Punishment the Easy Way
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Punishment the Easy Way Christopher Nathan1 Accepted: 14 September 2020 © The Author(s) 2020
Abstract Some argue against coercive preventive measures on the grounds that they amount to cloaked forms of punishment. Others offer a qualified defence of such measures on the grounds that such measures have substantively different goals and purposes from punishment. Focusing on the case of civil preventive injunctions, I clear the ground and provide reasons for a third logical possibility: that coercive preventive measures are relevantly similar to punishment, but this does not itself give us a reason to oppose them. ‘Punishment’ has a great deal of rhetorical force, and it thereby distracts us from the justificatory work that we need to do to specify proper restrictions on the state’s coercive powers. Whereas many commentators have proposed that legal theory provides grounds for challenging civil preventive orders, I argue for the opposite view. If we understand properly the function of civil preventive orders, we will endorse them at least in principle, and will come to rethink some central ideas in the grounding of the criminal justice processes. Keywords Preventive orders · Punishment · Definition of punishment · Prevention
1 Introduction In a move that was widely described as an innovative legal step, a UK court placed a long-term injunction on six men, prohibiting them from publicly approaching any female under the age of 18.1 The case involved a vulnerable 17-year-old girl who is under the care of Birmingham Council. The judge concluded, ‘I am satisfied, so that I am sure, that the reason why they invited [the girl] into their car was for nefarious purposes.’ The injunction was thus granted. The ‘two-stage’ order here involves creating a rule for an injunctee, in a civil court, which, if violated, is subject to criminal sanction. 1 “Family Law Week: Birmingham City Council V Sk [2016] Ewhc 310 (Fam),”. For press reporting see Press Association, “Two Men Banned From Approaching Girls,” 17/112014.
* Christopher Nathan [email protected] 1
University of Warwick, Coventry, UK
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Vol.:(0123456789)
Criminal Law and Philosophy
If it was possible to convince a judge, so that he was “sure” about the men’s purposes, why did the council not mount a full prosecution against them? A criminal prosecution would have enabled proper punitive measures, and it would have placed the men under the more powerful control of the probationary services. The reported reason for the Council’s muted ambition in charging the men is that the Council doubted a prosecution would succeed. In particular, the bar of beyond reasonable doubt in criminal courts is difficult to achieve. Injunctions, on the other hand, are granted in civil courts, where the standard of proof is merely the balance of probabilities. A full criminal prosecution may be made against the men in the future. This case is a forceful example of what some legal scholars see as a more general trend in our criminal justice system towards ‘preventive’ instead
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