Preventive Justice

There are good reasons for permitting the state to authorize the use of coercion to protect the public from harm. Preventive measures permit the police to intervene before an offence has been committed and the courts to incapacitate those who pose a danger to society. They permit state intervention at an early stage before the harm eventuates and may even have a deterrent effect upon prospective perpetrators. Yet they carry the risk of rendering unlawful conduct which would otherwise be lawful and of permitting premature intervention and potentially oppressive and intrusive measures that erode individual liberties.

Recent years have witnessed a remarkable proliferation of preventive measures that alter the parameters of criminal liability and blur the historic division between the criminal and civil law, allowing the civil law to be used for criminal law purposes but without the protections normally provided to defendants. Not only is the ambit of preparatory offences being extended, but new legal forms are being developed in the name of prevention. The most important of these is a new species of hybrid or 'two-step' measure, imposed in civil proceedings but backed by severe criminal sanctions for breach. Insofar as civil preventive measures are burdensome in ways analogous to punishment, or render those subject to them liable to punishment on breach, then adequate justification and principled limits to their deployment are needed if they are not to inflict punishment under the guise that it is 'just prevention'.

These developments demand more systematic attention than they have been given. Whilst much has been written about criminal law, criminal justice and punishment, little attention has yet been paid to the question of preventive justice (save in emergency situations and in respect of exceptional powers introduced to counter terrorism). This project will rectify this omission by examining the theoretical underpinnings, aims, and justification of preventive justice in order to formulate limiting principles or a jurisprudence of 'just prevention'.

In co-authored articles, chapters, a book, and a co-edited volume we will examine the prevention of harm as a social good and explore the politics of risk and prevention. We will examine the recent shift from retrospective policing and punishment toward prospective intervention by exploring the emergence of a preventive politics and a growing array of preventive measures introduced in the name of security. We will analyse the expansion of liability for preparatory offences and the proliferation of civil, and hybrid civil-criminal, preventive measures. We will establish what justifies preventive measures and what limits ought to be placed upon them in order to distinguish the preventive measures more clearly from those that are in fact punitive.

To the extent that these preventive developments blur the civil-criminal divide they invite scholarly attention to the changing character of criminal justice; the appropriate boundary between civil and criminal; and the possible emergence of a legal middle ground and new legal forms. Inviting criminal lawyers from different jurisdictions, civil procedure scholars, legal theorists, and philosophers to contribute to two workshops on these and related issues will stimulate cross-disciplinary interaction and invite critical reflection on important questions that sit at the margins of criminal, regulatory and civil law and yet which affect liberty. Convening a third workshop of policy makers will ensure their input and add a vital policy dimension to the project. The objective is to provide an account of the principles and values that should guide and limit the state's use of various preventive techniques that involve coercion, and thereby to stimulate more focussed debate in fields of study relating to the civil-criminal divide, risk, security and the control of 'anti-social behaviour'.

This project aims to have a provocative effect in stimulating new conceptions of criminal law and in challenging conventional notions of the respective roles of the criminal and civil law. The writings of the Principal Invesigator and Co-Investigator will answer vitally important questions about changes in the scope and function of the criminal law; about the use of civil law for criminal law purposes; and about the proper role and extent of state power to prevent and protect. We will hold two workshops bringing together leading world experts in criminal law, legal theory and philosophy to explore and debate the issues raised by the project. Both workshops will enable participants to reflect upon the questions posed by the project and invite their own input and contribution to the resolution of them. The workshops will create a network of scholars from different disciplinary backgrounds and from different jurisdictions who will be enabled and encouraged to engage in continuing discussion before, during and after the workshops. The first workshop will invite the development of innovative and exploratory papers which will then be subject to the powerful critical scrutiny of academic experts whose responses will form the core of the second workshop. Resulting from this, the fully developed contributions will be revised for publication in a co-edited volume of papers by this distinguished international group of scholars.

The project will have several important outputs, not least a co-edited volume, a co-authored monograph, and articles by the Principal Invesigator and Co-Investigator in peer-reviewed journals and chapters in edited collections. The RA will also publish articles and chapters. A further workshop will be convened in order to engage policy audiences (with whom the investigators have good connections) on the issues at stake. Together with the publications and papers given by the Investigators, this will make a significant contribution to some important and very topical debates that include:
-the proper role of the state in preventing harm and protecting the public
-the proper parameters of the criminal law
-the use of civil preventive measures to pursue crime control functions
-the 'preventive turn' in criminal law and the expansion of inchoate liability
-the role of risk and uncertainty in informing criminalization and criminal justice policy
-the criminal-civil law divide and the possible emergence of a procedural 'middle ground'
-the principles and values underpinning a jurisprudence of preventive justice.

These debates are at the cutting edge of current scholarship in the academy, and are also important areas of policy formation. The project will engage with and inform current deliberations on such issues as the proliferation of civil preventive measures as coercive instruments of crime control; the relationship between counterterrorism policy and crime control; and the relationship between the courts and the executive in determining the shape and content of preventive orders. These developments erode traditional distinctions between criminal and civil law and constitute a policy shift that requires the careful scrutiny and independent evaluation that this project will provide. The prime audiences of the research are likely to be academic lawyers, legal theorists, and philosophers. It will speak directly to the interests of administrators and policy makers in government departments like the Home Office and the Ministry of Justice. It will also be of direct interest to members of the legal profession, to civil liberties organizations (eg Liberty, Justice, and Statewatch), and to the Law Commission whose task it is to keep the proliferating number of criminal offences under review. In sum it is our intention to feed the outcomes of the research directly into academic debates, as well as into the public s