Everyday Challenges to the Rule of Law: The Case of Civil/Criminal Procedural Hybrids

Rules of legal procedure determine the steps to be taken and standards to be met in the resolution of issues coming before the law. Due to their different purposes - criminal law being to punish, civil law to compensate - civil and criminal processes have traditionally been distinguishable in several ways, for example, in how they conceptualise harm, in the investigatory powers available to the state, in the role taken by a prosecution authority, and in the standards of evidence to be met.

In practice this means that, while 'civil' processes operate under lesser burdens, processes designated as 'criminal' attract for the accused enhanced procedural protections as additional commitments. Importantly, it is the legal system that imposes these standards and requirements on itself, in accordance with the rule of law. The rule of law is a principle of governance comprising those foundational values that ought to be reflected in the legal system, thus establishing the minimum standards of fairness to be upheld. The additional safeguards within the criminal process protect the rights of the accused and ensure against the potential misuse of State authority.

Civil/criminal procedural hybrids, which are blended processes that employ mechanisms normally associated with the other, serve to blur the lines between the civil law and the criminal law. This is the case both in terms of their stated purposes - compensation or punishment - and in terms of the processes to be followed and standards to be met. Such low-level hybrid procedures regulate some of the most commonplace interactions between the legal system and the public, and are deserving of greater scrutiny. Considering that such line-blurring can have the result of effectively removing those additional commitments attaching to criminal processes, it has real implications in terms of the legal system's compliance with the rule of law.

Legislation introducing such hybridised procedures into UK law has become increasingly common, which begs the question as to why. What are the underlying policy reasons for the use of procedural hybrids - known alternatively as civil penalties, punitive sanctions, and quasi-criminal measures - and why are they becoming more commonplace? In the event that these reasons track important policy goals, are these goals so important that the potential rule of law concerns can be overlooked?

In addressing these questions, this theoretical and comparative investigation employs three case studies, namely civil recovery, domestic violence protection, and 'crimmigration'. These procedural hybrids have been selected to include within the study a wide range of different forms, practices, and motivations.

This research builds upon important groundwork I have done in this area and draws specific attention to the long overlooked 'rules of the proceedings' that govern the application of the substantive law. The focus of this study has been refined in consultation with stakeholders in the form of project partner Liberty and with the Advisory Board, comprising leading academics and experts from practice. It will have a transformative impact by influencing how, when and why such civil/criminal procedural hybrids are employed in the future. Outputs will target several audiences: academic, practitioner, and activist.

The main outputs of this Fellowship will be:
- Three sole-authored articles in high quality periodicals (Open Access)
- Presentations at national and international conferences
- Lectures to practitioners, stakeholders and potential beneficiaries
- A dedicated ECR/PGR workshop, including mentoring
- An end-of-project flagship conference
- An augmented international profile as a research leader in this field
- New collaborative international networks, both academic and stakeholder
- An application for further UKRI funding (large-scale)
- An edited collection (to be completed outwith the project's timeframe)

This research has the core aim of creating impact by contributing to policy developments and law reform both nationally and internationally, and by generating positive change through broad stakeholder engagement. Research findings will be of interest to practitioners, activists, policymakers and those engaged in law reform within the specific fields of civil recovery, domestic violence protection, and immigration and hostile environment. They will also be of interest to those concerned with the use of preventive sanctions and civil preventive orders more generally.

Relevant stakeholders include, although are not limited to:
- the Home Office;
- Joint Council for the Welfare of Immigrants (JCWI), an independent charity promoting justice, fairness and equality for the UK's immigration and asylum law and policy;
- Joint Security and Resilience Centre (JSaRC), a unit inside the Office for Security and Counter Terrorism (OSCT) within the Home Office;
- All Party Parliamentary Group (APPG) on the Rule of Law;
- Civil Procedure Rules Committee;
- Criminal Procedure Rules Committee;
- JUSTICE, an all-party law reform and human rights organisation working to strengthen the justice system - administrative, civil, family and criminal - in the UK (the Director of Justice, Andrea Coomber, is an affiliate member of the Centre for Law & Social Justice (L&SJ));
- Supporting Justice, a community interest company specialising in issues affecting victims, witnesses and their needs;
- Liberty, the UK National Council for Civil Liberties;
- the National Crime Agency;
- Migrants' Rights Network (MRN), a migrant rights campaigning organisation.

Key issues to be investigated have been selected and refined in consultation with both the project partner Liberty and the Advisory Board, composed of leading academics in legal theory, criminal law, civil/criminal procedure, and human rights experts drawn from practice. Briefing papers will be produced for dissemination by Advisory Board members and the project partner, providing convenient summaries of research findings and outlining potential applications. All members of the Advisory Board will disseminate the research findings from this Fellowship via their networks. Specific knowledge exchange events will also be held throughout the duration of the Fellowship, including the academic placement at the Law Commission, public lectures supported by Liberty, and the ECR/PGR and flagship conferences at the University of Leeds School of Law.

By critically comparing the motivations behind and the justifications given for the use of civil/criminal hybrid procedures, along with considerations of historical, political, social, and ideological context, I will produce research outputs that make original, significant, and rigorous contributions to our understanding of these processes.

Through its analysis of these hybridised procedures, this research will:
- provide a theoretically-informed, contextualised and comprehensive academic study of their use, aims, justification, and reception;
- stimulate greater public awareness of such legal techniques, and the arguable problems with them;
- influence public policy by outlining how hybrid procedures could be designed to be rule of law compliant, and promoting reliance upon these alternative procedures;
- ensure that considerations of human rights and civil liberties are situated at the very centre of debates concerning the (continued) use of procedural hybrids;
- provide expert knowledge on procedural hybrids to other jurisdictions interested in employing such legal techniques.