Trust, Distrust and Reassurance: Diversion and Preventive Orders in the Shadow of the German Feindstrafrecht Controversy

Dr. Daniel Ohana*

* Post-doctoral fellow at the DAAD Center for German Studies and Teaching Fellow at the Institute of Criminology, Faculty of Law, Hebrew University of Jerusalem. I would like to thank the DAAD Center for German Studies at the European Forum at the Hebrew University for its financial support. I am also grateful for the valuable comments and suggestions of Leslie Sebba. This is a working paper. Please do not cite without permission.

Abstract
This paper considers Gnther Jakobs controversial theory of the criminal law of the enemy (Feindstrafrecht). Jakobs argues that members of society whose conduct signals their disloyal attitude towards the law, such as predatory sex offenders and terrorists, should be made subject to a special paradigm of criminal law. Significantly, substantive and procedural due process guarantees that apply as a rule within the criminal law could be relinquished in this framework for the sake of defending society against citizens whose conduct suggests that they no longer consider themselves bound by its norms. Discussion thus far of Jakobs work has primarily concerned those aspects of the Feindstrafrecht theory which offer a warrant for the differentially abusive treatment of actors branded as enemies of society. This paper, by contrast, considers Jakobs work from a different angle, taking an interpretive perspective that is anchored in social theory, rather than normative principles. Its analysis examines the implications of Jakobs central claims concerning trust relations in society as mediated by the criminal law and endeavours to articulate their relevance for English law, particularly as regards the growing role of diversion mechanisms and preventive orders in the realm of criminal justice. By connecting Jakobs thoughts on trust with key themes in the Foucauldian governmentality literature and recent research on the ascent of auditing as a meta-regulatory mechanism in late modernity, the paper aims to identify the various ways in which current alternatives to the criminal sanctioning process in English correctional practice link with neoliberal technologies of government.

Table of Contents

Introduction I. II.
Gnther Jakobs Theory of Criminal Law and Punishment

Feindstrafrecht: Critical Responses.

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III. Recent Developments in Crime Control Practices: Diversion and Preventive

Orders

16

IV. Trust, Distrust and Trust-Responsiveness.. V.

Diversion and the Governmentalization of Trust..

20

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VI. Preventive Orders: Restoring Trust by Institutionalizing Distrust. Conclusion

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49

Introduction
Just over a decade ago, Gnther Jakobs, the prominent and influential German legal theorist, sparked a storm of controversy in his homeland when he set forth his theory of the criminal law of the enemy (Feindstrafrecht).1 Members of society whose conduct signals their disloyal attitude towards the law, such as predatory sex offenders and terrorists, Jakobs argued, should be made subject to a special paradigm of criminal law.2 Significantly, substantive and procedural due process guarantees that apply as a rule within the criminal law could be relinquished in this framework for the sake of defending society against citizens whose conduct suggests that they no longer consider themselves bound by its norms. Recently, the controversy surrounding Feindstrafrecht has fanned out from Germany to other countries on the Continent, spawning a flurry of commentary. This development is hardly surprising, given that the turn of the millennium in many European jurisdictions has been characterized by the enactment of a spate of legal measures bearing the imprint of the patterns of lawmaking sketched out by Jakobs. This paper endeavours to articulate the relevance of Jakobs analysis for English law, particularly as regards the growing role of diversion mechanisms and preventive orders in the realm of criminal justice. Discussion thus far of Jakobs work has primarily concerned those aspects of the Feindstrafrecht theory which offer a warrant for the differentially abusive treatment of actors branded as enemies of society. This paper, by contrast, takes a different tack by analyzing the implications of Jakobs central claims concerning trust relations in society as mediated by the criminal law. By connecting Jakobs thoughts on trust with key themes in the Foucauldian governmentality literature and recent research on the ascent of auditing as a meta-regulatory mechanism in late modernity, this paper aims to identify the various ways in which current alternatives to the criminal sanctioning process in English correctional practice link with neo-liberal technologies of government.

Jakobs presented his theory at a major conference concerning the German science of criminal law at the turn of the century. See Gnther Jakobs Selbstverstndnis der Strafrechtswissenschaft vor den Herausforderungen der Gegenwart (Kommentar) in Albin Eser, Winfried Hassemer and Bjrn Burkhardt (eds.) Die Deutsche Strafrechtswissenschaft vor der Jahrtausendwende 47-56 (2000). Interestingly, the notion of Feindstrafrecht was originally developed by Jakobs fifteen years earlier as part of his critical analysis of anticipatory crimes. See Gnther Jakobs, Kriminalisierung im Vorfeld einer Rechtsgutsverletzung, 97 Zeitschrift fr die gesamte Strafrechtswissenschaft [ZStW] 751 (1985). On the German notion of a science of criminal law, see generally Markus Dirk Dubber, The Promise of German Criminal Law: A Science of Crime and Punishment 6 German Law Journal 1049 (2005). 2 See generally Carlos Gmez-Jara Dez, Enemy Combatant versus Enemy Criminal Law 11 New Criminal Law Review 529 (2009).

This paper is organized into five parts. Part I begins by presenting the main tenets of Jakobs Feindstrafrecht theory. Part II reviews the numerous grievances that have been voiced against Jakobs work in the German criminal law literature. Part III lays the groundwork for my analysis by outlining the essential components of the most salient mechanisms of diversion and civil preventive orders in current English law. Part IV fleshes out the papers first claim, that diversion mechanisms governmentalize trust and subjectify the offender as a trustworthy citizen, thereby indirectly motivating him to follow the law out of his own initiative. Part V substantiates the papers second claim, which concerns the symbolic significance of the recent extension of the scope of the preventive order in English law. Drawing parallels with the audit, it contends that the preventive order represents a second-order mechanism of governance, which acts as an auxiliary to the criminal law by monitoring at a distance the capacity and commitment of citizens to conform their conduct to its precepts. From this point of view, preventive orders serve as a vehicle to reassure a public beset by mounting doubts concerning the power of the criminal law to command authority and guarantee security, while concomitantly reaffirming the duty of the individual to manage his risks of offending and abstain from engaging in overt forms of conduct which are liable to disturb the sense of security expected by anxious law-abiding citizens.

I Gnther Jakobs Theory of Criminal Law and Punishment

Unlike many German legal scholars who posit that the criminal law protects legal goods (Rechtsgter),3 Jakobs asserts that the criminal law fulfils the specific function of upholding the validity of legal norms.4 Specifically, the criminal law generates expectations of conduct and consistently upholds them over time. Jakobs theorizes law as allowing individuals to orient themselves and engage with one another in a highly complex and contingent society, where personal mechanisms of trust no longer suffice to lay the groundwork for interaction between anonymous actors.5 Law can adequately carry out this function if members of society trust6 that the validity (Geltung) of legal norms is generally recognized, i.e., that these norms actually guide the conduct of their fellow citizens. Accordingly, citizens are expected by the law to develop, on their own, a readiness to follow norms, or as Jakobs more generally puts it cultivate loyalty towards the law (Rechtstreue).7 The posture of loyalty assumed by the citizen reasonably anchors in reality the expectations of his fellow members of the polity that the law will generally be followed, thereby enabling them to run their lives, if not in total security, at least without having to constantly apprehend the prospect of being wronged.

See generally Markus Dirk Dubber, Theories of Crime and Punishment in German Criminal Law 53 American Journal of Comparative Law 679, 682-696 (2005). 4 See generally Gnther Jakobs, Strafrecht Allgemeiner Teil 34-49 (2nd ed., 1991). For a general overview and discussion of Jakobs theory of criminal law and punishment see Angela Kalous, Positive General Prvention durch Vergeltung (2000); Mariana Sacher, Systemtheorie und Strafrecht 118 ZStW 574 (2006). 5 In this specific respect, Jakobs analysis follows in the tracks of Niklas Luhmanns sociological theory of law. See generally Niklas Luhmann, A Sociological Theory of Law (1985); Niklas Luhmann, Law as a Social System (2004). 6 Jakobs uses the term Vertrauen which can be translated into English as either confidence or trust. Significantly, many English-speaking commentators argue that these two terms are not co-extensive, especially as regards trust in institutions. See infra note 138. 7 See Gnther Jakobs, Imputation in Criminal Law and the Conditions for Norm Validity 7 Buff. Crim. L. Rev. 491, 498 (2004). Jakobs emphasizes, however, that in a modern, non-totalitarian state, criminal culpability and responsibility are paradigmatically outcome-based. That is, it is only once the actor actually breaches a legal norm manifesting thereby a deficiency in law-abidingness that punitive intervention is warranted. Though this outlook does not rule out crimes of attempt and endangerment, the upshot is that the citizen is trusted to cultivate law-abidingness on his own. But, Jakobs adds, once an inquiry is undertaken ex post facto as to whether the breach of the legal norm is to be imputed to the actor by reason of a claim of excuse, such as mistake of fact or law attention should not focus on just the choices made by the actor at the specific moment he acted in violation of the law. Rather it should also extend to matters pertaining to the way the actor shaped his lifeproject, insofar as these find expression in the conduct concerned. In the Anglo-American criminal law literature, these issues have figured in the debate as to whether the offenders choice, character or wrongful act constitutes the proper object of criminal responsibility. For an overview of this debate see e.g. R.A. Duff, Virtue, Vice and Criminal Liability: Do We Want an Aristotelian Criminal Law, 6 Buff. Crim. L. Rev. 147 (2002). In Jakobs view, the law settles the question of whether the defendant should escape liability on account of an excuse by examining whether, under the circumstances of the case, his conduct was that of a citizen who is loyal to the law, or whether he may be faulted for not meeting this standard, as he failed to sufficiently exert himself in the shaping of his life-project so as to avoid the risk of entanglement with the law. See generally Gnther Jakobs, Das Schuldprinzip (1993).

Jakobs draws a distinction between two modes of communication: personal communication and instrumental communication.8 In the former, the law addresses the individual as a person-in-law, as a citizen who is bound by the law and who unconditionally embraces the duties and role of a responsible member of the polity. The law trusts that the citizen will diligently run his life so as to meet the expectations of lawful conduct held by his fellow members of the polity, without there being any need for measures of deterrence or more direct forms of coercion. According to Jakobs, the law institutes the freedom of the citizen by constituting him as a self-governing subject who autonomously conducts his life. In the mode of instrumental communication, conversely, the law relates to the individual as a source of potential danger or as a clever calculator who only seeks to satisfy his personal utility. In this context, threats of painful consequences or more direct measures of coercion are required to provide security and ensure that the law is obeyed. The actor is addressed as a person who does not feel duty-bound towards the law and who only views norms as an external constraint on the pursuit of his goals. Following Jakobs account of crime, by engaging in criminal conduct, the offender calls into question the validity of the applicable norm. The offender neglects to properly fulfil his role as a loyal citizen, failing to meet the expectations of his fellow members of the polity. Punishment, in turn, fulfils the manifest function of delivering a counter-response: it confirms that the norm stands valid, thereby making it clear to the offender and his fellow citizens that the act is unacceptable, and that this is not open to debate.9 Hard treatment forms an integral part of the punitive response, for just as a criminal act brings about concrete harm in the world, and is more than the mere expression of denial regarding the validity of the norm, thus punishment also objectifies the contradictory message upholding the norms validity by targeting the offenders means of livelihood (i.e., his freedom of movement or property). The political community conveys painfully to the offender that its norms still hold and that it maintains its expectations of compliance.10 In this respect, the severity of the punishment is commensurate to the scope of the violation of the norm and the culpability of the actor.11 Punishment additionally fulfils a latent function by generating a process of social
See Gnther Jakobs Das Strafrecht zwischen Funktionalismus und alteuropischem Prinzipiendenken 107 ZStW 843, 867-876 (1995). 9 See generally Gnther Jakobs, Norm, Person, Gesellschaft 103-109 (1997). 10 See generally Gnther Jakobs, Staatliche Strafe: Bedeutung und Zweck 26-30 (2004) (hereinafter, Jakobs, Staatliche Strafe). 11 Id. 32.
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confirmation of the validity of the norm, called positive general prevention.12 Evoking Durkheim,13 Jakobs states that loyalty to the law amongst members of society is reinforced by the collective punitive response, as is their trust in the power of the law to effectively guide conduct and provide security.14 Punishment, however, is not only directed to the attention of the law-abiding members of society. It also strengthens the offenders loyalty to the law by forcefully reminding him of his duties as a citizen. According to Jakobs, the offenders criminal conduct proceeds from a failure on his part to manifest sufficient loyalty to the law. Specifically, it is because of a deficiency in the offenders readiness to follow the law that in a given situation he lacked the motivation to resist the urge to violate the norm.15 Yet the law does not take the commission of a crime to constitute a repudiation of loyalty to the law. The offender continues to be addressed as a person-in-law, without there being any need to engage him in the mode of instrumental communication.16 The assumption is that, as a general matter, the offender carries himself as a loyal citizen, though he faltered on a specific occasion in this capacity by failing to exert himself sufficiently to follow the norm. All citizens are presumed to be loyal to the law, and this presumption is not refuted outright by the commission of a crime. The commission of the crime is merely treated as the disappointment of societys expectations of compliance. Furthermore, Jakobs reasons that since it is assumed that the offender remains loyal to the law, it is also assumed that he views his prior unlawful conduct as a mistake, rather than as a legitimate exercise of his right to freedom. Hence, the offender does not need to be deterred or coercively reformed in order to induce obedience to the law; rather, he just needs to be reminded albeit forcefully of the conduct which is expected of him in the future. Punishment thus does not constitute a measure of exclusion against an enemy. Rather, it constitutes an exercise in loyalty much as an athlete exercises in order to stay fit and enhance his ability to perform. For when a citizen is imbued with loyalty to the law, he

12

See generally Jakobs, Strafrecht Allgemeiner Teil, supra note 4, 5-14; Gnther Jakobs, Strafbegrndung und Positive GeneralPrvention, in Peter Siller and Bertram Keller (eds.) Rechtsphilosophische Kontroversen der Gegenwart 135-138 (1999); Jakobs, Staatliche Strafe, supra note 10, 31-32. It should be stressed that Jakobs account is just one of the many versions of the positive general prevention theory of punishment currently found in the German criminal law literature. See generally Claus Roxin Strafrecht: Allgemeiner Teil, vol. 1, 7883 (4th ed., 2006). See also Markus Dirk Dubber, Theories of Crime and Punishment in German Criminal Law, supra note 3, 696-707. 13 Emile Durkheim, The Division of Labour in Society (1984). 14 Gnther Jakobs, Staatliche Strafe, supra note 10, 32-33. 15 Gnther Jakobs, Das Schuldprinzip, supra note 7, 23-26, 34-35; Gnther Jakobs, Individuum und Person 17 ZStW 245, 259-264 (2005). 16 See Jakobs, supra note 9, 98-102.

should, by his own initiative, change his ways after having been told that his conduct contravenes the norms of society. Jakobs claims, however, that when a citizens conduct manifests that he no longer considers himself bound by the law, the normative paradigm shifts from one of (personal) communication between fellow citizens to one of (instrumental) force towards an actor who has excluded himself from the legal community by failing to fulfil his primary duty to cultivate law-abidingness.17 Theorizing based on contemporaneous statutory developments in German law, Jakobs defines the enemy as one who exhibits through his behaviour not just in passing that it is likely that he has durably deviated from the path of the law and that he can no longer minimally guarantee that he will conduct himself as a loyal citizen.18 A durable deviation from the path of the law, Jakobs explains, is borne out, for example, by predatory sexual misconduct or persistent offending, given that these forms of behaviour evince a particularly untoward disposition vis--vis the law. Such a deep-seated deviant posture may also be manifested by an individuals professional life organized crime, drug dealing or economic criminality being cases in point. Involvement in certain group activities may similarly display a longstanding estrangement from the law, as with membership in a terrorist organization. Jakobs enumerates four realms in which the aforementioned shift from personal communication to instrumental communication is visible in the statutory law of Germany.19 First, inchoate conduct is criminalized at a far earlier stage than that of a beyond preparation attempt.20 Second, the sanctions prescribed for these specific (preparatory) offences do not necessarily vary from the sanctions prescribed for an attempt to commit the substantive offence: punishment is imposed uniformly, irrespective of the stage of apprehension prior to consummation of the offence, notwithstanding the principle that sanction severity should be commensurate with the blameworthiness of the actor as determined by the actual progress made towards the realization of the criminal endeavour. Third, departures from the stringent
Gnther Jakobs, Staatliche Strafe, supra note 10, 40-48; Gnther Jakobs Personalitt und Exklusion im Strafrecht in Nestor Courakis (ed.) Die Strafrechtswissenschaften im 21. Jahrhundert: Festschrift fr Professor Dr. Dionysios Spinellis, vol. 1, 447, 460-464 (2001); Gnther Jakobs, Brgerstrafrecht und Feindstrafrecht, Hchstrichterliche Rechtsprechung Strafrecht 88 (2004); Gnther Jakobs, Terroristen als Personen im Recht 117 ZStW 839 (2005). 18 Jakobs, Selbstverstndnis der Strafrechtswissenschaft vor den Herausforderungen der Gegenwart (Kommentar) supra note 1, 50. 19 Id., 51-52. 20 Strafgesetzbuch, sec. 22.
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procedural safeguards which usually apply in criminal proceedings are warranted.21 Lastly, a change in discourse is noticeable, in that the legislation is enacted with the stated aim to wage war against designated categories of offenders, rather than to authoritatively declare and define courses of conduct which are prohibited following the norms that bind all members of society.22 Jakobs dispassionately and unreservedly reports the aforementioned statutory developments, without denouncing them as unprincipled measures which run counter to the mode of personal communication which generally befits dealings between fellow citizens. Quite the contrary, Jakobs excoriates current German law for failing to disaggregate the citizens criminal law from the criminal law of the enemy, and advocates institutionalizing a special branch of the criminal law, Feindstrafrecht, to both preserve the integrity of the citizens criminal law and allow for critical evaluation of the grounds invoked for deviating from its fundamental precepts.23 While Jakobs maintains that the duty of the citizen to cultivate loyalty to law is prior to his procedural and substantive rights, he urges that these rights need not indiscriminately be stripped away from the citizen who acts disloyally. Special rules enacted within Feindstrafrecht, Jakobs insists, should be circumscribed to that which is required to protect the public from the disloyal citizen, without sealing his fate by foreclosing

21

Jakobs refers most notably to substantive and procedural rules that apply in the realm of terrorism for illustrative purposes. The German criminal code advances the threshold of liability by criminalizing the very formation of a terrorist organization. Strafgesetzbuch, sec. 129a. Furthermore, the ringleader of such an organization faces a minimum penalty of three years imprisonment. Strafgesetzbuch, sec. 129a (2). The same (minimum) penalty applies to an offender who has gone so far as to commit a beyond preparation attempt to murder. Strafgesetzbuch, sec. 211 (1) together with sec. 49(1)(1). Lastly, a detainee suspected of involvement in the formation of a terrorist organization may be barred from having any contact with his attorney, if such a measure is required to protect the public against an actual risk of harm. Einfhrungsgesetz zum Gerichtsverfassungsgesetz, sec. 31. 22 For the sake of illustration, Jakobs also refers to the detention of dangerous offenders in excess of their deserved punishment as indicated by the seriousness of the offence of conviction. German law provides for a two-track criminal sanctioning system. On the one hand, there are measures of punishment, which are subject to constraints of proportionality between culpability and sanction. On the other hand, there are measures of security and rehabilitation. Security measures, which most notably apply to dangerous repeat offenders, allow for long-term confinement in order to protect the public. See generally Frieder Dnkel and Dirk van Zyl Smit, Preventive Detention of Dangerous Offenders Reexamined: A Comment on Two Decisions of the German Federal Constitutional Court (BVerfG 2 BvR 2029/01 of 5 February 2004 and BVerfG 2 BvR 834/02 2 BvR 1588/02 of 20 February 2004) and the Federal Draft Bill on Preventive Detention of 9 March 2004, 5 German Law Journal 619 (2004). Jakobs considers that security measures partake of a Feindstrafrecht logic: they are required to forcefully cope with an offender who cannot offer a minimal guarantee that he will meet societys expectation of compliance with the law. See Jakobs, Personalitt und Exklusion im Strafrecht, supra note 17, 461; Jakobs, Staatliche Strafe, supra note 10, 37-40; Jakobs, Brgerstrafrecht und Feindstrafrecht, supra note 17. See also Jakobs, Strafrecht Allgemeiner Teil supra note 4, 32. 23 Jakobs, Staatliche Strafe, supra note 10, 45-46.

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the possibility of a change of attitude on his part which may pave the way for his reintegration into society as a responsible member of the polity.24

24

See Gnther Jakobs, Brgerstrafrecht und Feindstrafrecht, supra note 22, 289, 296. Jakobs, Staatliche Strafe, supra note 10, 44.

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II Feindstrafrecht: Critical Responses

As mentioned previously, Gnther Jakobs theory of the criminal law of the enemy ignited a major uproar in the German legal literature,25 which also spilled over into the popular media.26 Jakobs theory also provoked an outpouring of viewpoints in Spain.27 Recently, it has received attention in Italy28 and France29 as well. The following discussion, however, only covers the German debate by providing a brief overview of the main objections raised in the legal literature against Jakobs work. To begin, commentators found egregious the central premise of Jakobs Feindstrafrecht theory, namely, that every citizen bears a primal duty to unconditionally cultivate loyalty to law, which is prior to their substantive and procedural rights. Its upshot, critics urged, is that the right to dignity, freedom and self-governance is not recognized by virtue of the personhood of the citizen, rather it is earned as a reward for cultivating lawabidingness and refraining from disquieting fellow members of society.30 Jakobs cryptic definition of the enemy as a citizen who has durably deviated from the path of the law also aroused anxiety as to how the Feindstrafrecht theory might be translated into legislation. Specifically, the cloudy criteria offered for singling out citizens for special treatment under the criminal law of the enemy prompted some to voice the concern that endorsement of such a normative paradigm may wind up breeding insecurity of a different sort than what it is designed to quell. As substantive and procedural due process
See generally Thomas Uwer (ed.) Bitte bewahren Sie Ruhe (2006); Bernd Heinrich, Die Grenzen des Strafrechts bei der Gefahrprvention, 121 ZStW 94, 101-105 (2009). 26 See e.g., Arthur Kreuzer, Der Rechtsstaat brckelt, Die Zeit (vom 2. Oktober 2007); Winnfried Hassemer, Der gefhrliche Weg zum Feindstrafrecht Frankfurter Rundschau (vom 27. Mrz 2006); Herbert Prantl, Strafrecht als Fortsetzung des Krieges mit anderen Mitteln der Beschudigte als militrisches Ziel Sddeutschen Zeitung (vom 28. April 2004). 27 See e.g. Carlos Gmez-Jara Dez, Enemy Combatant versus Enemy Criminal Law 11 New Criminal Law Review 529 (2009); Manuel-Cancio Meli, Feind strafrecht? 117 ZStW 267 (2005); Jess-Mara Silva Snchez, Die Unerwnschten als Feinde: Die Exklusion von Menschen aus dem status personae 118 ZStW 547 (2006). 28 See Massimo Donini, Diritto Penal del Nemico: Un Dibattito Internazionale (2007); F. Mantovani, Il Diritto Penale Dei Nemico, Il Diritto Penale DellAmico, Il Nemico Di Diritto Penale E LAmico Dei Diritto Penale, Rivista Italiana di Diritto E Procedura Penale 470 (2007). 29 See Droit Pnal de Lennemi Droit Pnal de linhumain Revue de Science Criminelle et de Droit Pnal Compar 1-69 (2009). 30 Frank Saliger, Feindstrafrecht : Kritisches oder totalitres Strafrechtskonzept, Juristen Zeitung, 756, 762 (2006); Karl-Ludwig Kunz, Gefhrliche Rechtsbrecher und ihre Sanktionierung in Jrg. Arnold, Bjrn Burkhardt et al. (eds.) Menschengerecjtes Strafrecht: Festschrift fr Albin Eser zum 70. Geburtstag 1375, 1391 (2005); Roxin, supra note 12, 56; Lorenz Schulz, Friktionen einer Fiktion in Uwer, supra note 25, 315, 320 (2006); Ulfried Neumann Feindstrafrecht in Uwer, supra note 25, 299, 310.
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guarantees may be readily suspended, the fear was expressed that Feindstrafrecht rules might abusively be pressed into service to more efficiently and effectively reduce crime involving loyal citizens.31 Several commentators cautioned of the potential for erosion of the moral credibility and legitimacy of the citizens criminal law and, in turn, a deterioration in the publics confidence in the criminal justice system should such treasured ideals of liberal democracy as the principles of individual autonomy and dignity be readily sacrificed in dealing with fellow members of society who are designated as enemies.32 In the same vein, critics were alarmed by the prospect that the criminal law of the enemy might be used by demagogues in the political arena to demonize marginal individuals or groups as disloyal to the law, casting them away for simply failing to conform to prevailing societal views or customs. Jakobs was also assailed because members of the polity may be targeted under his Feindstrafrecht theory by reason of their general attitudes, political views and lifestyle.33 Indeed, many commentators argued that by homing in on the actors loyal disposition towards the law, rather than his (wrongful) criminal conduct, the criminal law of the enemy harks back to Fascist criminal law theory from the National Socialist era34 Lastly, Jakobs claim that there is a need to institutionalize a special normative framework for Feindstrafrecht was met with the derisive response that this only holds true because Jakobs theory straitjacketed the citizens criminal law in the first place by confining its function to (non-coercively) addressing loyal citizens as persons-in-law and upholding the power of norms to guide conduct and facilitate interaction between anonymous members of society. The widely accepted view in the German literature, following which the criminal
Franz Streng, Vom Zweckstrafrecht zum Feindstrafrecht? in Uwer, Id., 227, 246;Tatjana Hrnle, Deskriptive und normative Dimensionen des Begriffs Feindstrafrecht Goltdammers Archiv fr Strafrecht, 80, 91, 95 (2006); Roland Hefendehl, Organisierte Kriminalitt als Begrndung fr ein Feind- oder Tterstrafrecht? Strafverteidiger 156, 158-159 (2005); Detlef Krau, Vom Brgerstrafrecht zum Feindstrafrecht? in Uwer, Id., 79, 84; Jochen Bung, Feindstrafrecht als Theorie der Normgeltung und der Person in Uwer, Id., 249, 260; Sacher, supra note 4, 608. 32 Streng, Id., 244-245. 33 Krau, supra note 31, 85; Alejandro Aponte Feind oder Brger? Gnther Jakobs und das Dilemma eines feindlichen Strafrechts in Uwer, supra note 25, 131, 150; Dirk Sauer, Das Strafrecht und die Feinde der offenen Gesellschaft Juristische Wochenschrift 1703, 1704-1705 (2005); Roxin, supra note 12, 56; Peter-Alexis Albrecht, Krieg gegen den Terror Konsequenzen fr ein rechtsstaatliches Strafrecht (2005) 117 ZStW 852, 856-857. 34 Roxin, supra note 12, 56; Saliger, supra note 30, 761; Hrnle, supra note 31, 90; Hefendehl, supra note 31, 159; Luis Greco ber das so gennante Feindstrafrecht, Goltdammers Archiv fr Strafrecht 96, 104-105 (2006). On the distinction between an act-centred criminal law and an actor-centred criminal law in Fascist criminal law theory under the National Socialist regime, see generally Roxin, supra note 12, 113-114, 181-185; Gerhard Werle, Justiz-Strafrecht und Polizeiliche Verbrechensbekmpfung im Dritten Reich 708-715 (1989); Klaus Marxen, Der Kampf gegen das liberale Strafrecht 174-191 (1974).
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law fulfils the function of protecting a vast array of legal goods (Rechtsgter), affords some flexibility in accrediting additional functions of punishment such as deterrence, incapacitation and rehabilitation, without having to disenfranchise the disloyal citizen and abandon basic principles of procedural and substantive justice.35 One commentator suggested that instead of bifurcating the criminal law into two antithetical paradigms, special statutory arrangements should be carefully shaped to strike a delicate balance between the competing interests of public security and individual dignity.36 Jakobs theory of the criminal law of the enemy has been disparaged largely because it fails to concord with a desert-centred conception of criminal liability and punishment and a liberal paradigm of criminal justice, in which respect for the autonomy and dignity of suspects and defendants in the criminal process constitutes a central value. In this paper, however, I consider Jakobs work from a different angle, taking an interpretive perspective that is anchored in social theory, rather than normative principles, and which looks broadly at the historical, political and social conditions under which practices of criminal law take form and draws links between the content of the criminal law and environmental factors, including prevailing practices of governance and intellectual ideas.37 Specifically, I wish to locate Jakobs bipartite account of the criminal law within the larger historical context of late modernity and examine how it dovetails with the rise of the neo-liberal paradigm of governance. Following an approach rooted in the social sciences may not seem to break new ground in engaging with the thought of a legal theorist such as Jakobs, whose writings on criminal law and punishment are interspersed with references to the work of Emile Durkheim, Niklas Luhmann and Max Weber. Yet although Jakobs does not generally shy away from integrating sociological concepts into his theoretical account of the criminal law, the truth is that, short of a few sentences bemoaning the breakdown of national identity, family values and state-sponsored religion in the wake of the advent of globalization and multiculturalism,38 there is no sustained attempt on his part to convey the wider historical, political and socioeconomic context in which the legal developments in crime prevention policy theorized in his Feindstrafrecht writings emerged.
Neumann, supra note 30, 306-307; Streng, supra note 31, 244-245; Schultz, supra note 30, 327; Sacher, supra note 4, 607; Albin Eser, Schlubetrachtungen in Eser, Hassemer and Burkhardt, supra note 1, 443, 443-444. 36 Bernd Schnemann, Die deutsche Strafrechtswissenschaft nach der Jahrtausendwende Goltdammers Archiv fr Strafrecht 205, 211(2001). 37 See generally Nicola Lacey, Legal Constructions of Crime in Mike Maguire, Rodney Morgan and Robert Reiner (eds.) The Oxford Handbook of Criminology 179 (4th ed., 2007). 38 Jakobs, Selbstverstndnis der Strafrechtswissenschaft vor den Herausforderungen der Gegenwart (Kommentar) supra note 1, 52.
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Several authors have already charted this terrain, following different perspectives. Building on the work of Giorgio Agamben, Susanne Krassman has linked Jakobs Feindstrafrecht theory with the contemporary trend of instituting special mechanisms of prevention to satisfy impervious demands for security, and considered how such a trend has transformed democratic constitutional states by suspending the rule of law through the law itself and thus establishing the exception as being lawful.39 Cornelius Prittwitz has situated Jakobs account within the broader frame of the emergence of the risk society,40 in which institutional goals and strategies become focused on identifying, ordering and responding to risks, and assuaging fear and anxiety by providing assurances that various risks are under control.41 Finally, George Fletcher has identified Jakobs bifurcated theory of the criminal law as an emblem of the ascent of communitarian values such as loyalty and group identity in contemporary penal practice, which often takes an exclusionary turn by playing on the differences between us and them.42 In the discussion to follow, I will concentrate on those aspects of Jakobs work that evince the changing role of trust relations within the neo-liberal paradigm of governance. I will locate Jakobs bipartite account of the criminal law within the broader context in which trust relations are reconfigured in late modernity; between, on the one hand, the state and its citizens (vertical trust relations), and, on the other, amongst members of society (horizontal trust relations). Specifically, I will tease out the implications of Jakobs ideas on trust for the analysis of two trends which have figured prominently as of late in English law: the multiplication of mechanisms of diversion from the criminal trial; and the expansion of the fields of criminal activity with respect to which a preventive order may be availed of to set restrictions on the freedom of movement of a dangerous actor so as to curb the risk of criminal conduct on his part.43

Susan Krassman, The Enemy on the Border, 9 Punishment and Society 301, 305 (2007). See generally Ulrich Beck, Risk Society (1992). 41 Cornelius Prittwitz, "Feindstrafrecht" in Arno Pilgram and Cornelius Prittwitz (eds.) Kriminologie: Akteurin und Kritikerin gesellschaftlicher Entwicklung 215 (2005). 42 George P. Fletcher, The Grammar of Criminal Law, Volume I: Foundations, 172-176 (2007). 43 See generally Andrew Ashworth and Lucia Zedner, Defending the Criminal Law: Reflections on the Changing Character of Crime, Procedure, and Sanctions 2 Criminal Law and Philosophy 21, 24-37 (2008).
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III Recent Developments in Crime Control Practices: Diversion and Preventive Orders
The greater availability of out-of-court disposals
As regards adult offenders,44 the fixed penalty and the caution are the two main out-of-court disposals in current English law.45 Based on the longstanding Fixed Penalty Notice scheme for designated road traffic offences, a Penalty Notice for Disorder scheme was introduced in 2001.46 There is now a relatively long catalogue of offences, including retail theft, property damage, public drunkenness and cannabis possession for personal use. The notice is issued by a police officer47 and the penalty is payable without a court appearance. As the prohibited course of conduct is formally defined as a criminal offence, it is a matter for the police officers discretion whether to issue a penalty notice or take alternative action which may lead to the prosecution of the offender in court. The penalty tariff is fixed in advance by law. Payment of the penalty without a court appearance implies no admission of guilt, though it discharges the liability of the recipient to conviction of the offence. The penalty is nonetheless recorded, and this information may subsequently be considered in deciding whether to issue a penalty notice again.48 It is open to the recipient of the notice to contest it in court, but if he is found guilty, he will receive a criminal conviction and face the maximum penalty for the

Only mechanisms that apply to adult offenders are discussed here. Attention does not focus on the diversion measures pertaining to juvenile offenders. 45 See generally Chris Lewis, The Prosecution Service Function within the English Criminal Justice System in Jrg-Martin Jehle and Marianne Wade (eds.) Coping with Overloaded Criminal Justice Systems: The Rise of Prosecutorial Power across Europe 151, 167-169 (2006); Rod Morgan, Summary Justice: Fast But Fair? 1115 (2008). 46 Since the Penalty Notice for Disorder was introduced by the Criminal Justice and Police Act 2001 (secs. 1-11), additions have been made to the list of offences for which a penalty notice may be issued. The Anti-Social Behaviour Act 2003 extended the system of penalty notices to youth offenders. See generally Rebecca Roberts and Richard Garside, Punishment before Justice? Understanding Penalty Notices for Disorder, March 2005, Crime and Society Foundation (2005). Official statistics record that the police issued 207,500 Penalty Notices for Disorder in 2007. Furthermore, the number of Penalty Notices for Disorder issued has been significantly increasing over the past few years. In 2007 there was a 4 percent increase in the number of Penalty Notices for Disorder issued to adults compared with 2006. Between 2005 and 2006 the number had increased by 35 percent. See Criminal Statistics: England and Wales 2007. 47 The Anti-Social Behaviour Act 2003 empowers other persons as well to issue penalty notices for disorder. 48 Special police guidelines call for an escalating approach in dealing with actors suspected of cannabis possession for personal use. Absent aggravating circumstances, a Cannabis Warning should first be issued. In the event of a second offence, however, a Penalty Notice for Disorder should be delivered. In the event of a third offence, prosecution should be pursued. See generally ACPO, ACPO Guidance on Cannabis Possession for Personal Use Revised Intervention Framework (2009); Ministry of Justice, Circular 2009/05, Criminal Justice and Police Act 2001 (S 1-11) Penalty Notice for Disorder Police Operational Guidance: Cannabis Possession Offences (23 July 2009).

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offence at law. The monetary penalty increases by fifty percent if the recipient of the notice fails to pay or request a trial. The penalty is then enforced as a fine, and default may result in imprisonment. Turning to cautions,49 the most commonly administered caution, by far, is the simple caution.50 The simple caution is not explicitly provided for under statute. Its administration is a matter for the discretion of the police, but approval of a prosecutor must be obtained if an indictable-only offence has been committed.51 A simple caution is not a form of sentence, nor is it a criminal conviction. It is, however, an admission of guilt. It forms part of the actors criminal record, and may influence how he is dealt with should he come to the notice of the police again. It may also be cited in court in any subsequent proceedings. The Criminal Justice Act 2003 introduced a special scheme of conditional cautions.52 Unlike simple cautions, approval by the prosecution is always required before the police may administer the conditional caution. The offender cautioned must agree to meet a number of conditions, which are set with a view to facilitating his rehabilitation and to make sure that he makes reparation for the offence. As a matter of practice, conditions imposed include the payment of compensation by instalments, painting out graffiti, writing a letter of apology to the victim and taking drug treatment. In some cases, punitive measures, such as the payment of a financial penalty, unpaid work for a given period of time and attendance of a specific place for a given period of time, may be imposed as a condition. If the offender fails without reasonable excuse to comply with the conditions, the caution can be cancelled and the offender can be prosecuted at court for the original offence.

On cautioning see generally Andrew Ashworth and Mike Redmayne, The Criminal Process 146-172 (3rd ed., 2006). For historical background, see generally Christopher Harding and Gavin Dingwall, Diversion in the Criminal Process, 98-119 (1998). 50 According to official statistics, some 363,000 offenders were cautioned in 2007, 4 percent more than in 2006. This includes 127,300 juveniles who were given reprimands or final warnings under the Crime and Disorder Act 1998 a drop of 2 percent compared with 2006. Since 2003, the numbers of offenders cautioned has been steadily increasing every year. See Criminal Statistics: England and Wales 2007. No discernible pattern in the use of conditional cautions has yet emerged. 51 Home Office Circular 016/2008, Simple Cautioning of Adult Offenders, par. 4 (2008). 52 See generally Ian Brownlee, Conditional Cautions and Fair Trial Rights in England and Wales: Form versus Substance in the Diversionary Agenda? [2007] Crim. L. R. 129.

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The growing role of preventive orders

English law currently provides for a relatively large variety of preventive orders53 which allow for the imposition of restrictions on the liberty of an actor to engage in specified forms of conduct, such as accessing certain areas, coming into contact with potential accomplices or victims and possessing designated instruments. Although conviction of a criminal offence may constitute a prerequisite for the imposition of restrictions,54 there are many preventive orders including, notably, the Anti-Social Behaviour Order, the Control Order, the Risk of Sexual Harm Order and the Serious Crime Prevention Order which do not rest on such a threshold requirement. The granting of a preventive order does not result in a criminal conviction, and the actor does not acquire a criminal record. The proceedings are deemed civil in nature, and often the state is made subject to less burdensome evidentiary conditions than within a criminal trial. Specifically, some preventive measures are only subject to a civil proof standard (balance of probabilities), rather than a criminal (beyond a reasonable doubt) one, and allow greater use of hearsay evidence.55 Breach of the restrictive conditions laid down in the preventive order may amount to a criminal offence. The introduction of the Serious Crime Prevention Order by the Serious Crime Act 2007 has firmly entrenched the preventive order as a tool of crime control within the English landscape of criminal justice. Its broad statutory definition of serious crime56 considerably widens the purview of the preventive order, extending it to such criminal activity as drug trafficking, human trafficking, arms trafficking, prostitution and child sex, armed robbery, money laundering, fraud, tax evasion, corruption and bribery, blackmail, intellectual property offences and environmental crimes. Furthermore,
See generally Peter Ramsay, The Theory of Vulnerable Autonomy and the Legitimacy of Civil Preventative Orders in Bernadette McSherry, Alan Norrie and Simon Bronitt (eds.) Regulating Deviance 109 (2009) (hereinafter, Ramsay, The Theory of Vulnerable Autonomy); Lucia Zedner, Preventive Justice or PrePunishment? The Case of Control Orders, 59 Current Legal Problems 174 (2007); Daniel Ohana, Responding to Acts Preparatory to the Commission of a Crime: Criminalization or Prevention? Criminal Justice Ethics 23, 2426 (2006); Andrew Ashworth, Social Control and Anti-Social Behaviour: The Subversion of Human Rights? 120 Law Quarterly Review 263 (2004); Stephen Shute, New Civil Preventative Orders: Sexual Offences Prevention Orders; Foreign Travel Orders; Risk of Sexual Harm Orders (The Sexual Offences Act 2003, part 4) (United Kingdom), [2004] Crim. L. R. 417; Andrew Simester and Andrew von Hirsch, Regulating Offensive Conduct through Two-Step Prohibitions in Andrew von Hirsch and Andrew Simester (eds.) Incivilities: Regulating Offensive Behaviour 173 (2006). 54 This is the case, for example, with the Sexual Offences Prevention Order: section 104 of the Sexual Offences Act 2003 empowers the court to grant the order if it is satisfied that this is necessary for the purpose of protecting one or more persons from serious sexual harm. The order can also be made against a person who has been found not guilty by reason of insanity, or found to be under a disability and to have done the act charged, or cautioned for a designated offence. 55 The House of Lords, however, ruled in R. (McCann and Others) v. Manchester Crown Court, [2002] 4 All E.R. 593 that the criminal beyond a reasonable doubt standard of proof must be met for the making of an AntiSocial Behaviour Order. 56 See Serious Crime Act 2007, Schedule I.
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a preventive order may also be made to stave off the risk of any offence which in the particular circumstances of the case, the court considers to be sufficiently serious to be treated for the purposes of the application or matter as if it were so specified.57 The two trends outlined above have provoked much critical commentary, most of which revolves around the claim that they have enabled the state to impose punitive and preventive measures while circumventing substantive and procedural principles of justice which typically apply within the criminal law.58 Since the analysis undertaken in this paper is interpretive rather than normative, I will not attend at length to these and other principled grievances. Rather, I will adopt an explanatory perspective which seeks to identify the relationship between the aforementioned legislative developments and the broader social, political and economic changes which have characterized late modernity. The increase in the number of available diversion mechanisms and the broadening of the spheres of criminal activity with respect to which a preventive order may be granted embody trends which, at first glance, offer yet another example of the volatile and contradictory character of crime control policy59 in contemporary society. Taking my cue from insights yielded by Jakobs bipartite account of the criminal law, however, I argue below that, despite their apparent heterogeneity, these developments display a certain strategic coherence60 insofar as they impinge on trust relations. Specifically, I argue that the coexistence of these trends constitutes a visible representation of part of a much wider restructuring of modes of governance and individual accountability in late modernity, whereby the nature, form and basis of trust relations between the state and its citizens, and between the members of the polity in their social relations and interactions as mediated through the law, are reshaped under the influence of the neo-liberal paradigm of the state and its technologies of government.

57 58

Serious Crime Act 2007, sec. 2(2)(b). See e.g. Simester and von Hirsch, supra note 53; Adam Crawford, Governing through Anti-Social Behaviour, 49 British Journal of Criminology 810, 818 (2009). 59 Pat OMalley, Volatile and Contradictory Punishment 3 Theoretical Criminology 175 (1999). 60 Nikolas Rose, Government and Control 40 British Journal of Criminology 321, 324 (2000).

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IV Trust, Distrust and Trust-Responsiveness

Trust has been the subject of intensive research across several fields over the past three decades.61 Although social, economic and technological change has eroded many traditional bases for trust, such as community, family and religion, it is widely recognized that in late modernity trust constitutes a mainstay of interpersonal relations.62 Trust may be placed in individuals and in various social objects, such as community, legal institutions, social roles and technological systems.63 The discussion below, however, solely concerns interpersonal trust. In a later section, attention will focus on trust in institutions, particularly that of the criminal law. There is much controversy about how trust should be defined and how it should be distinguished from related notions such as familiarity, confidence, reliance and faith.64 However, there is general agreement on the following core features of trust:65 it is a threepart relation66 whereby one person trusts another person (whom he considers to be trustworthy) to do something; it involves risk; it entails vulnerability to betrayal and disappointment; it requires granting the trusted person discretion;67 it is incompatible with an attitude of suspicion, requiring rather belief in the trusted persons competence and commitment to do what he has been trusted to do; it is vitiated by monitoring the conduct of the trusted person, setting constraints thereupon or issuing threats. There also seems to be a consensus that the difference between trust and distrust is a matter of degree, that while there

The discussion to follow builds especially on writings on trust from the fields of philosophy, political theory and social theory. 62 See Barbara A. Misztal, Trust in Modern Societies 3 (1997). 63 See Piotr Sytompka, Trust 40-48 (1999). 64 See Kenneth Newton, Social and Political Trust in Russell J. Dalton and Hans-Dieter Klingemann (eds.) The Oxford Handbook of Political Behaviour 343 (2007); Edna Ullmann-Margalit, Trust, Distrust, and In Between in Russell Hardin (ed.) Distrust 60, 61-63, 66 (2004); Sytompka, Id., 24-25; Misztal, Id., 12-32; Adam Seligman, The Problem of Trust 16-30 (1997). 65 See generally Bernard Barber, The Logic and Limits of Trust 7-25 (1983); Annette Baier, Trust and Anti-Trust 96 Ethics 231 (1986); Ullmann-Margalit, Id.; Sytompka, Id.; Diego Gambetta, Can We Trust Trust? in Diego Gambetta (ed.) Trust: Making and Breaking Cooperative Relations 213 (1988); Mark E. Warren, Democratic Theory and Trust in Mark. E. Warren (ed.) Democracy and Trust 310 (1999); Matthew Harding, Manifesting Trust, Oxford Journal of Legal Studies 245 (2009); Margaret Levi, A State of Trust in Valerie Braithwaite and Margaret Levi (eds.) Trust and Governance 77 (1998); Carolyn McLeod, Trust, The Stanford Encyclopedia of Philosophy (Fall 2008 Edition) Edward N. Zalta (ed.) URL=<http://plato.stanford.edu/archives/fall2008/entries/trust>. 66 Baier, Id., 237. 67 See Warren, supra note 65, 311; Harding, Id., 254; Karen Jones, Trust as an Affective Attitude, 107 Ethics 4 (1996); Baier, Id., 237.

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is a negation relation 68 between the two, such that one cannot both trust and distrust another person with respect to a given matter, there is an interim, neutral zone on the trust-distrust continuum where neither trust nor distrust exists.69 Yet trust as a concept still remains highly contested in many respects. There is disagreement, for example, as to whether, for the trusted person to be considered trustworthy by the truster, the latter must simply believe that the former is competent and committed to doing that which he has been trusted to do, or whether the reasons for which he is or will be motivated also matter. Russell Hardin defends an encapsulated interest70 view of trustworthiness, whereby it is sufficient that the truster view the trustee as one who is motivated by his own interest to maintain the relationship he has with the truster. Another view of trustworthiness is advanced by Annette Baier, who argues that the trusted person must act out of goodwill towards the truster for him to be deemed trustworthy. From this standpoint, it is essential that the trusted person not be viewed as one who can be relied on simply because it serves his interests; rather, for the relationship to constitute a relationship which is based on trust, the trusted person must be viewed as one who cares about the truster, or cares about the task at hand. According to Baier, this feature of trustworthiness crucially distinguishes trust from mere reliance.71 John Braithwaite, on the other hand, emphasizes the centrality of the notion of obligation or duty in legal conceptions of trustworthiness. From this standpoint, a trustworthy actor is one who cognitively accepts that he has obligations and who acts to honour them.72 This conception of legal trustworthiness is a variant of what Hardin has called normatively motivated trustworthiness.73 Hardin contrasts this account of trustworthiness with the incentive-based account, whereby a person is trustworthy for rational reasons related to his interests.74

Ullmann-Margalit, supra note 64, 61-62. See Ullman-Margalit, Id.; Newton, supra note 64, 344; Deborah Welch Larson, Distrust: Prudent, If Not Always Wise in Russell Hardin (ed.) Distrust 34 (2004); Jones, Id., 16. Cf. Anthony J. Bellia Jr. Promises, Trust, and Contract Law, 47 American Journal of Jurisprudence 25, 33-34 (2002). 70 Russell Hardin, Trust and Trustworthiness (2002). 71 Baier, supra note 65, 234-235. A similar view is defended by Edna Ullman Margalit. Ullmann-Margalit, supra note 64, 63-64. See also Jones, supra note 67, 6-11; Seligman, supra note 64, 43. 72 John Braithwaite Institutionalizing Distrust, Enculturating Trust in Valerie Braithwaite and Margaret Levi (eds.) Trust and Governance 343, 344-345 (1998). Cf. Harding, supra note 65, 265. 73 Russell Hardin, Gaming Trust in Elinor Ostrom and James Walker (eds.) Trust and Reciprocity 80, 84 (2003). 74 Id., 83. An analysis of trust as a transaction within the framework of rational choice theory is also offered by James S. Coleman in Foundations of Social Theory (1990).
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It is uncontroversial that trust, when well placed, is intrinsically valuable, as it is a constitutive part of other things which are intrinsically worthwhile, such as respectful or trusting relationships, love and friendship.75 It is also uncontroversial that trust, when well placed, is of great instrumental value. Indeed, there has recently been a growing body of sociological work on trust which recognizes it as a core component of social capital.76 In his influential analysis of the institutional performance of regional governments in different areas in Italy, Robert Putnam defined social capital as features of social organization, such as trust, norms and networks, that can improve the efficiency of society by facilitating coordinated action.77 From this point of view, trust fosters cooperation, inter-dependence and risk-sharing which facilitate social interaction and innovation.78 Trust vastly increases opportunities for cooperating with others and for benefiting from that cooperation.79 One particular dimension of the dynamics of trust relations which is germane to the analysis to follow of diversion practices relates to the phenomenon which Philip Pettit has called trust-responsiveness.80 It involves the experience whereby a person becomes more trustworthy simply as a result of being invested with trust. By taking the risk which trust involves, and making himself vulnerable to the possibility of disappointment or betrayal, the truster manifests his judgment that the person trusted will carry through. This manifestation of trust extends moral recognition to the actor and dignifies him as a trustworthy person, thereby motivating him to exert himself so as not to disappoint the truster.81 Writing in the early 1960s, Horsburgh introduced a somewhat similar notion therapeutic trust.82 Proceeding on the insight that the placement of trust itself affects the trustworthiness of the person trusted, Horsburgh urged that trustworthiness need not constitute an absolute prerequisite for trusting another person. Leaping ahead of the evidence regarding the trustworthiness of the actor, Horsburgh reasoned, can stir his conscience and induce him to act more honourably than he originally intended.83 In the same vein, Pettit observes that there is a motivating efficacy of

Harding, supra note 65, 18; McLeod, supra note 65. See generally Francis Fukuyama, Trust (1995); Robert Putnam, Making Democracy Work: Civic Traditions in Modern Italy (1993); James S. Coleman Foundations of Social Theory (1990). 77 Putnam, Id., 167. 78 See Sytompka, supra note 63, 103. 79 See generally Gambetta, supra note 65. See also Harding, supra note 65, 263; Russell Hardin, Distrust, 81 Boston University Law Review 495, 500 (2001). 80 Philip Pettit, The Cunning of Trust 24 Philosophy and Public Affairs 202, 203 (1995). 81 See Warren, supra note 65, 311; Ullmann-Margalit, supra note 64, 74; Sytompka, supra note 63, 110; Lawrence E. Mitchell, The Importance of Being Trusted, 81 Boston University Law Review 591 (2001). 82 H.J.N. Horsburgh, The Ethics of Trust, 10 The Philosophical Quarterly 343 (1960). 83 Id., 346.
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manifest reliance.84 Engaging in active trusting reliance, Pettit counsels, can strike a responsive chord85 in the person trusted, and be motivationally self-enforcing.86 Significantly, Pettit proposed harnessing the cunning mechanism of trust-responsiveness in the design of public institutions, by implementing on a wide scale the enforcement strategy of responsive regulation championed by Braithwaite.87 Some empirical studies have borne out the viewpoint that trusting citizens can make them trust-responsive and therefore more trustworthy, enhancing readiness to comply with the law, while enforcement strategies which rely on deterrence sometimes backfire, breeding obstinacy, resistance and nonconformity on the part of the regulated actor.88 The subject of trust has captured the imagination of criminal law philosophers and criminologists who have written on a host of themes, such as situational crime prevention;89 restorative justice;90 preventive orders;91 comparative criminology;92 anti-social behaviour;93 white-collar crime93a and retributive punishment.94 The discussion to follow focuses on the diversion practices canvassed above by employing the analytical tools forged by Foucauldian scholars in investigating political power from the perspective of governmentality. Specifically, the aim is to bring to light the various ways in which therein trust and trustresponsiveness interplay with the neo-liberal technology of governing at a distance.

Pettit, supra note 80, 209. Id., 208. 86 Id., 218. 87 Id., 225. See generally Ian Ayres and John Braithwaite, Responsive Regulation (1992). 88 See John Braithwaite and Tony Makkai, Trust and Compliance, 4 Policing and Society 1 (1994); Kristina Murphy, The Role of Trust in Nurturing Compliance: A Study of Accused Tax Avoiders, 28 Law and Human Behavior 187 (2004). The burgeoning empirical literature concerning the significance of procedural justice in motivating compliance with the law and cooperation with enforcement authorities also supports this point. See generally Tom Tyler, Legitimacy and Criminal Justice: The Benefits of Self-Regulation, 7 Ohio State Journal of Criminal Law 307 (2009). 89 Adam Crawford, Situational Crime Prevention, Urban Governance and Trust Relations in Andrew von Hirsch, David Garland and Alison Wakefield (eds.) Ethical and Social Perspectives on Situational Crime Prevention 193 (2000); Randy Lippert, Signs of the Surveillant Assemblage: Privacy Regulation, Urban CCTV, and Governmentality, 18 Social & Legal Studies 505 (2009). 90 Aleksandar Fati, Punishment and Restorative Crime-Handling (1995). 91 Daniel Ohana, Responding to Acts Preparatory to the Commission of a Crime: Criminalization or Prevention? Criminal Justice Ethics 23 (2006). 92 David Nelken, Whom Can You Trust?: The Future of Comparative Criminology in David Nelken (ed.) The Futures of Criminology 220 (1994). 93 Bryan S. Turner, Social Capital, Trust and Offensive Behaviour in Andrew von Hirsch and A.P. Simester, Incivilities: Regulating Offensive Behaviour 219 (2006). 93a Susan Shapiro, Collaring the Crime, not the Criminal: Reconsidering White-Collar Crime 55 American Sociological Review 346 (1989). 94 David A. Hoekema, Trust and Obey: Toward a New Theory of Punishment, 25 Israel Law Review 332 (1991); Susan Dimock, Retributivism and Trust, 16 Law and Philosophy 37 (1997); Daniel Korman, The Failure of Trust-Based Retributivism, 22 Law and Philosophy 561 (2003); Harding, supra note 65, 265-266.
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V Diversion and the Governmentalization of Trust

Michel Foucault famously defined governing in a wide sense as the conduct of conduct, as an ensemble of practices geared to shaping and guiding the conduct of persons. These practices encompass not only the government of others but also the various ways individuals self-govern, by the deployment of technologies of the self through which they work on themselves to regulate their own conduct. Guided principally by Foucaults studies of power in a series of lectures delivered at the College de France in 1977-79,95 governmentality analysts have dissected practices of governance and mentalities of rule by examining the rationalities (practices of thinking), technologies (practices of action), subjectifications (practices of specifying the subjects addressed) and ways of knowing which support them.96 The study of governmentalities, it has been said, seeks to identify [the] different styles of thought, their conditions of formation, the principles and knowledges that they borrow from and generate, the practices that they consist of, how they are carried out, their contestations and alliances with other arts of governing.97 Governmentality studies have proven especially fruitful in generating insights about how power operates in neo-liberal regimes of rule, revealing how government is achieved not in opposition to, but through the regulated freedom of individuals and collectivities. In the age of neo-liberalism, the new regulatory state has come to rely increasingly, if indirectly, upon non-coercive techniques for building the self-regulatory capacities of private individuals and organizations.98 Significantly, many of the recently developed substitutes for direct control reverberate with Foucaults notion of governmentality, whereby it is a question not of imposing law on men, but of disposing thingsof employing tactics rather than laws, and

Michel Foucault, Governmentality in Graham Burchell, Colin Gordon, Peter Miller and Michel Foucault (eds.) The Foucault Effect: Studies in Governmentality 87 (1991); Michel Foucault, Scurite, Territoire et Population (2004); Michel Foucault, Naissance de la Biopolitique (2004). 96 See generally David Garland, Governmentality and the Problem of Crime 1 Theoretical Criminology 173 (1997); Nikolas Rose, Powers of Freedom (1999); Graham Burchell, Colin Gordon, Peter Miller and Michel Foucault (eds.) The Foucault Effect: Studies in Governmentality (1991); Andrew Barry, Thomas Osborne and Nikolas Rose (eds.) Foucault and Political Reason (1996); Mitchell Dean and Barry Hindess (eds.) Governing Australia (1998). 97 Nikolas Rose, Pat OMalley and Mariana Valverde, Governmentality, 2 Annu. Rev. Law Soci. Sci. 83, 84 (2006). 98 See generally John Braithwaite, The New Regulatory State and the Transformation of Criminology, 40 British Journal of Criminology 222, 225 (2000).

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even of using laws themselves as tactics to arrange things in such a way that, through a certain number of means, such and such ends may be achieved.99 Criminological studies of governmentality have given rise to a rich scholarly literature investigating a wide range of crime control practices, including situational prevention;100 restorative justice;101 community policing;102 counter-terrorism measures;103 drug harm minimization programmes;104 and prison governance.105 The discussion below demonstrates how the framework of analysis yielded by these and other studies of governmentality can help clarify the various ways in which neo-liberal rationalities organize the practices of diversion from the criminal trial reviewed earlier. The increasing prevalence of diversion obviously partakes of neo-liberal governmentality, in that it replicates managerialist initiatives which have had a major impact on the operation of criminal justice institutions over the past few decades. From this point of view, diversion has the primary virtue of being cost-efficient, as it reduces police work and court processing times by releasing the actor concerned from the need to appear in court. Moreover, save for some cases where a conditional caution is issued, diversion does not involve state action to facilitate the rehabilitation of the offender. Nor are issues of social justice engaged with, as no effort is made to remove socio-economic constraints which may make it more difficult for the offender to desist from crime. The analysis below, however, proceeds beyond the observation that diversion protects the public purse as the state throws upon the individual the responsibility for managing the risk that he might engage anew in criminal conduct. I argue that, contrary to the common viewpoint that diversion constitutes nothing more than a let-off, the ostensibly benign procedures involved operate, to varied extents, as subtle but active forms of trusting reliance. My argumentation taps into Jakobs claim that the criminal law constitutes the individual as a citizen who is loyal to the law, such that it induces compliance simply by communicating its punitive response to the offender, without addressing him in a coercive idiom (through the use of measures of intimidation or
Michel Foucault, Governmentality in Graham Burchell, Colin Gordon, Peter Miller and Michel Foucault (eds.) The Foucault Effect: Studies in Governmentality 87, 95 (1991). 100 See David Garland, Governmentality and the Problem of Crime 1 Theoretical Criminology 173 (1997). 101 See George Pavlich, Governing Paradoxes of Restorative Justice (2005). 102 See Kevin Stenson, Community Policing as a Governmental Technology in Andrew Barry, Thomas Osborne and Nikolas Rose (eds.) Economy and Society, Special Issue on Liberalism and Governmentality (1993). 103 See Gabe Mythen and Sandra Walklate, Criminology and Terrorism: Which Thesis? Risk Society or Governmentality? 46 British Journal of Criminology 379 (2006). 104 See Pat OMalley, Experiments in Risk and Criminal Justice, 12 Theoretical Criminology 451 (2008). 105 See Mary Bosworth, Creating Responsible Prisoners, 9 Punishment and Society 67 (2007).
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incapacitation), for a loyal citizen (unlike the enemy) independently recognizes the wrongfulness of his conduct and changes his ways by his own initiative. To be clear, Jakobs account extends to all punitive sanctions which are imposed consistently with the principle of proportionality, including those visited upon an actor who is convicted of an offence after a full-fledged trial. Yet I contend that a similar, though not identical, rationality of governance shapes practices of diversion in current English law. Specifically, I contend that in cases of diversion, the actor is not just cut adrift; rather, he is addressed and treated as a responsible citizen who, unlike similarly situated offenders, can be trusted to subsequently follow the law on his own. By manifesting trust in effect, diversion mechanisms thus can indirectly encourage compliance with the law by enmeshing the offender into a circuit of inclusion.106 The analysis below begins by focusing on the simple caution, spelling out the various ways in which trust is governmentalized therein through the manifestation of active reliance. Subsequently, the discussion turns to the conditional caution and the fixed penalty. The simple caution coexists with two contrasting courses of action107 which are equally available to law enforcement agents (be it the police or the prosecution, depending on the accredited authority) where sufficient evidence exists regarding the commission of an offence to provide a realistic prospect of conviction: the standard response of prosecution and, in some cases, an application for the making of a (civil) preventive order. The simple caution, as mentioned earlier, is not statutorily limited to statutorily designated offences. The upshot is that law enforcement agents have at their disposal two, and in some cases three, courses of action, which they may resort to differentially depending on the circumstances of the case.108 Hence, a loosely knit duplex (or triplex) assemblage of crime control emerges, in which the lines between trustworthiness and untrustworthiness constitute internal elements, with each part mutually reinforcing the other. This assemblage is not engineered by policymakers with the aim of combating crime more effectively, the product of an act of intentional agency. Rather, it is the outcome of a specific agencement of power that is aligned to the neo-liberal
Rose, Government and Control, supra note 60, 324. Actually things are more complicated, since, with respect to certain statutorily designated crimes, the simple caution also coexists with the conditional caution and the fixed penalty notice. 108 I realize that no legal principle precludes applying for a preventive order while filing criminal charges against the actor. This may seem odd as a matter of practice, however, for the same restrictions sought under a preventive order may be applied as conditions for release on bail. Furthermore, it would not seem that the evidentiary standard here would be any more difficult to meet for the state. But there are complicated issues, for evidence which is admissible with respect to a preventive order may not be admissible in a criminal trial proceeding. This is notably the case with hearsay evidence.
107 106

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programme of reducing governmental intervention in economic and social affairs, while confining the state to acts of steering responsible actors at a distance rather than rowing and providing for them.109 In the context of this reorganization of the relationship between the state and the members of the citizenry, trustworthiness and untrustworthiness emerge as a binary code for conceiving and administering the response of the state to crime, so as to embed the offender into a network of identification and differentiation. As will be argued at length below, the untrustworthy offender serves in the context of diversion as a foil enabling the responsibilization and government at arms length of those who are deemed, if not explicitly trustworthy, then implicitly so. That the decision to administer a simple caution, instead of filing criminal charges or applying for a preventive order integrates the actor into a nexus of differentiation from the untrustworthy suspect can be seen first by examining closely the applicable Home Office Circular on the subject. Though law enforcement agents exercise some discretion in deciding whether to issue a simple caution, the key factors setting apart cases worthy of diversion, besides the seriousness of the crime committed,110 constitute proxies for the trustworthiness of the offender. Indeed, the criteria mentioned in the Circular relate directly to cases where the offender committed the crime concerned recently after having already been involved in some way in criminal proceedings because of unlawful conduct on his part. Thus, the Circular states that [a] simple caution cannot be viewed as an appropriate method of disposing of offences committed by serving prisoners or those subject to prison recall[or] when the offender was on court bail or subject to a court order at the time of the commission of the offence.111 The Circular also states that a simple caution should not normally be considered where the suspect has previously received a caution, unless two years have elapsed or if the current offence is trivial or unrelated to prior criminal conduct.112 The same principles apply generally where the offender has a previous conviction.113 All these instances refer to an offender who engaged anew in criminal conduct, even though he was on bail pending trial at the time; or, not long beforehand, he was cautioned or convicted and punished for being involved in the commission of a crime.
109 110

On the distinction between steering and rowing see Braithwaite, supra note 98. Of course, there will be cases where an otherwise trustworthy (or, at least, not untrustworthy) actor is suspected of involvement in the commission of a serious crime, such that the case will definitely not be eligible for diversion and will go to trial. But the key point is that following the Home Office Circular a manifestly untrustworthy actor should never get a simple caution. 111 Home Office Circular 016/2008, Simple Cautioning of Adult Offenders, par. 17 (2008). 112 Id., par. 23. 113 Id., par. 23.

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The subjectification of the offender as a trustworthy citizen via differentiation from other, similarly situated offenders, also finds expression in the special rules and practices which are followed in the course of the administration of the simple caution. A threshold requirement for the administration of a simple caution is an admission of responsibility by the offender. The offenders admission is voluntary. The competent officer must ensure that the offender admits to having committed the crime before he is invited to accept the caution. The Home Office Circular is clear on this point.114 The offender is not offered to admit to the commission of the crime in exchange for the simple caution being issued as an alternative to being charged.115 Rather, the offender typically makes the admission prior to, or in the course of, the formal interview, without reference to the diversionary outcome. It is also noteworthy that the decision to offer a simple caution is generally taken before the prosecutorial authorities decide whether to charge the offender.116 The offender is not cast in the role of an accused person locked in an adversarial relationship vis--vis the state. He is not engaged with as a person who is in conflict with the law. Rather, the offender is addressed as a person who recognizes on his own that he violated the law, without there being any need to have it pointed out to him in court after filing criminal charges. That the cautioned offender is not pitted against the state is also buttressed by the fact that the admission is made before the rules of disclosure entitle him to examine the evidence gathered in the course of the investigation which is liable to be adduced by the prosecution at trial. The offender thus does not have the opportunity to engage in calculations, so as to estimate whether it is in his interest to confess, or whether he should gamble on the eventuality of an acquittal at trial due to insufficient evidence of guilt. In this manner, the offender is envisioned as an actor who automatically recognizes that what he has done is wrong, without adopting a strategizing posture.

Id., par. 18. Id., par. 24. 116 Note that it is possible that a prosecutor reviewing a file so as to determine whether to charge will reach the conclusion that even though there is an admission of the offence, the offender should be invited to accept a caution.
115

114

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It is also telling that a prerequisite for the administration of a simple caution is that the offender accepts the terms of the caution.117 Significantly, these terms are set unilaterally by the law enforcement agencies without there being any room for negotiation. The relationship between the offender and the state is thus asymmetrically configured, bereft of any element of reciprocity. The state specifies the conditions and the offender accepts. The offender has no input into the content of the regulatory framework governing his future behaviour. Rather, he is addressed as one who follows the dictates of the law out of a sense of duty, without considering himself entitled to bargain, opting in or out of legal obligations of compliance, depending on whether it serves his interests to do so. The simple caution thus distinguishes itself from modes of so-called contractual governance, such as Acceptable Behaviour Contracts.118 The offender is not addressed as a contriving actor entering a transactional relationship motivated solely by his personal utility. Rather, he is addressed as a loyal citizen, to use Jakobs formula, that is, as one who is constituted by the disposition to persist in a normative association even though it is likely to be disadvantageous or costly to do so.119 The simple caution thus replicates a neo-conservative conception of the duty-bound citizen for whom values such as allegiance and loyalty to the law are paramount. It does not sit well with economic or rational choice images of the individual as an entrepreneur or consumer which prevail in the free-market strand of neo-liberalism.120 Turning to the substance of the conditions which appear in the document to be signed by the cautioned offender, it is specified therein that if, as a result of his act, another person suffered physical or psychological damage, then civil action may be taken demanding the payment of compensation. It is also specified that if the offender occupies a position of trust or responsibility, acting in such capacities as, for example, a teacher, care worker, taxi driver, soldier or doctor, then the police may inform the employer of the simple caution issued. The police may likewise inform potentially prospective employers if the offender applies for a designated job involving a high level of trust such as work with children of vulnerable adults. These conditions also project the figure of the trustworthy citizen by addressing the offender as someone who fully grasps that his wrongful conduct may have occasioned harm and impinged on his credibility and trustworthiness in the eyes of others. As a result, it is
Home Office Circular 016/2008, Simple Cautioning of Adult Offenders, pars. 24-25 (2008). See Adam Crawford, Contractual Governance of Deviant Behavior 30 Journal of Law and Society 479, 489 (2003). 119 See generally John Kleinig, Loyalty, The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.) URL = <http://plato.stanford.edu/archives/fall2008/entries/loyalty/>. 120 Cf. Pat OMalley, Volatile and Contradictory Punishment 3 Theoretical Criminology 175, 186 (1999).
118 117

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understood that it may be necessary for him to repair the damage caused, and notify individuals or organizations concerned, so as to enable them to make an informed decision as to whether to maintain their trust-based relationship with him. Before this part of the discussion is drawn to an end, the conditions which are conspicuously absent from the document signed by the cautioned offender should also be considered. As distinguished from restorative justice programmes, there is no requirement of the offender to apologize and visibly engage in acts of contrition, even where there is a victim who has suffered harm or loss.121 Rather, things are left unspoken and it is taken for granted that the offender feels remorse, without there being any need for him to publicly express shame and regret. Furthermore, although one of the aims of the simple caution is to induce the offender to cease engaging in unlawful conduct, there is no specification of immediate objectives and goals such as rehabilitation or treatment or how their fulfilment is to be measured or monitored. Nor does the issuance of a simple caution involve the ominous warning of the offender as to the penal consequences which may follow in the event of further criminal conduct on his part (as would be the case, notably, with a suspended sentence). Rather, the offender is just informed of the fact that if he is subsequently charged with another criminal offence, the court will be notified of the simple caution. The criminal law and preventive orders are not directly invoked as back-up deterrents to ensure that the cautioned offender follows the law. Rather, the offender is treated as a trustworthy actor, and enmeshed in a relationship in which it is taken for granted that he has internalized that he will be held accountable for his future conduct without there being any need to directly confront him with the prospect of sanctions or subject him to specific conditions. Indeed, it was noted earlier that trust generally rests on a belief in the competency and commitment of the person trusted, such that the latter is generally given some discretion as to how to fulfil the trust, without there being a need to utter threats or specify exactly what needs to be done. Taken together, the aforementioned features of the simple caution act to enlist the offender in a process in which he voluntarily admits to having committed the offence and unconditionally accepts the conditions of the caution. The simple caution thus subjectifies the offender as an otherwise law-abiding citizen who automatically recognizes, by himself, that he committed the crime concerned and that it was wrong. The cautioned offender is envisioned
Ross D. London, The Restoration of Trust: Bringing Restorative Justice from the Margins to the Mainstream, 16 Criminal Justice Studies 175 (2003).
121

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as an actor who, in terms of his attitudes, dispositions and world-view, is, at root, not in conflict with society and its prevailing values and norms. The upshot being that the crime is most plausibly construed as an act which was out-of-character for him and which, as such, will not recur. Hence, the appropriate outcome is one by which the offender is not made subject to a criminal conviction and does not have to undergo a criminal trial. The discussion thus far of the governmentalization of trust in diversion mechanisms has revolved around the simple caution. The analysis below extends the inquiry by considering the conditional caution and the fixed penalty notice. The conditional caution, like the simple caution, presupposes that the offender admits the offence and accepts the conditions specified, and that sufficient evidence exists to charge the offender.122 Furthermore, in deciding whether it is appropriate to administer a conditional caution, the prosecutor is expected to consider, inter alia, factors that also apply in the determination of whether to give a simple caution including, notably, the seriousness of the offence and the circumstances of the offender.123 The considerations for assessing the suitability of the offender for participation in a rehabilitation programme include the likelihood of further offending during the period of the conditional caution, and the offenders willingness to accept the conditions.124 In this regard, the Directors Guidance makes a pivotal distinction between those cases in which there is a high likelihood of re-offending which should be charged and proceed to court and those manageable cases where appropriate conditions can assist in the rehabilitation of the offender and minimize the likelihood of reoffending.125 It may be argued that the imposition of restrictions and the specification of conditions which include participation in a rehabilitative programme eviscerate the relationship with the offender of its core trust components especially given the fact that a warning is issued that the caution can be cancelled, and criminal proceedings instituted for the original offence, should the offender fail, without reasonable excuse, to abide by the conditions. These properties of the conditional caution undoubtedly lie in tension with the understanding that a
122

Criminal Justice Act 2003, secs. 22-27. See generally Code of Practice, Conditional Cautioning, par. 2.1 (October, 2004); The Crown Prosecution Service, The Directors Guidance on Conditional Cautioning (October, 2007). 123 The Crown Prosecution Service, The Directors Guidance on Conditional Cautioning (October, 2007). 124 Id., par. 15. 125 Id., pars. 18-19.

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relationship based on trust entails a willingness to allow the person trusted some discretion as to how to achieve the task at hand, without using language couched in threats or monitoring the steps taken by him to satisfy this expectation. That said, it should be borne in mind that trust is, as Matthew Harding put it, highly situation specific:126 it is closely linked to the setting in which it emerges, in addition to being rooted in cultural understandings and assumptions. Moreover, the presence or absence of trust is often a matter of degree. A person does not always flatly manifest through his behaviour trust or distrust towards another person. Rather, as Edna Ullman-Margalit explains, there are various negations of trust, at varying degrees of strength and located at different points in the space that opens up between full trust and full distrust.127 As noted above, the decision by the prosecution to allow participation in a rehabilitative programme rests on the assessment that the actor will not re-offend during the period of the conditional caution. And there is no negotiating with the offender regarding the conditions specified in the caution; rather, he must endorse them integrally or face the prospect of prosecution.128 The upshot is that while the offender is not treated as an actor who is sufficiently trustworthy to just issue a simple caution, he is considered sufficiently trustworthy to dispense with criminal prosecution in favour of participation in a rehabilitation programme. In terms of the two primary characteristics of trustworthiness, namely, competency and commitment, it may be said then that the conditionally cautioned offender is addressed as one who is weak on competency yet strong on commitment. Yet the offender is given a chance to rehabilitate himself so as to improve his ability to comply with the law. Put otherwise, before the conditionally cautioned offender can be fully trusted, he is expected to attend to the physical, mental or educational disabilities which make it difficult for him to lead a life within the confines of the law.129 The offender is thus engaged with as one who is potentially trustworthy, and who, as such, is to be trusted because he is willing to undergo the training necessary that will, in the long run, enable him to carry himself as a citizen who obeys the laws commands on his own. While the threat of prosecution certainly compromises the display of trust attendant on the delivery of a conditional caution, it should also be borne

Harding, supra note 65, 246. Ullman-Margalit, supra note 64, 67. 128 Second, the rehabilitation and reparatory programmes are not inordinately burdensome or intrusive, as they generally require participation over a period of approximately six months, though there are no hard and fast rules in this regard. The Code of Practice, at paragraph 6.1 states that the deadline for the completion of conditions should not be too long. It sets a six-month limit for summary offences, given the need for sufficient time to file charges in the case of non-compliance with the conditions. At paragraph 6.2, there is mention of programmes which call for participation beyond six months, though it is said that only the first part could be mandatory, while it would be open to the offender to continue on his own. 129 See London, supra note 121.
127

126

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in mind that the eschewal of prosecution as the initial course of action singles out the offender from similarly situated offenders who are not deemed suitable on account of their untrustworthiness. As for the Penalty Notice for Disorder, the Home Office Police Operational Guidance Manual states that a penalty notice represents an appropriate disposal option in dealing with an actor who is cooperative and suitable and compliant, particularly in the light of his previous offending history.130 The Guidance Manual rules out issuing a Penalty Notice for Disorder where the suspect is already known to be subject to a custodial sentence and a community penalty other than a fine, including an anti-social behaviour order. The delivery of a penalty notice manifests in various other ways that the actor is trusted to follow the law on his own: the option of filing criminal charges is dispensed with; there are no restrictions or conditions which must be fulfilled by the offender to reduce the risk of offending on his part; there is no attempt to draw the attention of the offender to the specific penal consequences that loom ahead should he offend once more; and the amount of the penalty is set in advance by statute, such that there is no negotiation between the offender and law enforcement agents as to the quantum of the monetary penalty. In addition, given that the statutorily prescribed penalty amounts are not prohibitive, the monetary sanction can be understood as a moderately punitive burden which is justly imposed in response to the offenders wrongful conduct, rather than as a measure which seeks to dissuade him from re-offending, and that, by this fact relates to him not as a trustworthy person, but as a strategizing rational actor who is only motivated to refrain from offending insofar as it maximizes his personal utility. Yet there are significant features of the Penalty Notice for Disorder which compromise the analysis of this diversionary practice in terms of the governmentalization of trust. First, though a penalty notice can only be issued if it is received and signed by the actor,131 a voluntary admission is not required. Indeed, it is clearly emphasized in bold letters on the ticket handed over to the offender that payment of the penalty involves no admission of guilt.
Home Office, Criminal Justice and Police Act 2001 (s. 1-11): Penalty Notice for Disorder Police Operational Guidance, pars. 6.20, 7.2, 7.8 (2005). This point is reemphasized in the recently issued Circular concerning the use of Penalty Notices for Disorder in cases of retail theft and criminal damage. It is specified that a Penalty Notice should only be issued once to an individual for retail theft. Furthermore, it is specified that Penalty Notices should not be issued where it is known that the suspect has a problem of substance misuse; and that prosecution should follow where a shop worker steals from his employer, as this amounts to a breach of trust. Ministry of Justice, Circular 2009/04, Criminal Justice and Police Act 2001 (S1-11) Penalty Notice for Disorder Police Operational Guidance: Retail Theft and Criminal Damage (16 July 2009). 131 Id., pars. 7.2, 12.7.
130

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To be sure, if an offender elects to put an end to the criminal proceedings by paying the monetary sanction instead of requesting a trial, this collaterally implies an admission of responsibility. However, this act remains ambiguous and cannot be likened to an unprompted admission before a person in authority in the course of an investigation. Therefore, it fails to evoke the personal qualities of law-abidingness and can just as easily be explained in terms of the actors desire to spare the trouble of appearing in court and risk a criminal conviction and harsher penalty. The fact that this diversion mechanism only involves a sanction that is pecuniary which, moreover, is imposed by way of the issuance of a ticket, further punctures the integrity of the self-motivating machinery set in motion by the investment of trust. For not only does the payment of money have no visible reformatory value, as Pat OMalley has noted, it carries a confusing symbolic connotation, suggesting that the penalty represents nothing more than a price to be paid for the commission of the offence, just as one pays for other items and activities in a consumer society.132 The fact that the penalty is simply imposed by way of the issuance of a ticket also muddles the message conveyed to the offender, as this mimics procedures associated in the public mind with purportedly morally neutral regulatory offences, such as road traffic violations, which are committed on a wide scale and are commonly taken to bear but a tenuous relation with their perpetrators moral character, including his trustworthiness. Assessing the Penalty Notice for Disorder in terms of the governmentalization of trust, then, proves quite thorny, as the diversion mechanism maintains the offender considerably at a distance, neglecting to engage him in any significant way regarding the meaning of his conduct. The discussion above explored how using trust as an organizing concept can bring to light the variety of ways in which diversion mechanisms bear the imprint of neo-liberal technologies deployed to govern individuals and organizations from afar. The next section, which concerns preventive orders, maintains the focus of the discussion on themes related to trust, though it takes a different tack by addressing issues bearing upon the social significance of trust in institutions. Specifically, it analyzes the growing role of the preventive order in English law as an institutional response geared to secure the trust of the public in the power of the criminal law to command authority and guarantee security.

132

See generally Pat OMalley, The Currency of Justice 78-113 (2009).

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VI

Preventive Orders: Restoring Trust by Institutionalizing

Distrust
In the literature on trust, it is commonly observed that social and political institutions provide vital forms of secondary trust that enable strangers to maintain relations based on primary trust.133 External institutions, it is said, act as guardians of trust,134 making it easier for actors who interact or cooperate in social or economic realms to place trust in one another in the absence of thick trust anchored in prior social ties or direct social contact. Law counts amongst the major institutions that foster these thin forms of trust.135 Indeed, as Luhmann tersely put it, one can afford a higher degree of confidence or even mistrust as long as one has confidence in law.136 Jakobs, in the same vein, asserts that the criminal law supplants interpersonal trust with trust in the institution of law: provided that the individual generally fulfils his institutional role as a loyal citizen by cultivating a readiness to follow the law, the legal system upholds a framework of stable expectations, and facilitates interaction between anonymous actors.137 However, widespread perceptions of under-compliance or underenforcement can cause the trust of citizens138 in the legal system to unravel.139 In The Culture of Control, David Garland narrates that such a development eventuated in the 1980s and 1990s in England as high crime rates became an acknowledged and commonplace feature of

See generally Sytompka, supra note 63, 47; Warren, supra note 65, 314, 320-321; Levi, supra note 65, 79; Anthony Giddens, The Consequences of Modernity 79-92 (1990); Russell Hardin, Trustworthiness, 107 Ethics 26, 31-34 (1996); Onora ONeill, A Question of Trust 8 (2002); Ullmann-Margalit, supra note 64, 75; Baier, supra note 65, 256. 134 Susan P. Shapiro, The Social Control of Impersonal Trust, 93 American Journal of Sociology 623, 635 (1987). 135 See Warren, supra note 65, 333-335 (1999); Levi, supra note 65, 85; Hardin, Distrust, supra note 79, 518521. Cf. Jack Knight, Social Norms and the Rule of Law: Fostering Trust in a Socially Diverse Society in Karen S. Cook (ed.) Trust in Society 354 (2001); Newton, supra note 64, 351. 136 Luhmann, supra note 5, 148. See also Barber, supra note 65, 22. 137 For an analysis of trust in modernity which emphasizes the sociological concepts of role and role expectations see Adam B. Seligman, The Problem of Trust (1997). 138 A number of commentators distinguish between trust in persons and confidence in institutions, arguing that trust cannot be invested in institutions. See Ullmann-Margalit, supra note 64, 76; Russell Hardin, Trusting Persons, Trusting Institutions in Richard J. Zeckhauser (ed.) Strategy and Choice 185 (1991); Russell Hardin, The Public Trust, in Susan J. Pharr and Robert D. Putnam (eds.) Disaffected Democracies 31, 31 (2000); Kenneth Newton, Social and Political Trust in Russell J. Dalton and Hans-Dieter Klingemann (eds.) The Oxford Handbook of Political Behaviour 344 (2007). For criticism of this viewpoint see Seligman, Id., 19. Indeed, many commentators speak of trust in, and distrust of, institutions. See Giddens, supra note 133, 83; Crawford, Situational Crime Prevention, Urban Governance and Trust Relations, supra note 89, 204; ONeill, supra note 133; Levi, supra note 65, 86-96; Philip Pettit, Republican Theory and Political Trust in Margaret Levi, A State of Trust in Valerie Braithwaite and Margaret Levi (eds.) Trust and Governance 295 (1998); John Braithwaite Institutionalizing Distrust, Enculturating Trust in Valerie Braithwaite and Margaret Levi (eds.) Trust and Governance 343, 353-369 (1998). 139 See Luhmann, supra note 5, 148.

133

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social experience. Garland argues that populist punitiveness represented but one of a host of variegated (and conflicting) strategies pursued by public officials in weathering the crisis of public trust in the criminal justice system.140 Immediately gratifying retaliatory gestures, Garland explains, serve to reassure a public worried about the states inability to reduce crime to acceptable levels, as harsh punitive measures give the impression that something is being done here, now, swiftly and decisively.141 I argue below that the entrenchment over the past decade of the preventive order as a tool of crime control across a vast range of fields of criminal activity represents a response of a different order than populist punitiveness to the growing disillusionment of the public concerning the power of the criminal law to protect law-abiding citizens. I take my cue from Jakobs account of the emergence of the paradigm of the criminal law of the enemy, in addition to that of the citizens criminal law. Significantly, Jakobs casts the criminal law of the enemy in the role of the guardian of the publics trust in the citizens criminal law. According to Jakobs, as mentioned previously, the state acknowledges its limited role in the provision of security and devolves responsibility and accountability to the loyal citizen by constituting him as the laws partner in the task of maintaining the power of norms to guide the conduct of members of society. Yet where the citizens conduct outwardly suggests that he cannot reasonably guarantee that he will generally abide by the law irrespective of whether he actually winds up committing a crime then he is to be treated as a foe and subjected to the special rules of Feindstrafrecht. For the trust of citizens in the power of the norms of the citizens criminal law to guide conduct must be grounded, by and large, in reality. Otherwise, these norms will not be able to perform the function of facilitating interaction between anonymous individuals in a highly complex society. Although Jakobs theory of Feindstrafrecht contains no explicit reference to crime control mechanisms such as the preventive order, I argue below that it provides a useful starting point in attempting to come to grips with the symbolic significance of the growing role of the preventive order in the landscape of criminal justice. To be sure, that the preventive order acts on the symbolic plane in the English context to reassure a public bewildered by the decline in the states power to regulate conduct and prevent crime by means of the criminal law, has not been lost on commentators. Adam Crawford has recently pointed
140 141

David Garland, The Culture of Control 105-111 (2001). Id.,135 (emphasis in original).

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out the connections that link anti-social behaviour orders, such as dispersal orders, with the reassurance policing agenda, whereby impression management assumes an increasingly central place in local strategies of crime control.142 Lucia Zedner has highlighted the many respects in which preventive orders incorporate the logic of precaution which demands that public officials take pre-emptive measures in the face of uncertainty, even in the absence of evidence concerning the precise threat posed.143 Lastly, Peter Ramsay has defended the claim that the preventive order has gained social legitimacy notwithstanding the fact that it sidesteps bedrock substantive and procedural principles of liberal criminal justice, because it enforces a demand that members of the polity not fail to reassure others, a demand rooted in a construction of the ordinary citizen as intrinsically vulnerable and in need of assurance, which figures prominently in political theories of advanced liberalism.144 Ramsays thesis echoes Lord Steyns comments in the McCann decision concerning the social problem that the AntiSocial Behaviour Order was intended to resolve: It is well known thatyoung persons, and groups of young persons, cause fear, distress and insecurity to law-abiding and innocent people by outrageous anti-social behaviour. Sometimes the conduct falls short of cognisable criminal offences. In recent years this phenomenon became a serious problem. There appeared to be a gap in the law. 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 failed them. (par. 16)145 The Anti-Social Behaviour Order, from this viewpoint, forms part of a political strategy self-consciously aimed at restoring public confidence in the exercise of state power.
146

The discussion below moves a step further and examines how the various

preventive orders currently available are structured to contend with the mounting doubts of the public concerning the power of the criminal law to produce order. It argues that, whatever their instrumental contribution to the reduction of crime, preventive orders symbolically complement the criminal law so as to restore the trust of the public in its capacity to secure conformity with its demands. Drawing on research that identifies the increasing use of audit technologies as a means to produce reassurance with respect to the effectiveness of
Adam Crawford, Dispersal Powers and the Symbolic Role of Anti-Social Behaviour Legislation, 71 Modern Law Review 753 (2008). 143 Lucia Zedner, Fixing the Future?: The Pre-emptive Turn in Criminal Justice in Bernadette McSherry, Alan Norrie and Simon Bronitt (eds.) Regulating Deviance 35 (2009). 144 Ramsay, The Theory of Vulnerable Autonomy, supra note 55. 145 R. (McCann and Others) v. Crown Court at Manchester and Another (2003) 1 AC 787, 813-814. 146 Peter Ramsay, Vulnerability, Sovereignty, and Police Power in the ASBO, in Markus Dubber and Mariana Valverde (eds.) Police and the Liberal State 157, 175 (2008).
142

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governing at a distance strategies of governance, the argumentation highlights the various respects in which these technologies and the preventive order function similarly.

The new regulatory state and the audit explosion

Audits have been traditionally associated with corporate financial management systems designed to verify financial statements, detect fraud and ensure that organizations comply with administrative norms and regulations. Over the past two decades, however, increasing reliance has been placed especially in the UK on a variety of audit practices in managing public sector activity147 and regulating businesses. This audit explosion148 has been especially noticeable in the New Public Management reforms introduced to provide quality assurance and promote efficiency in such fields as education and health.149 Audits have also come to play a pivotal role in the configuration of meta-regulatory150 mechanisms which are increasingly used to enforce the self-policing of corporations. Michael Power, who has pioneered research on the contemporary surge of interest in audit technologies, observes that the audit cannot be rigorously demarcated on the conceptual plane from other monitoring techniques, such as inspection or evaluation. From this standpoint, the audit is a versatile and highly transferable technology of government. This is evinced by the different types of audits in use, such as the public sector audit, the democratic and human rights audit, the academic audit, the healthcare audit and the environmental audit. As Power notes, [a]uditing practice is not a natural or obvious collection of operations, but has been changed and adapted for different purposes in different settings.151 Yet beyond the rich diversity of auditing activities, Power situates the essence of the audit explosion in the emerging common focus on management control systems which allows for a particular form of oversight, namely, the control of control.152 In this context, the audit operates as a
See generally Martin Loughlin, Audit, Regulation and Constitutional Modernization in Michael Faure and Frank Stephen (eds.) Essays in the Law and Economics of Regulation in Honour of Anthony Ogus 21 (2009). See also ONeill, supra note 133, 46. 148 Michael Power, The Theory of the Audit Explosion in Ewan Ferlie, Laurence E. Lynn and Christopher Pollitt (eds.) The Oxford Handbook of Public Management 326 (2005). 149 See generally Marilyn Strathern (ed.) Audit Cultures: Anthropological Studies in Accountability, Ethics and the Academy (2000); Cris Shore, Audit Culture and Illiberal Governance, 8 Anthropological Theory 278 (2008). 150 See generally Christine Parker, The Open Corporation (2002). 151 Power, The Theory of the Audit Explosion, supra note 148, 340. 152 Id., 333. For critical discussion of Powers work see generally Christopher Humphrey and David Owen, Debating the Power of Audit, 4 International Journal of Auditing 29 (2000); Iain Gray and Stuart Manson, The Audit Process 567-589, 604-611 (2nd ed., 1999).
147

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second-order monitoring system.153 Internal control frameworks of organizational selfmanagement, which are increasingly characterized in terms of risk management, are monitored at a distance, while the external audit process confines itself to evaluating the operation of the internal system, rather than observing first-order activities and assessing questions relating to quality and performance. These developments have coalesced with broader trends in government policy culminating in the emergence of a new regulatory state which tends to favour neo-liberal styles of arms-length governance, while substituting public management and command and control with remote monitoring of internal control systems.154 Power contends that the recent growth in auditing activity, which has generated industries of checking, is just as much a symptom of the loss of public trust in the central steering institutions of society as it is a functional response to the need to ensure oversight of complex systems.155 Power and others have cast a sceptical eye on the success of audit mechanisms in meeting their stated goal of enhancing monitoring quality and performance. Rather, audits merely generate visible signs of reasonable practice for consumption by those whose programmes depend on the production of comfort.156 Audits thus satisfy demands for signals of order, and arrest the decline in public confidence as regards neo-liberal modes of governance, whereby the state devolves its responsibilities, either as the provider of public services or as the regulatory authority responsible for monitoring organizational compliance through self-regulation. By overseeing at a distance that internal management systems function properly, audits restore trust by claiming to make the self-monitoring practices of corporate actors transparent to both internal and external observers.157 Returning to the terrain of criminology, several commentators have studied the ways in which the audit explosion has impressed itself on the field of crime control and criminal justice. Ron Levi, for instance, has argued that, in the United States, auditing technologies
See e.g. John Braithwaite, Meta Risk Management and Responsive Regulation for Tax System Integrity, 25 Law & Policy 1 (2005); Julia Black, The Emergence of Risk-Based Regulation and the New Public Risk Management in the United Kingdom, [2005] Public Law 512. 154 See Parker, supra note 150, 15. 155 Michael Power, The Audit Society Second Thoughts, 4 International Journal of Auditing 111, 118 (2000). On the rise of a culture of suspicion as regards professionals and public servants, see ONeill, supra note 133, 43-59. 156 Michael Power, Audit Society 123 (1997). A more optimistic perspective has been adopted by Christine Parker. Parker harbours the hope that meta self-regulation mechanisms may serve as a vehicle for furthering the democratization and social responsibilization of corporations by exposing them to public debate and scrutiny. See Parker, supra note 150, 245-291; Christine Parker, Regulator-Required Corporate Compliance Program Audits 25 Law & Policy 222 (2003). 157 Michael Power, From Risk Society to Audit Society 3 Soziale Systeme 3 (1997).
153

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serve to control the symbolic zone of community within the Megans Law community notification of sex offenders.158 From a different perspective, Adam Crawford has considered how situational crime prevention techniques dovetail with the rise of neo-liberal modes of governing at a distance which deploy the audit as a monitoring tool. Importantly, Crawford suggests that situational prevention measures resemble the audit, in that they are technologies of apparent mistrust contrivedin reaction to trust deficits and in the hope of restoring trust between people in given social settings and trust in organizational competence.159 Extending this line of argument, I suggest below that the preventive order, analogously to the audit, bears a design which enables it to abate the decline in public trust in the power of the criminal law to summon authority and guarantee security by provoking suspicion as to the capacity and commitment of citizens to follow its commands. To begin, it is noteworthy that the preventive order structurally resembles the audit, in that it couples with the criminal law to form a second-order control of control mechanism. The criminal law mainly functions as a mechanism of governance by reactively intervening once an actor has actually engaged in dangerous or harmful conduct. On the whole, the criminal law is built in such a manner that the individual citizen is accorded a significant degree of discretion in shaping his life-project and planning his conduct so as not to wind up getting involved in criminal activity. Inchoate criminal liability is prescribed across the board for an attempt only once the actor has engaged in conduct which is more than merely preparatory to the commission of a crime.160 To be sure, liability may attach for a conspiracy where two or more persons have reached an agreement to commit a crime,161 and a vast array of so-called anticipatory offences that target preparatory actions162 and other forms of remote harm163 permeate the statute books. Nonetheless, it should be kept in mind that as expansive as some of these prohibitions may be, they fall short of criminalizing deviant lifestyles as such, and always target specific courses of conduct.

Ron Levi, Auditable Community, 48 British Journal of Criminology 583 (2008). Crawford, Situational Crime Prevention, Urban Governance and Trust Relations, supra note 89, 204. 160 Criminal Attempts Act 1981, sec. 1(1). 161 Criminal Law Act 1977, sec. 1(1). 162 See generally Daniel Ohana, Desert and Punishment for Acts Preparatory to the Commission of a Crime, 20 Canadian Journal of Law and Jurisprudence 113 (2007); R.A. Duff, Criminal Attempts, 386-393 (1996). 163 See generally A.P. Simester and Andrew Von Hirsch, Remote Harms and Non-Constitutive Crimes, 28 Criminal Justice Ethics 89-107 (2009); Dennis J. Baker, The Moral Limits of Criminalizing Remote Harms, 10 New Criminal Law Review 370 (2007).
159

158

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The preventive order, in contrast, chiefly attends to the capacity and commitment of the citizen to follow the law. It scrutinizes whether the citizen is adequately conducting his personal business so as to avoid entanglement with the law. Indeed, for a preventive order to be made, it is always required that the (administrative or judicial) authority determine that the imposition of restrictions is necessary to prevent a risk of criminal conduct on the part of the actor, or a risk of instances of the conduct which triggered the application to make a preventive order, such as anti-social behaviour. This requirement implies that the competent authority is expected to gauge the soundness of the actors capacity and commitment to abide by the prohibitions of the criminal law. This point is alluded to by Ramsay where he explains that a preventive order is granted with respect to a person who is differentiated from other citizens on the grounds of a dispositional lack of moral autonomy, and who, as such, is constructed as a specific threat, as opposed to a formally autonomous subject presumed capable of freely adjusting his or her conduct to the general criminal law.164 Indeed, were the competent authority to find that the actor is suitably disposed to steer himself as a responsible law-abiding subject, then the making of a preventive order would not be called for: the actor could be trusted to comply, without there being a need to monitor his conduct by setting special restrictions which do not otherwise apply under the criminal law. The preventive order thus superimposes on the criminal law and extends beyond its traditional realm of application. It acts as a supplement to the criminal law by adding a layer of control which protects against the risk that, in running his personal affairs, the citizen is severely mismanaging his risk of offending. Analogously to the audit, the preventive order institutionalizes a procedure for checking the internal control system of the criminal law, in that it allows for oversight at a distance of the capacity and commitment of the citizen to properly exercise the discretion granted to him. In this manner, the preventive order structurally articulates with the criminal law to form a control of control mechanism. Though it is not the aim of the preventive order to determine whether the actor is worthy of punishment for committing a discrete act prohibited by the criminal law,165 the process leading to the imposition of restrictions does gauge whether the offences of the criminal law, which generally prohibit engaging in dangerous or harmful courses of conduct, actually guide the actor in the pursuit of his life-project.

164 165

Ramsay, The Theory of Vulnerable Autonomy, supra note 53, 134. Cf. Peter Ramsay, What Is Anti-Social Behaviour, [2004] Crim. L. R. 908, 916-917.

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An additional basis for juxtaposing the preventive order and the audit concerns the manner in which these mechanisms symbolically produce assurance and secure trust. Annette Baier insightfully noted in her salient article on trust that [t]rust [is noticed] most easily after its sudden demise or severe injury.166 Paradoxically, trust sometimes feeds on distrust, as trust is often fostered and reproduced through situations and processes in which it is actively tested by manifesting distrust.167 This notion reverberates with the idea found in republican political theory that trust in democracy is best cultivated by entrenching mechanisms for the institutionalization of distrust into the design of political institutions.168 By putting in place a procedure that spotlights, and elicits awareness of, exceptional cases of individual misconduct which have the effect of puncturing the image of authority of the criminal law, the preventive order, like the audit, acts to mobilize trust therein by institutionalizing distrust169 in the loyalty of citizens towards the law. To elucidate in greater depth how the mechanics of the preventive order act to generate public trust in the criminal law by promoting suspicion with respect to the lawabidingness of citizens, attention should focus on certain traits shared by the courses of conduct whose performance provides grounds for an application to impose restrictions. Peter Ramsay has identified the actors failure to reassure by manifesting a disposition of indifference for others feelings as a feature which unifies the array of triggering courses of conduct.170 Picking up Jakobs notion of the disloyal citizen who must be made subject to the special rules of Feindstrafrecht, I would suggest that another troublesome dimension which these conduct prerequisites have in common is that they outwardly suggest that the actor is not sufficiently responsive to the demands of the criminal law in running his life. The sight of such forms of (mis-)conduct, in turn, upsets social expectations of conformity and responsible behaviour, breeding scepticism regarding the power of the criminal law to command authority and maintain order.

Baier, supra note 65, 234. See Crawford, Situational Crime Prevention, Urban Governance and Trust Relations, supra note 89, 207208; ONeill, supra note 133, 83. 168 See generally Pettit, Republican Theory and Political Trust, supra note 138; Braithwaite Institutionalizing Distrust, Enculturating Trust, supra note 138, 353-369. See also Hardin, Distrust, supra note 79, 516-518; John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980). 169 Shapiro, supra note 134, 635. 170 Ramsay, The Theory of Vulnerable Autonomy, supra note 53, 132-138.
167

166

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Consider the definition of involvement in serious crime under the Serious Crime Act 2007 for purposes of obtaining a Serious Crime Prevention Order.171 It extends not only to cases where the actor actually commits a serious offence or facilitates the commission by another person of a serious offence, but to cases where the actor conducts himself in a way that [is] likely to facilitate the commission by himself or another person of a serious offence.172 The latter category of cases, which are not necessarily punishable in their own right, outwardly suggest that the actor has embarked on, or contributed to, an undertaking which is intended to culminate in the performance of a crime. The sight of such forms of conduct provokes unease amongst the public because it confirms the suspicion that the norms of the criminal law do not broadly summon respect. Yet acts which manifest the likelihood of the actor personally engaging in the commission of a crime, or acting as an accomplice therein, do not constitute the sole forms of conduct which may provide grounds for the making of a preventive order. The Crime and Disorder Act 1998173 defines anti-social behaviour for the purpose of obtaining an Anti-Social Behaviour Order, as acting in a manner which causes or is likely to cause harassment, alarm or distress to one or more persons not of the same household as the actor concerned. According to the Sexual Offences Act 2003,174 a Risk of Sexual Harm Order can be made against an actor who has, on at least two occasions, engaged in such conduct as engaging in sexual activity involving a child or in the presence of a child; causing or inciting a child to watch a person engaging in sexual activity or to look at a moving or still image that is sexual; giving a child anything that relates to sexual activity or contains a reference to such activity; and communicating with a child where any part of the communication is sexual. All of the aforementioned forms of anti-social behaviour and sexually suggestive conduct are obviously disturbing because they are morally and culturally inappropriate, and may cause harm to the psychological well-being of children. However, I would argue that the distressing effect produced is compounded by the fact that these acts are often performed in situations that risk unleashing a snowball effect. When an actor engages in anti-social acts which are liable to provoke others to respond aggressively or engages in acts of sexual activity or sexual
Serious Crime Act 2007, sec. 2. Serious Crime Act 2007, sec. 2(1)(c). Analogously, the definition given in the Prevention of Terrorism Act 2005 of involvement in terrorism-related activity for purposes of the making of a Control Order, includes preparatory acts planned to culminate in the commission of a crime as well as acts which contribute thereto, such as providing aid or encouragement to an actor who intends to commit an act of terrorism. 173 Crime and Disorder Act 1998, sec. 1(1). 174 Sexual Offences Act 2003, sec. 123(3).
172 171

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communication with children, he might get entwined in a train of events where, out of either lust or impetuosity, he momentarily loses control and commits a sexual offence or crime of violence. Given the widely held view that, were the normative demands of the criminal law to carry leverage, they would decisively affect the decision-making of individuals and cause them to take care to adjust their behaviour in advance so as not to get caught up in perilous situations, the performance of the aforementioned acts provokes an innate response of disconcertion on the part of the public which threatens to damage the credibility of the criminal law. In turn, the practices and procedures through which it is determined whether and in which form a preventive order should be granted, act to remedy the negative impression made on the public so as to regain its trust. By examining whether it is necessary to impose restrictions, the competent authority reassures the anxious public by seemingly getting to the bottom of things so as to ascertain whether the negative impression is actually justified, i.e., whether the performance of the triggering conduct is actually symptomatic of a deficient capacity or commitment to follow the law. Hence, the preventive order, like the audit, reassures the public by engaging in rituals of checking and verification. By instituting a procedure which causes the public to take heed of problematic conduct across a broad range of spheres of criminal activity, and then allows for ongoing assessment of the capacity and commitment of citizens to follow the law, the preventive order makes it seem as if citizens are being monitored, thereby leading the public to form and maintain the belief that the social landscape is constantly being scanned for possibly disloyal actors. Through this active process of trust-testing, the public is comforted in the conviction that save for actors who have been made subject to a preventive order the criminal law continues to hold sway. The decline in trust in the power of the criminal law to command authority is thus offset by scrutinizing the law-abidingness of the citizen.175

That the preventive order is configured to secure the trust of the public by formalizing suspicion concerning the integrity of the capacity and commitment of the actor to self-govern and lead a life within the confines of the normative demands of the criminal law is further underscored by the fact that the scope of the triggering conduct requirements is often delineated by reference to external standards, such as the reasonable person and community

175

Cf. Crawford, Situational Crime Prevention, Urban Governance and Trust Relations, supra note 89, 208. On trust-testing in the interpersonal realm, see Pettit, The Cunning of Trust, supra note 80, 210.

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perceptions, rather than the actors ulterior intent.176 Anti-social behaviour is defined under section 1(1) of the Crime and Disorder Act 1998 as behaviour which causes or is likely to cause harassment, alarm or distress. There is no need to prove an intention to cause harassment, alarm or distress, as it is the effect or likely effect on other people that determines whether the behaviour is anti-social. Public perceptions as to what constitutes anti-social behaviour are thus incorporated into the criteria for making a preventive order.177 Nonreasonableness also forms part of the criteria, as under section 1(5) of the Crime and Disorder Act 1998, any behaviour shown to be reasonable in the circumstances is to be disregarded. Likewise, the Sexual Offences Act 2003 defines, for purposes of the making of a risk-ofsexual-harm order, sexual activity as an activity that a reasonable person would, in all the circumstances but regardless of any persons purpose, consider to be sexual.178 The definition of sexual communication and sexual images is similarly worded.179 As for the Serious Crime Prevention Order, section 4 of the Serious Crime Act 2007 provides that when considering whether the actor conducted himself in a way that facilitated or was likely to facilitate the commission of a serious offence, by himself or another person, the court must ignore the intentions and other aspects of the mental state of the actor at the time of the act in question. However, if the actor can show the act to be reasonable in the circumstances, then it should be disregarded. It follows then, as the explanatory notes make clear, that subject to this last principle, it does not matter if the respondent did not, for example, intend to facilitate the commission of a serious offence, or had no knowledge that he was conducting himself in a way that was likely to facilitate serious crime.180 That, under all of the aforementioned provisions, the reasonable nature of the actors conduct under the specific circumstances of the case can preclude the making of a preventive order clearly indicates that it lies at the heart of this mechanisms function to provide a response so as to counter the negative symbolic effect of acts beyond the pale on the publics perception of the capacity of the criminal law to command authority and guarantee security and not simply to identify actors who are intent on committing a crime or otherwise inclined to engage in criminal activity, so as to neutralize the risk of harm posed by them.
See Ramsay, The Theory of Vulnerable Autonomy, supra note 53, 114-115; Crawford, Dispersal Powers and the Symbolic Role of Anti-Social Behaviour Legislation, supra note 142, 758; Stuart Macdonald, A Suicidal Woman, Roaming Pigs and a Noisy Trampolinist: Refining the ASBOs Definition of Anti-Social Behaviour, 69 Modern Law Review 183 (2006); Shute, supra note 53, 429-430. 177 Home Office, Defining and Measuring Anti-Social Behaviour, Development and Practice Report 26, 3 (2004). 178 Sexual Offences Act 2003, sec. 124(5). 179 Sexual Offences Act 2003, sec. 124(6)-(7). 180 Explanatory Notes, par. 24.
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That the triggering conduct requirements of the preventive order are formulated by reference to external standards, such as reasonableness, points not only to the centrality of public perceptions on the symbolic level. It also brings to light another key affinity with the audit, namely, that the preventive order reassures the public by creating visible signs of reasonable practice. With respect to the audit, the production of assurance is associated with strict adherence to procedures and protocols, detailed record-keeping concerning performance, and the provision of information in specified formats. One of the salient claims made by Power has been that the audit does not neutrally monitor at a distance, it actively transforms the practices of its subject. Audit, Power explains, is not, and never has been, a pure form of observation independent of the domain observed. [It] always stands in a transformative relation to organizations, specifically with the imperative of making them auditable by the creation of systems[.]181 Indeed, Power warns that the standardization of templates risks intensifying auditee mentalities that breed an excessive concern with representations of performance, thereby hampering organizational innovation, to the detriment of the organizations ability to do quality work and achieve substantive goals. In the context of the preventive order, in contrast, reassurance is achieved by negatively defining unreasonable practice, which, as mentioned above, consists of visibly deviant conduct signalling a deficiency in law-abidingness. Defining in terms of reasonableness the courses of conduct which may provide grounds for imposing a preventive order symbolically embeds the understanding that insofar as such outwardly disquieting courses of conduct are not engaged in, it is safe to assume that citizens are generally carrying themselves as law-abiding actors, and that the criminal law holds sway. Put otherwise, the triggering conduct requirements of the preventive order bolster the image of authority of the criminal law by stating what constitutes unreasonable practice for a citizen in the pursuit of his life-project. Moreover, Powers observation regarding the crystallization of auditee mentalities is also germane to the preventive order, as this mechanism of crime control fosters a culture of suspicion. Specifically, analysis of the triggering requirements reveals that the preventive order, in effect, reshapes the substantive duties of responsible citizenship by saddling the member of the polity with the duty of steering clear not just from conduct which amounts to an offence, but from actions which are liable to infect the sense of security of anxious law-abiding people, even if such conduct is not criminally punishable. Thus, the citizen is expected both to adequately control his risk of offending and to abstain from engaging in activity which overtly
181

Michael Power, The Theory of the Audit Explosion, supra note 148, 335. See also Michael Power, Evaluating the Audit Explosion, 25 Law & Policy 185, 190 (2003); ONeill, supra note 133, 50.

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suggests that he might be failing to do so due to a lack of sufficient responsiveness to the demands of the criminal law.

Yet the similarities with the audit do not stop here. In the auditing process, as Power explains, [t]he formal management control system functions primarily to[buffer] the auditor from an increasingly complex evidence base[and] provide more or less comforting signals to regulators and politicians.182 Indeed, because the audit process usually takes the management system as its primary object, it is a dead end in the chain of accountability183 stifling democratic dialogue about the public accountability of audited entities.184 Auditing quality labels or certificates, Power asserts, do not invite or provoke public dialogue; they are not designed to support public debate or to connect the audit process to wider representative organs or to further machinery of regulatory escalation.185 In the regulatory context, the objection has been raised that the audit process acts to bestow institutional credibility and legitimacy on the audited entity, without actually leading to enhanced visibility and accountability to either the principal concerned, be it a regulatory authority, shareholders, a non-governmental organization, or the public at large. The limited range of response possibilities made available within the audit framework has also attracted criticism for its lack of incentives to improve commitment to compliance. Thus, it has been argued that there is a need to empower the auditor to perform follow-up reviews so as to ensure that steps have been taken to address the criticisms of the compliance arrangements which appear in the audit report.186 In the context of the preventive order, the control of control template similarly acts as a buffer, though here it shields the criminal justice system from having to address and cope with the vexed social, economic and ideological issues which are bound up with the governance of crime in late modernity. The preventive order, like the audit, represents a form of downward accountability in that it involves an assessment of the capacity and commitment of the citizen to manage his risk of offending. It thus bears the imprint of neo-liberal modes of governing which thrust responsibility onto the individual. Moreover, the growing role of the

182 183

Michael Power, The Audit Society Second Thoughts, 4 International Journal of Auditing 111, 115 (2000). Power, Audit Society, supra note 156, 127. 184 Power, Evaluating the Audit Explosion, supra note 181, 197-198. See also Parker, supra note 150, 197-244; Parker, Regulator-Required Corporate Compliance Audits, supra note 156. 185 Power, Audit Society, supra note 156, 127. 186 Power, The Theory of the Audit Explosion, supra note 148, 336-337.

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preventive order as a tool of crime control attests to the decline of welfare-based penal strategies, which link crime reduction to the treatment of the psycho-social needs of the offender, and to the elimination of socio-economic deprivation which hampers his integration into the wider social body. The preventive order envisions the actor as a voluntary agent who is free to engage in criminal activity or lead his life within the confines of the law. Hence, it does not endeavour to act upon psychological, social or economic factors which may be affecting his choices whether to engage in, or desist from, crime. Rather, the logical corollary is to direct crime prevention efforts at the actors behaviour and its effects. The preventive order thus fits in with a larger shift in crime prevention strategies, which Stanley Cohen called the return to behaviourism.187 In this context, attention focuses primarily, if not exclusively, on the conduct of the offender, rather than his personality or socio-economic condition. This shift is prominent in the situational approach to preventing crime through opportunityreduction measures that manipulate the environment,188 as well as in the actuarial turn in criminal justice whereby criminal offending is regulated by managing groupings of offenders sorted by aggregated indicators of risk.189 However, the preventive order sets itself apart from these two strategies of crime control in that it rests on the conviction that it is solely the responsibility of the individual actor to manage his risks of offending by cultivating lawabidingness. Indeed, the statutory regime of the preventive order does not allow for measures to be taken which could alleviate the personal, social or economic circumstances of the actor that leave him at a considerable risk of offending. On the contrary, the measures available are entirely negative in content, imposing strict restrictions on conduct without making provision for economic support or rehabilitative treatment. The difficulties which may be detrimentally affecting the actors capacity and commitment to self-govern, such as psychological instability, substance addiction, alcoholism, poverty, economic deprivation or social exclusion, are not attended to when the state applies for the imposition of a preventive order. Rather, the assessment process leading to the making of a preventive order remains comfortably on the surface by concentrating on the present and future conduct of the actor, while keeping at bay any discussion of relevant psycho-social factors or the wider political context of late modernity, which is characterized by structured socio-economic inequality.

Stanley Cohen, Visions of Social Control 139 (1985). See generally Ronald V. Clarke, Situational Crime Prevention in Richard Wortley and Lorraine Mazerolle (eds.) Environmental Criminology and Crime Analysis 178 (2008). 189 See generally Bernard E. Harcourt, Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age (2007).
188

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Conclusion
Gnther Jakobs theory of the criminal law of the enemy has provoked a chorus of critical response across many European countries over the past decade. Yet for all of the acrimony stirred by Feindstrafrecht, many of Jakobs vocal opponents have conceded that the theory offers a convincing descriptive account of the social beliefs and perceptions which precipitated, and bestowed legitimacy on, the special measures adopted in Germany and elsewhere to protect society against specific categories of offenders.190 This paper, however, has sought to probe other insights yielded by Jakobs work, so as to gain purchase of the growing role of diversion mechanisms and preventive orders in English law. Framing the discussion around the notion of trust, I have sought to demonstrate that these two mechanisms are not solely informed by objectives of efficient and effective policy-making, and that additional dimensions come to light once one considers the broader context in which trust relations are reconfigured in late modernity, and particularly the prevalence of the neo-liberal strategy of governing at a distance.

190

See Heinrich, supra note 25, 101.

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