paradigm of real autonomy beyond the historical circumstances that gave rise to it. Recall that, for the Third Way, welfare is a psychological concept and that freedom from fear is, therefore, a right of citizenship because it is key to the citizen’s real autonomy: the protection of her ontological security without which her choices will be externally determined by fear. This key element of the insecurity state is a development of one aspect of the welfare state: the paradigm of real autonomy contains a tendency towards the self-contradiction found in the insecurity state. For Brudner, ‘the gravamen . . . of the public welfare offences is the imposition of an excessive risk of harm’.8 But he can give no explicit guidance on how much risk is ‘excessive’. In his terms, that amount will be any risk of harm that is deemed P Ramsay, ‘The Responsible Subject as Citizen: Criminal Law, Democracy and the Welfare State’ (2006) 69(1) MLR 29. 8 Brudner, Punishment and Freedom, 173. 7

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excessive by public reason, which is to say risks greater than the level of risk that all subjects necessarily have a common interest in excluding. The exclusion of those risks by penal threats will not lead to the undermining of anyone’s autonomy. But how much risk is that? It is not clear how reason alone can give an answer to this question.9 It all depends on how risk-averse our ‘common nature’ is taken to be. In the history of the formation of the democratic welfare state in the UK, the answer to that question, explained by TH Marshall, was that the state should protect people from that burden of risk that would effectively exclude them from participation in the single political community. But, as Marshall recognized, this was an intrinsically contingent matter.10 The minimum material conditions for participation in public life in 2011 are significantly different from those that prevailed in 1911. As a consequence, the protection from risk of harm required by a democratic civilization acquired its own history. The invocation of the harm principle in the paradigm of real autonomy inevitably expanded the scope of penal regulation because, as its proponents recognized, all conduct under some conditions will pose a risk of harm.11 Once liberal government came under a duty to manage risk in the name of real autonomy, many means were deployed to reduce risk and to redistribute the burden of mitigating its effects, including contributory public insurance schemes, transfer payments, public welfare services and the duties of risk avoidance found in the public welfare offences. In this way, the liberal state became the socializer of risk and, as Theodore Lowi argued, implicitly responsible for all conduct—required by its own liberal commitments to put all conduct either under control or surveillance.12 In these circumstances, from the perspective of political actors, social life will begin to appear as a single ‘total system’ in which ‘all injuries and dependencies, regardless of source or cause, become “social costs”’.13 Once society is conceived of as a ‘total system’, we should expect a tendency for the ‘common nature’ of human subjects to be constructed as essentially vulnerable because government is premised on the seamless interconnection of all individual lives with all others in a single system of harms risked and social costs to be avoided.

‘When reflection is highly developed, the police may tend to draw everything it can into its sphere of influence, for it is possible to discover some potentially harmful aspect in everything. On such occasions, the police may proceed very pedantically and disrupt the ordinary life of individuals. But however troublesome this may be, no objective boundary can be drawn here.’ G Hegel, Elements of the Philosophy of Right (Cambridge University Press, 1991) para [234], 261. 10 TH Marshall, Citizenship and Social Class (Pluto Press, 1992) 8. Hegel too seems to recognize this contingency when he observes ‘ . . . no boundary is present in itself between what is harmful and what is harmless (even with regard to crime), between what is suspicious and what is not suspicious, or between what should be prohibited or kept under surveillance and what should be exempted from prohibitions, surveillance and suspicion inquiry and accountability. The more precise determinations will depend on custom, the spirit of the rest of the constitution, prevailing conditions, current emergencies, etc.’ (n 9 above). 11 J Feinberg, Harm to Others (Oxford University Press, 1984) 12. 12 T Lowi, ‘The Welfare State, the New Regulation and the Rule of Law’ in A Hutchinson and P Monahan (eds), The Rule of Law: Ideal or Ideology (Carswell, 1987) 46. 13 Ibid, 48. 9

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Left to its own devices the real autonomy paradigm of public reason will in practice tend towards the very conception of legitimate state power that proves to be incompatible with the dialogic community’s authority: the view that since almost all our activities represent some kind of risk of harm to somebody, government is responsible for the regulation or at least surveillance of all or almost all our activities. Brudner argues that this ‘imperialism of welfare’ would bring the paradigms of the dialogic community into self-contradiction and so it does. But his theory cannot preclude the possibility of this self-contradiction in practice. It can only ignore it. As Alan Norrie argues, admiration for philosophical logic ‘must be tempered with sociological realism’.14 Brudner’s admirable logic evades the fact that our ‘common nature’ is not a fixed set of properties given by nature, and that what he calls public reason is, therefore, a historical construct. What human subjects do at one time to uphold the interests that we take to be constituents of our common nature serves to change the circumstances in which we understand ourselves and, therefore, to change what we take to be our common nature at a later time. The construction of the vulnerable subject in the sense of the particularly disadvantaged or ‘vulnerated’ subject was the work of the welfare state. In the insecurity state this condition of vulnerability is ideologically universalized so that it is taken to be the condition of the representative citizen. That step from government as risk socializer to the ideology of vulnerable autonomy was not taken until the problem of the state’s declining sovereignty became unavoidable in the wake of the conflicts of the 1980s. But the ground for the ideology of vulnerable autonomy that is revealed with the political exhaustion of the welfare state was laid by the real autonomy paradigm of that same welfare state. That paradigm in itself can offer no solution to the contemporary problem of authority. At the very least, real autonomy needs somehow to be extricated from vulnerable autonomy. That is not something that can be done by simply reasserting the value of real autonomy, for they have become inextricably entangled. The paradox of the insecurity state results from the decay of the liberal state. Those who would acquire the authority necessary to secure civil liberties and political freedom will need to recognize that the concepts of liberal philosophy such as harm, desert and individual autonomy are thoroughly implicated in the development of the insecurity state. If the problem of the insecurity state is to be solved, we will need either to look elsewhere for a normative language or at the very least to rearticulate these concepts in a very different context. The story of the emergence of the insecurity state tells us that authority can no longer come from kings and does not come from abstract reasons. It can only come from the collective will of the law’s ordinary subjects. The ‘public reason’ that legitimates the penal law is those interests that arise by virtue of our ‘common nature’ as subjects; and that common nature is a matter of continuous political reconstruction. The consequence is that the only conceivable source of a public

14

A Norrie, Law, Ideology, Punishment, 80–1.

Afterword: On the Future of Authority

241

reason through which we might recover the authority that the political community currently lacks is the law’s subjects ourselves. How we might once again be inspired collectively to authorize the exercise of state power is a fascinating and formidable problem lying mostly beyond criminal law theory. Theorists of criminal law and criminal justice might nevertheless make a modest contribution to solving that problem by identifying and explaining the limits of the scope of criminal liability beyond which the law itself is an obstacle to democratic authority. But just as important is that we avoid strengthening obstacles to a solution. In particular, when we are confronted by the fearful political culture that we often refer to as penal populism, we need to keep in mind that the underlying problem is not an excess of popular influence over criminal justice policy but a deficit of political authority as such. Only substantial political reengagement and meaningful representation of the population can resolve this problem by giving real authority to some particular degree of insecurity and uncertainty that we should all be required to bear. Without popular authority, the state will continue to blunder along in its futile, repressive and demoralizing pursuit of absolute safety.

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Index agency, formal 189, 203–6, 209, 213, 236–7 agency goods 205–6, 211, 237–8 Anderson, Joel 84, 209 anomie 208 anti-social behaviour definition of 23 anti-social behaviour order academic criticism of 11, 223–4 and administrative law 33–5, 36, 61 as archetype 11–12 bind over compared 167, 169–70, 198–9 breach of 38–53 composite offence theory 49–51 ECHR 113–14, 115–18, 120–1, 124–5 as emergency power 217 grounds for 16–33, 37 ineffectiveness of 12, 226–7, 232 necessity of 23–6, 29–31 political criticism of 12 as power of police 195–6, 198–9 procedure 35–7, 50–1, 59–61 prohibitions in 39–41 public order offences compared 56–7, 174–5 and reassurance policing 75 reform of 12, 15, 62–4, 231–2 and right to security 61, 64, 183 statutory nuisance abatement notice compared 173–4 anti-social behaviour policy 10, 67–83, 92, 109 anxiety 19–21, 175 Ashworth, Andrew 52, 127, 158, 206, 225 assault 158–9 attempts 142–4, 206 impossible 178 authoritarianism 6 authority absence of 5–6, 199, 208–11, 216–19, 222–3, 226–32 democratic 221–6, 235–8, 240–1 dialogic 208–11, 237–40 traditional sources of 90, 95, 97–111, 126, 164–6, 170, 174, 182–3, 199–201, 210, 222, 226, 230, 235–6 autonomy 194–5, 199–200, 202 ‘real’ 203–11, 212–13, 236–40 tendency to vulnerable autonomy 238–40 vulnerable, see vulnerable autonomy Bakalis, Chara 37 Beetham, David 9 Big Society 105–11 bind overs 165–70, 183, 197–99, 201, 210 ASBO compared 167, 169–70, 198–9 as powers of police 198

Birks, Peter 26–7, 31 Blair, Tony 3, 81, 212 Blunkett, David 71–2, 76–7 Boggs, Alan 157 broken windows theory 71–4 Brown, Wendy 218 Brudner, Alan 185, 202–10, 218, 236–40 burden of proof evaded 225 reversed 51, 147 Burke, Edmund 98, 111 character theory of criminal liability 25–6 citizenship active 75–9, 82, 86–8, 90–93, 109–10, 122, 209, 226 conditional 58–9, 61, 77–9, 109, 124, 129 in dialogic community 205 social 87, 101, 103 vulnerable 79–82, 88–90, 103–5, 110, 112, 216–17, 227–8, 240 civic conservatism 84, 86, 105–11 civic renewal 71–3, 76 civil liberties (see also civil rights) 129, 240 civil preventive orders 11–12, 133–9, 141–2, 212, 230 breach of as preinchoate offence 142, 145–6 fault requirements in 187–9 IPP compared 160–1 as power of police 195–6 preparation offences compared 145–6 and representative government 223–5 and right to security 183, 212, 221 and separation of powers 224 statutory nuisance abatement notice 173–4 vagrancy compared 165 civil rights 78–9, 87–8, 91–3, 110, 124, 128–30, 218 civility 70–1, 80, 89, 107, 109, 119 Clarke, Kenneth 161–2, 231, 232 coalition government 3, 12, 62, 86, 105, 109, 232 reforms to ASBO 62, 109–10, 231–2 reforms to control order 134 reforms to IPP 161–2, 231 reforms to Vetting and Barring scheme 139, 141, 230 communitarianism 5, 84–6, 90–6, 103–6, 109–11, 119, 121–3, 187 and Human Rights Act 121–3, 126 community safety order 67–71 Conservative Party 3, 99, 105, 111, 223

256

Index

conspiracy 143 Constant, Benjamin 232–3 contractual government 78, 121, 129 control order 116, 133–6, 192, 212, 219, 221 crime prevention injunction 62–4, 109 criminal behaviour order 62–5, 109 dangerousness assessment of 212 in breach of ASBO 45–50 and criminal preparation 144 as criminal wrong 12, 61, 45–50, 52, 144, 158, 176–8, 180, 193, 212, 225 dangerous acts contrasted 14, 143–4, 159, 177 and enemy criminal law 193 and IPP 159–61, 231 and licensing 141 and police power 195 and possession offences 180 and vagrancy 164 Deacon, Alan 84, 90–1 defences 186 democracy 123, 194, 200–1, 210–11, 222–3, 226 and right to security 223–6 disrespect 20, 25, 27, 38, 170 drink banning order 133 drugs offences 179–82 Dubber, Markus 180, 184, 193–202, 203–5, 210, 218, 222 emergency 6, 212, 220 normalization of 213–15, 217, 219–21, 226, 231 enemy criminal law 191–3, 213, 230 Ericson, Richard 217, 231 Etzioni, Amitai 85–6, 90–6, 157 European Convention on Human Rights (ECHR) 5, 113–23, 130–1 and ASBO 113–14, 115–18, 120–1, 123–5, 129–30 and bind over 168–9, 198 derogation from 219–20 freedom from torture 120 freedom of association 116 freedom of expression 118–20, 168–9 and Public Order Act 1986, s5 118–20 right to family and private life 116 right to liberty 115–16, 120, 219 right to security 113–31 Fabianism 108 Faulkner, David 121 Faulks, Keith 102 fault 187–8, 195 fear, for safety 18–23, 60–2, 65–6, 115 fear of crime 1, 65, 72–5, 185, 190, 199, 216 and ASB policy 72

and broken windows theory 72, 73 and crime rate 72, 229 and drugs offences 182 and failure of criminal justice 81 freedom from 64–5, 67, 75, 79–80, 88, 112, 120, 129, 175 in ideology of vulnerable autonomy 227 and reassurance policing 73–4 Fielding, Nigel 74 firearms offences 179–80 Fletcher, George 157 football banning order 133 foreign travel order 133 Foucault, Michel 8, 9 fraud 147–9 freedom of association, see ECHR freedom of expression, see ECHR Galston, William 92 Garland, David 3–4, 208, 228–9 Gearty, Conor 123, 130 Geddis, Andrew 119 Giddens, Anthony 86–93, 95, 111, 125–6, 129, 174, 187, 208, 231 Gil-Robles, Alvaro 113, 129 going equipped 177, 183 Gray, John 106, 235 Green, TH 237 Hallsworth, Simon 4 handling stolen goods 178, 183 harassment tort of 26–7 harassment, alarm or distress and breach of ASBO 38–40, 43–9, 51–3 context dependency of 20–2, 30–31, 173–4, 207 and ECHR 114, 116–19, 128–9 as grounds for ASBO 17–25, 29–31, 33, 36–7, 70, 81–2 hypothetical assessment of 21–2 meaning of 17–21, 23 nuisance compared 173–4 in Protection from Harassment Act 1997 55–6 in Public Order Act 1986 54–5, 174 traditional powers compared 167, 170 harm principle 186 Hayek, Friedrich 5, 85–6, 96–106, 108–11, 236 Hegel, Georg 237, 239 Heidegger, Martin 127 Hillier, Meg 141 Hobbes, Thomas 1, 3–5, 199, 215–17, 228 Honneth, Axel 84, 209 human rights (see also ECHR) 5, 10, 113–14 Universal Declaration of 130 Hunt, Murray 122–3 Hurd, Douglas 99 Husak, Douglas 184–91, 195, 202, 210

Index

257

imprisonment for public protection 159–62, 231 incapacitation 160, 212 and ASBO 46, 51–2 and control order 135 and emergency power 213 and IPP 160–1 and preparation offences 144 and right to security 212 inchoate offences 142–3, 206 incivility 20, 71–2 Independent Safeguarding Authority 140 Innes, Martin 74

neoliberalism 5, 84–6, 96–105, 107–8, 110–11, 223 Neumann, Franz 218, 224 New Labour 3, 11–12, 67, 69, 71–2, 77–9, 85, 90–3, 96, 104–5, 107, 109, 121, 123, 141, 163, 223, 228, 230, 232 non-molestation order 133 Norman, Jesse 106–7 Norrie, Alan 9–10, 32, 240 nuisance 19–21 public nuisance 171, 183 statutory nuisance abatement notice 172–4

Jakobs, Gunther 184, 191–3, 197

O’Neill, Onora 124 Oakeshott, Michael 107 offensive behaviour 19–21 Ormerod, David 152–3

Kant, Immanuel 195 Keynesianism 98, 110–11 Kirchheimer, Otto 217–18 Klug, Francesca 121–3 Kottow, Michael 124–5, 128 Kristol, Irving 105–6 Labour Party, see New Labour Lacey, Nicola 6, 7, 165, 187, 206 Lazarus, Liora 115 Lea, John 4 Lee, Murray 65 legitimacy and power 7–9 normative v social-scientific 7 liberalism 98, 235–6 classical 197, 211, 236 and democracy 236–7 and human rights 122, 129, 130 and security 214–15 social/modern 226, 236–40 and sovereignty 218 licensing 140–42, 182 Loader, Ian 208, 230 Locke, John 214 Loughlin, Martin 221 Lowi, Theodore 239 Macdonald, Stuart 50 Major, John 102, 105 Marshall, TH 86–7, 239 May, Teresa 141, 232 mens rea, see fault Michael, Alun 69–70 Mill, John Stuart 237 money laundering 149–51 moral panics 100–1, 105, 230, 235 moral philosophy 7, 185–91 193, 210 moral pluralism 101–2, 106, 109, 235 negligence 187, 189, 195, 200, 204 Neocleous, Mark 214 neoconservatism 105–6

personhood 193–7, 200–1, 210 perverting the course of justice 177 police power of 193–201, 203, 205, 210 political representation decline of 221–3 and right to security 223–6 and sovereignty 222–3, 226 political rights 87, 224 political theory 1, 10, 67, 184–5, 191, 193–5, 202, 212, 215 possession offences 148–9, 179–83, 210 counterfeiting 179 criminal damage 179 drugs 180–2 firearms 179–80, 183 fraud 148–9 offensive weapon 179 terrorism 148 post-democracy 223, 227, 229 preinchoate offences 142–52, 176–83 democracy 225 inchoate offences distinguished 142–3 as power of police 196, 201 preparation offences 144–8, 177, 183 fraud 147, 177 going equipped 177 perverting the course of justice 177 sexual 146 terrorism 144–8 Protestant ethic 106, 111 public confidence 68, 73–5, 80, 150 public nuisance 171, 183 public order offences 18, 20, 29, 55–6, 81–2, 102, 118–20, 167, 174–6, 183 public protection as sentencing rationale 45–9, 51–2 public welfare offences 87, 204–5 public wrong 12, 52, 191, 202, 210 causing fear of crime as 61, 191

258

Index

public wrong (cont.) and political theory 191 and right to security 123 Raz, Joseph 157 reassurance policing 72–5 Reece, Helen 184 religion 97–100, 105–6 respect 95, 107, 109, 170, 209, 226 obligation to show (see also disrespect) 59, 61, 66, 72, 83, 94, 107, 109, 120, 124, 170, 209, 226 right to 26–7, 120 right to security 5, 112, 232 and ASBO 59–61, 64, 112 in ECHR 113–31 emergence of 163, 166, 183 and enemy criminal law 192 as fundamental 120 meaning of 64–6 and normalized emergency 214 normative basis of 112 as political consensus 12 as real autonomy 206 and social security 206 and sovereignty 215–16, 218, 221–2, 226, 228, 230 and vulnerable autonomy 112, 219 rights (see also right to security and ECHR) civil 78–9, 87–8, 91–3, 110, 124, 128–30, 218 fundamental 59–61, 129 human 5, 10, 113–14 political 87, 224 to respect 26–7, 120 social 87–8, 93, 103, 110, 111, 128–9 risk assessment and ASBO 23–5, 29–31, 35, 51, 61, 64 clinical and actuarial 24 and control order 134, 136 and risk of sexual harm order 137 and separation of powers 224 and Vetting and Barring Scheme 140 risk of sexual harm order 133, 136–7 Roosevelt, Franklin 130 Rorty, Richard 127–9 Rose, Nikolas 102, 184 Sandel, Michael 94 Schmitt, Carl 213, 215, 217, 218, 221 security as good 4 ontological 88–90, 125, 209 right to, see right to security subjective 1–3, 52–6, 64–6, 83, 108, 115–16, 129, 132, 143, 145, 148, 150, 162–3, 170, 174–7, 183, 189, 193, 196–7, 202, 206–7, 210–11 subjective and objective contrasted 1, 64–5

Sedley, Stephen 130 self-esteem 27, 84, 89–90, 170 Sennett, Richard 227 serious crime prevention order 133 sexual offences 136–7, 146–7 Shildrick, Margrit 127 signal crimes 74–5 Simester, AP 223–4 Simon, Jonathan 103, 228 Smith, Adam 99 social capital 76 social cohesion 78, 87–90, 105, 107–9, 111 social democracy 86–8, 201, 210 social justice 86–8, 98 social rights 87–8, 93, 103, 110, 111, 128–9 social security 128, 201 sovereignty 1–2, 5–6, 194–5, 197–201, 202–3 decline of 217–19, 221, 222–3, 226 democratic 194, 201, 222–3, 225–6 dialogic 208–9, 211–12, 237 Leviathan’s 215–17 myth of 228–9 patriarchal 194, 197–201, 210–12, 222 Spigelman, James 130 Squires, Peter 112 Stanton-Ife, John 157 statutory nuisance abatement notice 172–4, 207 Stephen, Dawn 112 Straw, Jack 69, 71, 120, 121–3 subjective pattern of criminality 157–8, 162, 177, 183 subjectivism v objectivism 188–9, 195 Tain, Paul 167 terrorism offences 133–6, 144–8, 151–2, 207 Thatcher, Margaret 99–102, 105–6, 108, 111 theft 153–7 Third Way 5, 84–93, 96, 103, 104–5, 110–12, 121 and Big Society 105, 107–8, 109–11 and communitarianism 90–2, 110, 184 concept of welfare in 88, 238 and decline representative politics 223 and neoliberalism 96, 104, 110, 184 and rights 87–8, 103 and vulnerable autonomy 88–90, 96 threat offences 175–6, 183, 207 threatening behaviour 19–21 Turner, Bryan 126–9 utilitarianism 185 vagrancy 163–5, 183, 201, 210 vetting and barring scheme 139–42, 230–1 victimization, risk of 1, 66, 74, 104, 132, 141, 186, 207–8, 229 victims of anti-social behaviour 18, 21, 26–9, 71

Index of crime as representative citizen 103–4, 199, 216, 227–9, 234 and criminal law 64, 71 Victim’s Charter 103–4 violent offender order 133 Von Hirsch, Andreas 145, 223–4 vulnerability 80–2, 101–2, 110–11, 198–9, 221, 231 to exploitation 157 and human rights 123–31 meaning of 124–6 vulnerable autonomy 5, 84–6, 88–90, 94–6, 97–9, 186–8, 190, 196–202, 206–7, 210–12 and dialogic community 209 as exceptional normality 215, 217, 221 as ideology 105, 110–12, 114, 139, 159–60, 175, 183, 199, 201, 207–9, 214–5, 217, 226, 228, 232, 235, 240 and liberalism 236

259

as real autonomy 206, 209, 238–40 and sovereignty 229, 238 and state of nature 216–17 vulnerable subject 9, 103, 123, 131, 167, 206, 227, 240 vulnerated subject 125, 128–9, 131, 157, 240 Wacquant, Loic 4 Waiton, Stuart 105, 230, 231 Walker, Neil 208, 230 Weber, Max 7 welfare contract 77–8, 90, 92, 100, 109 welfare rights 78–9, 91, 124 welfare state 87–90, 99–103, 106, 200–1, 205–6, 211, 222, 236–40 Willetts, David 108–9 Zedner, Lucia 73, 225 Zizek, Slavoj 120