OHANA Trus, Distrust and Reassurance

Trust, Distrust and Reassurance: Diversion and Preventive
Orders Through the Prism of Feindstrafrecht

Daniel Ohanan
This article considers Gˇnther Jakobs’ controversial theory of ‘the criminal law of the enemy’
(Feindstrafrecht). Taking an interpretive perspective that is anchored in social theory, rather than
normative principles, the article traces 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 and preventive orders in
criminal justice. It identi¢es the various ways in which these current alternatives to the criminal
sanctioning process link with neo-liberal technologies of government 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.
INTRODUCTION
Just over a decade ago, Gˇnther Jakobs, the prominent and in£uential 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 o¡enders and terrorists, Jakobs argued, should be made subject to a special
paradigm of criminal law. Signi¢cantly, 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
European jurisdictions, spawning a £urry of commentary. This development is
hardly surprising, given that the turn of the millennium in many European jur-
n
Teaching Fellow, Institute of Criminology and Faculty of Law, Hebrew University of Jerusalem;
Faculty of Law,Tel Aviv University. The ¢nancial support of the DAAD Center for German Studies
at the European Forum of the Hebrew University of Jerusalem is appreciatively acknowledged. I am
grateful for the hospitality of Knut Amelung during my visit at the Technische Universitaºt Dresden,
and for the comments of Leslie Sebba, Miriam Gur-Arye and the anonymous reviewers.
1 Jakobs presented his theory at a major conference concerning ‘the German science of criminal law
at the turn of the century.’ G. Jakobs,‘Selbstverstaºndnis der Strafrechtswissenschaft vor den Her-
ausforderungen der Gegenwart (Kommentar)’ in A. Eser,W. Hassemer, and B. Burkhardt (eds),
Die Deutsche Strafrechtswissenschaft vor der Jahrtausendwende (Mˇnchen: Beck, 2000) 47. In the paper
presented at the conference, Jakobs developed the notion of Feindstrafrecht which he ¢rst conceived
about ¢fteen years earlier, without subsequently expanding upon it at length. Surprisingly,
Jakobs made a volte-face, as the idea of Feindstrafrecht originally conveyed his opposition to the
extension of the criminal law through the criminalisation of courses of conduct that only present
a remote threat of harm. See G. Jakobs,‘Kriminalisierung imVorfeld einer Rechtsgutsverletzung’
(1985) 97 Zeitschrift fˇr die gesamte Strafrechtswissenschaft 751. On the German notion of ‘science of
criminal law’see generally M. D. Dubber,‘The Promise of German Criminal Law: A Science of
Crime and Punishment’ (2005) 6 German LawJournal 1049.
r 2010 The Author. Journal Compilation r 2010 The Modern Law Review Limited. (2010) 73(5) 721^751
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Trust, Distrust and Reassurance
isdictions has been characterised by the enactment of a spate of legal measures

bearing the imprint of the patterns of lawmaking sketched out by Jakobs.
Discussion thus far of Jakobs’ theory has primarily concerned those aspects of it
which o¡er a warrant for the di¡erential treatment of actors branded as enemies of
society. This article, however, takes a di¡erent approach by focusing on the con-
stitution of the responsible citizen in Jakobs’ account as a loyal member of the
polity who autonomously cultivates a readiness to follow the norms of the crim-
inal law, thereby upholding its power to command authority and facilitate inter-
action between anonymous actors in society. It endeavours to articulate the
relevance of Jakobs’ account to English law, particularly as regards the growing
role of diversion and preventive orders. It looks broadly at the historical, political
and social conditions under which these alternatives to the criminal sanctioning
process emerged, and explores the ways in which they connect with prevailing
practices of governance and intellectual ideas.2 To be sure, Jakobs himself does
not discuss the wider historical, political and socio-economic context when
addressing recent legal developments in crime prevention policy ^ short of a few
£eeting comments bemoaning the breakdown of national identity, family values
and state-sponsored religion in the wake of increasing globalisation and multicul-
turalism.3 Yet, by tracing the implications of Jakobs’ central claims concerning
trust relations in society as mediated by the criminal law, I argue that the broad-
ening of the use of diversion and preventive orders constitutes a visible represen-
tation of part of a wider transformation which has been taking place in trust
relations between, on the one hand, the state and its citizens (vertical trust rela-
tions), and, on the other, amongst members of society (horizontal trust relations).
This transformation forms part of a pattern of major change in government and
the provision of its services over the past few decades, as neo-liberal governance
has displaced Keynesian welfarism, ushering in a new regulatory state.4 Though
the rise of neo-liberalism to the position of a dominant political, economic and
regulatory paradigm constitutes a complex and multi-faceted phenomenon, this
paper focuses on two strategies characteristic of this mode of governance: ¢rst,
encouraging individuals to take responsibility for shaping their life-project and
to manage its attendant risks by curbing state interventions designed to alleviate
socio-economic disadvantage and protect against the vicissitudes of the market;
and, second, inducing the private sector to assume functions and deliver services
previously o¡ered by the state, while the state takes on a supervisory role, govern-
ing at a distance its newfound ‘partners’ via such mechanisms as the audit and
enforced self-regulation.
The argument proceeds as follows. I begin by presenting the main tenets of
Jakobs’ theory of criminal law and punishment, and then review the numerous
grievances that have been voiced against Jakobs’theory of Feindstrafrecht in the Ger-
man criminal law literature.The remainder of the paper discusses the relevance of
2 See generally N. Lacey,‘Legal Constructions of Crime’ in M. Maguire, R. Morgan and R. Reiner

(eds),The Oxford Handbook of Criminology (Oxford: Oxford University Press, 4th ed, 2007) 179.
3 G. Jakobs,‘Selbstverstaºndnis der Strafrechtswissenschaft vor den Herausforderungen der Gegen-
wart (Kommentar)’ n 1 above, 52.
4 See generally J. Braithwaite,‘The New Regulatory State and theTransformation of Criminology’
(2000) 40 BritishJournal of Criminology 222.
r 2010 The Author. Journal Compilation r 2010 The Modern Law Review Limited.
722 (2010) 73(5) 721^751
Daniel Ohana
Feindstrafrecht to English law in the light of Jakobs’ account of the criminal law as a
mechanism for developing and maintaining trust in social relations. The discus-
sion starts by providing an overview of key themes and concepts discussed in the
research on trust relations which has £ourished over the past few decades in the
humanities and social sciences. I then £esh out the article’s ¢rst claim. Building on
the Foucauldian governmentality literature, I argue that the diversion mechanism
of the simple caution ‘governmentalises’ trust by conceiving and addressing the
o¡ender as a trustworthy citizen, thereby indirectly motivating him to follow
the law out of his own initiative. Next, the article’s second claim is defended. I
probe the symbolic signi¢cance of the emergence of the preventive order as an
important tool of crime control over the past decade in the light of recent research
on the ascent of auditing as a meta-regulatory mechanism. Drawing parallels
with the audit, I demonstrate that the preventive order acts to bolster the trust of
the public in the power of the criminal law to command authority by manifest-
ing distrust in members of the polity whose conduct is suggestive of a de¢cient
capacity and commitment to conform to its norms.
GNTHER JAKOBS’ THEORY OF CRIMINAL LAW AND

PUNISHMENT
Unlike many German legal scholars who posit that the criminal law protects legal
goods (Rechtsgˇter),5 Jakobs asserts that the criminal law ful¢ls the speci¢c func-
tion of upholding the validity of legal norms.6 Speci¢cally, the criminal law gen-
erates expectations of conduct and consistently upholds them over time. Jakobs
theorises 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 su⁄ce to lay the groundwork for interaction between anon-
ymous actors.7 Law can adequately carry out this function only if members of
society trust8 that the validity (Geltung) of legal norms is generally recognised,
ie, that these norms actually guide the conduct of their fellow citizens. Accord-
ingly, citizens are expected to develop, on their own, a readiness to follow norms,
or ^ as Jakobs more generally puts it ^ cultivate loyalty towards the law
5 See generally M. D. Dubber, ‘Theories of Crime and Punishment in German Criminal Law’
(2005) 53 AmericanJournal of Comparative Law 679, 682^696.
6 See generally G. Jakobs, Strafrecht: AllgemeinerTeil (Berlin: Walter de Gruyter, 2nd ed, 1991) 34^49.
For an overview of Jakobs theory of criminal law and punishment see A. Kalous, Positive General-
praºvention durchVergeltung (Regensburg: Roderer, 2000); M. Sacher,‘Systemtheorie und Strafrecht’
(2006) 118 Zeitschrift fˇr die gesamte Strafrechtswissenschaft 574.
7 In this speci¢c respect, Jakobs analysis follows in the tracks of Niklas Luhmann’s sociological the-
ory of law. See generally N. Luhmann, A Sociological Theory of Law (London: Routledge and
Kegan Paul,1985); N. Luhmann, Lawas a Social System (Oxford and NewYork: Oxford University
Press, 2004).
8 Jakobs uses the term‘Vertrauen’. See G. Jakobs,‘Bˇrgerstrafrecht und Feindstrafrecht’ (2004) H˛ch-
strichterliche Rechtsprechung im Strafrecht 88. This term can be translated either as ‘con¢dence’ or
‘trust’. Signi¢cantly, many English-speaking commentators argue that these two terms are not
co-extensive, especially insofar as trust in institutions is concerned. See n 46 below.
(2010) 73(5) 721^751 723
(Rechtstreue).9 The posture of loyalty assumed by the citizen anchors the expecta-
tions of 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
constant worry about being wronged.
Jakobs draws a distinction between two modes of communication: personal
communication and instrumental communication.10 In the former, the law
addresses the individual as a ‘person-in-law’, 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 expects that the citizen will diligently run his life, without
there being any need for measures of deterrence or more direct forms of coercion.
In a modern, non-totalitarian state, Jakobs explains, criminal culpability and
responsibility are paradigmatically outcome-based, though liability may also
obtain for crimes of endangerment or a‘beyond preparation’ attempt. As punitive
intervention is only authorised in the event of a violation of a legal norm, the law
institutes the freedom of the citizen, constituting him as a self-governing subject
who cultivates law-abidingness on his own.11 In the mode of instrumental com-
munication, 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 ensure that the law is obeyed. The actor is thus addressed as an indivi-
dual who does not feel duty-bound toward the law and who only views norms as
an external constraint on the pursuit of his goals.
Following Jakobs’ account of crime, the o¡ender, by engaging in criminal con-
duct, calls into question the validity of the applicable norm.The o¡ender neglects
to properly ful¢l his role as a loyal citizen, failing to meet the expectations of his
fellow members of the polity. Punishment, in turn, performs the manifest func-
tion of delivering a counter-response: it con¢rms that the norm stands valid,
thereby making it clear to the o¡ender and his fellow citizens that the act is unac-
ceptable, and that this is not open to debate.12 Hard treatment forms an integral
9 G. Jakobs, ‘Individuum und Person’ (2005) 117 Zeitschrift fˇr die gesamte Strafrechtswissenschaft 245,
264; G. Jakobs, ‘Imputation in Criminal Law and the Conditions for Norm Validity’ (2004) 7
Bu¡alo Criminal Law Review 491, 498, 505 (2004).
10 G. Jakobs, ‘Das Strafrecht zwischen Funktionalismus und ‘‘alteuropaºischem’’ Prinzipiendenken’
(1995) 107 Zeitschrift fˇr die gesamte Strafrechtswissenschaft 843, 867^876.
11 But, Jakobs adds, once an inquiry is undertaken ex post facto as to whether the breach of the legal
norm is not to be imputed to the actor ^ by reason of a claim of excuse, such as mistake of fact or
law ^ attention should not focus solely on the choices made by the actor at the moment he acted in
violation of the law. Rather, it should also extend to matters pertaining to the way the actor
shaped his life project, insofar as these ¢nd expression in the conduct concerned. In the Anglo-
American criminal law literature, it has been debated, in the same vein, whether the o¡ender’s
choice, character or wrongful act constitutes the proper object of criminal responsibility. For an
overview of this debate see eg R. A. Du¡,‘Virtue,Vice and Criminal Liability: Do We Want an
Aristotelian Criminal Law’ (2002) 6 Bu¡alo Criminal Law Review 147. In Jakobs’ view, whether the
defendant should escape liability on account of an excuse is to be determined 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 su⁄ciently
exert himself in the pursuit of his life-project so as to avert entanglement with the law. See gen-
erally G. Jakobs, Das Schuldprinzip (Opladen:Westdeutscher Verlag, 1993).
12 G. Jakobs, Norm, Person, Gesellschaft (Berlin: Duncker & Humblot, 1997) 103^109.
724 (2010) 73(5) 721^751
Daniel Ohana
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, punishment also objecti¢es the contradictory message upholding
the norm’s validity by targeting the o¡ender’s means of livelihood (ie his freedom
of movement or property). The political community conveys painfully to the
o¡ender that its norms still hold and that it maintains its expectations of compli-
ance.13 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.14 Punishment
additionally ful¢ls a latent function by generating a process of social con¢rmation
of the validity of the norm, called ‘positive general prevention.’15 Evoking Dur-
kheim,16 Jakobs states that loyalty to the law amongst members of society is rein-
forced by the collective punitive response, as is their trust in the power of the law
to e¡ectively guide conduct and provide security.17
Punishment, however, is not only directed to the attention of law-abiding
members of society. It also strengthens the o¡ender’s loyalty to the law by force-
fully reminding him of his duties as a citizen. According to Jakobs, the o¡ender’s
criminal conduct proceeds from a failure on his part to manifest su⁄cient loyalty
to the law. Speci¢cally, it is because of a de¢ciency in the o¡ender’s readiness to
follow the law that in a given situation he lacked the motivation to resist the urge
to violate the norm.18 Yet the law does not take the commission of a crime to
constitute a repudiation of loyalty to the law. The o¡ender continues to be
addressed as a person-in-law, without there being any need to engage him in the
mode of instrumental communication.19 The assumption is that, as a general mat-
ter, the o¡ender carries himself as a loyal citizen, though he faltered on a speci¢c
occasion in this capacity by failing to exert himself su⁄ciently to follow the
norm. Furthermore, Jakobs reasons that since it is assumed that the o¡ender
remains loyal to the law, it is also assumed that he views his prior unlawful con-
duct as a mistake, rather than as a legitimate exercise of his right to freedom.
Hence the o¡ender 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 for-
cefully ^ of the conduct which is expected of him in the future. Punishment thus
does not constitute a measure of exclusion against an enemy of society. Rather, it
constitutes an exercise in loyalty ^ much in the way an athlete exercises in order to
stay ¢t and enhance his ability to perform. For when a citizen is imbued with
13 G. Jakobs, Staatliche Strafe: Bedeutung und Zweck (Paderborn: Sch˛ningh, 2004) 26^30 (Jakobs, Staa-
tliche Strafe).
14 Jakobs, ibid 32.
15 Jakobs, Strafrecht AllgemeinerTeil n 6 above, 5^14; G. Jakobs,‘Strafbegrˇndung und positive General-
praºvention’ in P. Siller and B. Keller (eds) Rechtsphilosophische Kontroversen der Gegenwart (Baden-
Baden: Nomos, 1999) 135^138: Jakobs, Staatliche Strafe n 13 above, 31^32. It should be stressed that
Jakobs’ account is just one of the many versions of the ‘positive general prevention’ theory of pun-
ishment currently on o¡er in the German criminal law literature. See generally C. Roxin,
Strafrecht AllgemeinerTeil vol 1 (Mˇnchen: Beck, 4th ed, 2006) 78^83. See also Dubber, n 5 above,
696^707.
16 E. Durkheim,The Division of Labour in Society (London: Macmillan, 1984).
17 Jakobs, Staatliche Strafe n 13 above, 32^33.
18 Jakobs, Das Schuldprinzip n 11 above, 23^26, 34^35; Jakobs, ‘Individuum und Person’ n 9 above,
259^264.
19 Jakobs, Norm, Person, Gesellschaft n 12 above, 98^102.
(2010) 73(5) 721^751 725
loyalty to the law, he should, on his own initiative, change his ways after having
been told that his conduct contravenes the norms of society.
Jakobs claims, however, that when a citizen’s 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 (instrumen-
tal) force towards an actor who has excluded himself from the legal community
by failing to ful¢l his primary duty to cultivate law-abidingness.20 Drawing on
developments in German law, Jakobs de¢nes the ‘enemy’ as an actor 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.21 A‘durable deviation’ from the path
of the law, Jakobs explains, is borne out, for example, by predatory sexual miscon-
duct or persistent o¡ending, given that these forms of behaviour evince a particu-
larly untoward disposition vis-a' -vis the law. Such a deep-seated deviant posture
may also be manifested by an individual’s professional life ^ organised 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 organisation.
Jakobs enumerates four realms in which the aforementioned shift from perso-
nal to instrumental communication is visible in the statutory law of Germany.22
First, inchoate conduct is criminalised at a far earlier stage than that of a ‘beyond
preparation’ attempt.23 Second, the sanctions prescribed for these speci¢c (pre-
paratory) o¡ences do not necessarily vary from the sanctions prescribed for an
attempt to commit the substantive o¡ence: punishment is imposed uniformly,
irrespective of the stage of apprehension prior to consummation of the o¡ence,
notwithstanding the principle that sanction severity should be commensurate
with the blameworthiness of the actor as determined by the actual progress made
toward the realisation of the criminal endeavour.Third, departures from the strin-
gent procedural safeguards which usually apply in criminal proceedings are war-
ranted.24 Lastly, a change in discourse is noticeable, in that the legislation is
20 Jakobs, Staatliche Strafe n 13 above, 40^48; G. Jakobs,‘Personalitaºt und Exklusion im Strafrecht’ in

N. Courakis (ed), Die Strafrechtswissenschaften im 21. Jahrhundert: Festschrift fˇr Professor Dr. Dionysios
Spinellis vol 1 (Athena: Sakkula, 2001) 447, 460^464; G. Jakobs, ‘Bˇrgerstrafrecht und Feindstra-
frecht’ (2004) H˛chstrichterliche Rechtsprechung im Strafrecht 88; G. Jakobs,‘Terroristen als Personen im
Recht’ (2005) 117 Zeitschrift fˇr die gesamte Strafrechtswissenschaft 839.
21 G. Jakobs,‘Selbstverstaºndnis der Strafrechtswissenschaft vor den Herausforderungen der Gegen-
wart (Kommentar)’ n 1 above, 51.
22 Jakobs, ibid, 51^52.
23 For the de¢nition of attempt in German law, see Strafgesetzbuch, s 22.
24 For illustrative purposes, Jakobs refers to substantive and procedural rules that apply to actors
suspected or accused of involvement in terrorist activity. The German criminal code advances
the threshold of liability by criminalising the very formation of a terrorist organisation. Strafge-
setzbuch, s 129a. Under current law, the ringleader of such an organisation faces a minimum pen-
alty of three years imprisonment where its activities were directed towards the commission of
especially serious crimes, such as murder, genocide, crimes against humanity, war crimes, and
the taking of hostages. Strafgesetzbuch, s 129a (4). Signi¢cantly, the same (minimum) penalty
applies to an o¡ender who has gone so far as to commit a‘beyond preparation’ attempt to murder.
Strafgesetzbuch, s 211(1) together with s 23(2) and s 49(1)(1). Lastly, a detainee suspected of invol-
vement in the formation of a terrorist organisation may be barred from having any contact with
726 (2010) 73(5) 721^751
Daniel Ohana
enacted with the stated aim to wage war against designated categories of o¡en-
ders, rather than to proclaim authoritatively which courses of conduct are prohib-
ited following the norms binding all members of society.
Jakobs dispassionately reports the aforementioned statutory developments,
without denouncing them as unprincipled measures running counter to the
mode of personal communication which generally be¢ts dealings between fellow
citizens.25 Instead, he excoriates current German law for failing to disaggregate
these measures from the ‘citizens’ criminal law’, and unapologetically advocates
institutionalising a special branch of the criminal law, Feindstrafrecht, both to pre-
serve the integrity of the citizens’ criminal law and to allow for critical evaluation
of the grounds invoked for deviating from its fundamental precepts.26 While
maintaining that the duty of the citizen to cultivate loyalty to law is prior to his
procedural and substantive rights, Jakobs urges that these rights need not be indis-
criminately stripped away from the citizen who acts disloyally. Special rules
enacted within Feindstrafrecht, Jakobs insists, should be restricted to what is
required to protect the public from the disloyal citizen, without rupturing bonds
by foreclosing the possibility of a change of attitude on his part that may pave the
way for his reintegration into society.27
FEINDSTRAFRECHT: CRITICAL RESPONSES
As mentioned previously, Gˇnther Jakobs’ theory of the criminal law of the

enemy caused a major uproar in the German legal literature,28 which spilled over
his attorney, if such a measure is required to protect the public against an actual risk of harm.
Einfˇhrungsgesetz zum Gerichtsverfassungsgesetz, s 31. Jakobs also points to the detention of
dangerous o¡enders for a period which exceeds that of their deserved punishment as indicated
by the seriousness of the o¡ence 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 danger-
ous repeat o¡enders, allow for long-term con¢nement in order to protect the public. See gener-
ally F. Dˇnkel and D. van Zyl Smit,‘Preventive Detention of Dangerous O¡enders 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’ (2004) 5 German LawJournal
619. In Jakobs’s view, security measures embody the logic of Feindstrafrecht: they forcefully cope
with an o¡ender who cannot o¡er a minimal guarantee that he will meet society’s expectation
of compliance with the law. See Jakobs,‘Personalitaºt und Exklusion im Strafrecht’n 20 above, 461;
Jakobs, Staatliche Strafe n 13 above, 37^40; Jakobs,‘Bˇrgerstrafrecht und Feindstrafrecht’ n 8 above.
See also Jakobs, Strafrecht AllgemeinerTeil n 6 above, 32.
25 Cf R. A. Du¡, Punishment, Communication, and Community (Oxford: Oxford University Press,
2001) 75^88.
26 Jakobs, Staatliche Strafe n 13 above, 45^46.
27 See Jakobs, ‘Bˇrgerstrafrecht und Feindstrafrecht’ n 8 above, 289, 296. Jakobs, Staatliche Strafe ibid
44.
28 See generally the collection of essays in T. Uwer (ed), ß Bitte bewahren Sie Ruhe (Berlin: Straf-
verteidigervereinigungen, 2006). See also B. Heinrich, ‘Die Grenzen des Strafrechts bei der
Gefahrpraºvention’ (2009) 121 Zeitschrift fˇr die gesamte Strafrechtswissenschaft 94, 101^105.
(2010) 73(5) 721^751 727
into the popular media.29 Jakobs’theory also provoked strong reactions in Spain.30
Recently, it has had attention in Italy31 and France32 as well.The following discus-
sion, however, only covers the German debate by providing a brief overview of
the main objections raised in the legal literature.
Commentators took issue with the central premise of Jakobs’ Feindstrafrecht the-
ory, namely, that every citizen bears a duty to unconditionally cultivate loyalty to
law which is prior to the substantive and procedural rights of the individual. Its
upshot, critics urged, is that the right to dignity, freedom and self-governance is
not recognised by virtue of the personhood of the citizen, rather it is earned as a
reward for cultivating law-abidingness and refraining from disquieting fellow
members of society.33 Jakobs’ cryptic de¢nition of the ‘enemy’ as a citizen who
has durably deviated from the path of the law also aroused anxiety as to how
Feindstrafrecht might be translated into legislation. Speci¢cally, the vague criteria
o¡ered for singling out citizens for special treatment prompted some to voice
the concern that substantive and procedural due process guarantees might be read-
ily suspended to more e⁄ciently and e¡ectively combat crime involving ‘loyal’
citizens, thereby breeding insecurity of a di¡erent sort than that which Feindstra-
frecht was meant to quell.34 Several commentators cautioned against the potential
for erosion of the moral credibility and legitimacy of the citizens’ criminal
law ^ and, in turn, a deterioration in the public’s trust in the criminal justice sys-
tem ^ should such bulwarks of liberal democracy as the principles of individual
autonomy and dignity be sacri¢ced in dealing with fellow members of society
who are ostracised as ‘enemies’.35 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 demonise marginal individuals or groups as ‘disloyal to the
law’, making them outcasts for simply failing to conform to prevailing societal
29 See eg A. Kreuzer,‘Der Rechtsstaat br˛ckelt’ Die Zeit 2 October 2007; W. Hassemer,‘Der gefaºhr-
liche Weg zum ‘‘Feindstrafrecht’’’ Frankfurter Rundschau 27 March 2006; H. Prantl, ‘Strafrecht als
Fortsetzung des Krieges mit anderen Mitteln ^ der Beschudigte als militaºrisches Ziel’Sˇddeutschen
Zeitung 28 April 2004.
30 See generally C. G. D|¤ ez,‘Enemy Combatant Versus Enemy Criminal Law’ (2009) 11 New Crim-
inal Law Review 529; M. Cancio MeliaŁ,‘Feind ‘‘strafrecht’’?’ (2005) 117 Zeitschrift fˇr die gesamte Stra-
frechtswissenschaft 267; J. M. Silva SaŁnchez, ‘Die Unerwˇnschten als Feinde: Die Exklusion von
Menschen aus dem status personae’ (2006) 118 Zeitschrift fˇr die gesamte Strafrechtswissenschaft 547.
31 See M. Donini, Diritto Penale del Nemico: Un Dibattito Internazionale (Milano: Giu¡reŁ, 2007); F.
Mantovani, ‘Il Diritto Penale dei Nemico, il Diritto Penale dell’Amico, il Nemico di Diritto
Penale e L’Amico del Diritto Penale’ (2007) Rivista Italiana di Diritto E Procedura Penale 470.
32 See ‘Droit PeŁnal de L’ennemi ^ Droit PeŁnal de L’inhumain’ (2009) Revue de Science Criminelle et de
Droit PeŁnal CompareŁ 1.
33 F. Saliger, ‘Feindstrafrecht: Kritisches oder totalitaºres Strafrechtskonzept’ (2006) Juristen Zeitung
756, 762; K. L. Kunz,‘‘‘Gefaºhrliche’’ Rechtsbrecher und ihre Sanktionierung’ in J. Arnold, B. Bur-
khardt et al (eds), Menschengerechtes Strafrecht: Festschrift fˇrAlbin Eser zum 70. Geburtstag (Mˇnchen:
Beck, 2005) 1375, 1391; Roxin, n 15 above, 56; L. Schulz,‘Friktionen einer Fiktion’ in Uwer, n 28
above, 315, 320; U. Neumann,‘Feindstrafrecht’ in Uwer, ibid 299, 310.
34 F. Streng, ‘Vom Zweckstrafrecht zum Feindstrafrecht?’ in Uwer, ibid 227, 245^246; T. H˛rnle,
‘Deskriptive und normative Dimensionen des Begri¡s ‘‘Feindstrafrecht’’’ (2006) Goltdammer’s
Archiv fˇr Strafrecht 80, 91, 95; R. Hefendehl, ‘Organisierte Kriminalitaºt als Begrˇndung fˇr ein
Feind ^ oder Taºterstrafrecht?’ (2005) Strafverteidiger 156, 158^159; D. Krau,‘Vom Bˇrgerstrafrecht
zum Feindstrafrecht?’ in Uwer, ibid 79, 84; J. Bung,‘Feindstrafrecht als Theorie der Normgeltung
und der Person’ in Uwer, ibid 249, 260; Sacher, n 6 above, 608.
35 Streng, ibid, 244^245.
728 (2010) 73(5) 721^751
Daniel Ohana
views or customs. Feindstrafrecht was also assailed on the basis that members of the
polity may be targeted for special treatment by reason of their general attitudes,
political views, and lifestyle.36 By homing in on the actor’s loyal disposition
towards the law, rather than his (wrongful) criminal conduct, commentators
noted, the criminal law of the enemy harks back to Fascist criminal law theory
from the National-Socialist era.37
Lastly, Jakobs’ claim that there is a need to institutionalise a special normative
framework for Feindstrafrecht was met with the derisive response that this only
holds true because Jakobs has strait-jacketed the citizens’ criminal law in the ¢rst
place by con¢ning its function to (non-coercively) addressing loyal citizens as
‘persons-in-law’ and upholding the power of norms to guide conduct in society.
The widely accepted view in the German literature, following which the criminal
law ful¢ls the function of protecting a vast array of legal goods (Rechtsgˇter),
a¡ords some £exibility in accrediting additional functions of punishment such
as deterrence, incapacitation and rehabilitation, without dispensing with basic
principles of procedural and substantive justice.38 One commentator suggested
that instead of bifurcating the criminal law into antithetical paradigms, special
rules should be crafted to strike a delicate balance between the competing interests
of public security and individual dignity.39
Jakobs’ theory of the criminal law of the enemy has been disparaged largely
because it fails to concur 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 con-
stitutes a central value.This article, however, considers Feindstrafrecht from another
angle, taking an interpretive perspective that is anchored in social theory, rather
than normative principles. Several authors have already charted this terrain, but
taken di¡erent approaches. Susanne Krassman has linked Jakobs’ Feindstrafrecht the-
ory 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’.40 Cor-
nelius Prittwitz has situated Jakobs’ account within the broader frame of the emer-
gence of the ‘risk society’,41 in which institutional goals and strategies become
36 Krau, n 34 above, 85; A. Aponte, ‘Feind oder Bˇrger? Gˇnther Jakobs und das Dilemma eines
feindlichen Strafrechts’ in Uwer, n 28 above, 131, 150; D. Sauer,‘Das Strafrecht und die Feinde der
o¡enen Gesellschaft’ (2005) JuristischeWochenschrift 1703, 1704^1705; Roxin, n 15 above, 56.
37 Saliger, n 33 above, 761; Hefendehl, n 34 above, 159; L. Greco, ‘ber das so gennante Feindstra-
frecht’ (2006) Goltdammer’s Archiv fˇr Strafrecht 96, 104^105. On the distinction between an act-
centered criminal law and an actor-centered criminal law in Fascist criminal law theory, see generally
Roxin, n 15 above, 113^114, 181^185; G.Werle, Justiz-Strafrecht und polizeilicheVerbrechensbekaºmpfung im
Dritten Reich (Berlin: de Gruyter, 1989) 708-715; K. Marxen, Der Kampf gegen das liberale Strafrecht
(Berlin: Duncker & Humblot, 1974) 174^191.
38 Neumann, n 33 above, 306^307; Streng, n 33 above, 244^245; Schultz, n 33 above, 327; Sacher,
n 6 above, 607; A. Eser,‘Schlubetrachtungen’ in Eser, Hassemer, and Burkhardt, n 1 above, 443,
443^444.
39 B. Schˇnemann, ‘Die deutsche Strafrechtswissenschaft nach der Jahrtausendwende’ (2001) Golt-
dammer’s Archiv fˇr Strafrecht 205, 211.
40 S. Krassman,‘The Enemy on the Border’ (2007) 9 Punishment and Society 301, 305.
41 See generally U. Beck, Risk Society (London: Sage, 1992).
(2010) 73(5) 721^751 729
focused on identifying, ordering and responding to risks, and assuaging fear and
anxiety by providing assurances that risks are under control.42 Finally, George
Fletcher has identi¢ed Jakobs’ bipartite theory of the criminal law as emblematic
of the ascent of communitarian values such as loyalty and group identity in con-
temporary penal practice, values which often take an exclusionary turn by play-
ing on the di¡erences between‘us’ and ‘them’.43 The remainder of this article takes
a di¡erent tack by building on some of Jakobs’ ideas concerning trust relations to
investigate the favourable reception of diversion and preventive orders in English
criminal justice.The next section lays the groundwork for this analysis by survey-
ing key themes and concepts from the literature on trust in the humanities and
social sciences.
INTERPERSONAL TRUST AND TRUST IN INSTITUTIONS
Trust has been the subject of intensive research across several ¢elds over the past
few decades.44 Although economic, social and technological change has eroded
many traditional bases for trust, such as community, family, and religion, it is
widely recognised that trust constitutes a mainstay of interpersonal relations in
contemporary societies.45 Signi¢cantly, trust may be placed not just in indivi-
duals, but in mediating social institutions, such as community, law enforcement
authorities, social roles, and technological systems.46 Insofar as interpersonal trust
is concerned, there is much controversy about how it should be de¢ned and how
it should be distinguished from related notions such as familiarity, con¢dence,
reliance, and faith.47 There is, however, general agreement on the following core
42 C. Prittwitz,‘Feindstrafrecht’ in A. Pilgram and C. Prittwitz (eds), Kriminologie: Akteurin und Kri-

tikerin gesellschaftlicher Entwicklung (Baden-Baden: Nomos, 2005) 215.
43 G. P. Fletcher,The Grammar of Criminal LawVol I: Foundations (NewYork: Oxford University Press,
2007) 172^176.
44 The discussion to follow builds especially on writings on trust from the ¢elds of philosophy,
political theory, and social theory.
45 See B. A. Misztal,Trust in Modern Societies (Cambridge: Polity Press, 1997) 1^8.
46 See P. Sytompka,Trust (Cambridge: Cambridge University Press, 1999) 41^48. Several commen-
tators distinguish trust in persons from con¢dence in institutions and argue that it is misplaced to
speak of trust in institutions. See E. Ullmann-Margalit, ‘Trust, Distrust, and In Between’ in
R. Hardin (ed), Distrust (NewYork: Russell Sage Foundation, 2004) 60, 76; R. Hardin,‘Trusting
Persons,Trusting Institutions’ in R. J. Zeckhauser (ed), Strategy and Choice (Cambridge, Mass: MIT
Press, 1991) 185. Cf K. Newton,‘Social and Political Trust’ in R. J. Dalton and H. D. Klingemann
(eds),The Oxford Handbook of Political Behaviour (Oxford: Oxford University Press, 2007) 342, 344.
For discussion of this issue, see A. Seligman,The Problem ofTrust (Princeton: Princeton University
Press,1997) 17^21. Nonetheless, many commentators speak of trust in, and distrust of, institutions.
See Sytompka, ibid; A. Giddens, The Consequences of Modernity (Stanford: Stanford University
Press, 1990) 83; A. Crawford,‘Situational Crime Prevention, Urban Governance and Trust Rela-
tions’ in A. von Hirsch, D. Garland and A.Wake¢eld (eds), Ethical and Social Perspectives on Situa-
tional Crime Prevention (Oxford: Hart Publishing, 2000) 193, 205; O. O’Neill, A Question of Trust
(Cambridge: Cambridge University Press, 2002) 3; M. Levi, ‘A State of Trust’ in V. Braithwaite
and M. Levi (eds), Trust and Governance (New York: Russell Sage Foundation, 1998) 77, 86^96;
P. Pettit,‘RepublicanTheory and Political Trust’ in Braithwaite and Levi, ibid, 295; J. Braithwaite,
‘Institutionalizing Distrust, Enculturating Trust’ in Braithwaite and Levi, ibid, 343, 353^369.
47 See Newton, ibid; Ullmann-Margalit, ibid, 61^66; Sytompka, ibid, 24^25; Misztal, n 45 above, 12-
32; Seligman, ibid, 16^30.
730 (2010) 73(5) 721^751
Daniel Ohana
features of trust:48 it is a ‘three-part relation’49 whereby one person trusts another

person (considered to be trustworthy) to do something; it involves risk; it entails
vulnerability to betrayal and disappointment; it requires granting the trusted per-
son discretion;50 it is incompatible with an attitude of suspicion, requiring belief
in the trusted person’s competence and commitment to do what he has been
trusted to do; and it is vitiated by constantly monitoring the conduct of the
trusted person, setting constraints upon it, or issuing threats. There also seems to
be a consensus that the di¡erence between trust and distrust is a matter of degree,
that while there is a ‘negation relation’51 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.52
Yet trust as a concept remains highly contested in many respects. There is dis-
agreement, 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 com-
petent and committed to doing what 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 interest’53 view of trustworthiness, whereby it is su⁄cient 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
good will towards the truster for him to be deemed trustworthy.54 Following
this viewpoint, 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 relation-
ship 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 distinguishes trust
from mere reliance. John Braithwaite, on the other hand, emphasises the
centrality of the notion of obligation or duty in legal conceptions of trust-
48 See generally B. Barber,The Logic and Limits ofTrust (New Brunswick: Rutgers University Press,
1983) 7^25; A. Baier, ‘Trust and Anti-Trust’ (1986) 96 Ethics 231; Ullmann-Margalit, ibid;
Sytompka, ibid, 25^26; D. Gambetta,‘CanWe Trust Trust?’ in D. Gambetta (ed),Trust: Making and
Breaking Cooperative Relations (NewYork: Blackwell, 1988) 213; M. E.Warren,‘Democratic Theory
and Trust’ in M. E. Warren (ed), Democracy and Trust (Cambridge: Cambridge University Press,
1999) 310, 319^329; M. Harding, ‘Manifesting Trust’ (2009) 29 OJLS 245, 246^253; Levi, n 46
above, 78^79; C. McLeod, Trust, The Stanford Encyclopedia of Philosophy (Fall 2008 Edition)
Edward N. Zalta (ed), at http://plato.stanford.edu/archives/fall2008/entries/trust (last visited 10
June 2010).
49 Baier, ibid, 237.
50 See Warren, n 48 above, 328; Harding, n 48 above, 254; K. Jones,‘Trust as an A¡ective Attitude’
(1996) 107 Ethics 4; Baier, ibid, 237.
51 Ullmann-Margalit, n 46 above, 60.
52 See Ullman-Margalit, ibid; Newton, n 46 above, 344; D. W. Larson, ‘Distrust: Prudent, If Not
Always Wise’ in R. Hardin (ed), Distrust (NewYork: Russell Sage Foundation, 2004) 34; Jones, n
50 above, 16. Cf. A. J. Bellia Jr, ‘Promises, Trust, and Contract Law’ (2002) 47 American Journal of
Jurisprudence 25, 33^34.
53 R. Hardin,Trust andTrustworthiness (NewYork: Russell Sage Foundation, 2002).
54 Baier, n 48 above, 234^235. A similar view is defended by Edna Ullman Margalit. Ullmann-
Margalit, n 44 above, 63^64. See also Jones, n 50 above, 6 -11; Seligman, n 46 above, 43.
(2010) 73(5) 721^751 731
worthiness.55 In Braithwaite’s view, a trustworthy actor is one who cognitively

accepts that he has obligations and who acts to honour them. This conception of
legal trustworthiness is a variant of what Hardin has called ‘normatively moti-
vated trustworthiness’.56 Hardin contrasts this account of trustworthiness with
the incentive-based account of trustworthiness, whereby a person is trustworthy
for ‘rational’ reasons related to his interests.57
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.58 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 recognises
trust as a core component of ‘social capital’.59 In his in£uential analysis of the insti-
tutional performance of regional governments in di¡erent areas in Italy, Robert
Putnam de¢ned social capital as ‘features of social organization, such as trust,
norms and networks that can improve the e⁄ciency of society by facilitating
coordinated action’.60 From this point of view, trust fosters cooperation, interde-
pendence and risk-sharing which, in turn, facilitate social interaction and innova-
tion.61 Importantly, it is commonly observed in the literature on trust that social
and political institutions, including notably the law, play a crucial role in this
respect, providing forms of ‘secondary trust’ that enable strangers to maintain
relations based on ‘primary trust’.62 Such external institutions, it is said, act as
‘guardians of trust’,63 making it easier for actors who interact or cooperate in social
or economic realms to place trust in one another even in the absence of ‘thick’
trust anchored in prior social ties or direct social contact.64 As mentioned earlier,
Jakobs strongly emphasises this point in his theoretical account of the criminal
law by assigning a central place to the function performed by its system of norms
55 J. Braithwaite,‘Institutionalizing Distrust, EnculturatingTrust’ in Braithwaite and Levi (eds), n 46

above, 343, 344^345. Cf Harding, n 48 above, 265.
56 R. Hardin,‘Gaming Trust’ in E. Ostrom and J.Walker (eds),Trust and Reciprocity (NewYork: Rus-
sell Sage Foundation, 2003) 80, 84.
57 ibid 83. An analysis of trust as a transaction within the framework of rational choice theory is also
o¡ered in J. S. Coleman, Foundations of SocialTheory (Cambridge: Belknap Press, 1990).
58 Harding, n 48 above, 18; McLeod n 48 above.
59 See generally F. Fukuyama,Trust (NewYork: Free Press,1995); R. Putnam, Making DemocracyWork:
CivicTraditions in Modern Italy (Princeton: Princeton University Press, 1993); Coleman, n 57 above.
60 Putnam, ibid, 167.
61 See generally Gambetta, n 48 above. See also Harding, n 48 above, 263; R. Hardin, ‘Distrust’
(2001) Boston University Law Review 495, 500; Sytompka, n 46 above, 103.
62 See generally Sytompka, n 46 above, 47; Warren, n 48 above, 314, 320^321, 333^335; Levi, n 46
above, 79; R. Hardin, ‘Trustworthiness’ (1996) 107 Ethics 26 31^34; Ullmann-Margalit, n 46
above, 75; Baier, n 48 above, 256. As Luhmann tersely put it, ‘one can a¡ord a higher degree of
con¢dence or even mistrust as long as one has con¢dence in law.’ Luhmann, n 7 above, 148. See
also Barber, n 48 above, 22.
63 S. P. Shapiro,‘The Social Control of Impersonal Trust’ (1987) 93 AmericanJournal of Sociology 623,
635.
64 SeeWarren, n 48 above, 333^335; Levi, n 46 above, 85; Hardin,‘Distrust’ n 61 above, 518^521. Cf J.
Knight,‘Social Norms and the Rule of Law: FosteringTrust in a Socially Diverse Society’ in K. S.
Cook (ed),Trust in Society (NewYork, Russell Sage Foundation, 2001) 354; Newton, n 44 above,
351.
732 (2010) 73(5) 721^751
Daniel Ohana
and sanctions in‘guarding’ interpersonal trust and facilitating interaction between

anonymous members of society. No less importantly, Jakobs stresses that the
criminal law can only perform this function if every member of society ful¢ls
his institutional role as a loyal citizen by cultivating a readiness to follow the law.
In the Anglo-American literature, the subject of trust has captured the imagi-
nation of criminal law theorists and criminologists who have written on a host of
themes, such as situational crime prevention;65 restorative justice;66 acts prepara-
tory to the commission of a crime;67 comparative criminology;68 anti-social beha-
viour;69 white-collar crime;70 and retributive punishment.71 The discussion to
follow focuses on diversion from the criminal process. Speci¢cally, it uses the
notion of trust as a lens through which to investigate the practice of issuing a sim-
ple caution to an o¡ender, while deploying the analytical tools developed in the
Foucauldian governmentality literature.
THE ‘SIMPLE’ CAUTION AND THE GOVERNMENTALISATION OF

TRUST
Michel Foucault famously de¢ned governing in a wide sense as the ‘conduct of

conduct’, an ensemble of practices geared to shaping and guiding the conduct
of persons. Signi¢cantly, 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. Following the lead of Foucault’s studies of practices of power in a
series of lectures delivered at the Colle' ge de France in 1977^79,72 governmentality
analysts have dissected practices of governance and ‘mentalities of rule’ by exam-
ining the rationalities (practices of thinking), technologies (practices of action),
subjecti¢cations (practices of specifying the subjects addressed), and ways of
knowing which support them.73 The analytical tools of governmentality have
65 Crawford, n 44 above.
66 A. FaticŁ, Punishment and Restorative Crime-Handling (Aldershot: Avebury, 1995).
67 D. Ohana,‘Responding to Acts Preparatory to the Commission of a Crime: Criminalization or
Prevention?’ (2006) CriminalJustice Ethics 23, 31^33.
68 D. Nelken,‘Whom CanYouTrust?:The Future of Comparative Criminology’ in D. Nelken (ed),
The Futures of Criminology (London: Sage, 1994) 220.
69 B. S. Turner,‘Social Capital,Trust and O¡ensive Behaviour’ in A. von Hirsch and A. P. Simester,
Incivilities: Regulating O¡ensive Behaviour 219 (Oxford: Hart Publishing, 2006).
70 S. Shapiro,‘Collaring the Crime, not the Criminal: Reconsidering‘‘White-Collar Crime’’’ (1989)
55 American Sociological Review 346.
71 D. A. Hoekema, ‘Trust and Obey: Toward a New Theory of Punishment’ (1991) 25 Israel Law
Review 332; S. Dimock, ‘Retributivism and Trust’ (1997) 16 Law and Philosophy 37; D. Korman,
‘The Failure of Trust-Based Retributivism’ (2003) 22 Law and Philosophy 561; Harding, n 48
above, 265^266.
72 M. Foucault,‘Governmentality’ in G. Burchell, C. Gordon, P. Miller and M. Foucault (eds),The
Foucault E¡ect: Studies in Governmentality (Chicago: University of Chicago Press, 1991) 87; M. Fou-
cault, Security,Territory and Population (Basingstoke: Palgrave Macmillan, 2007); M. Foucault, The
Birth of Biopolitics (Basingstoke: Palgrave Macmillan, 2008).
73 See generally D. Garland, ‘‘‘Governmentality’’ and the Problem of Crime’ (1997) 1 Theoretical
Criminology 173; N. Rose, Powers of Freedom (Cambridge: Cambridge University Press, 1999); A.
Barry,T. Osborne and N. Rose (eds), Foucault and Political Reason (Chicago: University of Chicago
(2010) 73(5) 721^751 733
proven especially fruitful in generating insights about how power operates in

neo-liberal practices of governance, revealing how government is achieved
through ^ rather than in opposition to ^ the regulated freedom of individuals
and collectivities. Indeed, the new regulatory state has come to rely increasingly,
if indirectly, upon non-coercive techniques for building the self-regulatory capa-
cities of private individuals and organisations.74 In the ¢eld of criminology, a wide
range of crime control practices has been studied using the governmentality ana-
lytic, including situational prevention;75 restorative justice;76 community poli-
cing;77 counter-terrorism measures;78 drug harm minimisation programmes;79
and prison governance.80
The diversion mechanism of the simple caution has been given much attention
by both legal and criminological commentators.81 This is not surprising given the
signi¢cant expansion of cautioning over the past four decades.82 This expansion,
however, has not been constant: greater resort to prosecution starting in the early
1990s caused a ¢rst downturn until in 2003, a shift occurred ushering in a ¢ve-year
rise in the cautioning rate, which came to an end when a slight decline was
recorded in 2008.83 The attractiveness of the simple caution, like most mechan-
isms which divert o¡enders from the criminal courts, lies principally in its bene-
¢ts for the public purse. Indeed, the simple caution bears the imprint of
managerialism which has had a major impact on the operation of the criminal
justice system over the past few decades. As releasing the o¡ender from the need
to appear in court considerably reduces police work and court processing times,
the simple caution gives law enforcement agencies an invaluable tool of resource
management in dealing with a broad range of criminal activity. It is signi¢cant in
this respect that, unlike the other diversion measures available for adult o¡enders,
Press, 1996); M. Dean and B. Hindess (eds), Governing Australia (Cambridge: Cambridge Univer-
sity Press,1998); N. Rose, P. O’Malley and M.Valverde,‘Governmentality’ (2006) 2 Annual Review
of Law and Social Sciences 83, 84.
74 See J. Braithwaite,‘The New Regulatory State and theTransformation of Criminology’ (2000) 40
BritishJournal of Criminology 222, 225.
75 Garland, n 73 above, 187^189; R. Lippert,‘Signs of the Surveillant Assemblage: Privacy Regula-
tion, Urban CCTV, and Governmentality’ (2009) 18 Social & Legal Studies 505.
76 G. Pavlich, Governing Paradoxes of RestorativeJustice (NewYork: Routledge Cavendish, 2005).
77 K. Stenson,‘Community Policing as a Governmental Technology’ (1993) 22 Economy and Society
373.
78 G. Mythen and S.Walklate,‘Criminology and Terrorism: WhichThesis? Risk Society or Govern-
mentality?’ (2006) 46 BritishJournal of Criminology 379.
79 P. O’Malley,‘Experiments in Risk and Criminal Justice’ (2008) 12 Theoretical Criminology 451.
80 M. Bosworth,‘Creating Responsible Prisoners’ (2007) 9 Punishment and Society 67.
81 See generally A. Ashworth and M. Redmayne,The Criminal Process (Oxford: Oxford University
Press, 3rd ed, 2005) 146^150; C. Lewis ‘The Prosecution Service Function within the English
Criminal Justice System’ in J. M. Jehle and M. Wade (eds), Coping with Overloaded Criminal Justice
Systems:The Rise of Prosecutorial PowerAcross Europe (Berlin: Springer, 2006) 151, 167^169; R. Mor-
gan, SummaryJustice: Fast ^ But Fair? (London: Centre for Crime and Justice Studies, 2008) 11^15.
For historical background, see generally C. Harding and G. Dingwall, Diversion in the Criminal
Process (London: Sweet & Maxwell, 1998) 98^119. Only mechanisms that apply to adult o¡enders
are discussed here. Attention does not focus on diversion measures pertaining to juvenile o¡en-
ders, such as reprimands or ¢nal warnings under the Crime and Disorder Act 1998.
82 See A. Ashworth and L. Zedner, ‘Defending the Criminal Law: Re£ections on the Changing
Character of Crime, Procedure, and Sanctions’ (2008) 2 Criminal Law and Philosophy 21, 25.
83 See Criminal Statistics: England and Wales 2008.
734 (2010) 73(5) 721^751
Daniel Ohana
namely, the ¢xed penalty notice, the conditional caution, and the cannabis warn-
ing, the simple caution is not limited to designated o¡ences. Another cost-
e⁄cient advantage of the simple caution is that it does not involve state action to
facilitate the rehabilitation of the o¡ender or alleviate socio-economic constraints
which may make it more di⁄cult for him to desist from crime.
Other advantages associated with the simple caution are that it o¡ers a moder-
ately intrusive mechanism for dealing with minor forms of unlawful conduct
which are not considered su⁄ciently serious to warrant the stigma and other legal
and social disadvantages attaching to a conviction,84 and that it avoids counter-
productive outcomes, since a criminal trial culminating in a ¢nding of guilt can
have negative e¡ects on the defendant such as labelling, internalisation of negative
stereotypes and exaggeration of criminal self-identity.85 Conversely, it has been
argued that cautioning proves objectionable in cases of serious misconduct,
because it disregards the public interest in proportionate penal responses.86 It has
also been suggested that the simple caution inappropriately relieves the prosecu-
tion of the burden of proving guilt, thereby detracting from the right of defen-
dants to be presumed innocent and bene¢t from the formal procedural guarantees
of a judicial hearing.87 In the same vein, the concern has been voiced that suspects,
who otherwise might have been reluctant to make an admission, might be
enticed to consent to a caution to ensure that no conviction follows.88 Many com-
mentators have also taken issue with the signi¢cant variance in cautioning rates
between police force areas.89 Lastly, the claim is often made that cautioning has a
‘net-widening’ e¡ect, which means that suspects are being o¡ered cautions in
cases which, in any event, would not have been prosecuted.90
The discussion to follow does not directly address the aforementioned objec-
tions, for its point is neither to defend nor denounce the use of the simple caution
on the basis of a normative account of the proper scope and limits of police and
prosecutorial discretion, due process safeguards or state intervention in general.
Rather, my aim is to draw out the governmental rationalities and technologies
that animate the practice of issuing a simple caution and thereby to develop an
analysis that illuminates the relationship between this relatively widespread prac-
tice of diversion and neo-liberal strategies of governing which encourage self-
governance by motivating individuals to actively self-police and autonomously
manage their risks of o¡ending.
The thrust of my argument is that there is more to the simple caution than a
diversion mechanism which hands the o¡ender a ‘let-o¡’ to enable the criminal
justice system to cope more e⁄ciently with crowded court calendars and the
84 See Ashworth and Zedner, n 82 above, 25.

85 ibid. See also A. Sanders and R. Young, ‘From Suspect to Trial’ in M. Maguire, R. Morgan and
R. Reiner (eds), The Oxford Handbook of Criminology (Oxford: Oxford University Press, 4th ed,
2007) 953.
86 See Ashworth and Zedner, n 82 above, 26.
87 ibid, 25.
88 Ashworth and Redmayne, n 81 above, 156.
89 ibid, 157^158; Morgan, n 81 above, 24; R. Allen, ‘Alternatives to Prosecution’ in M. McConville
and G.Wilson (eds),The Handbook of the CriminalJustice Process (Oxford: Oxford University Press,
2002) 169, 173.
90 For analysis of the data on this point see Morgan, n 81 above, 23^31.
(2010) 73(5) 721^751 735
limited availability of police o⁄cers and prosecutors. The linchpin of my argu-

ment is Jakobs’ claim that the criminal law constitutes the individual as a citizen
who is loyal to the law, in that it induces compliance simply by communicating its
punitive response to the o¡ender, without addressing him in a coercive idiom: for
a loyal citizen (unlike the enemy) independently recognises the wrongfulness of
his conduct and changes his ways on his own initiative.91 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 con-
victed of an o¡ence after a full trial. But I contend that a similar, though not iden-
tical, rationality of governance informs the relatively widespread practice of
issuing a simple caution as an out-of-court disposal.
In extending Jakobs’ account to the simple caution, my point of departure is the
phenomenon, which Philip Pettit has called ‘trust-responsiveness’,92 whereby a
person becomes more trustworthy simply as a result of being invested with trust.
By taking the risk which trust entails, and making himself vulnerable to the pos-
sibility of disappointment or betrayal, Pettit explains, the truster manifests his
judgment that the person trusted will prove trustworthy. This manifestation of
trust, in turn, strikes a ‘responsive chord’93 in the person trusted, as it extends
moral recognition and digni¢es him as a trustworthy person, thereby motivating
him to exert himself so as not to disappoint the truster.94 There is thus a‘motivat-
ing e⁄cacy of manifest reliance’,95 such that trustworthiness need not constitute
an absolute prerequisite for trusting another person. Rather, one may leap ahead
of the evidence concerning the trustworthiness of the actor. For the placement of
trust, by itself, a¡ects the trustworthiness of the person trusted. Put otherwise,
engaging in active trusting reliance can be ‘motivationally self-enforcing’.96 Sig-
ni¢cantly, 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 John
Braithwaite.97 Some empirical studies have borne out the view that trusting citi-
zens can make them trust-responsive and therefore more trustworthy, enhancing
readiness to comply with the law, while enforcement strategies which rely on
deterrence sometimes back¢re, breeding obstinacy, resistance and nonconformity
on the part of the regulated actor.98 The discussion to follow taps into Pettit’s
91 Jakobs, Norm, Person, Gesellschaft n 12 above, 98^102.

92 P. Pettit,‘The Cunning of Trust’ (1995) 24 Philosophy and Public A¡airs 202, 203.
93 ibid, 208.
94 See also Warren, n 48 above, 311; Ullmann-Margalit, n 46 above, 74; Sytompka, n 46 above, 110;
L. E. Mitchell,‘The Importance of BeingTrusted’ (2001) 81 Boston University Law Review 591. H. J.
N. Horsburgh,‘The Ethics of Trust’ (1960) 10 The Philosophical Quarterly 343.
95 Pettit, n 92 above, 209.
96 ibid 218.
97 ibid 225. See generally I. Ayres and J. Braithwaite, Responsive Regulation (Oxford: Oxford Univer-
sity Press, 1992).
98 See J. Braithwaite and T. Makkai,‘Trust and Compliance’ (1994) 4 Policing and Society 1; K. Mur-
phy,‘The Role of Trust in Nurturing Compliance: A Study of Accused Tax Avoiders’ (2004) 28
Law and Human Behavior 187. N. Gunnigham and D. Sinclair,‘Regulation and the Role of Trust:
Re£ections from the Mining Industry’ (2009) 36 Journal of Law and Society 167. Cf V. L. Nielsen
and C. Parker,‘Testing Responsive Regulation in Regulatory Enforcement’ (2009) 3 Regulation &
Governance 376. The burgeoning empirical literature concerning the signi¢cance of procedural
736 (2010) 73(5) 721^751
Daniel Ohana
notion of ‘trust-responsiveness’ to show that when a simple caution is issued, the

actor is not just cut adrift, because the ostensibly benign procedures involved
operate as subtle but active forms of ‘trusting reliance’ which motivate the actor
to comply with the law by addressing him as a responsible citizen who, unlike
similarly situated o¡enders, can be trusted subsequently to follow the law on
his own.
The simple caution coexists with two contrasting courses of action99 which are
equally available to law enforcement agents where there is su⁄cient evidence to
provide a realistic prospect of conviction: the standard response of prosecution
and, in some cases, an application for a (civil) preventive order.100 Signi¢cantly,
the decision to issue a simple caution is a matter for the discretion of the police
and, in some cases, the prosecution.101 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 di¡erentially depending on the circumstances of the case.102 A
loosely knit duplex (or triplex) ‘assemblage’ of crime control thus emerges, in
which the lines between trustworthiness and untrustworthiness constitute inter-
nal elements, with each part mutually reinforcing the other, enmeshing the cau-
tioned o¡ender in a ‘circuit of inclusion’.103 In this network of identi¢cation and
di¡erentiation, the untrustworthy o¡ender serves as a foil enabling the responsi-
bilisation of cautioned o¡enders who are deemed, if not explicitly trustworthy,
then implicitly so.
That the decision to administer a simple caution, instead of prosecuting or
applying for a preventive order, embeds the cautioned o¡ender in a nexus of dif-
ferentiation from the untrustworthy o¡ender can be seen by examining closely
the applicable Home O⁄ce Circular on the subject. The factors distinguishing
cases worthy of diversion from those which are not, besides the seriousness
of the crime, constitute proxies for the trustworthiness of the o¡ender.104
The criteria for ruling out a caution relate directly to cases where the o¡ender
committed the crime concerned recently after having already been involved in
some way in criminal proceedings because of unlawful conduct on his part. Thus
justice in motivating compliance with the law and cooperation with enforcement authorities also
supports this point. See generallyT.Tyler,‘Legitimacy and Criminal Justice: The Bene¢ts of Self-
Regulation’ (2009) 7 Ohio StateJournal of Criminal Law 307.
99 Actually, things are more complicated, since, with respect to certain statutorily designated crimes,
the simple caution also coexists with the conditional caution and the ¢xed penalty notice.
100 I discuss at length the preventive order in the next section.
101 Approval of a prosecutor must be obtained if an ‘indictable-only’ o¡ence has been committed.
Home O⁄ce Circular 016/2008, Simple Cautioning of Adult O¡enders, para 4.
102 I realise that no legal principle precludes applying for a preventive order while bringing criminal
charges against the suspect. This may seem odd as a matter of practice, however, the same restric-
tions sought under a preventive order may be sought as conditions for release on bail. Further-
more, it would not seem that the evidentiary standard here would be any more di⁄cult to meet
for the state. But there are complicated issues, for evidence which is admissible in the context of a
hearing for the making of a preventive order may not be admissible in a criminal trial proceeding.
This is notably the case with hearsay evidence.
103 See N. Rose,‘Government and Control’ (2000) 40 BritishJournal of Criminology 321, 324.
104 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
de¢nitely not be eligible for diversion. But the key point is that following the Home O⁄ce Cir-
cular, a manifestly untrustworthy actor should never get a simple caution.
(2010) 73(5) 721^751 737
the Circular states that ‘[a] simple caution cannot be viewed as an appropriate
method of disposing of o¡ences committed by serving prisoners or those subject
to prison recall . . . [or] when the o¡ender was on court bail or subject to a court
order at the time of the commission of the o¡ence’.105 The Circular also states that
a simple caution should not normally be considered where the suspect has pre-
viously received a caution, unless two years have elapsed or if the current o¡ence
is trivial or unrelated to prior criminal conduct.106 The same principles generally
apply where the o¡ender has a previous conviction, though the Circular states
that a caution should not be issued where the current o¡ence is related to the
o¡ence for which the previous conviction was received.107
The subjecti¢cation of the o¡ender as a trustworthy citizen also ¢nds expres-
sion in the special rules and practices which are followed in the course of the
administration of the simple caution. A threshold requirement for the administra-
tion of a simple caution is an admission of responsibility by the o¡ender.
The o¡ender’s admission is voluntary, in that the competent o⁄cer must ensure
that the o¡ender admits to having committed the crime before he is invited to
accept the caution.The Home O⁄ce Circular is clear on this point:108 the o¡ender
is not o¡ered to admit to the commission of the crime in exchange for the simple
caution being issued as an alternative to being charged.109 Rather, the o¡ender
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 deci-
sion to o¡er a simple caution is generally taken before the prosecutorial authori-
ties decide whether to charge the o¡ender.110 The o¡ender is not cast in the role of
an accused person locked in an adversarial relationship vis-a'-vis the state. He is not
engaged with as a person who is in con£ict with the law. Rather, the o¡ender is
addressed as a person who recognises on his own that he violated the law, without
there being any need to have it pointed out to him in court. That the cautioned
o¡ender is not pitted against the state is also buttressed by the fact that the admis-
sion is made before he can obtain disclosure of the prosecution case.111 The o¡en-
der thus does not necessarily have the opportunity to engage in calculations about
whether it is in his interest to confess, or whether he should gamble on the even-
tuality of an acquittal at trial due to insu⁄cient evidence of guilt. In this manner,
105 Home O⁄ce Circular 016/2008, Simple Cautioning of Adult O¡enders, para 17.
106 ibid, para 23.
107 ibid, para 23.
108 ibid, para 18.
109 ibid, para 24.
110 Note, however, that a prosecutor reviewing a ¢le so as to determine whether to charge may reach
the conclusion that even though there is an admission, the o¡ender should be invited to accept a
caution.
111 On the right to disclosure, the Queen’s Bench (Divisional Court) has ruled that once a caution is
o¡ered, the police have a duty to disclose the interview of the suspect to his solicitor so that
appropriate advice can be given as to whether or not to accept the caution. See DPP vAra [2002]
1 Cr App R 159. However, the Court made it clear that, even at this stage, there is no general
obligation on the police to disclose material prior to charge, and that imposing such an obligation
‘would, in many cases, be impracticable and, in some cases (for example where there is an ongoing
investigation) highly undesirable, as well as being outwith the contemplation of the legislation,
the code or anything to be implied therefrom.’ ibid 166.
738 (2010) 73(5) 721^751
Daniel Ohana
the o¡ender is envisioned as an actor who automatically recognises that what he

has done is wrong, without adopting a strategising posture.
It is also telling that a prerequisite for the administration of a simple caution is
that the o¡ender accepts the terms of the caution.112 Signi¢cantly, these are set
unilaterally by law enforcement agents without there being any room for nego-
tiation.The relationship between the o¡ender and the state is thus asymmetrically
con¢gured, bereft of any element of reciprocity. The state speci¢es the conditions
^ and the o¡ender accepts. The o¡ender has no input into the content of the reg-
ulatory 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. 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.113 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.114 It distinguishes itself
from modes of so-called ‘contractual’ governance,115 such as ‘Acceptable Behaviour
Contracts’, which tie in with the ‘economic’ or ‘rational choice’ image of the
individual as entrepreneur or consumer that prevails in the free-market strand of
neo-liberalism.
Turning to the substance of the conditions which appear in the document to be
signed by the cautioned o¡ender, it is speci¢ed that if, as a result of his act, another
person su¡ered physical or psychological damage, civil action may be taken
demanding the payment of compensation.116 It is also speci¢ed that if the o¡ender
occupies a position of trust or responsibility, acting in such capacities as, for exam-
ple, a teacher, care worker, taxi driver, soldier or doctor, then the police may
inform the employer of the caution. The police may likewise inform prospective
employers if the o¡ender applies for a designated job involving a high level of
trust such as work with children or vulnerable adults.117 These conditions also
project the ¢gure of the trustworthy citizen by addressing the o¡ender as some-
one 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 understood that it may be necessary for him to repair the damage caused,
and notify individuals or organisations concerned, so as to enable them to make
an informed decision as to whether to maintain their trust-based relationship
with him.
112 Home O⁄ce Circular 016/2008, Simple Cautioning of Adult O¡enders, paras 24^25.
113 See generally J. Kleinig, Loyalty, The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), E. N.
Zalta (ed) at http://plato.stanford.edu/archives/fall2008/entries/loyalty/ (last visited 14 June 2010).
114 Cf P. O’Malley,‘Volatile and Contradictory Punishment’ (1999) 3 Theoretical Criminology 175, 186.
115 See A. Crawford, ‘‘‘Contractual Governance’’ of Deviant Behavior’ (2003) 30 Journal of Law and
Society 479, 489.
116 Home O⁄ce Circular 016/2008, Simple Cautioning of Adult O¡enders, para 41.
117 ibid, para 37.
(2010) 73(5) 721^751 739
Before this part of the discussion is concluded, it is ¢tting to dwell brie£y on

the conditions which are conspicuously absent from the document signed by the
cautioned o¡ender. As distinguished from restorative justice programmes, there is
no requirement for the o¡ender to apologise and visibly engage in acts of contri-
tion, even where there is a victim who has su¡ered harm or loss.118 Rather, things
are left unspoken and it is taken for granted that the o¡ender feels remorse,
without there being any need for him publicly to express shame and regret.
Furthermore, although one of the aims of the simple caution is to induce the
o¡ender to cease engaging in unlawful conduct, there is no speci¢cation of
immediate objectives and goals ^ such as rehabilitation or treatment ^ or how
their ful¢lment is to be measured or monitored. Nor does the issuance of a simple
caution involve the ominous warning of the o¡ender 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 o¡ender is just
informed of the fact that if he is subsequently charged with another criminal
o¡ence, the court will be noti¢ed of the simple caution and that should he come
to the notice of the police again it may in£uence how he is dealt with. The o¡en-
der is thus treated as a trustworthy actor, and it is taken for granted that he has
internalised that he will be held accountable for his future conduct ^ without
there being any need to confront him with the prospect of sanctions or subject
him to speci¢c conditions. These features of the simple caution lend shape to the
subjecti¢cation of the o¡ender as a trustworthy citizen, for, as noted earlier, a rela-
tionship based on trust rests on a belief in the competency and commitment of
the person trusted, 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 o¡ender in a process in which he voluntarily admits to having committed the
o¡ence and unconditionally accepts the conditions of the caution. The simple
caution thus projects the o¡ender as an otherwise law-abiding citizen who auto-
matically recognises that he committed the crime concerned and that he acted
wrongfully. The upshot is 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 o¡ender does not have to undergo
a criminal trial and is not made subject to a criminal conviction.
The argument in this section followed Jakobs’ claim that the citizens’ criminal
law constitutes the citizen as a responsible member of the polity who cultivates
law-abidingness on his own.Whereas the discussion above mainly addressed ver-
tical trust relations between the state and its citizens, the next section proceeds in a
di¡erent direction. Taking as its theme horizontal trust relations amongst mem-
bers of the polity, it o¡ers a new perspective on the growing role of the preventive
order in English law by expanding on Jakobs’ thoughts concerning the role of the
criminal law in developing and maintaining trust in social relations.
118 Cf R. D. London,‘The Restoration of Trust: Bringing Restorative Justice from the Margins to
the Mainstream’ (2003) 16 CriminalJustice Studies 175.
740 (2010) 73(5) 721^751
Daniel Ohana
PREVENTIVE ORDERS AND THE RESTORATION OF TRUST IN THE

AUTHORITY OF THE CRIMINAL LAW
English law currently provides for a relatively large variety of preventive orders119
allowing for the imposition of conditions, the breach of which may amount to a
criminal o¡ence. These conditions typically restrict the liberty of an actor to
engage in speci¢ed forms of conduct, such as accessing certain areas, coming into
contact with potential accomplices or victims, and possessing designated instru-
ments.While conviction of a criminal o¡ence may constitute a prerequisite for the
imposition of conditions,120 the discussion to follow focuses on preventive orders
which do not rest on such a threshold requirement, namely, the Anti-Social Beha-
viour Order, the Control Order, the Risk of Sexual Harm Order, and the Serious
Crime Prevention Order. Signi¢cantly, the introduction of the Serious Crime
Prevention Order by the Serious Crime Act 2007 ¢rmly entrenched the preven-
tive order within the English landscape of criminal justice. The Act’s sweeping
statutory de¢nition of ‘serious crime’121 considerably widens the purview of this
preventive order, extending it to such criminal activity as drug tra⁄cking, human
tra⁄cking, arms tra⁄cking, prostitution and child sex, armed robbery, money
laundering, fraud, tax evasion, corruption and bribery, blackmail, intellectual
property o¡ences, and environmental crimes. Furthermore, the Act provides that
a preventive order may also be made to prevent any o¡ence which‘in the particu-
lar circumstances of the case, the court considers to be su⁄ciently serious to be
treated for the purposes of the application or matter as if it were so speci¢ed.’122
The preventive order is visibly impressed by the logic of Feindstrafrecht, in that it
marks actors who cannot be trusted to abide by the law on their own and subjects
them to special restrictions for the sake of protecting the public. Furthermore, as
many commentators have noted, the preventive order enables the state to impose
restrictions while circumventing substantive and procedural principles of justice
which typically apply within the criminal law.123 Indeed, the state is often made
subject to less burdensome evidentiary conditions than in a criminal trial, as some
preventive measures rest on a civil proof standard (‘balance of probabilities’),
rather than a criminal (‘beyond a reasonable doubt’) one, and allow greater use
119 See generally P. Ramsay,‘The Theory of Vulnerable Autonomy and the Legitimacy of Civil Pre-
ventative Orders’ in B. McSherry, A. Norrie, and S. Bronitt (eds), Regulating Deviance (Oxford:
Hart Publishing, 2009) 109 (Ramsay,‘TheTheory of Vulnerable Autonomy’); L. Zedner,‘Preven-
tive Justice or Pre-Punishment? The Case of Control Orders’ (2007) 59 Current Legal Problems 174;
A. Simester and A. von Hirsch,‘Regulating O¡ensive Conduct ThroughTwo-Step Prohibitions’
in A. von Hirsch and A. Simester (eds), Incivilities: Regulating O¡ensive Behaviour 173 (Oxford: Hart
Publishing, 2006).
120 This is the case, for example, with the Sexual O¡ences Prevention Order: the Sexual O¡ences Act
2003, s 104 empowers the court to grant an order if it is satis¢ed that this is necessary for the pur-
pose 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.
121 Serious Crime Act 2007, Sched 1.
122 Serious Crime Act 2007, s 2(2)(b).
123 See eg Simester and von Hirsch, n 119 above, 178^189; A. Crawford, ‘Governing through Anti-
Social Behaviour’ (2009) 49 British Journal of Criminology 810, 818; A. Ashworth, ‘Social Control
and ‘‘Anti-Social Behaviour’’ : The Subversion of Human Rights?’ (2004) 120 LQR 263.
(2010) 73(5) 721^751 741
of hearsay evidence.124 In addition, violation of the conditions of a preventive

order without a reasonable excuse typically su⁄ces to trigger liability, such that
no evidence need be adduced to prove the mental state of the defendant.125 Lastly,
the preventive order can generate outcomes which are at odds with the principle
of proportionality in punishment, as restrictions may be imposed on an o¡ender
even after completion of sentence if these are deemed necessary to protect the
public.126
As the inquiry to follow is interpretive, rather than normative, I do not attend
at length to these and other controversial features of the preventive order. My aim,
instead, is to bring into focus a second, less obvious, link between Feindstrafrecht
and the preventive order that ties in with some of Jakobs’ claims concerning the
vital importance of safeguarding the trust of the public in the institution of the
criminal law. As mentioned previously, Jakobs theorises the citizens’ criminal law
as a social institution which ‘guards’ interpersonal trust by facilitating interaction
between anonymous individuals in a highly complex society. Jakobs stresses,
however, that the citizens’ criminal law can only perform this function if every
member of society ful¢ls his institutional role as a loyal citizen by cultivating
law-abidingness. Signi¢cantly, the criminal law of the enemy sets forth special
rules for engaging with members of society whose conduct reveals a disloyal dis-
position toward the law. These actors, Jakobs insists, are to be (partially) stripped
of their legal status as citizens because they fail to ful¢l their role as responsible
members of the polity, thereby impeding the ability of the citizens’ criminal law
adequately to perform its social function. What comes through Jakobs’ account,
then, is that Feindstrafrecht is cast in the role of ‘guardian’ of the public’s trust in
the citizens’ criminal law. For the public’s trust in the citizens’ criminal law ulti-
mately rests on its belief in the readiness of citizens to follow criminal norms,
the upshot being that, in e¡ect, the criminal law of the enemy ‘guards the guar-
dian of trust’.
Yet one matter that is largely omitted from Jakobs’ account concerns how the
introduction of a distinct paradigm of Feindstrafrecht acts to secure public trust in
the citizens’ criminal law. The discussion below seeks to answer this question by
considering the symbolic function performed by the preventive order in English
law. To be sure, several commentators have already noted that, beyond its instru-
mental capacity to provide security, the preventive order acts to assuage the anxi-
ety of a public bewildered by the erosion of the state’s power to prevent crime.
Speci¢cally, it has been said that the preventive order reassures the public by man-
ifesting the readiness of law enforcement authorities to act decisively and by con-
veying that, as Adam Crawford puts it, ‘problems have reached such a point to
require drastic and exceptional action’.127 The analysis to follow is distinctive,
however, in drawing parallels with audit technologies which have been instru-
124 The House of Lords, however, ruled in R (McCann and Others) v Manchester Crown Court [2002] 4
All ER 593 that the criminal ‘beyond a reasonable doubt’ standard of proof must be met before
granting an Anti-Social Behaviour Order.
125 Ramsay,‘Theory of Vulnerable Autonomy’ n 119 above, 109.
126 See Simester and von Hirsch, n 119 above, 187^188; Ashworth and Zedner, n 82 above, 31, 36^37.
127 A. Crawford, ‘Dispersal Powers and the Symbolic Role of Anti-Social Behaviour Legislation’
(2008) 71 MLR 753, 774. See also P. Ramsay,‘Vulnerability, Sovereignty, and Police Power in the
742 (2010) 73(5) 721^751
Daniel Ohana
mental in the implementation of neo-liberal strategies of ‘governing at a distance’

and in coping with attendant trust de¢cits.
While audits have been traditionally associated with corporate ¢nancial man-
agement systems designed to verify ¢nancial statements, detect fraud, and ensure
that organisations comply with administrative norms and regulations, over the
past two decades increasing reliance has been placed ^ especially in the UK ^ on
a variety of audit practices in managing public sector activity and regulating busi-
nesses.128 The ‘audit explosion’129 has been noticeable in the New Public Manage-
ment reforms introduced to provide quality assurance and promote e⁄ciency in
such ¢elds as education and health.130 Audits have also come to play a pivotal role
in the con¢guration of ‘meta-regulatory’131 mechanisms which are increasingly
used to enforce the self-policing of corporations. Michael Power, who has pio-
neered research on the contemporary surge of interest in audit technologies, notes
that the audit is a versatile and highly transferable technology of government, as is
evinced by the di¡erent 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 observes,‘[a]uditing practice is not a natural or
obvious collection of operations, but has been changed and adapted for di¡erent
purposes in di¡erent settings’.132 Looking beyond the rich diversity of auditing
activities, Power situates the essence of the audit explosion in the ‘emerging com-
mon focus on management control systems’ which allows for a particular form of
oversight, namely, the ‘control of control’.133 The audit thus operates as a second-
order monitoring system: internal control frameworks of organisational self-
management, which are increasingly characterised in terms of risk manage-
ment,134 are monitored at a distance, while the external audit process con¢nes
itself to evaluating the operation of the internal system, rather than observing
¢rst-order activities and assessing questions relating to quality and performance.
Signi¢cantly, Power and others contend that the recent growth in ‘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
ASBO’ in M. Dubber and M. Valverde (eds), Police and the Liberal State (Stanford: Stanford Uni-
versity Press, 2008) 157, 175.
128 See generally M. Loughlin, ‘Audit, Regulation and Constitutional Modernization’ in M. Faure
and F. Stephen (eds), Essays in the Law and Economics of Regulation In Honour of Anthony Ogus
(Antwerp: Intersentia, 2009) 21. See also O’Neill, n 46 above, 46.
129 M. Power,‘The Theory of the Audit Explosion’ in E. Ferlie, L. E. Lynn and C. Pollitt (eds),The
Oxford Handbook of Public Management (Oxford: Oxford University Press, 2005) 326.
130 See generally M. Strathern (ed), Audit Cultures: Anthropological Studies in Accountability, Ethics and the
Academy (London: Routledge, 2000); C. Shore,‘Audit Culture and Illiberal Governance’ (2008) 8
AnthropologicalTheory 278.
131 See generally C. Parker, The Open Corporation (Cambridge: Cambridge University Press, 2002)
245^291.
132 Power, n 129 above, 340.
133 ibid 333. For critical discussion of Power’s work, see generally C. Humphrey and D. Owen,‘Debat-
ing the ‘‘Power’’ of Audit’ (2000) 4 International Journal of Auditing 29 (2000); I. Gray and
S. Manson,The Audit Process (London: Business Press,Thomson Learning, 2nd ed, 1999) 567^589,
604^611.
134 See eg J. Braithwaite,‘Meta Risk Management and Responsive Regulation for Tax System Integ-
rity’ (2005) 25 Law & Policy 1; J. Black,‘The Emergence of Risk-Based Regulation and the New
Public Risk Management in the United Kingdom’ [2005] PL 512.
(2010) 73(5) 721^751 743
oversight of complex systems.135 Casting a sceptical eye on the success of audit

mechanisms in meeting their stated goal of enhancing monitoring quality and
performance, they argue that audits merely generate visible signs of reasonable
practice for consumption by those whose programmes depend on the production
of comfort and reassurance.136 Audits thus satisfy demands for signals of order,
and arrest the decline in public trust as regards neo-liberal strategies of govern-
ance, whereby the state devolves its responsibilities, either as the provider of pub-
lic services or as the regulatory authority responsible for monitoring
organisational compliance. By enabling state bodies to ensure, from a distance,
that internal management systems function properly, audits alleviate trust de¢cits
by claiming to make the self-monitoring practices of the actors concerned trans-
parent to both internal and external observers.137
Several criminologists have already considered some of the ways in which the
‘audit explosion’ has impressed itself on the ¢eld of crime control and criminal
justice, studying, for instance, community noti¢cation schemes concerning the
release of sex o¡enders138 and the widespread use of surveillance and access con-
trol techniques to prevent crime.139 The following discussion adds to these studies
by tracing a number of similarities between the ways in which the preventive
order and the audit symbolically produce comfort and assurance. At ¢rst glance,
it may seem odd to juxtapose the audit with the preventive order, as audits have as
their primary object organisations and their internal control systems, while pre-
ventive orders mainly target individuals. However, there is a signi¢cant structural
a⁄nity between these two monitoring mechanisms. Speci¢cally, the preventive
order, like the audit, articulates with the criminal law to form a second-order
‘control of control’ mechanism. The criminal law mainly functions as a mechan-
ism of governance by punitively intervening once an actor has actually engaged
in dangerous or harmful conduct. As Jakobs notes, commenting on German
law, the criminal law, on the whole, is built in such a manner that the individual
citizen is accorded a signi¢cant degree of discretion in shaping his life-project
and planning his conduct so as not to infringe the criminal law. On the whole,
this claim also holds true with respect to English law, where 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.140 Certainly, liability may attach for a conspiracy
where two or more persons have reached an agreement to commit a
135 M. Power,‘The Audit Society ^ Second Thoughts’ (2000) 4 InternationalJournal of Auditing 111,118;
Shore, n 130 above, 280. On the rise of a culture of suspicion as regards professionals and public
servants, see O’Neill, n 46 above, 43^59.
136 M. Power, Audit Society (Oxford: Oxford University Press, 1997) 123. Christine Parker, takes a
more optimistic perspective, harbouring the hope that ‘meta’ self-regulation mechanisms will
serve as a vehicle for furthering the democratisation and social responsibilisation of corporations
by exposing them to public debate and scrutiny. See Parker, n 131 above, 245^291; C. Parker,‘Reg-
ulator-Required Corporate Compliance Program Audits’ (2003) 25 Law & Policy 222.
137 M. Power,‘From Risk Society to Audit Society’ (1997) 3 Soziale Systeme 3.
138 R. Levi,‘Auditable Community’ (2008) 48 BritishJournal of Criminology 583.
139 Crawford, n 46 above, 204^209.
140 Criminal Attempts Act 1981, s 1(1).
744 (2010) 73(5) 721^751
Daniel Ohana
crime,141 and a vast array of so-called ‘anticipatory’ o¡ences that target preparatory
actions142 and other forms of ‘remote harm’143 permeate the statute books. None-
theless, it should be kept in mind that as expansive as some of these prohibitions
may be, they fall short of criminalising deviant lifestyles as such, and always target
speci¢c courses of conduct.The preventive order, in contrast, attends to the sound-
ness of the citizen’s capacity and commitment to follow the law ^ or, as Jakobs
describes it, his ‘loyalty to the law’ ^ as opposed to a discrete instance of dangerous
or harmful conduct on his part. Indeed, for a preventive order to be made, it is
required that the competent authority determine that the imposition of restrictions
is necessary to prevent against 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 pre-
ventive order, such as anti-social behaviour. This requirement implies that the
competent authority is expected to gauge the actor’s capacity and commitment to
abide by the prohibitions of the law.Were the competent authority to ¢nd that the
actor is suitably disposed to steer himself as a responsible law-abiding citizen, then
the making of a preventive order would not be called for: the actor could be
trusted to act appropriately, without there being a need to monitor his conduct
by setting special restrictions which do not apply to other citizens.
In probing the similarities between the preventive order and the audit process, I
pick up on the point made earlier concerning Feindstrafrecht’s role in safeguarding the
trust of the public in the power of the criminal law to command authority. I con-
centrate on Jakobs’ claim that the norms of the criminal law are ‘weak’,144 such that,
to compensate for this de¢cit and enable the criminal law to perform its function of
facilitating interaction between anonymous individuals in a highly complex
society, every citizen is expected to cultivate law-abidingness on his own. Examin-
ing this claim through the prism of neo-liberal governance, I reinterpret it as an
acknowledgment of the state’s relatively limited role in the provision of security,
while it devolves responsibility and accountability to the loyal citizen by casting
him as its partner in the task of maintaining the power of the citizens’ criminal
law to guide the conduct of members of society. I argue that the preventive order,
like Feindstrafrecht in Jakobs’ bipartite account of the criminal law, twins with the
criminal law to form a‘control of (self-) control’ mechanism which is analogous to
the audit. Yet, as I clarify below, my argument that the preventive order, like the
audit process, acts to reassure the public does not merely rest on the observation that
public anxiety is assuaged by the imposition of special restrictions which lessen the
risk of wrongdoing by an actor who cannot be trusted to follow the law on his
own. Rather, my argument focuses on the conduct prerequisites which must obtain
before an inquiry can be held into the need for such restrictions as regards a speci¢c
actor. Scrutinising these conduct prerequisites, I contend that the preventive order
141 Criminal LawAct 1977, s 1(1).

142 See generally D. Ohana, ‘Desert and Punishment for Acts Preparatory to the Commission of a
Crime’ (2007) 20 Canadian Journal of Law and Jurisprudence 113; R. A. Du¡, Criminal Attempts
(Oxford: Oxford University Press, 1996) 386^393.
143 See generally A. P. Simester and A. von Hirsch,‘Remote Harms and Non-Constitutive Crimes’
(2009) 28 Criminal Justice Ethics 89; D. J. Baker, ‘The Moral Limits of Criminalizing Remote
Harms’ (2007) 10 New Criminal Law Review 370.
144 Jakobs, Das Schuldprinzip, n 11 above, 24.
(2010) 73(5) 721^751 745
acts to gain the trust of the public in the power of the criminal law to command
authority by setting in motion a process of veri¢cation which ‘institutionalize[s]
distrust’145 in the law-abidingness of the (presumably) loyal citizen.
Examining closely the conduct prerequisites for a preventive order, it becomes
apparent that these very often comprise acts that have a detrimental e¡ect on the
trust of the public in the authority of the criminal law, in that they outwardly
suggest the likelihood that the actor is running his life without being su⁄ciently
responsive to its norms. Consider the de¢nition of ‘involvement in serious crime’
under the Serious Crime Act 2007 for purposes of obtaining a Serious Crime Pre-
vention Order.146 It extends both to cases where the actor actually commits a ser-
ious o¡ence or facilitates the commission by another person of a serious o¡ence,
and 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 o¡ence’.147 Such forms
of conduct, though not necessarily punishable in their own right, distress the
public because they suggest that the norms of the criminal law do not broadly
summon respect.
Yet, other forms of conduct provide grounds for the making of a preventive
order without directly manifesting the likelihood of the actor personally enga-
ging in the commission of a crime, or acting as an accomplice therein.The Crime
and Disorder Act 1998148 de¢nes anti-social behaviour for the purpose of obtain-
ing 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 O¡ences Act
2003,149 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 refer-
ence to such activity; and communicating with a child, where any part of the
communication is sexual. Beyond being obviously disturbing because they are
morally and culturally inappropriate, the aforementioned forms of anti-social
behaviour and sexually suggestive conduct provoke public unease because their
performance risks unleashing a snowball e¡ect. Indeed, 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 communication with children, he
might get entwined in a train of events where, out of either impetuosity or lust,
he momentarily loses control and commits a crime of violence or a sexual o¡ence.
The prospect of such a turn of events unsettles the trust of the public in the
authority of the criminal law because of the widely held view that, were its
145 Shapiro, n 63 above, 635.

146 Serious Crime Act 2007, s 2.
147 Serious Crime Act 2007, s 2(1)(c). Analogously, the de¢nition of ‘involvement in terrorism-
related activity’ for purposes of the making of a Control Order, encompasses preparatory acts
planned to culminate in the commission of a crime as well as the encouragement or aiding of an
actor who intends to commit an act of terrorism. Prevention of Terrorism Act 2005, s 1(9).
148 Crime and Disorder Act 1998, s 1(1)(a).
149 Sexual O¡ences Act 2003, s 123(3).
746 (2010) 73(5) 721^751
Daniel Ohana
normative demands to carry leverage, they would weigh decisively in the deci-
sion-making of individuals and cause them to take care to control their behaviour
so as not to get caught up in perilous situations.
Having explained how the preventive order cues the public to take heed of
disconcerting conduct, I now identify the manner in which the preventive order
acts to restore trust by drawing together Jakobs’ account of the loyal citizen’s
recruitment by the criminal law to bolster its authority with Power’s analysis of
the audit process.150 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.151 The preventive order, like the audit,
launches a similar process of active trust-testing, though it focuses attention not
on the criminal justice system and its (in-)ability to e¡ectively enforce the norms
of the criminal law, but on its ‘internal control system’: the capacity and commit-
ment of the (presumably) loyal citizen to abide by the law. Initially eliciting
awareness of suspicious behaviour that tarnishes the image of authority of the
criminal law by upsetting social expectations of conformity and responsible
behaviour, this process leads to an inquiry in which the competent authority tries
to ascertain whether the negative impression given to the public is justi¢ed, that is,
whether the performance of the conduct is actually symptomatic of a de¢cient
capacity or commitment to follow the law on the part of the (presumably) loyal
citizen. In this manner, the practices and procedures involved in the making of a
preventive order enact a ritual of checking and veri¢cation which comforts the
public in the conviction that, aside from those untrustworthy actors who have
actually been made subject to a preventive order, the criminal law by and large
continues to hold sway. The preventive order thus plays on a peculiar quality of
trust discerned byAnnette Baier, namely, that we notice trust ‘most easily after its
sudden demise or injury . . . [much like] we notice air, only when it becomes
scarce and polluted’.152 It thus lies at the heart of the preventive order’s social func-
tion to restore the trust of the public by countering the negative symbolic e¡ect of
certain disconcerting acts, and not just to protect the public from actors who are
intent on committing a crime, or otherwise inclined to engage in criminal or
anti-social activity.This symbolic role of the preventive order is thrown into stark
relief by the numerous provisions which preclude the making of a preventive
order where the conduct of the actor is shown to be reasonable notwithstanding
the presence of an ulterior intent to engage in criminal conduct, anti-social beha-
viour or sexual activity with a minor, yet authorise the competent authority to
hold an inquiry into the need for restrictions even where such an intent is absent.
For the purpose of making a Risk of Sexual Harm Order, sexual activity is
de¢ned as ‘an activity that a reasonable person would, in all the circumstances but
regardless of any person’s purpose, consider to be sexual.’153 The de¢nition of sexual
communication and sexual images is similarly worded.154 The Serious Crime
150 See Power, n 136 above, 137^138.

151 See Crawford, n 46 above, 207^208; O’Neill, n 46 above, 83.
152 Baier, n 48 above, 234.
153 Sexual O¡ences Act 2003, s 124(5) (Emphasis added).
154 Sexual O¡ences Act 2003, s 124(6)^(7).
(2010) 73(5) 721^751 747
Act 2007 provides, on the one hand, that if the actor can show the act to be reason-
able in the circumstances, then it should be disregarded by the court for purposes
of granting a Serious Crime Prevention Order;155 and on the other, that when
considering whether the actor conducted himself in a way that facilitated or was
likely to facilitate the commission of a serious o¡ence, the court must ignore the
intentions and other aspects of the mental state of the actor at the time of the act in
question.156 As for the Anti-Social Behaviour Order, the triggering conduct is
de¢ned as behaviour which ‘causes or is likely to cause harassment, alarm or dis-
tress’.157 There is no need to prove an intention to cause harassment, alarm or dis-
tress. It is the e¡ect or likely e¡ect on other people that determines whether the
behaviour is anti-social, which signi¢es that public perceptions as to what consti-
tutes anti-social behaviour are incorporated into the criteria for making an
order.158 In addition, any behaviour shown to be reasonable in the circumstances
is not to be considered.159
That the triggering conduct requirements of the preventive order are very
often delineated by reference to the external standard of the reasonable person,
rather than the actor’s mental state, points to another similarity with the audit.
By demanding strict adherence to procedures and protocols, detailed record-
keeping concerning performance, and the provision of information in speci¢ed
formats, the audit reassures the public by creating what Power has called ‘visible
signs of reasonable practice’.160 In the context of the preventive order, however, it
is the reverse perspective that holds true. Attention focuses on averting ‘unreason-
able’ practices, which consist of visibly deviant conduct signalling a de¢ciency in
law-abidingness. In this manner, the preventive order symbolically embeds the
understanding that insofar as 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. The upshot, however, is
that the citizen is expected not simply to refrain from actually acting in violation
of the criminal law, but also to abstain from performing acts which might give
the impression that he is insu⁄ciently responsive to its norms in running his life.
Power has noted that auditing standards engender a similar outcome: by requir-
ing the provision of information in speci¢ed formats, the audit does not neutrally
monitor at a distance; rather it actively transforms the practices of its subject, fos-
tering rigid and overly compliant ‘auditee mentalities’.161
Before concluding, it is ¢tting to consider the account developed above in the
light of Peter Ramsay’s analysis of the preventive order as a tool for the protection
of vulnerable autonomy.162 According to Ramsay, 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
155 Serious Crime Act, s 4(2)(a)^(3)(a).

156 Serious Crime Act, s 4(2)(b)^(3)(b).
157 Crime and Disorder Act 1998, s 1(1)(a).
158 Home O⁄ce, De¢ning and Measuring Anti-Social Behaviour, Development and Practice
Report 26, 3 (2004).
159 Crime and Disorder Act 1998, s 1(5).
160 M. Power,‘Making Things Auditable’ (1996) 21 Accounting, Organizations and Society 289, 310.
161 Power, n 129 above, 335.
162 Ramsay, n 119 above.
748 (2010) 73(5) 721^751
Daniel Ohana
that members of the polity not ‘fail to reassure’ others, a demand rooted in a con-
struction of the ordinary citizen as intrinsically vulnerable and in need of assur-
ance. Focussing on the Anti-Social Behaviour Order, Ramsay observes that this
depiction of citizens as vulnerable‘views the law generally, and the criminal law in
particular, as having failed in relation to antisocial behaviour and fear of crime’.163
Ramsay’s thesis echoes Lord Steyn’s comments in McCann:
It is well known that . . . young 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 o¡ences . . .
In recent years this phenomenon became a serious problem. There appeared to be a
gap in the law. The criminal law o¡ered insu⁄cient protection to communities.
Public con¢dence in the rule of law was undermined by a not unreasonable view
in some communities that the law failed them.164
The Anti-Social Behavior Order, from this viewpoint, forms part of a ‘political
strategy self-consciously aimed at restoring ‘‘public con¢dence’’ in the exercise of
state power’.165 Yet Ramsay suggests that such a strategy may back¢re, since the
Anti-Social Behavior Order institutionalises the failure of legal norms, thereby
exposing the fragility of sovereign power in the very attempt dramatically to
manifest it.
The rise to prominence of the preventive order, however, does not merely rest
on a perception of the failure of the state to enforce the norms of the criminal law.
It also aligns with broader trends in neo-liberal governance and crime control.
Signi¢cantly, the assemblage of the machinery of the preventive order manifests
a speci¢c conception of the proper division of responsibilities between the state
and the individual for the provision of security which ties in with the decline of
strategies of social solidarity and the retreat of penal welfarism, which used to link
crime reduction to the rehabilitation of o¡enders and the elimination of poverty
and socio-economic deprivation by the state. The preventive order, like the audit,
represents a form of downward accountability, in that it presupposes that it is
solely the responsibility of the citizen to organise his life-project and self-police
in his daily activities so as not to run afoul of the law or disturb the public’s sense
of security. As argued earlier, the statutory framework of the preventive order
implicitly expresses this expectation vis-a' -vis all members of the polity who wish
to avoid being made subject to an enquiry which might culminate in the imposi-
tion of restrictions. Furthermore, even where the conduct prerequisites are met,
the competent authority does not attend to the di⁄culties which may be a¡ecting
the speci¢c actor’s choices to engage in, or desist from, crime, such as psychologi-
cal instability, substance addiction, alcoholism, poverty, economic deprivation or
social exclusion, in determining whether it is justi¢ed to impose restrictions
because of a de¢cient capacity or commitment to follow the law. Lastly, the
measures susceptible of being taken by the competent authority to protect the
public are entirely negative in content, consisting only of strict restrictions on
163 Ramsay, n 127 above, 173.

164 R (McCann and Others) v Crown Court at Manchester and Another (2003) 1 AC 787, 813^814.
165 Ramsay, n 127 above, 175.
(2010) 73(5) 721^751 749
conduct backed by the possibility of criminal sanctions being imposed in the

event of a breach.
The shift from the welfare to the neo-liberal state has profoundly shaped crime
control practices over the past few decades, with responsibility for preventing
crime being devolved to actors such as potential victims, who are made responsi-
ble for taking safety precautions, and communities, groups and business organi-
sations, who are mobilised as ‘partners’ in the active policing of such domains as
neighbourhoods, schools, and workplaces.166 But whereas commentators have
documented how the state governs at a distance by transferring the burden of
providing security to individuals and collectivities, the present account suggests
that the preventive order singles itself out in that it also re-casts the individual
citizen as the state’s ally in maintaining and developing the trust of the public in
the power of the criminal law to command authority. Ramsay explains that the
invocation of a norm of vulnerable autonomy bestows the preventive order with
social legitimacy, as such a norm resonates with political theories which Nikolas
Rose has termed ‘advanced liberal’, namely, the Third Way, communitarianism
and neo-liberalism. The account developed here, however, emphasises another
facet of the ‘advanced liberal’ image of the citizen underpinning the preventive
order: that of the self-governing actor who is expected to comply with the law
on his own and adjust his conduct so as not to disconcert his fellow members of
the polity.167 Once this aspect of the symbolic reality constructed by the preven-
tive order is taken on board, it becomes apparent that the preventive order does
not simply act to reassure the public by conferring legal authority to take swift
and dramatic action against actors who (ostensibly) cannot be adequately gov-
erned just by invoking the system of the criminal law. It also acts to reassure the
public by a⁄rming the duty of the individual to diligently manage his risks of
o¡ending on his own, while, at the same time, putting in place a monitoring
mechanism which generates the impression that, aside from exceptional cases
involving society’s ‘enemies’, this duty is, by and large, being met.
To be sure, it remains an open question whether or not such a strategy of insti-
tutionalising distrust in the law-abidingness of citizens can succeed in restoring
trust in the authority of the criminal law and pacify anxious members of the
polity. The preventive order necessitates trust in itself to generate trust in the
authority of the criminal law. As such, it may eventually have to be made the
subject of veri¢cation owing to a lack of trust in its competence as a monitoring
mechanism.168 Moreover, even if trust is invested in the capacity of the preventive
order to produce order and security, it is still quite possible that it will merely
disseminate trust de¢cits into the social fabric, encouraging distrust in fellow citi-
zens without necessarily reproducing trust in turn.
166 See generally L. Mazerolle and J. Ramsely,Third-Party Policing (Cambridge: Cambridge Univer-
sity Press, 2005) 1^22.
167 See Rose, n 103 above, 324.
168 Cf Crawford, n 46 above, 204.
750 (2010) 73(5) 721^751
Daniel Ohana
CONCLUSION
Over the past decade, Gˇnther Jakobs’theory of the criminal law of the enemy has
provoked a chorus of critical responses across many European countries.Yet for all
of the acrimony stirred by Feindstrafrecht, even some of Jakobs’ opponents have
conceded that the theory o¡ers a convincing descriptive account of the social
beliefs and perceptions which precipitated, and bestowed legitimacy upon, the
special measures adopted in Germany and elsewhere to protect society against
speci¢c categories of o¡enders.169 Framing its analysis around the notion of trust,
this article has sought to articulate the relevance of Jakobs’ account of responsible
citizenship for the analysis of the growing role of diversion and preventive orders
in English law.While, at ¢rst glance, the entrenchment of these alternatives to the
criminal sanctioning process within the English landscape of criminal justice
seems to o¡er yet another example of the ‘volatile and contradictory character of
crime control policy’170 in contemporary society, I have argued that this develop-
ment displays a certain ‘strategic coherence’171 insofar as it impinges on trust rela-
tions. Examining the simple caution and the preventive order through the prism
of Feindstrafrecht and the wider political, social and economic context, I have
sought to demonstrate that these instruments are informed not just by objectives
of e⁄cient and e¡ective policy-making, but also by broader changes which have
taken place in prevailing conceptions of state responsibility and individual
accountability under the in£uence of neo-liberal practices of governance.
169 See generally Heinrich, n 28 above,101; Saliger, n 33 above, 759^760; P. A. Albrecht,‘‘‘Krieg gegen
denTerror’’ ^ Konsequenzen fˇr ein rechtsstaatliches Strafrecht’ (2005) 117 Zeitschrift fˇr die gesamte
Strafrechtswissenschaft 852, 855^856.
170 O’Malley, n 114 above.
171 Rose, n 103 above, 324.
(2010) 73(5) 721^751 751
Copyright of Modern Law Review is the property of Wiley-Blackwell and its content may not be copied or
emailed to multiple sites or posted to a listserv without the copyright holder's express written permission.
However, users may print, download, or email articles for individual use.

OHANA Trus, Distrust and Reassurance

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

OHANA Trus, Distrust and Reassurance

Uploaded by

Copyright:

Available Formats

Trust, Distrust and Reassurance: Diversion and Preventive

Orders Through the Prism of Feindstrafrecht

isdictions has been characterised by the enactment of a spate of legal measures

2 See generally N. Lacey,‘Legal Constructions of Crime’ in M. Maguire, R. Morgan and R. Reiner

GNTHER JAKOBS’ THEORY OF CRIMINAL LAW AND

20 Jakobs, Staatliche Strafe n 13 above, 40^48; G. Jakobs,‘Personalitaºt und Exklusion im Strafrecht’ in

FEINDSTRAFRECHT: CRITICAL RESPONSES

As mentioned previously, Gˇnther Jakobs’ theory of the criminal law of the

INTERPERSONAL TRUST AND TRUST IN INSTITUTIONS

42 C. Prittwitz,‘Feindstrafrecht’ in A. Pilgram and C. Prittwitz (eds), Kriminologie: Akteurin und Kri-

features of trust:48 it is a ‘three-part relation’49 whereby one person trusts another

worthiness.55 In Braithwaite’s view, a trustworthy actor is one who cognitively

55 J. Braithwaite,‘Institutionalizing Distrust, EnculturatingTrust’ in Braithwaite and Levi (eds), n 46

and sanctions in‘guarding’ interpersonal trust and facilitating interaction between

THE ‘SIMPLE’ CAUTION AND THE GOVERNMENTALISATION OF

Michel Foucault famously de¢ned governing in a wide sense as the ‘conduct of

proven especially fruitful in generating insights about how power operates in

84 See Ashworth and Zedner, n 82 above, 25.

limited availability of police o⁄cers and prosecutors. The linchpin of my argu-

91 Jakobs, Norm, Person, Gesellschaft n 12 above, 98^102.

notion of ‘trust-responsiveness’ to show that when a simple caution is issued, the

the o¡ender is envisioned as an actor who automatically recognises that what he

Before this part of the discussion is concluded, it is ¢tting to dwell brie£y on

PREVENTIVE ORDERS AND THE RESTORATION OF TRUST IN THE

of hearsay evidence.124 In addition, violation of the conditions of a preventive

mental in the implementation of neo-liberal strategies of ‘governing at a distance’

oversight of complex systems.135 Casting a sceptical eye on the success of audit

141 Criminal LawAct 1977, s 1(1).

145 Shapiro, n 63 above, 635.

150 See Power, n 136 above, 137^138.

155 Serious Crime Act, s 4(2)(a)^(3)(a).

163 Ramsay, n 127 above, 173.

conduct backed by the possibility of criminal sanctions being imposed in the

You might also like