In any society some people pose a risk to others. For hundreds of years preventive detention has been authorised by governments to ensure people are available for criminal proceedings (e.g. remand), in the mental health area, for quarantine, for inebriates, enemy aliens, and sexual predators. The policy has also been famously employed more recently to control suspected terrorists.
These regimes have proliferated in recent years, and this book asks and answers some of the fundamental questions about these regimes. What are their doctrinal foundations? Is there a risk in laws that blur the historic division between criminal and civil law, allowing civil law to be used for criminal law purposes but without the protection normally provided to criminal defendants? Are they effective in protecting people from harm? How do these regimes challenge fundamental principles, such as human rights? Are our laws and policies geared towards the rehabilitation of the detained? What are the remedies available to people who seek to challenge these regimes?
Regimes that punish people who have not been convicted of a fresh crime or that contemplate the infliction of punishment upon breach of a ‘control order’ require careful scrutiny to avoid human rights abuse. This volume considers preventive detention in its many varying forms across Europe, the Americas and Australasia, interrogates the theoretical underpinnings of the regimes, and then critically analyses these regimes for consistency with international human rights. The volume brings together respected international experts to guide lawmakers, policymakers and academics in an increasingly significant area of penal and public policy.
‘This essential collection of writings on the growing use of preventive detention could not be more timely. Preventive Detention: Asking the Fundamental Questions provides an international perspective available nowhere else on how democracies can preserve civil liberties while addressing public risk. It needs to be read and discussed by every policymaker, practitioner, and legal scholar concerned with one of the most important issues of our time.‘
John Petrila, Chair and Professor, Department of Health Policy & Management, University of South Florida
Preventive Detention: Asking the Fundamental Questions (p. 1)
Preventive Detention (p. 15)
Preventive Detention in Europe, the United States, and Australia (p. 31)
Preventive Detention in England and Wales: a Review under the Human Rights Framework (p. 55)
The New Face of Preventive Detention in New Zealand: Public Protection Orders (p. 85)
The Rehabilitation of Preventive Detention (p. 111)
Anti-Terror Preventive Detention and the Independent Judiciary (p. 137)
Redress for Unlawful Imprisonment (p. 159)
Humpty Dumpty and Risk Assessment: A Reply to Slobogin (p. 193)
Assessing Risk for Preventive Detention of Sex Offenders: The Dichotomy between Community Protection and Offender Rights Is Wrong-Headed (p. 223)
The Prison: Its Contribution to Punishment, Rehabilitation and Public Safety (p. 249)
Preventive Detention beyond the Law: The Need to Ask Socio-Political Questions (p. 261)