Preventive Justice and the Power of Policy Transfer

J. Ogg

• Publisher: Palgrave Macmillan
• Year: 2015
• ISBN:
  9781137495020
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

As policy-makers look first (and easily) for existing policy solutions which could be adapted from elsewhere, policy transfer becomes increasingly central to policy development. This book explores whether policy transfer in 'everyday' policy-making may be unintentionally creating a system of preventive justice.

1

Introduction

At the heart of this book lies an urge to understand better the nature of criminal justice policy and decision-making in the United Kingdom, during a time of complex reform. Over the decade of the former New Labour government, there were marked shifts in criminal law and criminal justice policy. In particular, during the period 1997–2007, the UK saw a rapid expansion of crime control policies and an increased number of new (many wide-reaching) criminal laws passed by parliament (Morris 2006; Lacey 2007: 174–175). The Act at the core of this book, the Serious Crime Act 2007, marked the 60th piece of Home Office legislation during this 10-year period, whereas by contrast there ‘were only 48 pieces of Home Office legislation in the previous 100 years’ (Brimelow 2007: 1).1 This increase in legislative activity has provided academics interested in criminal justice with numerous new fields of analysis. These analyses have typically concerned the consequences of such expansion (such as problems of overcriminalisation and a growing prison population) and criticism of excessively wide-reaching powers, and the creation of new measures, particularly in the state’s response to anti-social behaviour and terrorism (Garland 2001: 75–76; Matthews and Young 2003: 7; Crawford 2009). However, researchers have tended to concentrate on one substantive policy arena (for example, anti-social behaviour or terrorism) rather than on the apparent pattern of new measures, which together mount a strong attack on the rights of those accused or suspected of involvement in criminal activity (and on the criminal trial; see Ashworth and Zedner 2008). That is, there is a general trend among these new developments to introduce legislation that makes prosecution easier or even non-essential.2

An important sub-group of these new measures, and the focus of this book, is a family of preventive orders, many of which involve a hybrid of civil and criminal proceedings. Hybrid orders diminish the rights of accused or suspected individuals by avoiding the criminal trial process altogether (Simester and von Hirsch 2006: 175). As these orders are defined as ‘civil’ and ‘preventive’ (and not criminal and punitive), they have the benefit of being applied in proceedings with a lowered civil standard of proof, and less stringent controls over the admission of evidence (for example, the admission of hearsay evidence). Moreover, they have the additional benefit (though not for the accused person) of creating criminal offences for breach of the terms of an order, which can carry heavier punishments than conventional High Court powers of contempt (and are arguably often disproportionate to the original behaviour that triggered the order to be imposed) (Ashworth 2004: 279).

While the literature concerning the rights of accused individuals has discussed the principles and underlying efficacy of these orders, there has been limited engagement in understanding why these developments have occurred in the first place (Lacey 2009: 946). Criminology as a discipline has ingenuously accepted the explanation of a politicisation of crime control without adequate consideration of (or search for) alternative explanations for these developments. The widely accepted explanation is based on a perception by the state that a trade-off exists between the competing demands of the rights of the accused and those of the public,3 and that there has been a political aspiration to ‘rebalance the Criminal Justice System in favour of the law-abiding majority’ (Home Office 2006b).4 Crime control undeniably became a more pronounced instrument of political exertion in the 20th century – the beginnings often attributed to the election manifestos of the Conservative Party in 1979, but then later escalated under New Labour.5 Other global phenomena such as Governing Through Crime (Jonathan Simon 2007) and a Culture of Control (David Garland 2001) suggest governments have (for good or ill) exploited perceptions of crimes to introduce programmes, measures, and practices that powerfully affect the lives of many. However, politicisation has become an overused, catch-all explanation, which has led to a simplified presumption that politicians and political agendas are wholly responsible for the new direction in criminal justice (that is, a ‘top-down’ view of policy-making). This book shows that a more nuanced examination of the dynamics of policy-making can augment the simplistic political explanations for these new developments, by recognising the structural forces that are also at play in the policy-making process.

The aim of this book is to explain the proliferation of preventive orders across a wide and diverse range of areas of crime policy in the UK (including anti-social behaviour, domestic violence, football-related violence, sexual offences, terrorism, and organised crime). This is achieved through a detailed case study analysis of the process involved in developing one of the more controversial (yet less scrutinised) civil preventive orders, the Serious Crime Prevention Order (hereafter SCPO).6 Analysis of the genesis of this single measure is also used as a springboard to explore three under-researched themes in criminal justice scholarship: new developments in serious and organised crime control in the UK; a prevailing preventive ideology in criminal justice, or ‘preventive justice’; and ‘policy transfer’ as a common part of the domestic policy-making process. These three contemporaneous topics can be connected through an analysis of the SCPO. Three broad research questions shape this book’s enquiry:

1.		How can we best explain the spread of the preventive order model as a key response in crime control?
2.		What can a detailed study of the policy process tell us about the increased prevalence of new preventive practices in crime control?
3.		To what extent, if any, does policy transfer play a role in the domestic process of policy-making and innovation?

Accordingly, two specific empirical research questions guide the analysis of the origins of the SCPO (in Part II of this book):

1.		What was the nature and extent of the role played by the preceding preventive orders in the formulation of the SCPO?
2.		Did decision-makers knowingly formulate the SCPO and other preventive orders as part of a broader goal to foster an alternative system of preventive justice?

It is argued that domestic policy transfer is a driving force in everyday policy-making, and, as a result, enhanced systems could be developed to accommodate and facilitate the process of transfer. The SCPO, a novel measure in organised crime control, is argued to be the consequence of incremental processes of policy transfer that have evolved the preventive order model across distinct areas of crime control (encompassing Anti-Social Behaviour Orders, Football Banning Orders, Sexual Offender Orders, and terrorism Control Orders7 among others). This incremental process may also be indicative of the broader shift towards a system of (criminal) preventive justice. The dynamics of this mechanism of policy transfer are developed into an exploratory framework. At a broader level, it is also argued that those who study criminal justice (referred to throughout this book as criminologists) should engage in the empirical analysis of legislative and policy practices that lie behind the development of new instruments (laws and measures) or any new policy direction, so often criticised by them as a form of deliberate and malevolent government action. The examination of policy transfer in this book shows how even large-scale policy changes can occur through pathways which are paved by unconscious and/or incremental developments by policy-makers, where the intentions cannot, in any way, be characterised as malevolent.

I proceed in two parts. Part I explores the three distinct areas of research that intersect when conducting a detailed examination of the SCPO. Chapter 2 looks at the SCPO in the context of the broader organised crime control agenda in the UK. Prior strategies and responses to organised crime control are reviewed, and the new legislative trend towards a definition of ‘serious crime’ is appraised. It is argued that the SCPO is a novel and innovative response to organised crime that was not derived from past responses in this policy arena. Chapter 3 explores the role of preventive ideology in criminal justice policy. It provides a brief overview of the family of preventive orders, of which the SCPO is a member. The chapter argues that there has been a rise in the role of a preventive ideology in contemporary criminal justice, which can be seen to underpin some of the presiding discourses in contemporary criminology such as security, risk, and dangerousness. Chapter 4 examines policy transfer as a mechanism to explain the rise of this new family of preventive orders that led to the SCPO. A policy transfer framework is developed to explore how specific ideas ‘catch on’, take hold, and come to dominate the work of policy-makers and decision-makers.

Part II constitutes the empirical component of this book. Chapter 5 sets out the methodology used to explore the spread of the preventive order, and specifically the genesis of the SCPO. It outlines the method of ‘process-tracing’, based on a research design incorporating documentary analyses (of both policy documents and statute law) and ‘elite interviews’ with key decision-makers. This chapter also outlines the procedures taken in the analysis of these sources, including case selection, content analysis, coding, sampling, and the design of the interview schedule. Chapter 6 provides an analysis of the legislative proliferation of the preventive order model. This analysis shows that not only has proliferation occurred in numbers of preventive orders, but there has also been an expansion of the provisions of these orders (for example, permitting a longer period during which an order can be applied, longer custodial sentences for breaching an order, and wider forms of application such as through civil procedure). Consequently, the SCPO, a more recent addition to this family, embodies some of the widest provisions that are open to judicial discretion. Chapter 7 focuses directly on the policy process involved in developing the SCPO. It combines results of the analyses of public and departmental policy documents and interviews completed with key decision-makers involved at the early stage of policy gestation. It tests the responses of interviewees for evidence of policy transfer and explores whether there was a preventive ideology during formulation. Lastly, Chapter 8 provides a final discussion, where conclusions are drawn and key implications are discussed.

This book intends to make an important contribution to the field of academic research by providing a method for examining the detail of the processes by which criminal justice policy is made. It also has some important implications for practitioners (particularly in the Home Office) in relation to the structure and operation of policy-making, whereby a greater recognition of the role of policy transfer could appreciably facilitate the process of policy development and make the procedures undertaken more efficient.

Part I

2

‘Serious’ Shifts in Organised Crime Control

The state’s prescribed responses to ‘serious crime’ present novel changes in criminal justice policy and criminal law that have received very little scrutiny, particularly in academic discourses and analyses. This chapter addresses the concept of serious crime and its relationship with past policies dealing with organised crime. It provides a background to ‘serious and organised crime’, a concept reinforced by substantive legislative and executive activity in the UK, namely, through the establishment of a Serious Organised Crime Agency (hereafter SOCA)1 (pursuant to the Serious Organised Crime and Police Act 2005 [hereafter SOCPA 2005]) and the SCPO (under the Serious Crime Act 2007 [hereafter SCA 2007]2). The chapter h...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright
• Dedication
• Contents
• List of Figures
• List of Statutes
• List of Cases
• Acknowledgements
• List of Abbreviations
• 1 Introduction
• Part I
• Part II
• Appendices
• Notes
• References
• Index