The aim of this paper is to draw attention to the rising frequency of such procedural hybridisation (see Ashworth and Zedner : 29–31), and to demonstrate that hybrid orders illegitimately circumvent criminal law procedural protections. We employ a systems-theoretical approach to critique what, we argue, is a prioritisation of expediency over principle, and engage with the following fundamental question: can a legislative provision, properly passed according to the requirements and procedures of the enacting Parliament but which contravenes those higher legal principles comprising the rule of law, lack legitimacy? These issues are scrutinised in terms of the rule of law, which we conceptualise not only as a composite of legal standards, normative aspirations, and quality benchmarks but also as a structural coupling between the political and legal systems; we rely upon this insight to analyse the introduction of these hybrid orders and procedures. Our conclusion will be that, in spite of their undisputed legal validity, their effective circumvention of rule of law standards places them squarely in a position of questionable legitimacy. The first section of this paper will articulate what we understand by ‘legitimacy’ in this context, with specific discussion of this composite group of ‘rule of law’ standards in systems-theoretical terms, while the second will provide a comprehensive analysis of civil/criminal procedural hybridisation, and will present our case study of civil recovery. The third section will reintroduce the core question and argue the thesis that, in spite of their undisputed legal validity, such hybridised measures lack legitimacy because they exceed both the legal system’s self-imposed limitations and those resulting from its structural couplings with the political system. Our conclusion presents the increasing reliance on procedurally hybrid approaches as an over-emphasis upon expediency at the expense of principle.
It should be noted here that this paper employs a systems-theoretical perspective in leading its principal argument. This perspective provides a fresh insight into both ongoing debates on procedural hybrids (see, e.g., Bronitt and Donkin ; Zedner ) and legal-theoretical discussions of the rule of law. The advantages of a systems perspective on procedural hybridisation lie in how the theory’s emphasis on functional differentiation and the boundaries between systemic operations highlights issues often left unseen by conventional analyses. Systems theory draws clear dividing lines between the concepts at the heart of this analysis—validity and legitimacy, the legal and the political—and this clarity provides an invaluable foundation for critique. This study also contributes usefully to the further development of systems theory itself, as the issues raised by considering procedural hybrids test both its positivistic and descriptive nature, not least by presenting it with the obstacle of normativity. Indeed, it is with normativity that we will begin, for it is in terms of two specific normative dimensions that this analysis establishes its parameters relative to the competing concepts of expediency and principle. These normative dimensions can be articulated in terms of our selected case study, namely civil recovery under POCA 2002 Part 5. Civil recovery under POCA perfectly illustrates the contentious nature of civil/criminal hybrid procedures in that civil recovery allows the State to go after ‘criminal’ proceeds albeit by circumventing enhanced procedural protections of the criminal process.
In this regard, the introduction of these hybrid civil recovery powers can be understood as an endeavour to stabilise the normative expectation that the legal system will counteract and ‘punish’ criminal and thus illegal activity within society. At the same time, however, and through the new procedures introduced, the legislation adjusts the system-internal programming that guides the lawful/unlawful distinction. This situation results directly from the criminal law’s perceived inadequacy to deal with the particular challenges of serious and organised crime: the importance of this attrition in terms of the law’s self-regulation cannot be overstated. This alleged failure of law, this apparently continuing disappointment of its normative expectation over time, was what gave rise to these wholesale procedural changes. In its adoption of such a hybrid approach, we see the supposed failure of law being concretised through procedure (Hendry and King ).
The legal system relies upon expectations as a means of controlling normativity, reducing complexity, and eliminating contingency. Expectations are generated on the basis of norms that, even in the event of their disappointment, remain unaffected—in this manner, existing normative expectations are stabilised on a counterfactual basis. This is a particularly familiar situation within the field of criminal law where, for example, criminal behaviour ought to be subject to legal sanction, wrongdoers ought to be punished, crime should not pay, and so on. In spite of their repeated disappointment, these normative expectations stay stable, and illegal conduct remains exactly that. Although necessary in terms of reducing complexity by limiting the number of possible selections generated by conditions of uncertainty, the effect of this systemic normative closure is that disappointments do not lead to the legal system learning from its previous operations. For systemic learning to occur, the legal system is instead reliant on its cognitive expectations, which is to say, on its openness to changing factual conditions within society. It is through this cognitive openness that the law is able to adapt—the legal system’s programming adjusts both to deal with changes in its environment and to become more successful in the realisation of its primary function. Such programming is guidance for the operation of the system’s binary coding; it stipulates the conditions under which the coding lawful/unlawful can be applied, and is the means by which the legal system modifies itself to recognise that, for example, something that was lawful is now unlawful, or vice versa.
The study of criminal justice and criminology has experienced tremendous growth over the last years, which is evident, in part, by the widespread popularity and increased enrollment in criminology and criminal justice departments at the undergraduate and graduate levels, both across the United States and internationally. An evolutionary paradigmatic shift has accompanied this criminological surge in definitional, disciplinary, and pragmatic terms. Though long identified as a leading sociological specialty area, criminology has emerged as a stand-alone discipline in its own right, one that continues to grow and is clearly here to stay. Today, criminology remains inherently theoretical but is also far more applied in focus and thus more connected to the academic and practitioner concerns of criminal justice and related professional service fields. Contemporary study of criminology and criminal justice is also increasingly interdisciplinary and thus features a broad variety of research paper topics on the causes, effects, and responses to crime.
Many explanations for the adoption of hybridised processes to tackle essentially criminal behaviour have been advanced (for discussion in relation to ASBOs, see Ashworth and Zedner : 78ff). First, it has been suggested that the criminal law alone is inadequate in tackling certain forms of harm. A second, related, explanation is that there can be evidential benefits in resorting to civil processes, for example, the avoidance of the strict application of the hearsay rule in criminal proceedings. Ashworth and Zedner (: 80) draw attention to a third, more political, account: they note that many countries ‘have seen a strain of penal populism in government statements and in legislative initiatives that are often presented as measures of public protection’ (see Dzur : 116). A fourth explanation concerns policy transfer: civil measures have been used both in other jurisdictions and in other areas of domestic law (Ashworth and Zedner : 81–82). Uniting all of this reasoning, however, is a sense of expediency—increasingly more common both within and outwith the UK, procedural hybrids are being first introduced and then employed with evident instrumentality. This paper not only queries the general legitimacy of such measures but uses the case study of civil recovery to illustrate their challenge to those rule of law standards already discussed.
This returns us to our core investigation, namely, whether legislative provisions properly enacted can ever lack legitimacy. We submit that this can be the case where such provisions fail to comply with the rule of law, understood in the formal sense of the term, and argue this position employing the example of civil/criminal procedural hybrids in general, and the case study of civil recovery under POCA 2002 in particular. The character of and motivations behind civil/criminal procedural hybrids will be the focus of the next section.
This normative stance—that crime should not pay—is unlikely to prove particularly controversial, or to give rise to much political contestation. If someone has committed a criminal offence then that person should undoubtedly be denied the benefit of that offence. It is when focus shifts to the mechanics of implementation, however, that concerns arise (see Gledhill : 81). This very issue is the second normative dimension of this analysis, namely the tension created by the juxtaposition of the realisation of the stated policy goals (see Performance and Innovation Unit ) with the requirements of due process, or, rather, the apparent conflict between the goals of controlling high-level, high-value criminal activity and ensuring the adequate observance of the alleged perpetrator’s civil and political rights (Ivory ). This paper submits that, in their effective bypassing of enhanced procedural protections, this hybrid measure is contrary to the rule of law and thus lacking in necessary legitimacy (on the point that the legislative remedy of civil recovery has gone too far in its attempt to remedy an existing inadequacy in the law, see Hendry and King ). Although this critique may appear prima facie to be a legal-theoretical one, it is important to note that this opens civil recovery up to challenge on the grounds that it violates due process rights that are inherent in the criminal process.
In recent years an increasing quantity of UK legislation has introduced blended or ‘hybridised’ procedures that blur the previously clear demarcation between civil and criminal legal processes, typically on the grounds of normatively-motivated political expediency. This paper provides a critical perspective on instances of procedural hybridisation in order to illustrate that, first, the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and, second, that such instrumental criminal justice strategies deliberately circumvent the enhanced procedural protections of the criminal law. By conceptualising the rule of law as a structural coupling between the political and legal systems, and due process rights as necessary and self-imposed limitations upon systemic operations, this paper employs a systems-theoretical approach to critique this balancing act between expediency and principle, and queries the circumstances under which legislation contravening the rule of law can be said to lack legitimacy.
Ostensibly, an accurate and thorough social science knowledge base stands to render social betterment in terms of reduced crime and victimization through the development of research–based practices. This science–practitioner relationship is featured, advocated, and critiqued in the research papers of the final section, Part VI: Criminology and the Justice System. Here, the central components of criminal justice research paper topics (law enforcement, courts, and corrections) are presented from a criminology–criminal justice outlook that increasingly purports to leverage theory and research (in particular, program evaluation results) toward realizing criminal justice and related social policy objectives. Beyond the main system, several research papers consider the role and effectiveness of several popular justice system and wrap-around component initiatives (e.g., specialty courts, restorative justice, and victim services).