The more criminology has flourished as an academic discipline, the more it has retreated from providing useful knowledge for governments. Management consultancies, lobby organizations and think tanks have quickly filled this gap. Debates about privatization focus on contracting out of police and prisons and rarely consider the influence and ‘insourcing’ of private know-how and private advisors, or their impact on criminal justice, counter-terrorism and security policy. Unlike NGOs and lobby groups for penal reform, think tanks are little studied, even though their political ideology, reliance on private funding and lack of transparency impact democratic politics and public accountability. We ask how and why think tanks became players in steering the futures of criminal justice and security, with what consequences and at what cost to the publicness of public policy.

The central ground of the liberal state's legitimacy is the claim that it alone can provide conditions of order and stability. The state asserts its authority through criminal law to set and police the norms upon which order depends. Yet we need to ask to whom order is promised, whose voice counts, and who is excluded. Legal theorists often contend that criminal law reflects the common values of the polity and holds citizens to account as members of a cohesive political community. However, contemporary institutions of law and order yield to calls for public safety and national security that render citizenship conditional on conformity with problematic notions of civility. Majoritarian demands for order make outsiders of those considered suspect, uncivil or disorderly. If the pursuit of order is not to defeat itself by ceding to populist pressures, a fairer, more tolerant and inclusive vision of what civil order demands is needed. This analysis of the political and legal institutions and processes by which state coercive power is exercised in England and Wales explores how civil order might be achieved by legitimate means and on just terms.

Abstract This opening chapter introduces the collection of twelve essays, which explore the increasing role of the private sector and private actors in border control and its implications for state sovereignty and citizenship. It sets out the Editors’ main aims, questions posed to contributors, and the collection’s overall structure and key themes. It describes a first section on the limits of state sovereignty, whose essays examine complex interactions between public and private actors in controlling the border. It explains how essays in the second section explore the implications of privatisation for legitimacy and the rule of law at the border. It describes those in the third section that consider whether privatisation is better understood as outsourcing, expanding, or undermining state authority, and assess its impact on those subject to detention and deportation. It then introduces the final set of essays that examine differing practices of privatisation at the border, involving a cast of actors ranging from private citizens and civil society organisations to corporate actors and data managers. The chapter concludes by observing that, collectively, the essays disclose what privatising border control reveals about the limits of the sovereign state.

In her important monograph, In Search of Criminal Responsibility, Lacey explores changing relations between individual and state and charts the history of growing state ‘confidence in the possibility of shaping the habits and dispositions of citizenhood’ through the criminal law and other legal measures. She concludes, ‘we are seeing not so much a replacement of one paradigm of responsibility by another, but rather an accumulation of conceptions or “technologies” of responsibility.’ This chapter considers these controversial new hybrid legal orders such as the ASBO and its successors with which the state seeks to instil habits of respectable citizenship and to secure civil order. These diverse powers engraft new techniques of ‘responsibilization’ on to existing criminal laws, designed to police ‘irregular’ citizens who occupy precarious places at the margins, such as youth, those engaging in anti-social behaviour, the poor, and the homeless. Arguably these technologies do not signify the growth of state confidence so much as its resort to regulatory fixes to intractable problems of governance. It concludes by considering the implications of these developments for the attribution of responsibility both in and outside the criminal law.

The growth of right-wing extremism, especially where it segues into hate crime and terrorism, poses new challenges for governments, not least because its perpetrators are typically lone actors, often radicalized online. The United Kingdom has struggled to define, tackle or legitimate against extremism, though it already has an extensive array of terrorism-related offences that target expression, encouragement, publication and possession of terrorist material. In 2019, the United Kingdom went further to make viewing terrorist-related material online on a single occasion a crime carrying a 15-year maximum sentence. This article considers whether UK responses to extremism, particularly those that target non-violent extremism, are necessary, proportionate, effective and compliant with fundamental rights. It explores whether criminalizing the curiosity of those who explore radical political ideas constitutes legitimate criminalization or overextends state power and risks chilling effects on freedom of speech, association, academic freedom, journalistic enquiry and informed public debate—all of which are the lifeblood of a liberal democracy.

This Afterword reflects on the scope, ambitions and achievements of this substantial volume of collected essays. It reflects on the interdisciplinary, cross-jurisdictional and temporal range of the contributing chapters. It seeks to situate them in the longer history of studies of the political economy of crime and punishment, and applauds their collective revitalisation of the field. It explores the ways in which the impressive, international group of contributors explore the complex interactions between inequality, crime and punishment. In particular, it addresses the conceptual and methodological choices made in determining how to measure comparative poverty and prosperity and how to gauge relative punitiveness. The Afterword concludes by exploring promising further areas of enquiry suggested by this remarkable collection.

Counter-terrorism offences in English criminal law sit at the very limits of criminal liability. They stretch its boundaries back to points in time remote from the completed substantive offence by imposing liability for preparation and possession. They impose criminal liability upon those held responsible for the acts of third parties, even where the causal link is attenuated or the resulting harm is remote. They ascribe guilt by association on preventive grounds to those who may have done no more than join, worn the uniforms of, or shown support for proscribed organisations. They also expand the scope of omissions liability by creating positive obligations in respect of which ‘failure to’ fulfil the specified duty is an offence. Terrorism-related offences expand the growing class of preventive offences that are a feature of modern criminal law. Together, these categories of terrorism offence extend substantive criminal liability in diverse directions such that many of the risk factors which trigger referral to de-radicalisation programmes are also grounds for prosecution. The limits of criminalisation are further extended in practice by changes in police powers to stop, search and detain, changes to pre-trial procedure and, exceptionally, to the conduct of criminal trials. At the very boundaries of the criminal law, new forms of hybrid civil–criminal measures set conditions and restraints through the civil process but impose criminal liability for breach, so permitting criminalisation ‘by the back door’. Beyond the criminal law itself, immigration, counter-terrorism and security laws create quasi-punitive coercive measures that intrude upon rights of citizenship, membership and mobility. These laws and measures raise questions about what is and what ought to be criminal and how one should categorise preventive laws that lie beyond the limits of criminal liability. This chapter will explore the multiple complex strains consequently felt at the limits of a criminal law under pressure to counter the significant and continuing threat posed by terrorism.

‘Due process’ is a central concept in Anglo-American criminal justice that safeguards the rights of those subject to the criminal process and guides state officials, vital to the authority of the criminal law and the legitimacy of the legal system. Comparison reveals what is distinctive about Anglo-American and German conceptions of due process, and how far their development is the product of their legal history and local legal culture. As Galligan observes of dispute over ‘whether the adversarial nature of the trial at common law is to be preferred to the more inquisitorial procedures of continental Europe … the real debate in comparing the two approaches is not about which will lead to more correct outcomes, but rather what values are relevant’. Comparative analysis permits a better understanding of what is distinctive in the respective systems. It reveals what commonalities exist and to what extent international developments, not least the important jurisprudence on the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR), foster convergence among signatory states.

The concept of crimmigration recognizes the growing convergence of criminal law and immigration law as states seek to police migration, punish immigration offenses, and defend the boundaries of the sovereign state. Nowhere have these aims been pursued more vigorously than with respect to counter-terrorism, as states avail themselves of all legal means to target international terrorist networks and the rise of “foreign terrorist fighters.” In the U.K., legislative hyper-activity has produced a succession of counter-terrorist statutes that mix criminal law and immigration law. Some of the most draconian of these laws target the border and those who cross it. Closer attention to the territorial border reveals a liminal zone in which police and immigration officials enjoy exceptional powers and adherence to due process is attenuated. Apparent public acceptance of the imperatives of security at the border provides some license for such intrusions but little reassurance as to their legitimacy. This article examines the security concerns that motivate the expansion of police power, and it considers the impact of recent U.K. legislation, not least the Counter-Terrorism and Border Security Act 2019, on core principles of legality and on rights.

Security has always been a core function of the modern state. Yet the rise of the Preventive State captures an intensification of that role as threats to security and demands for public protection increase, prompting states to prioritize new practices of preventive criminalization, policing, and punishment. The rise of the Preventive State may promise greater security, but the costs of ever more coercive preventive laws and measures are burdensome and pose a threat to civil liberties. This review considers the drivers, multiple manifestations, and direct and collateral consequences of preventive endeavors that assess and manage risk, target hazards, and restrain or detain those deemed dangerous. It also explores their ramifications for criminology and criminal justice. It concludes by considering the potential of criminology to join cross-disciplinary efforts to articulate a new jurisprudence of security and to elaborate principles of preventive justice with which to restrain the excesses of the Preventive State.

This chapter explores the claim that the task of enacting the criminal law lies exclusively with the state. It establishes that it is for the legislature and the courts to determine the scope and substance of criminal offences. The chapter addresses some clarificatory issues concerning the parameters of privatisation and by critical examining the contention that the allocation and delivery of punishment are separable. It considers what grounds the authority of the state to criminalise and explores the implications of privatisation for the legitimacy of punishment itself. As V. Tadros observes, the criminal justice system is clearly a central and basic institution of society. The chapter deals with an appraisal of the costs of contracting out penal practices and institutions. It concludes that these are but secondary to the fundamental losses to the authority and legitimacy of criminal law and punishment wrought by privatisation.

The threat of terrorism and risks of radicalization pervade modern life. Universities are no exception, especially as young people are vulnerable to recruitment by extremist groups. Nonetheless, the decision of the United Kingdom (UK) government to place universities and other educational institutions under the statutory ‘Prevent duty,’ requiring them ‘to have due regard to the need to prevent people from being drawn into terrorism,’ is controversial. This article examines the historical background to this novel development in the complex interplay of hard and soft power security strategies. It asks why universities in the UK have been co-opted as agents of counterterrorism and reflects on the implications of the Prevent duty for fundamental rights, not least freedom of speech and academic freedom. It concludes by considering whether this security obligation is consistent with the larger role of the university in a democratic society.

This chapter examines the relationship between legal and criminological constructions of crime and explores how these have changed over time. The chapter sets out the conceptual framework of criminalization within which the two dominant constructions of crime—legal and criminological—are situated. It considers their respective contributions and the close relationship between criminal law and criminal justice. Using the framework of criminalization, the chapter considers the historical contingency of crime by examining its development over the past 300 hundred years. It analyses the normative building blocks of contemporary criminal law to explain how crime is constructed in England and Wales today and it explores some of the most important recent developments in formal criminalization in England and Wales, not least the shifting boundaries and striking expansion of criminal liability. Finally, it considers the valuable contributions made by criminology to understanding the scope of, and limits on, criminalization.

The history of criminal justice contains an apparent anomaly: the simultaneous renaissance of retributive and reparative models of justice. This chapter explores the genesis and competing claims of these two models, how it is that their fortunes have coincided, and with what consequences. The renaissance of reparative justice may be seen in part, therefore, as a rebellion against law's dominion and the reassertion of populist rights of participation. Emphasis on proportionality thus seeks to detach justification for punishment from wider theories of social justice. The renaissance of reparative justice derives its impetus from an even earlier historical tradition, for it harks back to the origins of Anglo-Saxon law when little distinction was made between public and private wrongs. At the most basic level, reparative justice is supported on the grounds that it is functional for the state to secure the payment of compensation or to support other ventures which seek to repair the damage done by crime.