Everyday Challenges to the Rule of Law: The Case of Civil/Criminal Procedural Hybrids

Rules of legal procedure determine the steps to be taken and standards to be met in the resolution of issues coming before the law. Due to their different purposes - criminal law being to punish, civil law to compensate - civil and criminal processes have traditionally been distinguishable in several ways, for example, in how they conceptualise harm, in the investigatory powers available to the state, in the role taken by a prosecution authority, and in the standards of evidence to be met.

In practice this means that, while 'civil' processes operate under lesser burdens, processes designated as 'criminal' attract for the accused enhanced procedural protections as additional commitments. Importantly, it is the legal system that imposes these standards and requirements on itself, in accordance with the rule of law. The rule of law is a principle of governance comprising those foundational values that ought to be reflected in the legal system, thus establishing the minimum standards of fairness to be upheld. The additional safeguards within the criminal process protect the rights of the accused and ensure against the potential misuse of State authority.

Civil/criminal procedural hybrids, which are blended processes that employ mechanisms normally associated with the other, serve to blur the lines between the civil law and the criminal law. This is the case both in terms of their stated purposes - compensation or punishment - and in terms of the processes to be followed and standards to be met. Such low level hybrid procedures regulate some of the most commonplace interactions between the legal system and the public, and are deserving of greater scrutiny. Considering that such line-blurring can have the result of effectively removing those additional commitments attaching to criminal processes, it has real implications in terms of the legal system's compliance with the rule of law.

Legislation introducing such hybridised procedures into UK law has become increasingly common, which begs the question as to why. What are the underlying policy reasons for the use of procedural hybrids - known alternatively as civil penalties, punitive sanctions, and quasi-criminal measures - and why are they becoming more commonplace? In the event that these reasons track important policy goals, are these goals so important that the potential rule of law concerns can be overlooked? In addressing these questions, this theoretical and comparative investigation employs three case studies, namely civil recovery, domestic violence protection, and 'crimmigration'. These procedural hybrids have been selected to include within the study a wide range of different forms, practices, and motivations.

This research draws specific attention to the long overlooked 'rules of the proceedings' that govern the application of the substantive law. The focus of this study has been refined in consultation with stakeholders in the form of project partner Liberty and with the Advisory Board, comprising leading academics and experts from practice. It will have a transformative impact by influencing how, when and why such civil/criminal procedural hybrids are employed in the future.

Publications and outputs

Related work published or forthcoming:

• J. Hendry, ‘The Usual Suspects’: Knife Crime Prevention Orders and the ‘Difficult’ Regulatory Subject, British Journal of Criminology
• J. Hendry, ‘The Hostile Environment and Crimmigration: Blurring the Lines between Civil and Criminal Law’, in Soundings issue 76, 26-36 (December 2020)
• Civil Recovery of Criminal Assets, with C. King (Oxford Monographs on Criminal Law and Justice, OUP, forthcoming)
• ‘Expediency, Legitimacy, and the Rule of Law: A Systems Perspective on Civil / Criminal Procedural Hybrids’, with C. King, Criminal Law & Philosophy (2017) 11(4) 733–757
• ‘How Far Is Too Far? Theorising Non Conviction Based Asset Forfeiture’, with C. King, International Journal of Law in Context (2015) 11(4), 398-411