The public–private divide: which side is criminal justice on?
The public–private divide: which side is criminal justice on?
Abstract and Keywords
The division between public and private depends upon our social and political values because it forms part of our general concern with the proper limits of governmental power in a liberal state. The divide also shapes our values because it informs what we can expect, or demand, of people given their public or private status. This chapter explores the public-private divide as a crucial meeting-point between criminology, political philosophy, and criminal justice practice. It argues that the line between public and private is always dynamic and that, as a consequence, there can be no simple way to evaluate the rights and responsibilities of private actors within a criminal justice system.
The division between ‘public’ and ‘private’ is fundamental to criminal law and a focus of criminal justice policy debate. This chapter argues that the division should be understood as an ongoing social process to which criminal justice contributes, rather than as something demarking defined spaces or static roles. Criminal justice plays a critical role in this process, a process of drawing proper limits to the power of the state, including the state’s ability to intrude into the personal sphere. It will be argued that maintaining a division between public and private should be seen as an intrinsically valuable project, one that cannot be pursued without affording considerable power to criminal justice agencies and placing considerable constraints upon them.
The social process of creating, drawing and redrawing the divide between public and private is nothing less than the ongoing project of maintaining the rights of the individual and limiting the power of public actors. It is, more precisely, a project of excluding arbitrary interests and preferences from public life and, conversely, limiting certain kinds of public intervention into conscience, preference or personality. This allows two different groups of values to exist. Without such limitations and exclusions, there could be no personal autonomy: the state would dictate the standards of legitimate behaviour in every aspect of our lives, leaving no room for individual conceptions of a good life (Mill, 2008). Equally, without identifying standards and practices proper to public life, there could be no impartial administration of justice because individuals would be judged by their character, rather than by general standards appropriate to those adopting public roles (Fuller, 1969).
This complex relationship between values and the public–private divide has consequences for the regulation of, and the division of labour between, public and private actors in the delivery of criminal justice. (p.224) Criminal justice actors must be sufficiently powerful to constrain the state itself from undue interference in our lives, but also sufficiently accountable to prevent such power becoming oppressive. Not only is it uncertain whether private actors are sufficiently accountable for this role, but the authority of criminal justice agencies flows from the exclusion of private interest, an exclusion which is difficult or impossible for entities owing their existence to private interest (Loader, 2006).
More generally, because it is a project, as opposed to a single set of social facts – a project constituted by social practices, discourse, agency and social structures – the public–private division is susceptible to various forms of scepticism. Conceptually, there is no logical necessity for the public–private division, it is always dynamic and local; pragmatically, the public benefits from intrusions into the private sphere and the public sphere benefits from private virtues; and morally, the public has a responsibility to limit the freedoms of the private sphere (Kennedy, 1982; Grear, 2003). The existence of a divide is easily cast into doubt by the encroachment of law into the private sphere for crime control purposes, and by the uncertain boundaries between public and private actors and actions (Palmer, 2007; Almandras, 2010). Private ethical commitments, and public responsibilities, can be found – blurred or mutually reinforced – in the activities of private companies providing public service (Kempa and Singh, 2008); in the exercise of our civil liberties, where private commitments are made public (Brettschneider, 2007); and in the norms of criminal law, where private conduct is criminalised (Lacey, 2011). Nonetheless, despite such scepticism, criminal justice needs the divide and the divide needs criminal justice.
First, criminal justice needs the public–private divide in order to function within reasonable limits. The public and the private are both policed, but are policed differently, by criminal justice agencies. The legal demarcation of different practices for different spheres ensures that the powers at the disposal of criminal justice agents for the purposes of maintaining public order are tempered or revoked when policing our homes or personal lives (Fuller, 1969; Mill, 2008). To investigate the private, be it the body or the home, requires additional justification and authorisation; the policing of public spaces involves deployments of violence and displays of power that are inappropriate in the private sphere (Thornton, 1991).
Second, the public–private divide needs criminal justice because criminal law draws boundaries between permissible and impermissible, including what is permissible or impermissible for the state itself. (p.225) Without identifying impermissible intrusions into the private sphere by regulating its investigatory and disciplinary powers, the state would lose any claim to liberalism, that is, the granting of the maximum possible freedom for private choices and the exercise of private virtues (Rawls, 1999; Mill, 2008). Accordingly, any state seeking to place limits on its powers, and certainly any state claiming liberal foundations, must have a criminal justice system that both polices, and is policed by, different sets of public and private responsibilities (Wakefield, 2003). In liberal states, there is a constructive relationship, but also an irreconcilable difference, between the private and the public.
In order to understand the links between the public–private division, values and criminal justice, we initially consider the classic articulation of the divide as it has been received by the modern liberal political tradition. This involves the familiar division between public and private ‘spheres’, and requires us to posit a dual relationship between the divide and values: that the divide is valuable, and that the divide supports other kinds of values. This prefaces discussion of some contemporary tensions and trends associated with the division. The chapter concludes with a defence of the public–private division as a necessary, and not just contingent, part of our criminal justice landscape.
Spheres and values
Any opposition between the public and the private is beset by terminological pitfalls: metaphors, changes of meaning and competing meanings in different contexts. The distinction can be used to analyse space, responsibility, services, status or identity. Accordingly, we cannot ask where this divide exists. We also have to ask if and how it exists. In the first instance, the existence of the divide can be explained in regulatory and in interpersonal terms.
The division exists through a set of legal, political, social and economic processes encompassing a range of actors. These processes can be said to have a common denominator in their requiring decisions about regulation: what to regulate and how to regulate. Practices of regulation variously justify, prohibit or mandate, but those practices drawing a division between public and private can be said to be maintaining two values: autonomy in the private sphere and consistency in the public sphere (see Fuller, 1969; Arendt, 1998; Grear, 2003). Autonomy – choice, self-creation and self-realisation – are permitted and encouraged in the private sphere, while the public sphere is characterised by the consistency provided by rights and legislation. In this sense, the two spheres are mutually regulating. Encouraging (p.226) private autonomy demands limiting the power of the state and of public bodies. Prioritising consistency in the public sphere demands the exclusion of private interest.
Another way to understand the divide, reflecting its personal and interpersonal significance, is to contrast the private, understood as personal and particular, with the public, understood as impersonal or general. Our personality determines our private roles and choices; adopting public, professional or political roles is a partial negation of that personality. Conversely, public virtues like impersonality or formal equality are often inappropriate in private life. This difference between public and private behaviours is the, often unspoken, precondition of discourses of identity and duty (Goffman, 1971).
Together, the regulatory and interpersonal aspects of the divide give rise to the persistent metaphor of the ‘sphere’. A distinction between public duties and private virtues was a preoccupation of Ancient Greek and Roman thought, but a stricter division into spheres – where one is protected from the other – is characteristic of modernity (Habermas, 1992). This can be said to have been driven by a number of ideological trends in Revolutionary and Enlightenment political thought, and by the material changes of industrialisation and urbanisation. Modernity sharpened distinctions between public and private property, between public and private work, and between private conscience and public opinion:
Two quite different traditions of political thought are at work in the public/private distinction: classical and modern. In the first, the ancients distinguished between oikos [home] and polis [state]; in the second, liberals distinguish between the freedom, autonomy, and rights of private individuals and/or families and the legitimate or unwarranted power of society or state.
(Coole, 2000, p 339)
The idea of public and private spheres has among its principal manifestations the division between the private home and those public spaces where individuals encounter one another, not as friends or family, but as citizens. The home as ‘castle’ and the public space as ‘marketplace’ are ideological constructions with continuing currency (Sunstein, 2001). Such constructions undoubtedly over-idealise de facto divisions in space. For example, the public sphere is fragmented along lines of class, gender and race (Blomley, 2005). The legal system has been shaped by the interests of property-owning classes, for whom a fully private sphere, from which the public can be effectively excluded, (p.227) is meaningful (Rose, 1987). The existence of physical spheres is also problematised by the ability to render public places private (through private security or ‘gentrification’) and private places public (through the extension of administrative, criminal and family law) (Binnie and Skeggs, 2004).
The regulatory and interpersonal dimensions of the divide become entwined where certain norms are correlated with the spheres, norms that can take on the appearance of necessity:
The distinction serves or seeks to maintain the belief that social and economic life – business, education, community, family – are outside government and law, simultaneously denying the role of political processes in constituting and maintaining them, and legitimating these arrangements by implying that they have arisen from decisions and choices freely made by individuals. This protects existing hierarchies yet delegitimises alternative forms of group solidarity – unions, universities, communities – which cannot fit within the public/private divide.
(Rose, 1987, p 63)
The ideology of spheres has allowed, for instance, attributing labour responsibilities to women in a de facto division of labour between the sexes, along with the attendant norm that women have only a conditional right to audience in the public sphere (Thornton, 1991). Heightened policing of certain zones, for example, the creation of ‘walled communities’, adds further complexities where a community’s norms are enforced in what would otherwise be a public space governed by the general rules of public law (Wakefield, 2003; Kempa and Singh, 2008).
The idea of a division bisecting spaces and identities is also challenged by communication technologies. Through new media, the private can be made instantly public and the public sphere channelled directly into the private (Sunstein, 2001). The internet, in particular, has demanded a redrawing of our conceptions of public–private boundaries given the willingness of internet users to publicise what would once have been considered private (Liu, 2004) and recent legislative measures criminalising certain instances of private possession and consumption (Walden and Wasik, 2011). The UK’s patchwork of privacy laws – an uneasy mixture of data protection, human rights and common law – have been pushed to their limits as private lives are exposed, willingly and unwillingly, in cyberspace (O’Floinn and Ormerod, 2012).
(p.228) Despite an over-idealisation of distinct spheres, be they physical or personal, the negative prohibition against unnecessary intrusion into the private sphere is essential to the liberal ‘priority of right’ (Rawls, 1988, 1999). The calculation, and compulsion, exercised in the governance of the state and political economy should not, it is held, intrude as far as the private conscience of the individual. By the same token, the private ends, and private conscience, of the individual should be excluded from the public sphere. The good – associated with the fulfilment and flourishing of the individual – is relegated to a sphere of activity where it cannot determine the shape of social and political life (Fuller, 1969). To allow private conceptions of the good to dominate public life would be to endorse the project of ‘making people good’; a project that is paternalistic, authoritarian or eugenic, not liberal (Mill, 2008).
Consequently, from the point of view of states committed to liberal principles (most fundamentally, the deliberate minimisation of state intrusion into the private sphere), the public–private division both informs our values and is valuable. It is (morally and politically) defensible to insulate a sphere of private activity and private interests from public intrusions. To this extent, it can be said to be intrinsically valuable. The drawing of limits between the personal and the public is an end in itself and maintaining a difference between two spheres requires no further justification. It is also the case that the different spheres are generative of different obligations: the categories public and private are instrumental in the creation of values. For example, to denote the provision of certain services as public is to demand that their delivery be judged by public systems of accountability; to designate conflicts as private matters is to exclude them from public systems of adjudication. To designate action as private or public is a means to an end: to decide where public resources will be spent, where publicity is appropriate and whether regulation should take place through public or private law (see Palmer, 2007).
It is worth noting that because different intrinsic and instrumental values are associated with the divide, some critical analyses run the risk of conflating inadequate acknowledgement of certain values with judgements about the divide itself being unsustainable (see Kennedy, 1982). For example, sexual offences have been inadequately regulated, or ignored, when they have taken place in the private sphere (Moran and Skeggs, 2004; Temkin and Krahé, 2008). This calls into question why lawmakers have failed to engage adequately with crime in the private sphere, that is, why the divide has been used instrumentally to render certain kinds of crime invisible. The value of the divide, nonetheless, (p.229) remains unchallenged. We are not obliged to demonstrate all private virtues in public, or public virtues in private.
Conversely, it is also misleading to assume that, despite theoretical complexities, there must be formal legal means to distinguish public from private actors. In fact, there are no stable principles allowing the state, or the courts, to predetermine public or private status. Differences between private law and public law, between contractual and statutory regulation, mean that legal persons can exist within a number of competing regulatory regimes. The expansion of judicial review, alongside the embedding of human rights law in English jurisprudence, has only made such determinations more frequent and more problematic (Prosser, 2000; Palmer, 2007). The divide is ultimately a process: one regulated, but not constituted, by law.
Tensions and trends
It should be clear that while we cannot find the physical boundary between public and private, we can certainly see the boundary at work in political and social discussion. The divide is assumed in any debate where a liberal state seeks greater criminal justice powers, be they investigative or punitive. These are classic ‘threats to our liberties’: threats to our personal choices, and the threat of being judged publicly for our private actions or commitments. Any public debate concerning the intrusion of private interest into public services, or the intrusion of public services into private affairs, represent the ongoing process of maintaining and reconsidering what we expect of private conduct and public responsibility. We will turn to two, contemporary, areas where the divide is being both maintained and reconsidered: privatisation of criminal justice services, and admission of ‘evidence of bad character’ in criminal trials.
The movement of public funds into private hands, the policing of public activities by private actors or the imposition of market disciplines on the delivery of public services show that the public–private divide exists, but is changing. Private provision of criminal justice services encompasses a range of practices: ‘security’ in public spaces and in detention facilities; monitoring of offenders in the community; immigration and translation services; and ‘backroom services’, including the processing and storage of forensic evidence (eg Bluelight Tendering, 2012; G4S, 2012; Scenesafe, 2012). Such partnership or outsourcing processes are justified on the basis of ‘best value’ in public spending (HM Treasury, 2004), and of professionalisation of services (Ministry of Justice, 2012). These services, and the tendering processes through (p.230) which they are contracted, are regulated both by contract and by statute (Arrowsmith, 1994).
‘Outsourcing’ and ‘privatisation’ turn what is in the first instance a public right or duty into, respectively, something partially or wholly private (Joh, 2004; Ministry of Justice, 2011). In such transfers of power, the appropriate form of legal regulation can become uncertain:
It is clear that there is, under the impetus of privatisation, a movement of ‘public’ functions into the private sphere – through, for example, outsourcing.… It is also clear that the state regulates the private sector in the public interest, thus sometimes effecting the movement of a matter from the private sphere into the public sphere.… Functional overlap, taken together with the dynamism of changing roles and realities in the balance of public and private sector power, means that it is very difficult to separate public law and private law in practice, particularly in borderline cases of public or private power.
(Grear, 2003, p 179)
The lines of accountability governing private actors may not be so rigorous, or so determinate, as they are for public bodies. With only indirect executive accountability, private bodies are at liberty to alter or rescind their contractual responsibilities (eg CPS, 2012; Reuters, 2012). However, whether or not contractual regulation of private bodies can be given the same force as direct executive accountability, private provision creates tensions related to the two distinctive forms of value maintained by the public–private divide.
These ‘private actors’ do not exhibit quite those characteristics associated with private citizens. They cannot exhibit or pursue personal autonomy; they do not have aspirations to cultivate integrity, care or self-improvement in the same way as the private individual does. Certainly, such legal persons have many of the protections afforded to the private citizen. However, lacking complex interpersonal interests to protect, and lacking direct or indirect democratic foundations, private service providers are formal legal persons who cannot be said to be either citizens or citizens’ representatives. More strongly, companies may have mission statements, but they cannot possess the, distinctively human, interest in living a just and fulfilling life with others (Finnis, 2011).
This complex mixture of the regulatory and the personal is crucial to understanding why discussion of the ‘public’ and the ‘private’ in criminal justice veers between hard-headed economic analyses on (p.231) the one hand, and sometimes opaque appeals to public service and accountability on the other:
Policing provision can never be entirely depoliticized and transferred to the market, first, because it possesses elements of compulsion from which it is impossible to ‘contract out’ and which necessarily raise problems of authority and its need for legitimation (a fact that is curiously effaced in libertarian writing on this subject, where benign phrases such as ‘policing services’ are often preferred …); and, secondly, because the impact (for better and worse) that policing has upon the quality of people’s lives means that all citizens … have a stake in how it is performed and who by.
(Loader, 1997, p 382)
In other words, the concerns associated with the private provision of criminal justice services point to two problems that have to be conceptualised in normative terms. First, the power and authority of criminal justice flows from the state and must therefore partake of whatever normative justification the state has for using coercive means. The state’s justification for exercising criminal justice powers – its monopoly on the legitimate use of violence premised on democratic will – is conditional on its representing, and protecting, the welfare and basic rights of citizens. Private actors are the beneficiaries of, but not parties to, this social contract. Second, without the full panoply of private interests we associate with the natural human person, the demand for public virtues on the part of private entities becomes paradoxical. Public virtue demands the effacement or negation of private interest. However, where private interest is the sole rationale for existence, such a negation becomes impossible. To engage in public activity and exercise public virtue involves exercising self-constraint in pursuit of collective goods, a constraint that is neither intelligible nor desirable for private companies.
‘Bad character’ evidence represents a movement in the opposition direction: to make the private public, and visit judgement on private action. Such evidence, authorised by Part 11 of the Criminal Justice Act 2003, is typically evidence of a pattern of action intended to demonstrate a behavioural or psychological ‘propensity’ (section 103). This judicially regulated (s 101(3)) evidence is particularly important in the prosecution of crimes that have taken place in the private sphere. Evidence offered by a complainant may be impossible to corroborate. However, evidence of bad character admits personal and behavioural (p.232) facts, constituting ‘important explanatory evidence’ with ‘probative value’ (s 101), in order to compensate for the prosecution’s dependency on the testimony of a single witness.
This form of evidence is neither novel nor unique. It is a partial return to forms of evidence common to English criminal law prior to the 20th century (Lacey, 2011), and widely admissible in civil law jurisdictions (Cooper, 1991). The generally exclusionary nature of English evidentiary rules have, over the last century, sought to ensure that guilt could only be established through careful disclosure and contestation of material evidence, excluding any kind of holistic assessment of the defendant (see Alldridge and Brants, 2001). Admission of expert testimony may include conjectures on the defendant’s state of mind during the criminal act at issue, and general appeals to the character of the defendant have long been admissible at the sentencing stage. Nonetheless, under the prevailing trends in English criminal trials, the jury attributes guilt on the basis that a specified act, and the intention to engage in that act, have been proven beyond reasonable doubt. In contrast, evidence of bad character provides an aperture through which the defendant’s life and lifestyle can become material to their prosecution.
Recall the two groups of values associated with the divide. Personal autonomy requires that the state should, wherever possible, avoid dictating standards of personal behaviour. Furthermore, without identifying standards and practices proper to public life, there can be no impartial administration of justice because individuals would be judged by their character, rather than by general standards appropriate to those in the public sphere. Evidence of bad character generates problems on both grounds.
With regards to personal autonomy, there is a danger – only partly assuaged by the demand that it relate to propensity – that evidence of bad character can make a criminal trial a trial of character rather than action. This is a general issue of justice concerning the standard and burden of proof in prosecutions. Juries should be asked whether culpability for a criminal action has been proven beyond reasonable doubt, not invited to make a more general ‘assessment of a defendant’s guilt’. More specifically, such evidence allows a defendant’s life as a whole into court, their behavioural tendencies, their lifestyle and their choices. Although such holistic assessments can lead to ‘better judgement’ on the part of the jury in the sense of having a greater quantity of information at their disposal, public judgement on private lifestyles is precisely what the public–private divide seeks to prevent. (p.233) In public, we should be judged by the formal justice of public laws, not whether ‘life choices’ amount to the likelihood of guilt.
That norms, and not just actions, are at issue here bespeaks the interpenetration between the regulatory and interpersonal bases of the public–private divide. In the French criminal context, where a shared, normative conception of citizenship is assumed (Field, 2006), there is no hesitation in accepting that a jury’s decision is a decision based, at least in part, on the character of the defendant and not simply guilt for a narrowly specified charge (Cooper, 1991). The implicit introduction of this into English law – where ‘citizen’ is replaced with the far less prescriptive notion of ‘subject’ – means that social norms can come into play, albeit without implicit consensus on what would constitute a ‘bad character’. Such free-floating judgement of character and personality may allow empathy and leniency; it may be an opportunity for gender, class or racial assumptions to come into play. The encompassing of an individual’s character within judgements of criminal responsibility comes close to blurring criminal and moral guilt, and loses sight of the narrower idea of culpability, that is, guilt for one particular crime. In sum, when character is the determinant of guilt, the likelihood of criminal justice becoming a tool of normalisation becomes greater (Foucault, 1977).
Criticisms of liberalism, particularly from ‘communitarian’ commentators, provide objections to the conclusions drawn in the foregoing analyses, particularly where they depend upon a conception of the individual and their identities. For communitarians, both identity and virtue depend upon structures of social existence, structures that are far more decisive than liberalism allows (Taylor, 1992). The idea of creating or cultivating our identity exclusively in the private sphere is senseless: a linguistic and cultural community is a necessary condition of personhood (MacIntyre, 1981; Taylor, 1992). Moreover, virtues, as the fulfilment of aspirations that transcend the merely lawful and represent truly private obligations like self-realisation or affective commitment to friends and family, depend upon complex familial and cultural structures that are not only obscured by liberal political philosophy, but also harmed by them. Morality and virtue are not a set of autonomous choices or preferences, and to treat them as such is the route to a corrosive individualism. In fact, the individual is irreducibly ‘situated’ in time and space, and their obligations are determined by such situations. Accordingly, private virtues cannot be understood without (p.234) acknowledging the public context on which they depend, and social bodies must pursue substantive moral projects far beyond ‘consistency’ and ‘accountability’ if they are to maintain society and personhood in the way hoped for by liberalism.
Such criticisms encourage us to sharpen our understanding of the relationship between liberalism and the public–private divide. They point to two different conclusions that underline the complex relationship between regulation and personhood in constituting the divide. On the one hand, ‘virtue’ and ‘virtues’ have served as a common denominator between what can be demanded either publicly or privately. Different virtues exist, but whether they are positive virtues of self-improvement or negative virtues of self-constraint, any virtue is an instance of self-regulation. The kinds of systematic self-regulation realised through criminal justice – the self-imposed constraint on citizens’ actions arising from the democratic authority of laws and lawmakers – will always have a temporary and conditional appearance precisely because they are self-imposed. In this sense, the temporary, conditional and self-interested provision of criminal justice services by private entities only sharpens an existing tension between appearance and reality: criminal justice seeks an appearance of timeless necessity, but it is a dynamic process of self-regulation realised by self-regulating actors.
On the other hand, even communitarianism’s disruption of the divide between public and private must continue to presume the divide or risk becoming a defence of authoritarianism. Communities and individuals may well be able to police their own persons and property, but unless such practices have been given explicit or implicit democratic assent, self-policing represents the dissolution of the state (defined by its monopoly of the authorisation of violence) and dissolution of society (defined by the assumption of bonds and obligations beyond our immediate community). Equally, the communitarian picture of the imposition of values on the individual by their social situation ignores a division between fact and value maintained in liberal political philosophy: the fact that those around us make demands upon us does not entail that such obligations should be honoured. In contrast, public statutory law, and private contractual arrangements, are distinct sets of obligations that are enforceable precisely because they assume, respectively, duties distinct to the public realm and freely chosen private obligations. Statute and contract provide varying degrees of control over private entities, but the existence of the two regulatory regimes reflects the coexistence of public obligations and private commitments necessary in any democratic, and autonomy-respecting, state.
(p.235) For these reasons, the public–private division can be said to withstand both external criticisms from communitarians and internal criticisms generated by the privatisation of public services. The division, like criminal justice itself, is a process of self-regulation forming part of an overall process of society subjecting itself to the self-discipline of lawfulness. Lawfulness, if it is to be democratic lawfulness and not simply rule by publicised fiat, must allow the coexistence of public laws and private interests. The fact that the latter can intrude into criminal justice – through privatisation or evidence of bad character – is evidence that the division between public and private is changing. It is also evidence that a space for autonomy, choice and ‘self-regarding action’ (Mill, 2008, pp 85–7) continues to be carved out of the public realm through self-limitation on the part of the state.
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