Positive Obligations and Criminal Justice: Duties to Protect or Coerce?
PRINCIPLED APPROACHES TO CRIMINAL LAW AND CRIMINAL JUSTICE: ESSAYS IN HONOUR OF PROFESSOR ANDREW ASHWORTH, Julian Roberts, Lucia Zedner, eds., Oxford University Press, 2012
29 Pages Posted: 10 Feb 2013
Date Written: September 1, 2012
This chapter explores the relationship between criminal law, criminal process and human rights from a slightly different perspective. It demonstrates that while human rights may well be used to limit the excesses of security and law and order politics, the nature of the relationship between human rights and criminal justice cannot be captured alone by the view of rights as a limit on the coercive reach of the criminal law and criminal justice institutions. Increasingly, human rights, cast as positive rights, have resulted in claims for the extension of the criminal law, the creation of preventative duties or ‘protective policing measures’, for the intensification of policing and prosecution of sexual and violent crimes in particular, and threats to security or public protection in general. The story is a complex one which is intimately linked to the growing international acceptance of human rights as including positive rights, and hence a shift from a conception of rights as a limitation on State action to one which now views rights as demands for such action. The result is a process whereby the human rights of those subject to harm - such as the right to life, the right against torture, inhuman and degrading treatment, the right to private life, the right against discrimination, and the right to security - have now combined to create what I argue are most accurately described as coercive duties on the State to criminalize, prevent, police and prosecute harmful acts. We need to remain vigilant about how these positive duties are framed and deployed to legitimate such coercive action from the State.
Keywords: human rights, criminal justice, protective duties
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