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  1. Third Party Policing - Lorraine Mazerolle, Janet Ransley - Google книги
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This trend works by implementing the advantages of community policing and problem-oriented policing, while referring to the strategies of crime prevention initiative, and strives to integrate new forces from the society, such as civilian engagement or market mechanism, into crime prevention. Old disciplines and divisions are giving way to new networks of knowledge. John Braithwaite illustrates this with his analogy of the new biological science themes DNA, evolutionary biology, ecology that now dominate the discrete disciplines zoology, botany of thirty years ago.

His point is that new globalizing forces are also affecting the social sciences, and we need to think outside the old boxes, incorporating insights and methods from criminology, sociology, law, politics, regulatory studies, psychology, policing studies and whatever else helps in understanding the problem at hand. The new knowledge affecting crime control and policing is arising around big organizing themes like governance, risk and plurality, and this chapter explores these themes as they affect and shape our topic of third party policing.

We begin by surveying the notion of transformation that has dominated recent theoretical debate in the separate fields of sociology, politics, economics, regulation and criminology. Despite their separate disciplinary origins, we demonstrate how these debates all cluster around our big themes of governance, risk and plurality. We go on to examine the specific application of these themes to police and policing, and show how third party policing is a logical extension of the transformation that has been taking place in government and the provision of its services.

The themes from the various theoretical debates both inform our understanding of third party policing and point to some of its problems and pitfalls. The object of this chapter then, is to place the rise of third party policing in the context of broader trends in governance and crime control. Social theorists Giddens, ; Beck, ; Rose and Miller, developed the transformation notion about social and economic structures in general. The politics and public policy literature has been focused on changes in governance structures and the rise of policy networks Rhodes, ; Bevir, Rhodes and Weller, ; Loughlin, , while economists and regulation scholars predate all of these debates with their concern from the s onwards with changes in regulatory structures see Clarke, ; Baldwin, Finally, it is impossible to ignore the contribution of Michel Foucault and the body of governmentality literature developing around his later writings on the nature of government and its ability to control and be controlled by those it governs see for example Dean and Hindess, ; Rose, Given this broad and disparate literature, how can we make sense of the transformation thesis, and assess its relevance to third party policing?

This discussion will then lead into an examination of the current state of police and policing.

Third Party Policing - Lorraine Mazerolle, Janet Ransley - Google книги

Liberalism, the welfare state and neo-liberalism A common concern runs through much of the literature we are examining — how does government work, how does it relate to society, how are its decisions and policies put into effect? In modern western societies, this occurs through some form of democratically elected, political government exercising power through a public service framework.

This model developed from the sixteenth century onwards, driven by complementary forces. One force was what Foucault described as the movement from sovereignty to governmentality. This was replaced by the governmental state, less reliant on force and domination, and more on the development of technologies for governance, both of the state and of the self, where the object of exercising power is generally to increase the well-being of the governed Burchell, ; Rose, ; Hindess, This move then, was one from despotism to natural rights, from sovereignty to solidarity, where the goal of governance becomes the integration of society Boyne, The process of governmentalization incorporates and explains the development and extension of democratic forms of governance, and liberal notions of individual rights and autonomy.

While governmentalization was a political force driving the development of western models of government, another force was the emergence of new ways of governing economic life Hindess, These notions underpinned liberal conceptions of independent, responsible and autonomous citizens engaged in a minimally regulated public sphere, left to get on with their lives without interference, but also suffering the consequences of their own choices.

The role of government was to maintain the free market, and to protect the integrity and security of the state, both from external threats, and from the internal threat of crime and disorder. The real business of society took place outside government, in the market. Liberalism ruled, in its various manifestations, until confronted by the catastrophic financial events of the late s and s, but also by the growth of unionism and labour parties at the start of the s. They believed that strong government control was necessary both to contain the excesses of capitalism, and to increase the range of services available to working people, such as education, health services and occupational safety laws.

The markets would not do these things, and it was the proper role of governments to step in and shape society. From around World War II to the s then, the dominant western framework was a Keynesian one, where the welfarist state operated through government to control and regulate the economy, society and the provision of services to the community. In this conception of the state, government is everything and all social, economic, regulatory and political action occurs within its framework. The emphatic shift to a Keynesian framework occurred with the New Deal in the United States Braithwaite, , where government sought to recover from the depression of the early s through a program of controlled economic stimulation, accompanied by detailed, central regulation of economic activity.

Within subsequent Keynesian systems there was considerable variation, permitting both the British welfare state, with its national health system and government-owned industries, and the United States system of free enterprise subject to a detailed system of regulation, but the uniting theme was that governments were in control, regulating markets, structuring society, ensuring the provision of services Loughlin, Neo-liberals based their conception of government on several precepts, including a minimal role for the state, the need for a free market, the idea of individual responsibility, freedom of choice and the need to accept the consequences of that choice Ericson, Barry and Doyle, Hayek argued that economies had become too large and complex for central states to govern effectively, and that control had to be returned to the local — constituted by the market.

The most immediate need was a massive reduction in the role of the state — government was, big, bloated, and getting in the way of an efficient marketplace. The mantra for reform became deregulation, privatization, tax cuts and reductions in the size and power of the public sector Mitchell, This agenda was followed later by a plan that promoted internationalization, globalization and free world trade. Particularly with the economic crises of the early s, including the oil crisis and the overtaking of western manufacturing industries by second world competitors, the welfare state became the villain, with its excesses responsible for these economic ills.

The political attack on welfarism was sustained by economic and cultural critiques — increasing taxes in the s had not stopped unemployment from increasing and service levels from declining Pratt, , So the last decades of the twentieth century saw major economic and social change as the reformers sought to return the Keynesian state to something like what had preceded it.

In fact, what they created was something quite different, not a deregulated state but a new regulatory state, as discussed in the next chapter. But despite this, there was change, and that change did amount to a transformation of the role of governments in western developed economies. Stenson and Edwards, 73 The mechanics of the transformation to neo-liberalism are familiar. They include see Davis and Rhodes, ; Mitchell, ; Ericson, Barry and Doyle, : r deregulation of key industries, especially banking and financial services, and a new focus on the outputs of regulation, such as quality assurance, rather than detailed oversight of inputs and activities; r privatization of commercial activities previously operated by governments, particularly in key industries such as aviation, banking and telecommunications, and in some places, in the provision of basic infrastructure and services e.

In Australia for example, a relatively late entrant to the field and therefore able to follow the models established in the United States, United Kingdom and elsewhere, the federal government deregulated banking and the financial markets, gave up its control over the dollar and interest rates, reduced taxation and eventually introduced a transaction tariff to lessen the reliance on income tax, reduced the size and functions of the public service, privatized previously government run businesses in banking, aviation, shipping telecommunications and many other industries, and developed new models for welfare provision see Goldstein and Hart, , for a discussion of economic reforms in the s.

No area of economic or social life had an automatic immunity to being exposed to the marketplace, including internal and external security aspects of the armed services, such as catering and recruitment, have been privatized, along with the same development of private policing and corrections seen in other western countries.

The death of the social The rise of neo-liberalism was based on numerous assumptions, including economic arguments that interference with the market had stifled innovation and enterprise and led to inefficiencies, and that government had become bloated, inefficient and over-bureaucratized. But another group of assumptions was morally based Pratt, — that the welfare state had led to a culture of dependency, bludging and lack of incentive for individuals to take responsibility for improving their lot.

Liberal notions of autonomy and responsibility required the replacement of welfarism with enterprise and incentives. This was particularly so given that welfarism seemed to have failed in its most basic roles — for example, the growth in unemployment and related social problems throughout the s despite increased high levels of taxation and government intervention Pratt, This was three-pronged — first, welfare agencies had a self-interest in finding more and more unmet needs, and bigger budgets, leading both to high political visibility and to a shifting of dependency from families or selves, to the state.

Second, increasing prosperity in the postwar years led to increased expectations of the welfare state and what it could provide, which could not be fulfilled when the economy turned in the s. As collective memories of depression, mass unemployment and destitution began to fade, the state appeared to many to be the problem rather than the solution. Rose, 61 Thus the social is replaced by a system of loose networks, or communities. The technologies for achieving this rely heavily on the language of economics marketization, deregulation, privatization but this should not disguise their other, moral purpose, the reinvention of the autonomous active citizen, no longer dependent on the apparatus of social protection.

According to Garland: The framework of Keynesian social democracy ceased to be a catch-all solution and became, instead, the key problem to be attacked by government policy. Its faulty economic assumptions and permissive styles of thought lay at the root of all the new social and economic ills — low productivity, high taxes and inflation, the culture of dependency, declining respect for authority, the crisis of the family.

This is not to suggest that neoliberalism has succeeded in completely obliterating the social apparatus of the welfare state — parts remain, in varying degrees of strength and viability, in the forms of public health systems in Australia and Britain at least , state education, social security benefits and the like. He gives the example of the old social welfare interventions on the s medical model being reborn as developmental psychology approaches to crime prevention, which target family support, parenting skills, poor social attachment, poor social skills and the like.

Even so, the re-badging requires service provision to be cast in the new mould of communities, networks and partnerships, in place of the old social interventions. But Foucault and subsequent writers in the governmentality school have more to contribute to the analysis of neo-liberalism. They have described how in the governmentalized state, power and control become more diffuse and spread over institutions both of the state and of civil society. In addition, the subjects of power are active, making choices and aligning themselves with the objectives of governments.

Power comes not through discipline and conformity, but through the development of technologies of the self, adopted by active individuals Garland, In particular, Foucault breaks down barriers between governmental authorities and those of civil society, seeing authority and control as also exercised in such locations as the family, churches and the professions.

This notion provides the rationale and justification for new forms of intervention, including into the family, education and health, in pursuit of a well-integrated society Boyne, Power is then seen as arising from networks and alliances, with government-at-a-distance occurring via these means Rose, Rose suggests an advanced liberal form of government with four significant features: first, a government which seeks to know its population, by collecting statistics, using experts, developing theories, holding inquiries, publishing reports and numerous other means.

The second feature is that governments produce strategies resulting in individuals governing themselves, through education, the family, and if all else fails corrections. Third, advanced liberal systems afford respect and authority to experts, in order to enhance government at a distance. Fourth, advanced liberalism is constantly reflexive, seeking better ways of governing. Statistics have become the central method by which the state knows about its population, and identifies social problems: Censuses and statistical enumerations helped create a conception of the population as an entity with its own regularities, and.

Garland, Statistics pave the way for the formulation of social risks, by identifying patterns, hotspots and deviations from the norm in large and complex societies where judgments can no longer be made on an individual basis. And it is risk that has become the predominant strategy of neo-liberal society, underpinning its approach to social problems. Risk If neo-liberalism is now the dominant political, economic and regulatory paradigm, then risk is its key technology.

The literature about risk began emerging in the early s Beck, It argues that increasingly government works through frameworks of risk, so that risk now describes how we are governed. Late modernity is seen as an age full of ecological, economic and social risks, and it is argued, these risks now shape institutional and governmental practices, along with individual decision-making Chan and Rigakos, ; Ericson and Haggerty, ; Beck, Actuarial justice Feeley and Simon, and risk profiling are the new crime control surveillance, the new panopticon Boyne, Many of these configurations are statistical in nature, but many are not.

Thus, insurance, which we often take for granted to be actuarial, has a history including forms of lottery in which the last member alive sweeps the pool, in which speculative policies were taken out on the lives of the famous, and today, which link the benefits of life and retirement insurance policies to the uncertain performance of the share market.

The human and social professions, whose judgement was once thought to have been displaced by technologies of risk Feeley and Simon, , have been required to adapt their expertise to the estimation of risks posed by released offenders, psychiatric patients or even different types of drug legislation. As this suggests, while risk long has been an identifiable and variable technology, in the last thirty years or so it has seemingly become even more diverse than before.

It is now a term employed in a multitude of contexts, referring to an apparently ever-expanding range of rationalities, programmes, activities, commodities and so on. Institutional goals and strategies become focused on identifying, ordering and responding to risks, and providing insurance, or assurances that the risks are under control. For individuals, the focus shifts from achieving the good, to preventing the bad, ideas of which are formulated in response to fear and anxiety.

Risks are identified through scientific measurement and statistical analyses and categories. Deviation from the norm means not only identification as part of a risky group, but also self-identification of the same thing. Miller and Rose demonstrate how risk management enables management at a distance of various groups and populations.

Prudent individuals will obtain insurances, identify and minimize risk, and manage their own security. Feeley and Simon apply the concepts of risk to criminal justice, to develop the notion of actuarial justice. Crime then is a deviant act for which an individual must be found responsible and held accountable. It takes crime for granted. Interventions are not directed at determining responsibility or ensuring accountability, but managing and regulating risky groups. What sets these actuarial elements apart is that they are targeted on the population rather than individuals, aimed at prevention and risk minimization rather than detection and punishment of wrongdoers, and rest on their own rationality, a pseudo-scientific system of statistical indicators.

In the ten or so years since the term was first used, more and more actuarial approaches have been noted. Rates of imprisonment have continued rising, with increased focus on the incapacitation of the dangerous, rather than the objectives of rehabilitation or even punishment Pratt, Preventive detention has become a new key strategy, seen particularly clearly in statutes aimed at indefinite sentences, and at prolonged detention, after the completion of a sentence, of repeat sexual offenders, and individuals with dangerous anti-social personality disorders.

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The mentally disordered, released from institutions in the s and s, are increasingly detained in prison as both an incapacitation and prevention mechanism. And terrorists have become the new object of profiling, with everyone from airline baggage handlers to aviation schools on the lookout for terrorist types. Added to these elements has been the growth in electronic monitoring, with CCTV commonplace in all types of public and private locations. Surveillance of risky populations is just another method of containing their threat.

This underclass is a segment of society increasingly excluded and marginalized, and treated by actuarial justice as a high risk group, to be managed and controlled. For these authors, writing of the United States, the underclass is easily identified in urban ghettos, by race, lack of employment and social exclusion. Some commentators have critiqued the new reliance on risk see Kemshall , for a summary of these critiques.

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He gives the example of social work risk assessments, which in fact are based on clinical rather than actuarial judgments. This may be at least partly due to the lack of real scientific evidence on which to base many such risk assessments.

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  7. But it is on the basis of these assessments, confidently offered by experts, that preventive detention laws rest. He suggests that the neo-liberalism of the USA is quite different to that of countries such as Britain and Australia, which have vestiges of the welfare state relatively intact. Risk, he argues, may be restorative and inclusive through strategies such as insurance and drug harm minimization. What sets these categories of risk apart is the political role, and he goes on to suggest that actuarial justice has taken less of a hold in Australia than elsewhere because of its effective lack of an excluded underclass and its social-democratic tradition.

    Neo-liberalism, risk and postmodern penality What has been the impact on crime control and the criminal justice system of the transformations just described, from welfarist to neo-liberal forms of government, from sovereign to governmentalized state, from state security apparatuses to risk society? Garland suggests that the governance of crime is now problematized in different ways, leading to new rationalities for the governance of crime and criminal justice.

    Criminals have become opportunistic risk-takers, and victims supply the risk opportunities. Crime is controlled through limiting risks and opportunities, rather than the correction and rehabilitation of offenders favored by the welfare state. Liberalism can be seen in the imputation of autonomy, both on the part of the criminal who chooses to offend, and the victims who are responsible for reducing their own risk of being targets.

    This responsibilization strategy extends beyond individuals, who are responsible for making safer choices, to communities and groups, who become responsible for their own safety, through strategies such as neighborhood watch. Garland argues elsewhere that increasingly western criminal justice has become marked by a retreat of the sovereign state, not just in terms of governmentality, but also in its ability to control crime.

    This acknowledgment is seen in the development of new strategies directed not at stopping crime and rehabilitating offenders, but at limiting the effects and reach of crime. Garland calls these strategies adaptations, and bases them on criminologies of the self, the notion that crime is normal and commonplace, rather than committed by a pathological other. The adaptive strategies include the notion of responsibilization already discussed, by which the burden of crime control shifts from the state to individuals to change their own behavior or circumstances e.

    But the state does retain a role too, as coordinator, funder, and manager at a distance. Garland also argues that postmodern criminal justice systems have adapted to failure, in that the normality of high crime rates has now been accepted, along with high rates of imprisonment and heavy caseloads in criminal justice systems. The result, he suggests, is increased systemization, case management, reliance on statistical models and performance indicators. Thus the technologies of science and statistics increasingly shape government. The first is that with the shift from welfare to neo-liberal state, and from sovereign to governmental state, the role of government and its relationship to the governed, has changed.

    While it has not withered away, government no longer does everything. In classic public administration terms, it may steer rather than row Osborne and Gaebler, , although in fact what it does is a complex mixture of steering and rowing, depending on the job at hand. It relies on communities, networks, or partnerships comprising business, local governments, community and family organizations to identify needs and deliver services.

    And the identification and management of risk has become a key framework for government service provision in all areas. And the predominance of risk re-casts government agencies in new roles. The next section examines the re-casting of the police role. From police to policing: transformation and pluralization Our notion of policing as a state centered activity is fixed in time, in the middle part of the twentieth century.

    Both earlier and later models depart significantly from this picture, which still dominates popular perceptions. Braithwaite describes the early modern idea of police as multi-faceted and all-embracing: Police until the 18th and early 19th century in Europe continued to mean institutions for the creation of an orderly environment, especially for trade and commerce.

    Police certainly included the regulation of theft and violence, but also of weights and measures and other forms of consumer protection, liquor licensing, health and safety, building, road and traffic regulation and early forms of environmental protection. The institution was rather privatized, subject to considerable local control, heavily orientated to self-regulation and infrequent if somewhat draconian in its recourse to punishment.

    A new regulatory apparatus began to be established to deal with commerce, operating on a quite different basis, as described in Chapter Two. The policing of crime, by contrast became more centralized, paramilitary and hierarchical, developing into the familiar model of reactive, public policing.

    But policing has never been performed just by the public police. Reiner identifies organizations and individuals who carry out policing functions to include: professional specialist police, hybrid policing agencies e. He adds policing by technology, such as CCTV pp. The police, like other government agencies, were profoundly affected by the transformation from the Keynesian welfare state to neo-liberalism.

    The move from centralized hierarchies to risk-based networks also happened to the police. Loader calls this a shift from police to policing, with the state as one node in broad networks of power. He describes this transformation by listing a myriad of policing forms, of which only one is traditional policing by government, through police, hybrid agencies and local government provided services such as CCTV surveillance in city centers, city patrols and guards, and crime reduction strategies mandated under the Crime and Disorder Act UK Third is policing above government, comprising transnational, globalized policing services.

    Policing beyond government refers to the private policing market, in-house security and protective technology. Finally, policing below government is the local, sponsored neighborhood watch or unsponsored vigilantism form of action. These multiple modes of policing are in effect multiple sites of power, many of which are beyond the reach or even interest of government regulation. Some writers dispute aspects of this thesis. Jones and Newburn argue that there never was a public monopoly over policing, and that other forms of social control, along with regulatory policing, have existed for a long time.

    They describe the withdrawal of police from regulatory activities such as licensing bars and parking regulations as part of a long-term functional shift of responsibilities between agencies, welcomed by police, rather than as a loss of monopoly. In their view, the decline of other forms of social control, the rise of mass private property and neo-liberal governance combine to cause the new policing environment. What is the role of the public police in this new, multi-modal environment? This has been an issue of some concern, not just to scholars, but also to governments and police services and justice agencies themselves.

    A report recently commissioned by the United States National Institute of Justice, and written by Bayley and Shearing vii has as its first finding: Policing is being reconstructed worldwide.

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    Its distinguishing features are a the separation of those who authorise policing from those who do it and b the transference of both functions away from government. A later finding is that: In response to the restructuring of policing, the role of the public police may be changing significantly. In particular, its agenda is becoming increasingly that of government rather than individuals; it is specialising in criminal investigation and undercover surveillance; its operations are undertaken in groups; and it is increasingly militarised in equipment and outlook.

    Ericson and Haggerty offer an answer to these dilemmas, by painting a new role for public police as central to networks of risk communication. In this role, public police coordinate the activities of all agents within the network to provide a basis for risk management and security. Increasingly, this role is one of police brokering of information obtained through surveillance. The information is brokered to a range of government and nongovernment agents with an interest in maintaining social control GimenezSalinas, However, this role depends on police being prepared to share the social control function, to share information and to understand the functions and limits of the other nodes in the system.

    As Johnston notes, police ownership of these forms of policing is likely to be an increasingly contested area as new forms of nodal governance prevail. We return to these challenges for police in later chapters. CHAPTER 2 Policing and the new regulatory state In the previous chapter we described how in the neo-liberal, governed-ata-distance, risk-managing state, police form communities of interest with other actors for crime control and crime prevention purposes.

    We defined third party policing as police efforts to persuade or coerce other nonoffending parties such as health and building inspectors, housing agencies, property and business owners, parents and schools to take responsibility for preventing or reducing crime problems. We showed how third party policing is part of a transformation of governance generally, a shift from welfarism to neo-liberalism, directed at making individuals and groups within society more responsible for their own governance.

    In the transformed world of crime control, risk assessment and management has become the new primary goal of governance networks. These new networks require police to form partnerships with potential guardians to prevent or respond to criminal activity. As governments accept that crime is a problem to be curtailed and contained, rather than corrected, the police role moves increasingly from front-line patroller to facilitator, or information hub and risk assessor Ericson and Haggerty, within the third party policing network.

    In the following chapters we go on to describe these partnerships in detail, to evaluate how they work, and to examine their impact on both levels of criminal activity and police. But to examine only the role of police in third party policing is to examine only one side of the third party policing equation — the other parties to the partnerships and networks and their goals and motivations should also be considered. There are many potential partners in third party policing discussed further in Chapters 3, 5 and 6 , including insurance companies who require the installation of anti-theft devices in motor vehicles they insure, education authorities who prosecute the parents 23 24 THIRD PARTY POLICING of truants, social workers who notify police of suspected drug houses visited on child protection call-outs, bar owners who work with police to reduce street drunkenness and shopping mall security workers who monitor CCTV tapes for possible criminal activity.

    However, a predominant group involved with police in third party policing networks comprises regulatory authorities. We will define this term in detail below, but in brief we use it to mean government agencies or officials with a function of regulating and maintaining standards in some legal activity, such as housing, building, business or industry.

    Typical regulatory officials who might become involved in third party policing include building, health and safety inspectors and environmental protection officers. These officials are attractive to police because their functions are often accompanied by coercive powers, to enter properties, inspect and search, issue closure orders, or take other retaliatory action against people in breach of the regulatory scheme.

    For police, partnering with such officials can act as a de facto extension of their own powers, as well as increasing their potential weapons and sanctions against people they suspect of involvement in criminal activity. But it is important to remember that crime control and prevention is not the primary aim of regulators, who instead have specific statutory functions to fulfill. In addition, just as policing has undergone the major transformation discussed in Chapter 1, so too has regulation evolved and transformed in recent decades.

    We examine what the changing nature of regulation means for third party policing — what impact does the new regulatory state and its changed emphasis, away from command and control towards compliance structures and incentives, have on police seeking to network with these regulators? Do third party policing and the new regulatory structures have common aims and goals, or could networking with police be counter-productive for regulators?

    This chapter starts by discussing the nature of regulation and how and why it has been transformed in western democracies. It describes the rise of the new regulatory state and the consequences of that development for regulators. Regulation What is meant by regulation and how do we identify a regulatory authority or regulator?

    This task of definition is not as simple as it sounds. There is no single, accepted meaning for regulation Friedrichs, ; Gow, ; Tombs, , and the term is often used in quite different ways. Ogus 1 , for example, surveys previous scholars and suggests three separate ways they use the term. Their third and broadest definition focuses on all forms of social control, which can include non-state processes such as the development of social norms p.

    The most common approach of those studying regulation has been to focus on the first two meanings identified by Baldwin and his colleagues , to examine public agencies charged with monitoring compliance with some set of rules applying to a social, political or economic activity. This focus explains why much of the literature dealing with regulation can be found in the disciplines of law, economics and political science, rather than criminology or criminal justice — regulation has been seen as a way of structuring economic and political activities, rather than as another type of law enforcement.

    Hence the study of regulation has developed relatively independently of the study of criminal law, and the approaches of regulators have also developed differently to those of police, prosecutors and the criminal justice system.

    An impact evaluation and economic evaluation of project STOP (third party policing)

    But the recent developments in regulation that are discussed later in this chapter, together with the trends in governance covered in the previous chapter, are changing this situation. New forms of regulation increasingly rely on a wide range of methods to achieve compliance, including using nonstate agencies and voluntariness as well as the traditional public agencies. Additionally, even the nature of rule-making is changing, from detailed bureaucratic regulation to monitored, self-written and imposed codes.

    These trends make the study of modern regulation much more focused on the third definition offered by Baldwin et al. This new focus on social control and behavior suggests that some of the traditional differences between regulation and criminal justice are weakening, and that it is timely to take a new look at the commonalities and differences between on the one hand, the criminal law and its enforcement, and on the other, regulation and its compliance mechanisms. The next sections do this by looking first at the development of regulation, then its relationship historically with policing, followed by analysis of the types of regulation, regulatory structures and tools currently in use.

    Development of regulation If law comprises a system of order that is sanctioned, enforceable and largely enforced Cotterrell, , then the criminal law is only a small and relatively minor part of this system. For most people, their primary contact with law comes through its regulatory arm. Here the goal is not to prohibit behavior outright, as the criminal law prohibits murder, assault and burglary, but to regulate activities that are primarily legal.

    When we build homes, get married, run businesses, sell products or services, rent out houses, or employ staff, laws regulate the way in which we do these things. These laws are made by governments or their delegates, and compliance with the laws is monitored and enforced by government regulatory agencies or officials.

    Prominent examples of regulatory agencies common to most western democracies include occupational health and safety inspectorates and food safety agencies; environmental and consumer protection organizations; corporations, taxation and competition commissions; anti-discrimination bodies; health, building and sanitation inspectors; and manufacturing standards agencies. The primary goal of these types of agencies is to secure compliance with laws directed at achieving the orderly, safe or efficient conduct of desirable and legal activities, and the study of regulation has been concerned with how effective they are in this role.

    The regulation of economic and social activity is as old as the criminal law: Market regulation by local officials is no new phenomenon. It was considered to be a basic function of the state. Additionally, statutory schemes were developed to prevent the dilution of staples such as bread and beer with cheaper impurities and universal standards to be enforced locally were developed for regulating weights and measures. Today analogous functions are exercised through legislative standard setting for consumer protection. Recently the membership of the United Kingdom in the European Union has been an important new source of regulatory norms in relation to domains such as consumer protection, occupational health and safety, equality regulation, and environmental protection.

    Baldwin, Scott and Hood, 5 Ogus also discusses the antecedents to modern regulation, showing its mass expansion in the Tudor and Stuart periods, when highly elaborate and detailed controls were established on a national basis. This pattern re-emerged with increased strength as a response to the industrialization and urbanization of the nineteenth century, and the ensuing economic and social problems.

    Ogus points out that the key development of this period was of a system of administrative structures to take charge of the body of regulation 7. In these legal systems a variety of highly developed enforcement agencies exists. Within this system, the nature of regulation has been described in many different ways. Baldwin and Cave note that while regulation is primarily considered as restrictions placed on behavior to prevent undesirable practices, regulation can also be enabling or facilitative.

    Much of the legal and economic literature has focused on explaining why regulation has developed in certain areas. These rationales fall into several categories, the first of which is often referred to as the market failure thesis — government intervention in the economy is justified when one of the conditions for market failure is present or potentially present Baldwin, Scott and Hood, ; Gow, ; Tombs, These conditions typically include 28 THIRD PARTY POLICING anti-competitive behavior and monopolies, negative externalities as when factory emissions adversely affect the environment or community, information inadequacies and unequal bargaining power leading to consumers being unable to properly exercise choice, the need for public goods such as sanitation and defense, a scarcity of goods or the need to coordinate their production and sale, or to achieve some social end such as public health or maintaining the environment ALRC, ; Baldwin and Cave, ; Breyer, ; Gow, Because the market fails, governments intervene to protect the public interest Baldwin, Scott and Hood, ; Ogus, This theory assumes regulation to be the result of the state acting to correct market imperfections, to protect the public interest where the market is incapable of doing so.

    Regulatory authorities and officials become agents for achieving the public good Posner, The notion of government regulation of the market being justified as in the public interest has been criticized on several grounds. First, what is the public interest, and how can it be translated into rules and guidelines? How can it be distinguished from what politicians and other rule-makers perceive to be in their own interests, to secure re-election or retain power and authority see Gow, ?

    These criticisms led to notions that regulation exists as a result of private interest groups grappling for power and advantage, with the most powerful able to exert influence over the law and regulation making processes to secure their own advantage Gow, The private interest approach sees regulation not in the public interest, but for the benefit of either powerful groups involved in the activity being regulated, or regulators themselves seeking to retain and expand their own powerbase.

    Additionally, there are well-developed notions, particularly in the United States, of regulatory capture, which hold that however it begins, regulation ultimately becomes captured by powerful interests subverting it to their own ends Cotterrell, ; Makkai and Braithwaite, The notion of capture is reinforced by the revolving door syndrome, where regulators look for their staff from among people employed in the industry being regulated, and in turn the industry poaches senior regulators for its own managerial positions. Capture theorists argue this process leads to a sympathetic approach to the industry Gow, The capture theory has itself been criticized, for its assumption that regulation begins to protect a public interest and is subverted by capture, with the reality suggested to be a far more sophisticated blend of situational factors and powerful interests Makkai and Braithwaite, ; Gow, Apart from this brief survey, arguments about why regulation exists are not our main focus.

    Malcolm Sparrow reflects on the enormous power of regulators: Society entrusts regulatory and enforcement agencies with awesome powers. They can impose economic penalties, place liens upon or seize property, limit business practices, suspend professional licences, destroy livelihoods. They can restrict liberty, use force, and even kill — either in the heat of some dangerous moment on the street or through the cold calculation of the execution room. They use these powers not against foreigners in war but against citizens in peacetime. How regulatory and enforcement agencies use these powers fundamentally affects the nature and quality of life in a democracy.

    The study of police organizations and their use of power therefore seems to be a logical starting point for considering how regulators work, and the next section examines the links between the study of regulation and policing. Policing and regulation Analyses of regulation have traditionally seen it as similar to but separate from the criminal law and its policing. Cotterrell for example, describes police and regulatory inspectorates and commissions as being jointly engaged in law enforcement, but with different structures, kinds of commitment, internal organizations and resources pp.

    Baldwin et al. He adds that although policing and regulation share common pressures, they fundamentally differ as a result of the differing environments in which they enforce the law. Despite this, he goes on to explore the basic commonalities and differences between police and regulators, concluding that the differences are substantial. His list of commonalities include that police and regulators each face the problem of preventing the unpreventable rule-breaking , thus making measurement of their effectiveness and efficiency difficult.

    The reactive form of law enforcement is also shared by many police and regulators, that is a focus on after-theevent infringement citations or prosecutions, the forming of investigative judgments, and the tendency towards legalistic strictness in applying rules although as discussed below, this style of regulation is more likely to be found in the United States, of which Kagan was writing, than in most other jurisdictions.

    Kagan also highlights differences between police and regulators. Whereas the social function of police historically has been to preserve the status quo in the distribution of property, many regulators have a redistributive function, to ensure that business assumes the costs of social goods such as health and safety, care of the environment and the like. Their misconduct, then, is more often seen as an unintended by-product of essentially valuable activities. These patterns are the responsibility of the organization, with breaches not easily connected to identifiable individuals, even where the breaches themselves are immediately obvious, as in the discharge in a creek, or broken sanitation equipment.

    Of course, Kagan notes throughout his analysis that these are generalizations only, and that there are some regulators who act very like police, but his final point of difference is clearer. The criminal law, he argues, has a function to denote socially and morally repugnant activities — the culprit who commits murder, child abuse or assault is morally culpable. Regulatory rules, he argues, are more morally ambiguous, unless they have resulted in a clear identifiable harm, such as a workplace death or injury and even then, the harm is often perceived as less morally culpable — see Haines for an example.

    Many regulatory offenses only raise the possibility of, rather than result in actual, harm. Hawkins and Thomas refer to this as the moral ambivalence of regulation. Regulators can be more flexible in exercising their discretion, more focused on sanctions other than prosecution, more inclusive in the setting of standards, because of these differences. Drawing on Foucault, he examines the role of police as part of the apparatus of security of the state, maintaining surveillance over citizens.

    Much of the contemporary literature on policing draws attention to the predominance of the order maintenance role, compared to the detection and prosecution of crime e. Kelling and Coles, ; Waddington, In this conception of policing, law enforcement is of lesser importance than facilitating orderly social, business and economic activities.

    The focus here, just like in much of regulation, is on the application of discretion to achieve a stable environment, rather than the pursuit of individual transgressors. Braithwaite makes a similar point when he talks of the early modern idea of police as quite different to current notions of police as crime fighters. He describes the early police as regulators of trade and commerce, health, safety and the environment, as well as of theft and violence.

    These organizations bear many of the hallmarks Kagan ascribes to contemporary regulators. Gill takes up this argument, rejecting what he says is the implication from the policing and regulation literatures that there is an essential difference between the two activities. The branching occurred when the nineteenth-century shift to para-military models of policing led to a focus on crime and its punishment, while new agencies were created to deal with regulation: Unlike police forces, these regulatory institutions mostly started out rather punitive, making heavy use of criminal punishment as a regulatory tool, but mostly became less punitive over the next years.

    The business regulatory agencies grew to be more significant law enforcers than the police because the corporatisation of the world in the 20th century changed the world to a place where most of the important things done for good or ill in the world were done by corporate rather than individual actors.

    Braithwaite, 10—11 As Braithwaite notes, regulatory agencies, while individually smaller than police organizations, now collectively comprise a much larger law enforcement sector than police. He argues that many of the features of the transformed criminal justice system the audit society, actuarialism, responsibilization risk and partnership, as discussed in Chapter 1 are not new, but simply transposed from the regulatory state. We develop this theme later in this chapter, when examining the implications for third party policing of changes in governance and regulation, arguing that the transformation in these areas is forcing the policing and regulation functions to become more alike.

    Now though, having examined the nature of regulation and its relationship to policing, we move on to consider regulatory tools, typologies and structures. Tools, typologies and structures The primary tools of regulation comprise the rules and sanctions overseen by the regulatory agencies. The nature and range of rules and the ways they can be used are discussed more fully in Chapter 4, but in summary they generally comprise primary legislation, delegated legislation including regulations, by-laws, ordinances and quasi-legislation , informal policies and guidelines, codes of conduct and self-regulated schemes.

    Civil penalties can include fines, injunctions, banning orders, license revocations and orders for reparation and compensation. Administrative penalties can also include fines and charges, infringement notices, negotiated penalties and adverse publicity ALRC, Within the literature, one of the main discussions about regulatory tools looks at the extent to which they should involve the criminal law and sanctions, as opposed to civil and administrative systems. While regulatory law has typically been regarded as separate from criminal law, the trend to criminalization has seen this distinction blurred, with many agencies now supervising some aspects of criminal law Cheh, , ; Cotterrell, , such as corporate misconduct, market-related offenses, pollution and other environmental offences, racial or cultural vilification, and consumer offenses to name just a few examples.

    Some writers have suggested that criminalization has been over-used, to the extent that the notion of criminality has been debased Bagaric, , and that the association between moral opprobrium and the criminal law has been weakened ALRC, Some writers see this approach as justified in the case of regulation dealing with health and safety and environmental protection, but less justifiable for the protection of economic interests Yeung, Ultimately, as the ALRC suggests, the choice between criminal and civil penalties is a matter for governments, with ramifications for regulators, such as different evidentiary standards and a different onus of proof, compellability of witnesses, and flow-on effects to staffing, budgets and the development of regulatory strategies.

    Writing of the UK, he argues this trend to have been led by recent crises, government responses and media focus on whitecollar crimes. Within the legislative frameworks imposed by governments, various typologies have been attempted to help describe the range of regulation and the activities of regulators. Gow for example, refers to three main types of regulation. Economic regulation structures particular industries or markets e. Social regulation sets community-wide standards, in health, safety or to protect the environment. Functional regulation indirectly affects business by imposing rules on discrete activities, such as land use or transport regulations.