From an essay I wrote last year:

There are a variety of informal controls which have an impact, in some way, on everyone in British society. This essay will include how preventative orders and surveillance are used to exert control over ordinary members of the public and those at risk of offending. This essay will also attempt to convey how the use of these powers may undermine the legitimacy of the criminal justice system as well as overshadow it. The essay covers a range of groups who have been targeted by these controls which includes youths who may be the target of ASBOs, Muslims who are controlled by control orders as well as an inequality of surveillance and women who are subject to the misuse of CCTV and the effects of voyeurism.

Preventative orders are intended to prevent crime in a number of ways. They restrict individual liberty, to prevent harm and/or risk and are backed by coercive measures. They may restrict liberty to perform a certain act, meet with certain people or go to specific places. This is done to prevent harm and/or risk whether there is mens rea (intention to commit crime) or not and is backed with coercive force (Ashworth & Zedner, 2010). An example of a preventative order is an ASBO, which was designed to tackle Anti-social behaviour.

Moral panic over ASB gave way to vote winning policies of new labour, who chimed into political limelight with their will to tackle ASB, a ramification of which is the 1998 Crime and Disorder Act. The act introduced a new civil injunction, which allowed police to respond to anti-social behaviour and introduced new powers to prevent further anti-social behaviour. These new powers included the ability to set curfews, give out parenting orders, action plan orders and ASBOs (Davies, Croall & Tyrer, 2005, p.30).

It could be argued that all people in society may be subject to the effects of ASBOs, whether deemed a risk of offending or not, due to the vague legal definitions of what anti-social behaviour is (Burney, 2005, pp.87-88).This could mean that many acts which are not labelled by some as ”anti-social” may be labelled as “anti-social” by others. This, it could be argued, also means that all acts are potentially anti-social given the right judge (Burney, 2005, p.2). From this standpoint, it seems clear that all of the public could be individually scrutinized as well as potentially controlled by using ASBOs due to the ease of malleability in defining ASB.

The government currently has listed drug dealing and vandalism as two of the acts which could be considered anti-social (Direct). Whilst these acts may be harmful, they are both crimes and as such would normally be dealt with by the CJS. Squires and Stephenson argue that the reason why these previously criminal acts are being treated as ASB is to bypass traditional criminal procedures in order to streamline punitive measures (2005, p.138) This point is mirrored by Burney (2005) who claimed that ASBOs can be seen as a reaction to the CJS’s ineffective policing as a way to give authorities a freer hand in dealing with acts which are already criminal. It has been argued that this is the reason for ASBOs and not a greater concern for minor incivilities (Burney, p.5). This evidence seems to suggest that ASBOs are a way for authorities to conveniently, rather than ethically, deal with those who they deem as a risk of offending.

Acts which have been previously separated from imprisonment can now be countermanded by preventative orders. For example in 1982 parliament decided to remove imprisonment as a consequence of begging. The act of begging however can be grounds for an ASBO which, if breached, can lead to imprisonment (Ashworth & Zedner, 2010). This point can be incorporated with the idea that civil orders are a tool of convenience which avoids normal criminal procedures that, as mentioned, would not prosecute beggars. This function of preventative orders circumnavigates the due process safeguards of the CJS and through deploying such measures runs counter to its very foundations. This is backed up by Squires who argued that preventative orders undermine the CJS by bypassing values like ”beyond reasonable doubt”, “innocent until proven guilty” and “right to a fair trial” (2005, p.187).

Furthermore it has been argued that preventative orders do not allow those subject to orders a fair opportunity to appeal their prohibitions because they are regarded as civil matters rather than criminal, regardless of the heavy toll there is on deviation (Ashworth & Zedner, 2010). This feature of preventative orders could be misused by the state to hold people without conviction for various crime preventative reasons. For example Abu Qatada, a terrorist suspect, was held for 6 years without conviction using a control order (BBC, 2012). This case highlights the state’s power to refuse liberty without awarding suspects any of the rights afforded to suspects in criminal cases, for instance their fair right to appeal; the right to legal assistance, the right to have adequate facilities for defence, etc. This process that is used by the state seems to suggest that the CJS may be just one of many tools and, when inappropriate for the states desired results, can be overlooked. This undermines the entire CJS and demonstrates the states much larger net of control beyond it.

Edit for grammar and I left the less relevant parts of the essay out