Preventive turn in criminal law

ABSTRACT

Preventive turn in criminal law has been an important discussion topic in recent years. In many significant scholarly contributions, the nature of criminal justice system has been seen to be in transition from reactive measures to various preventive measures and from rights-based approach to more effective measures. Also various legislative examples from many countries illustrate that many other, often also dubious, means than criminal law are used in preventing unwanted behaviour. This development conceivably affects the foundations of the criminal justice system since the state’s response to unwanted behaviour may be founded on different objectives than criminal justice system traditionally has endorsed. The concept of preventive turn of criminal law is, however, somewhat loose and ambiguous and it has been given different meaning in scholarly discussion. In this article, the concept of preventive turn of criminal law is examined in light of the different meanings given to it in the scholarly discussion. In addition, article discusses administrative sanctioning as an alternative to criminal legislation and legislative and other endeavours to recidivism of dangerous offenders. The article is founded on liberal model of criminal law, which has stressed the role of individual autonomy and dignity and also the importance of procedural safeguards. The examples of preventive turn may risk these traditional liberal foundations of criminal justice system when the states are searching for more effective means in preventing unwanted behaviour. Traditional liberal foundations of the criminal justice system may be at risk when more effective solutions are sought. This article, thus, also seeks to examine whether it is possible to construct a rights-based liberal approach towards preventive turn of criminal law in which the liberal foundations of criminal law are proportioned to preventive measures.

KEYWORDS:

• Criminal law
• prevention
• administrative sanctions
• dangerous offenders
• neuroscience

1. Introduction

Preventive turn in criminal law has been an important discussion topic in recent years and academic discussion around the topic has been active.¹ The topic has provoked both theoretically and practically oriented contributions, in which the foundations and the nature of criminal justice system has been examined and in which various quite recently in various countries adopted legislative solutions have been seen to illustrate the preventive turn in criminal law. One of the most representable legislative examples of preventive turn is or was Anti-Social Behaviour Order (ASBO) that was adopted in the United Kingdom in 1998 and which has been thoroughly analysed in important scholarly contributions on preventive turn in criminal law.²

The concept ‘preventive turn in criminal law' is used to illustrate a fundamental change in the operation of the criminal justice system. As such, the concept, thus, contains a systemic dimension. The concept is used to describe the essential features and essential developments in contemporary criminal law. It could be, thus, compared to other efforts in describing and locating paradigm changes in criminal law, such as development from defensive to offensive criminal justice policy, like elaborated more thoroughly by Swedish criminal law scholar Nils Jareborg³, or criminal law in a risk society, a development which many criminal law scholars tried to illustrate after Ulrich Beck’s Risikogesellschaft (Risk Society).⁴

The concept of preventive turn in criminal law is, however, somewhat loose and ambiguous. Perhaps first and foremost the concept has been connected to aspirations to search more effective legislative means to meet certain threats, such as organised crime, terrorism and sexually abusive behaviour, especially towards children.⁵ This approach is most visible in Richard V. Ericson’s book ‘Crime in an Insecure World', in which Ericson analyses an urging trend to criminalise many kinds of security threats to control uncertainty. Ericson’s main argument is that basically every imaginable source of threat is treated as a crime that threatens security and various preventive means are used to manage this uncertainty. At the same time many traditional safeguards and principles that have shaped the nature and foundations of criminal justice system are eroded or eliminated.⁶

Some other contributions have connected the preventive turn in criminal law to excessive use of criminal law in overcriminalising acts and omissions and to the use of criminal law in criminalising inchoate or in fact pre-inchoate offences, such as preparation of crime and possession offences. Overcriminalisation as such means the use of the criminal justice system and its procedural safeguards but the overuse of criminal justice system focuses on broadening the scope of criminal legislation to cover preliminary stages of conceivable criminal behaviour. The purpose is to prevent actual harm from occurring by criminalising preparatory acts, possession and other action that might – or might not – in future increase the risk of the harm-affecting completed offence.⁷ It, however, needs to be noted that the approach of criminalising inchoate or pre-inchoate offences is often connected to certain security threats, like organised crime or terrorism as well as sexually abusive behaviour, and in this sense these two dimensions of the concept are at least to some extent overlapping.

Preventive turn in criminal law has also been connected to the development of technology, especially surveillance technology. Modern surveillance technologies offer vastly new possibilities in proactive crime prevention and even predictive criminal justice by combining modern surveillance technology and the possibility to provide CCTV cameras images with facial recognition system with big data made available to authorities.⁸ This kind of an approach to preventive turn of criminal law rather pictures criminal justice system as a system of intelligence than the traditional criminal justice system based on foundational principles such as requirement of guilt and principle of legality. It may be that this approach towards preventive turn portrays the future of criminal justice system in the dystopian sense, with the pessimistic view on individual liberties. While it may also be that there are proponents for more effective use of technological solutions in combating crime or – more generally – societally unwanted behaviour.

Preventive turn in criminal law has also taken its form in the development of adopting new legislative solutions in preventing unwanted behaviour. Criminal law may often not be the most effective means to prevent unwanted behaviour because it has been built on numerous procedural safeguards and constitutional limitations. In response to these concerns, the use of administrative sanctioning with its lighter procedural safeguards has become more common and is often applied as an alternative to criminal legislation to prevent unwanted behaviour. This has especially been the case in Finland, but also in European Union Law there has been a strong trend towards the use of administrative sanctioning.⁹

Finally, one line of contributions in preventive turn relate to the development of psychology and psychiatry and more generally neurosciences. It has been stated that with the help of development of neurosciences it could in the future be possible to predict criminal behaviour with the help of brain scanning technology and by adopting the use of these means in crime prevention, the society would in the future be able to prevent especially dangerous offenders from committing offences.¹⁰ This kind of approach differs greatly from traditional criminal law thinking, in which the principle of guilt has played a central role and criminal justice system has mainly acted retrospectively and respected the principle of proportionality in measuring the severity of punishment in relation to the criminal act.

This article focuses on some aspects of contemporary and future criminal law that are relevant in the development of preventive turn in criminal law and in scholarly literature on it. The perspective of this paper is partly future-oriented. It is probable that the legislative and technical development boosting the preventive turn will not disappear, it is rather more likely that technological development and neurosciences will develop even more rapidly in the future. It is therefore necessary to examine, what could be the role of criminal law and traditional criminal law principles and doctrines and procedural safeguards in this development. Would it be evitable that traditional or classical liberal criminal law has come to its end, or would it be possible to retain the most important principles of criminal law within the inevitable development of preventive justice? Or should we try to adopt the traditional aspects of liberal criminal law as a necessary part of preventive justice, perhaps with some necessary modifications and reshaping. Partly the perspective of this paper is also highly practical, since the trend in adopting administrative sanctions instead of criminal legislation is analysed.

2. The role of prevention in (criminal) law

Preventing unwanted behaviour is undoubtedly in the interest of the society and the state. In criminal law, prevention has been understood to have various meaning and various tasks within the criminal justice system. Preventing individuals from committing crimes by creating an effect that would get individuals to internalise the norms of criminal law could be said to be the general aim or general justifying aim of criminal justice system. When the rationale of criminal punishment is considered, prevention theories, which may appear in various forms with various contents, have traditionally, like commonly known, had a central role as one of the main lines of punishment theories, along with the retributive theories.¹¹ In this brief chapter, the concept of prevention is not used in order to depict the rationale of criminal punishment but the concept of prevention and its essential role in liberal criminal law is used to illustrate the foundational features of criminal law and criminal justice system that also form the shape of its contents, structures and rules, principles and concepts.

Prevention also defines the capabilities that function as preconditions for criminal liability. H.L.A. Hart, for instance, defined prevention of crime as the general aim for the criminal justice system. For its proper functioning, the preventive effect of criminal law presumes that the potential addressee of the criminal justice system is capable of rational discretion. After all, the preventive effect relies on the possible offenders’ conscious weighing of the costs and benefits of an offence.¹²

Preventing crime and other unwanted behaviour should, however, not be carried out at any cost. Traditionally there has been important constraints to prevention. These constraints are most visible in the traditional understanding of classical criminal law, which Andrew Ashworth and Lucia Zedner have called ‘the liberal model of criminal law'. The liberal model of criminal justice, according to Ashworth and Zedner, could be described as follows:

‘The purpose of criminal law is to provide for the censure and sentencing of those who commit wrongs that have been (justifiably) criminalised. No person should be liable to conviction and/or punishment unless the charge has been duly tried in a criminal court according to the procedural safeguards expressed and implied in the European Convention of Human Rights. The purpose of the criminal trial is to have an examination, by a court sitting in public, of the admissible evidence brought by the prosecution and by the defence, in order to decide whether the defendant did the act charged and, if so, was at fault for doing it.’¹³

Traditional liberal model of criminal justice has, thus, stressed the importance of individual autonomy and dignity, which have affected entire criminal justice system. Respect for individual autonomy and dignity is visible, for instance, in the requirement of foreseeability of criminalisations, prohibition of strict liability, general requirement for criminal punishments that prohibit cruel, inhuman and degrading punishments and in the enforcement of criminal punishments, in which the requirement of respecting the fundamental rights of the prisoners has a central role. The liberal model has also emphasised the role and the importance of procedural safeguards. Like commonly known, Article 6 of European Convention on Human Rights (ECHR) guaranteeing the right to a fair trial is one of the most applied articles in the case law of European Court of Human Rights (ECtHR). ECtHR has developed an extensive framework on the fairness of criminal proceedings.¹⁴ This is due to the essential nature of fairness of criminal proceedings within the requirement of rule of law.

The traditional liberal model of criminal justice is, however, in risk or at least partly losing its importance when new legislative approaches other than criminal law are adopted. In the following, few examples of recent development in criminal law are presented, both illustrating the tension in which the foundations of liberal criminal justice are now situated. Another example is mostly from Finnish legislative development, in which the use of administrative sanctioning has greatly increased in recent years. While administrative sanctions are also more commonly regarded as alternative to criminal sanctions and when administrative sanctions are to be imposed more effectively and with lighter procedural safeguards, the analysis is of broader significance. Another example, in turn, is more universal. Dangerous offenders have constituted a vicious problem to criminal law for centuries. Recent developments in neuroscience may radically alter the way the legal system will treat dangerousness and dangerous individuals in the future. This picture of the future has also some darker shades.

3. Administrative sanctioning as an effective alternative to criminal law

In Finland, there has been a strong trend towards the more extensive use of administrative sanctioning in preventing unwanted behaviour in recent years. Numerous monetary administrative sanctions have been introduced in Finland to prevent unwanted behaviour in various fields, ranging from minor traffic offences to transportation of dangerous material and to financial market and data protection. In many fields introducing administrative sanctions derives from the legislation of the European Union, in which administrative sanctions are commonly used. The monetary value of these sanctions varies from 40 euros to millions or even tens of millions of euros. These administrative sanctions, thus, are monetary sanctions sanctioning breaches of legislative obligations and the legislator has considered the importance of these obligations to be worth of sanctioning. The legislator has, however, assessed the ‘sanctioning value' of these breaches to be comparable to acts that have been criminalised and sanctions with criminal sanctions. In the Finnish legislative practice administrative sanctions that infringe the property of the sanctioned are, however, in many respects associated and identified by characteristics and requirements similar to criminal sanctions.

Administrative sanctions described in this section are monetary sanctions that are directed towards the property of the sanctioned individual or legal entity. Property is a fundamental right guaranteed in Section 15 of the Finnish Constitution. These sanctions are, thus, sanctions that infringe the constitutional right of an individual. Administrative sanctions are often also directed directly towards legal entity, which, according to the Finnish Constitution are not directly subjects to fundamental rights guaranteed in the Constitution. It is, however, seen that many fundamental rights guaranteed in the Finnish Constitution from their nature are such that excluding legal entities from the scope of application of these rights would be against the purpose of the protection guaranteed in the Constitution and most evidently illustrated by fundamental rights provisions.¹⁵ Legal entities, according to Finnish legislation, are individual legal subjects, which possess, inter alia, their possessions that are separated from the possessions of the owners of the legal entity (see, for example, Finnish Limited Liabilities Company Act, Chapter 1, Section 2, Subsection 1).¹⁶ When the possessions of the legal entity are separate from the possession of its owners or shareholders, while legal entities are individual legal persons, this also means that monetary administrative sanctions directed against legal entities directly infringe the possessions of the entity. The constitutional protection of property, thus, extends its reach also upon legal entities. It needs, however, to be noted that the variety of administrative sanctions in Finland is broad and not all sanctions are applicable to legal entities.

One of the most recent and illustrative Finnish example, the practical and more fundamental effects of which have also been very far-reaching, in this respect is minor traffic offences. All traffic offences, even minor ones, used to be criminal offences in Finland until 2018. The most minor offences were, however, punishable with fixed fine, on-the-spot fine. In any case, all traffic offences were criminal offences punished with criminal sanctions. In 2018, a new legislative approach was adopted that fundamentally changed the legislative approach towards minor traffic offences. After the 2018 reform all minor traffic offences in Finland fall under the administrative sanctioning system (Traffic Act, 729/2018, Chapter 6). More severe traffic offences remain criminal offences and are criminalised in the Chapter 23 of the Finnish Penal Code. Traffic offences that are committed in a manner conducive to causing hazard to others are criminalised in the Penal Code (Chapter 23, Section 1, provisions on causing a traffic hazard) but minor breaches of traffic rules, such as moderate speeding, are administratively sanctioned.¹⁷

There are various reasons behind introducing monetary administrative sanctions. Firstly, criminal law and especially criminal process may be considered to be too slow and not effective enough. The operation of criminal justice system requires resources of investigation officials, prosecutors and judges, and when an individual is sentenced to punishment, also resources of executive authority are required. Criminal processes are often slow, which makes criminal process to seem ineffective. Criminal legislation contains several restraints, such as requirements for subjective guilt, that could be hard to prove and gathering the required evidence for criminal trial is also in general costly and time-consuming. Extensive procedural safeguards guaranteed for the defendant may also be seen rather as increasing the ineffectiveness of the criminal process if the fundamental nature and significance of these safeguards is not properly understood. When compared to various kinds of summary processes, criminal justice system may look hopelessly slow and ineffective. Administrative sanctioning may appear as noteworthy alternative to criminal justice system with its lighter procedural safeguards and other fundamental requirements.¹⁸

On the other hand, there might also be a certain kind of consistent and coherent logic reflecting the understanding on the nature of criminal justice system and other sanctioning systems behind the more common use of administrative sanctioning. When criminal law is traditionally seen as ultima ratio¹⁹, as a last resort, the purpose of the legislator has been to use administrative sanctioning in minor violations of legal norms and not to put too much strain to criminal justice system, which should concentrate on criminalising more serious offences.²⁰ The development, thus, has also positive consequences because if criminal law is used to punish everything, the function of criminalisation and punishment might become inflationary. The other side of the coin is, however, procedural safeguards that are traditionally much lighter in the system of administrative sanctions and in the process these sanctions are imposed.

In Finland, there is no general legislation defining the general principles for administrative sanctions. Substantive legislation and various acts contain various provisions on the acts or omissions sanctioned, on the monetary amount of these sanctions and on the execution of these sanctions but there are no provisions on the ‘general doctrines' of these sanctions. This is different to criminal justice system because Finnish Criminal Code contains several provisions on the most important general doctrines of criminal law (see especially Chapter 3 and 4 of the Finnish Criminal Code). The system of general doctrines of criminal law has also developed in legal science from the late 1800s, and it could be stated the general doctrines of Finnish criminal law are well founded and sedimented in the legal culture of Finnish criminal law.

In contrast, the system of administrative sanctions is relatively new and the sanctions cover a wide and pretty heterogeneous range of obligations set in substantive legislation the areas of which vary from traffic to financial market, common fisheries policy and data protection. Also the monetary amount of the sanctions vary from tens of euros to tens of millions of euros. The ‘system' of administrative sanctions could, thus, be described as relatively heterogenous.

The Constitutional Law Committee of the Finnish Parliament has, however, begun to set constitutional restraints and requirements for administrative sanctions. The Committee formulated some of these requirements first in the early 2000s and has since then widened its constitutional perspective towards administrative sanctions to cover the requirements for accuracy of provisions describing the sanctioned activity, proportionality of the sanction and the process in which the sanction is imposed.²¹ Firstly the Committee has stated that the provision on principle of legality, included in the Section 8 of the Finnish Constitution, is not as such applicable to administrative sanctions since according to the wording of the Section it applies to criminal offences and criminal sanctions and administrative sanctions are not criminal sanctions. The Committee has, however, stated that the general requirement of the accuracy of legislation apply to administrative sanctions.²² The Committee has also stated that acts that are administratively sanctioned should as a rule require intent or negligence, but strict liability is also exceptionally possible, if reversed burden of proof is excluded in the process of imposing the sanction.²³ In addition, the Constitutional Law Committee has stated that as a rule administrative sanctions are matters that belong to the competence of competent authorities and, when administrative decision on imposing the sanction is appealed, to administrative courts.²⁴ Overall, the constitutional restraints and requirements for administrative sanctions formulated by the Constitutional Law Committee of the Parliament of Finland are currently well established and it could be stated that the Constitutional Law Committee has in its practice developed general doctrines for administrative sanctions.

The constitutional requirements set for administrative sanctions set by the Constitutional Law Committee resemble in many respects the requirements set for criminal legislation and criminal process. The requirement for preciseness resembles the utterly important requirement that the principle of legality sets for the foreseeability of criminal legislation. The requirement for subjective guilt resembles similar kind of requirement in criminal law albeit strict liability is in some situations possible in administrative sanctioning whereas it is forbidden in Finnish criminal law.²⁵ Also, the requirement for procedural safeguards, such as presumption of innocence and that burden of proof must not be reversed, resemble requirements and safeguards developed for criminal procedure.

If this development is viewed from the perspective of preventive turn in criminal law, it is quite obvious that in many cases the purpose of increased use of administrative sanctions is for desire for more effectiveness in sanctioning. When more effectiveness is sought in relation to legislation that affects the fundamental rights of the individuals, there is, however, also an inevitable need for counterforces that balance and harness the strivings for more effectiveness. Constitutional restraints and requirements developed from the basis of similar restraints and requirements belonging to criminal justice system act as necessary balancing factors in this development. Borrowing perspectives, principles and legislative solutions from criminal law and procedure and developing these requirements to fit administrative sanctioning could be the start for development of ‘liberal approach to administrative sanctioning'.

On the other hand, when the restraints for administrative sanctions are at least to some extent borrowed and developed from the basis of criminal law and criminal procedure, there could be a danger that we are in fact developing some kind of a ‘light version' of criminal law and procedure, which in fact operates in areas in which criminal law has traditionally operated but which is operating with lighter constitutional requirements and procedural safeguards. In addition, if traditional criminal law concepts, such as intent, are used in the system of administrative sanctioning and if these concepts do not have independent contents and developed doctrines outside criminal law, there is a risk that these concepts and doctrines are applied in administrative proceedings without comprehensive understanding of the tradition and contents of these concepts and doctrines. There is, thus, a risk for that the interpretation of these concepts and doctrines may become differentiated.

The development of constitutional restraints and requirements for the system of administrative sanctioning in Finland, however, illustrates that the development that belongs to preventive turn in (criminal) law could be harnessed and the strivings for greater effectiveness could be created necessary counterforces that take the rights of the individual duly into account.

4. Dangerous offenders

One of the basic presumptions of liberal criminal law, like described earlier, is respect for individual autonomy and dignity. In addition, liberal criminal law sees individuals as actors capable of rational deliberation and choice and actors capable of being responsible for their acts whether the acts are in the interest of the society or not. Antony Duff has stated that in society in general, citizens are seen to be harmless.²⁶ This is in line with the basic requirement of respecting human dignity.²⁷ If individuals are primarily seen as security threats, human dignity would not be respected. Respect for human dignity is also a presupposition in fair treatment of the subjects of the criminal justice system, which affects in all levels of the criminal justice system, from criminalisation to sentencing and execution of punishments.²⁸

Seeing individual as a threat to security, seeing an individual to be dangerous, illustrates totally a different kind of approach towards criminal justice system and a picture of an individual it presupposes. Generally, the relation between criminal justice system and an individual has been tensed. Different traditions in the history of criminal law have adopted somewhat different positions towards the role of individual. In the philosophy of criminal law there has, for example, been a vivid discussion on whether the character of an individual and the evaluation of it should be the basis of the foundations of criminal liability instead of the act and the evaluation of the act. The emphasis on character has been typical to pre-modern attributions to criminal liability but in recent years we have witnessed a possible revival of insights that stress the role of character in criminal responsibility. Anti-terrorism legislation and various efforts to minimise the risk of dangerous recidivists could serve as an example of relatively new legislative efforts that at least to some extent emphasise the character of the potential offender as a relevant factor relative to criminal responsibility.²⁹

If criminal justice system is wholly or even partly construed with the help of theories that emphasise the role of individual’s character, the system’s relation to individual — and vice versa — becomes slightly puzzled. At least some individuals are seen as potential enemies and they are seen to possess character traits that may manifest or increase the probability for criminal responsibility.³⁰ From the viewpoint of the individual, a central element of trust that an individual needs to have towards the system, could be in danger.³¹ If the criminal justice system shows disrespect towards individuals, it is more likely that an individual does not consider the system legitimate and the likelihood for deviation from the rules set by the system increases. The system like this also has a different kind of relation to human dignity than traditional ‘liberal criminal law'.

Criminal justice system is a part of a political community and the design of the criminal justice system is always a subject of political choice—albeit there are significant constitutional restraints that limit this political discretion and mean that the design of the criminal law and criminal justice does not totally fall under the sphere of entirely free political discretion but is a combination of legal and political considerations, goals and restraints.³² Within this combination of political and legal discretion of great importance is the relation that is adopted between an individual and the criminal justice system. Within the classical rule of law respecting criminal justice system the system is designed for the individuals. This kind of criminal justice system appreciates its liberal foundations by, for example, determining punishment as limited and finite: principle of proportionality is appreciated and imprisonment is considered as a last resort.³³ Liberal criminal justice system treats offenders as fellow citizens because the system is designed by individuals for individuals.³⁴

Taking this into account, dangerous individuals and, most concretely, individuals who repeatedly commit serious violent crimes cause a significant problem to criminal justice system. Some scholars have stated that persistent patterns of serious violence are to be interpreted as the dangerous offender’s disregard for the values of the community, which could act as a reason for excluding a dangerous offender from the society.³⁵ The security of another individuals may in some situations require the state to realise necessary measures to protect the life and physical integrity of an individual if there is a risk that another individual is in risk of violent behaviour.

In this respect, European Court of Human Rights has in its case law formulated a positive obligation to a state to protect individuals from violent behaviour of another individuals. In its famous case Osman, ECtHR formulated the so-called Osman-test under which the states have a positive obligation to protect the life of an individual. The Court stated that a state’s action is in violation with the obligation when ‘the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.'³⁶ The state’s positive obligation may require ‘traditional' preventive measures such as the use of restraining orders, but it may also require more far-reaching means, such as special punishment or other measures for dangerous re-offenders, possibly containing certain kind of surveillance of such individuals.

Assessing whether an individual poses a threat to other individuals in the future is a matter of prediction. Liberal criminal law has traditionally been backward-looking and censure is directed to an act committed. When sentencing is considered, principle of proportionality also focuses on the criminal act committed, while the general justifying aim of criminal justice system in traditional liberal criminal law thinking has been (general) prevention.³⁷ Preventive justice, in turn, focuses solely on prevention, on preventing future unwanted behaviour. Dangerous re-offender has committed serious offences in the past but preventive justice – and also the state’s positive obligation to protect fundamental rights – concentrates on predictions of individual’s future dangerous behaviour. If coercion towards an individual is put into action based on this kind of prediction, the criminal justice system does not wholly respect the dignity of an individual, because if coercion is based on prediction, we will not know how the ‘offender' would have acted and would she have committed an offence.³⁸ Coercive measures infringing the fundamental rights of an individual are enacted based on prediction of the future risk the individual poses on the security.

Statistical and clinical predictions on individual’s future dangerousness have traditionally been relatively inaccurate.³⁹ There is also further uncertainty on the sufficient level of probability of dangerousness. Should, for example, prediction for the risk of committing a serious violent crime in the future be 50 percent or 75 percent of even more?⁴⁰ Recent scholarly literature has stressed the importance and the role of neuroethics in various legal connections. Rapid development of neurosciences, such as brain scanning technologies, may greatly improve the accuracy of such predictions. Development of neurosciences may also reveal new information on, for example, psychopathy, which has been a complicated and difficult issue for criminal law scholars and psychiatrists, when responsibility and the role of insanity is discussed.⁴¹ The rapid development of technology and neuroscience may in the future offer more detailed and information revealing brain scans that may tell us detailed information about structural damages or functions of individual’s brain the accuracy of which is such that it suffices to fulfil the Osman-test’s requirement of ‘real and immediate risk' and thus the positive obligation would be triggered. In this situation it would be necessary to consider what would be the adequate legal constraints and requirements for preventive measures directed towards an individual. An important starting point of these considerations would be respect for individual autonomy and dignity, along with the foundations of liberal criminal law.

5. Conclusions

The foundations and ideals of liberal criminal law are challenged by preventive turn in criminal law. Preventive turn, as illustrated with the examples presented above, seems to be a development that is inevitable. Partly it could also be stated that prevention as an objective is a desired one and preventing unwanted behaviour and future risks from realising should in principle be acceptable, but not at any cost. The concept of preventive criminal law is, however, somewhat loose and even a bit over extensive and a more nuanced and structure examination of the concept would be of important when the role, nature and foundations of the criminal justice system in this development are assessed.

Preventive turn in criminal law has meant more effective use of alternative legislative solutions similar to criminal legislation that seek to prevent unwanted behaviour. The development of preventive criminal law could also mean that opportunities offered by technology and science are somewhat audaciously utilised in criminal justice system without taking into account that criminal justice system always involves aspects sensitive to human and fundamental rights and necessary require adequate safeguards. Traditional foundations and presuppositions of liberal criminal law and constitutional restraints developed for criminal law could, thus, offer a useful starting point in constructing a rights-based approach to preventive justice. In addition, when neuroscience in the (near) future offers new and potentially useful solutions to criminal law related problems, more active dialogue with legal scholars and psychiatrists and psychologists would be needed to enhance mutual understanding on the foundations of areas that are dealing with a shared problem (criminality or other unwanted behaviour) but the foundations and presuppositions of which seem to be somewhat different.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 A thorough contribution in which the topic is discussed from historical and theoretical perspective is Henrique Carvalho, The Preventive Turn in Criminal Law (OUP 2017). Anti Social Behavior Order has subsequently been replaced by Community Protection Notice (CPN) or Criminal Behaviour Order (CBO) that are used in England, Wales and Northern Ireland. ASBO is still in use in Scotland.

2 See, e.g., Andrew Ashworth and Lucia Zedner, Preventive Justice (OUP 2014) 78–89.

3 Nils Jareborg, ‘What Kind of Criminal Law We Want?: On Defensive and Offensive Criminal Law Policy’ in Annika Snare (ed), Beware of Punishment: On the Utility and Futility of Criminal Law (Uppsala Universitet 1995) 19.

4 Ulrich Beck, Risk Society: Towards a New Modernity (Sage 1992).

5 See, e.g., Antony Duff, ‘Symposium on Preventive Justice Preface’ (2015) 9 Criminal Law and Philosophy 499.

6 Richard V Ericsen, Crime in an Insecure World (Polity 2007) 1–2, 21–30.

7 See, e.g., Ashworth and Zedner (n 1) Chapter 5.

8 For example, Andrew Guthrie Ferguson, The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement (NYU Press 2015).

9 See, e.g., Markus Kärner, ‘Interplay between European Union criminal law and administrative sanctions: Constituent elements of transposing punitive administrative sanctions into national law’ (2022) 13 New European Journal of Criminal Law 42.

10 See, e.g., Susan Dimock, ‘Criminalizing Dangerousness: How to Preventively Detain Dangerous Offenders’ (2015) 9 Criminal Law and Philosophy 537.

11 On recent contribution on the topic see, Michal Tonry, Doing Justice, Preventing Crime (OUP 2020) 127–46.

12 HLA Hart, Punishment and Responsibility. Essays in the Philosophy of Law (Clarendon Press 1968) 6–13.

13 Andrew Ashworth and Lucia Zedner, ‘Defending the Criminal Law: Reflections on the Changing Character of Crime, Procedure, and Sanctions’ (2008) 2 Criminal Law and Philosophy 21, 22.

14 See, e.g., Guide on Article 6 of the European Convention on Human Rights. The Right to a Fair Trial (Criminal Limb). European Court of Human Rights. Updated on 31 August 2022. <www.echr.coe.int/documents/guide_art_6_criminal_eng.pdf> accessed 31 March 2023.

15 See Government’s Proposal 309/1993 vp, p. 23.

16 See also Government’s Proposal 109/2005 vp, p. 38.

17 See Government’s Proposal 180/2017 vp, Statement of the Constitutional Law Committee of the Parliament 9/2018 vp, Statement of the Law Committee of the Parliament 9/2018 vp and the Statement of the Transport and Communications Committee of the Parliament 16/2018 vp.

18 See, e.g., Sakari Melander, Kriminalisointiteoria – rangaistavaksi säätämisen oikeudelliset rajoitukset (Suomalainen Lakimiesyhdistys 2008) 417.

19 On the principle of ultima ratio, see, for example, Nils Jareborg, ‘Criminalization as Last Resort (Ultima Ratio)’ (2005) 2 Ohio State Journal of Criminal Law 521. The principle has its origins in the classical criminal law thinking of the 1800’s and especially in German criminal law theory. See Karl Binding, Lehrbuch des Gemeinen Deutschen Strafrechts. Besonderer Teil. Erster Band. 2. Aufl. (Verlag von Wilhelm Engelmann 1920) 20. See also Sakari Melander, ‘Ultima Ratio in EU Criminal Law’ (2013) 3 European Criminal Law Review, 45, 51–3.

20 Statement of the Constitutional Law Committee of the Finnish Parliament 9/2018 vp.

21 See, e.g., Statement of the Constitutional Law Committee 57/2010 vp and Statement of the Constitutional Law Committee 46/2021 vp.

22 Originally see Statement of the Constitutional Law Committee 74/2002 vp, 5. See also, e.g., Statement of the Constitutional Law Committee 46/2021 vp, para 13.

23 E.g., Statement of the Constitutional Law Committee 39/2017 vp, 3–4, Statement of the Constitutional Law Committee 9/2018 vp, p. 4 and Statement of the Constitutional Law Committee 32/2005 vp, 5.

24 Statement of the Constitutional Law Committee 12/2019 vp, 9–11.

25 On Finnish law in this respect see, e.g, Sakari Melander, Rikosvastuun yleiset edellytykset (Tietosanoma 2016), 145. Generally on strict liability from the perspective of criminal law theory see Stuart P Green, ‘Six Senses of Strict Liability: A Plea of Formalism’ in AP Simester (ed), Appraising Strict Liability (OUP 2005) 1–20.

26 Antony Duff, ‘Dangerousness and Citizenship’ in Andrew Ashworth – Martin Wasik (eds), Fundamentals of Sentencing Theory: Essays in Honor of Andrew von Hirsch (Clarendon Press 1998) 141, 161.

27 According to the Section 1, Subsection 2 of the Finnish Constitution the Constitution shall guarantee the inviolability of human dignity. The human dignity has been seen as a constitutional value or a constitutional principle, which secures the principle of individual autonomy. See Government’s Proposal 309/1993 vp, 42. On scholarly contributions on the role of human dignity in criminal law see, e.g., Tatjana Hörnle and Mordechai Kremnitzer, ‘Human Dignity as a Protected Interest in the Criminal Law’ (2012) 44 Israel Law Review, 143–67.

28 See also Tonry (n 11) 40.

29 Generally on the revival of character see Nicola Lacey, ‘The Resurgence of Character’ in RA Duff – Stuart P Green (eds), Philosophical Foundations of Criminal Law (OUP 2011) 151–78.

30 This kind of approach resembles the controversial concept of Feindstrafrecht or enemy criminal law was first introduced by German criminal law scholar Günther Jacobs. See, e.g., Günther Jakobs, ‘Bürgerstrafrecht und Feindstrafrecht’ (2004) 5 HRR-Strafrecht 88, 92.

31 On the role of trust toward official institutions and its significance in criminal justice policy see Tapio Lappi-Seppälä, ‘Trust, welfare, and political culture: Explaining the differences in national penal policies’ (2008) 37 Crime and Justice 313.

32 More detailed on these restraints from the Finnish perspective see Sakari Melander, ‘Criminalization and its Limitations: The Finnish Perspective’ (2017) 5 Peking University Law Journal 51.

33 See, e.g., RA Duff, Responsibility, ‘Citizenship, and Criminal Law’ in RA Duff – Stuart P Green (eds), Philosophical Foundations of Criminal Law (Oxford University Press 2011) 125, 145.

34 One could speak – as RA Duff does – of citizens here, but in this paper a more neutral expression individual is – in most connections – chosen because the ongoing development of digitalization connected with globalization could make it more problematic to speak of citizens since the expression points to citizens of a certain state. In a contemporary world we should, perhaps, examine the possibilities to design criminal law and criminal justice system from more general perspective that is not restricted within borders of a certain state.

35 Duff (n 26) 22; Susan Dimock, ‘Criminalizing Dangerousness: How to Preventively Detain Dangerous Offenders’ (2015) 9 Criminal Law and Philosophy 538.

36 Osman v UK ECHR 1988-VIII 3124, para 116.

37 On the foundations of the principle of proportionality see Jesper Ryberg, ‘Retributivism and the (Lack of) Justification of Proportionality’ (2021) 15 Criminal Law and Philosophy 447.

38 See also David Cole, ‘The Difference Prevention Makes: Regulating Preventive Justice’ (2015) 9 Criminal Law and Philosophy 501.

39 See, e.g., Taanvi Ramesh, Artemis Igoumenou, Maria Vazquez Montes and Seena Fazel, ‘Use of risk assessment instruments to predict violence in forensic psychiatric hospitals: a systematic review and meta-analysis’ (2018) 52 European Psychiatry 47. From the Finnish point of view see also Petteri Joelsson, Katja Repo and Aulikki Ahlgrén-Rimpiläinen, ‘Particularly dangerous offenders in Finland – need for substance use rehabilitation’ (2021) 32 Journal of Forensic Psychiatry & Psychology 752, 756.

40 Thomas Søbirk Petersen, ‘(Neuro)predictions, Dangerousness, and Retributivism’ (2014) 18 Journal of Ethics 137, 138.

41 See, e.g., Luca Malatesti and John McMillan (eds), Responsibility and Psychopathy. Interfacing Law, Psychiatry, and Philosophy (OUP 2010).