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

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?

This research compares selected procedural hybrids – civil recovery, domestic violence protection orders (DVPOs), and knife crime prevention orders (KCPOs) – with a view to highlighting their disproportionate use under circumstances of ideologically motivated political expediency. It points to how such (often covert) instrumentalism disproportionately disadvantages vulnerable or powerless populations, and then challenges the motivations behind the use of such procedural hybrids that privilege specific policy goals over considerations of human rights, civil liberties, and due process. Finally, it presents the increased use of such procedures as a new and distinct kind of regulatory technique, that is, hybrid-proceduralism.