By Rhys Hester

Michael Tonry has been the leading commentator on the American sentencing reform movement since its beginning. Sentencing Matters, one of the most influential works on American sentencing ever produced, was written at the crest of the sentencing guidelines movement. Now, some fifty years into that movement, American punishment policy finds itself at a standstill. This festschrift essay honor’s Tonry’s contributions to the sentencing reform literature, contemplates the reasons why the reform movement was not more successful in the United States, and reflects on how Tonry’s work continues to provide a framework for more sensible policy. The essay draws on the field of behavioral economics to underscore the need for decision tools like sentencing guidelines to help fulfill a more fair and just system of punishment. Yet as Tonry’s work has illustrated, the Aristotelian maxim of justice requires not only that like cases be treated alike, but that different cases be treated differently.

Crim Law Forum 36, 219–231 (2025).

By Francisco J. Castro-Toledo, Fernando Miró-Llinares &  Jesús C. Aguerri

The emergence of algorithmic tools and Artificial Intelligence and their use in criminal justice has raised a relevant theoretical and political debate. This article unpacks and synthesizes the debate on the role of causality for the scientific method to analyze predictive decision support systems, their practical value and epistemic problems. As a result of this discussion, it is argued that the measured usage of theory and causation-based algorithms is preferable over correlational (i.e., causally opaque) algorithms as support tools in the penal system. At the same time, the usage of the latter is supported when it is critically accompanied by abductive reasoning. Finally, the arguments put forth in this article suggest that the field of criminology needs a deeper epistemological understanding of the scientific value of data-driven tools in order to entertain a serious debate on their use.

Crim Law Forum 34, 295–316 (2023).

By Baboki Jonathan Dambe & Badala Tachilisa Balule 

Intoxication plays a role in the commission of crimes in most, if not all, jurisdictions. Botswana is no exception. Our law reports are replete with cases in which intoxication is alleged to have contributed to the commission of the offence. In this regard, courts continually find themselves contending with the consideration that they ought to give to the intoxication, in respect to both the criminal culpability of the accused person and their moral blameworthiness when it comes to sentencing. This paper highlights that, in the context of Botswana, intoxication may be treated as a defence, an extenuating circumstance, a mitigating factor, or an aggravating factor. It interrogates the approaches adopted by the courts in considering intoxication in these four roles. Given the divergence of judicial approach to intoxication in sentencing, the paper highlights the necessity of sentencing guidelines in order to attain a measure of predictability and consistency. Consequently, the paper assesses the sentencing guidelines adopted by other jurisdictions in respect of intoxication and the lessons to be drawn from such guidelines.

 Crim Law Forum 35, 289–318 (2024).

By Arie Freiberg & Julian V. Roberts

Over the past few decades, the traditional, discretionary approach to sentencing has been progressively replaced by structured regimes often administered by sentencing commissions or councils. Sentencing guidelines of one kind or another have proliferated across the common law world and constitute the most significant development in sentencing in a century.

In 1972 Judge Marvin Frankel of the US District Court for the Southern District of New York published a book Criminal Sentences: Law Without Order which sparked a revolution in sentencing in the US that ultimately spread around the world. His brief book provided a trenchant critique of the highly discretionary approach to sentencing which then prevailed in the US and had resulted in widespread unjustified disparity, an absence of proportionality, and racial injustice in sentencing outcomes. He proposed three major solutions to what he described as essentially a “lawless” process: (i) a permanent independent commission on sentencing; (ii) an articulation of policies or guidelines for judges to follow, and (iii) meaningful appellate review. The issues of sentencing guidance, sentencing guidelines and sentencing commissions or councils have been extensively debated in the literature since the publication of Frankel’s book. It is seldom possible to identify with accuracy the origin of an institution or concept which is then adopted, adapted, or rejected by jurisdictions beyond its original scope and geographic boundaries. How has this quiet revolution come about? How and why have the concepts of guidelines and commissions spread so rapidly?

This article examines the creation and subsequent proliferation of sentencing commissions since the establishment of the first commissions in Minnesota and Pennsylvania in 1978. From that date until the present nearly 50 commissions have been proposed, established, disestablished or considered. Much of the literature to date has focused not on the nature of the commissions themselves, but on the forms of their sentencing guidelines. These take two differing approaches, one primarily numerical, the prevailing model in the US, and one primarily narrative, the prevailing model in England and Wales and most other jurisdictions.

We explore the process by which the idea of a sentencing commission and its guidelines has spread to other jurisdictions. This process, referred to as policy transfer, diffusion, transplantation, convergence, translation or policy learning, modelling or borrowing, can provide insight into why a policy innovation in one jurisdiction is emulated or adapted in another, and the means by which such innovations are communicated over time and between jurisdictions. The study of policy transfer or diffusion also requires an analysis of the processes of indigenisation or mutation across jurisdictions.

Overview

Part II of this article examines the nature of sentencing commissions or councils and the very different US and UK models which have inspired other jurisdictions. Part III discusses what is meant by policy transfer or diffusion and the various frameworks used to describe and explain the process. Part IV examines why transfers may occur, what is transferred, the sequence of transfer, who is involved in policy transfer, its mechanisms and the conditions for transfer. Part V examines jurisdictions where they were considered but rejected, Part VI notes policy transfer failures and Part VII provides a conclusion to the article.

Crim Law Forum 34, 87–129 (2023)

By Pieter T. M. Desmet, Jef De Mot & Michael Faure

We examined whether jurors who know that a prosecutor has a high conviction rate are more inclined to convict a defendant than jurors who know that the prosecutor has a low conviction rate. Using simulated criminal cases, we conducted two experimental studies with jury-eligible participants. Study 1 (N = 200) tested whether information about prior conviction rates (high or low) affected jurors’ estimations of the probability of guilt in the context of a robbery. Study 2 (N = 205) used another criminal trial context (murder) and another dependent variable (dichotomous guilty/not guilty verdicts). Study 2 also incorporated jury instructions on the reasonable doubt standard and included a control condition in which no information regarding the conviction rate was provided. In both studies, jurors in the high conviction rate treatment were significantly more likely to convict the accused than jurors in the low conviction rate treatment. When jurors are aware of a prosecutor's prior conviction rates, a self-reinforcing cycle may arise in which conviction rates determine conviction rates.

Crim Law Forum 34, 209–235 (2023).

By South Australia Royal Commission into Domestic, Family and Sexual Violence 

Domestic abuse In some parts of this report the term ‘domestic abuse’ is used instead of domestic, family and sexual violence. This reflects the terminology used in the Intervention Orders (Prevention of Abuse) Act 2009 (SA), in certain other legislative provisions and by South Australia Police in some circumstances. LGBTQIA+ This acronym stands for lesbian, gay, bisexual, trans and gender diverse, queer, intersex and asexual communities. The + signifies those who do not necessarily identify with any of the listed labels, but who do not conform to traditional heteronormative standards. Where the report departs from the use of this acronym, it is to reflect a specific service, organisation or group of people. Lived experience and Victim-survivor The use of the term ‘person with lived experience’ carries an acknowledgment that, for many people with lived experience of domestic, family and sexual violence, the experience is both lived and living – it is ongoing. The Commission’s Terms of Reference, Issues Paper and The Journey So Far use the term ‘victim-survivor’. This term acknowledges the ongoing effects and harm caused by violence, as well as honouring the strength and resilience of people who have experienced violence The Commission has also used the term ‘person experiencing violence’ and ‘person with lived experience of violence’ throughout its inquiry. This report uses all of these terms in acknowledgement of the diversity of preferences across individuals and the sector. It is important to remember that these terms include children and young people, who experience domestic, family and sexual violence and are victim-survivors in their own right. The Commission’s Terms of Reference explicitly refer to this, along with the need to recognise that the overwhelming majority of victim-survivors are women and children. Person using violence This report uses the term ‘person who uses violence’ when referring to an individual who uses domestic, family or sexual violence to cause harm to another. This report occasionally uses different terminology in particular contexts; for example, ‘perpetrator’ is used in the context of particular programs or services that use that term, ‘offender’ is used in the context of South Australia Police operations and policies, and ‘accused’, ‘defendant’ or ‘respondent’ is used in the context of the justice system. As outlined in the Commission’s Terms of Reference, it is recognised that the overwhelming majority of people who use violence are men.   

 Adelaide, South Australia Royal Commission into Domestic, Family and Sexual Violence, 2025. 664p.

By The Government of New South Wales

The strategy lays the foundation for the New South Wales domestic and family violence sector to support highly skilled workers who help victim-survivors stay safe, heal and recover. It includes actions such as prioritizing workplace safety, health and wellbeing, improving workforce recruitment and renewal, driving workforce diversity, boosting collaboration and supporting skill and capability development.

Sydney: Government of New South Wales 2025. 40.

Across the country, an array of new state and federal surveillance bills pose an unprecedented and existential threat to privacy, safety, and the promise of an open internet. This legislative wolf dressed in sheep’s clothing is framed around a noble goal: protecting children. Sadly, these laws are just the latest example of misguided tech policies built on a fundamental misunderstanding of the thing lawmakers seek to regulate—harming the very communities officials seek to protect.

The key flaw of these state surveillance bills is that they create a two-tiered internet, one for children, and one for adults. This is an intuitive step, but one that simply cannot be implemented in practice, as there is no effective, let alone privacy-preserving way, to determine users’ identities. These laws mandate or coerce the use of new, invasive measures that verify users’ legal name, age, and address for nearly every internet service they use. Suddenly, every online purchase and search engine query will come with state-mandated tracking, and anonymity will be a thing of the past. This change would be invasive and insecure for every user, but it would pose a particularly potent threat to undocumented communities, LGBTQ+ communities, and those seeking reproductive care. The data would be a ticking time bomb, a powerful new surveillance source for police, prosecutors, Immigration and Customs Enforcement (ICE), and private anti-choice groups.

By Henry F. Fradella, Cassia C. Spohn, Jessica M. Salerno, Shi Yan, Valena Beety, and Rose E. Eerdmans

This article presents the results of a mixed-methods study that surveyed legal system actors in Arizona about their perceptions of the Arizona Supreme Court’s elimination of peremptory challenges in the state. Responses from 195 participants revealed statistically significant differences between members of the bench and bar with regard to their support for the ban, its impact on litigating challenges for cause, and its perceived negative effects on selecting fair and impartial jurors from a representative cross-section of the community. Qualitative analyses provided insights into the divide, with judges expressing support for the ban largely due to perceived increased efficiency, whereas trial attorneys decried the loss of control over jury selection and its corresponding effects on the perceived fairness of trials and case outcomes. The article concludes by exploring the public policy implications of the results, including the impact of the ban on procedural justice.

By Albert Fox Cahn, Esq., Brooke Cordes, Nina Loshkajian, David Siffert, Eleni Manis, PHD, MPA, Sarah Roth, and Gabriel Quagliata

We’re at an inflection point in the design of American internet as a new wave of laws seeks to dramatically expand government surveillance of everything from social media to libraries, all in the name of protecting children. But while few objectives are as laudable as keeping kids safe, the rhetoric of child protection frequently masks a far darker reality: an effort to use immense new surveillance powers to attack LGBTQ+ youth and the institutions that serve them. In recent years, far-right lawmakers have used this child protection narrative to pass a patchwork of new measures at the state level that are already radically remaking what content is available in their jurisdictions. But perhaps the most alarming discovery is how growing numbers of liberal lawmakers are now following suit, joining in to expand surveillance and control of internet platforms in ways that undermine anonymity and endanger the open internet. Of course, these newest progressive proponents of internet tracking don’t share their conservative counterparts’ anti-LGBTQ+ ideology. Instead, they’ve come to view expanded government surveillance of internet platforms as a corrective to platforms’ unethical misuse of children’s data and use of dangerous features. Unfortunately, while many of the measures making their way through statehouses are poorly positioned to address the real drivers of social media harms, they will unintentionally strengthen this far-right attack on the LGBTQ+ internet resources.

By Eleni Manis, Annie Dorsen, Evan Enzer, Owen May, Gabriella Papper, Derek Smith, Andy Ratto, Reagan Razon, Sophia Wright, Jimin Yoo, and Corinne Worthington

Billions in surveillance technology is sold annually with completely unsubstantiated, outlandish marketing claims.

These endemic practices frequently appear to constitute deceptive advertising, violating federal and state consumer protections.

Regulators are beginning to take action against some of the worst offenders, but many surveillance firms appear to make marketing claims with impunity.

A growing body of independent analysis documents surveillance systems’ ineffectiveness, errors, and bias.

By Eleni Manis, Fatima Ladha, Nina Loshkajian, Aiden McKay, and Corinne Worthington

Though data is essential to understanding public safety, police data is rarely reliable.

Surveillance technology distorts crime statistics, giving the illusion that crime is concentrated in predominantly BIPOC and low-income neighborhoods that are already over-policed.

Independent audits and data verification can help produce a more accurate picture of what crime looks like and where it happens.

By Nina Loshkajian, Anissa Arakal, Aaron Greenberg, Tanisha Narine, Corinne Worthington, and Eleni Manis

For years, the NYPD violated New York State DNA privacy protections by collecting New Yorkers’ DNA secretly, banking children’s DNA without parental permission, and conducting stop-and-spit campaigns in BIPOC communities, DNA dragnets that invade thousands of New Yorkers’ genetic privacy in the hope of stumbling across a single suspect.

Those the NYPD puts in its rogue database become permanent suspects, their DNA scanned thousands of times a year in cases where they have no connection whatsoever.

Every scan is an invitation for injustice, with DNA contamination and laboratory mix-ups driving false arrests and wrongful convictions. Even worse, the NYPD’s experimental DNA techniques may leave many of their claims (and resulting convictions) in doubt.

By Corinne Worthington, Eleni Manis, Casey McLaughlin, Will Owen, and Nikita Ermolaev

Evolv is an AI weapon detector firm that has gained national attention following federal investigations, shareholder lawsuits, and close connections to Mayor Eric Adams. In this report, S.T.O.P. and IPVM present original research to reveal the high error rates and inaccuracy of Evolv weapon detectors in real-world conditions.

Key Findings Include:

• Many of New York City’s biggest tourist venues waste huge sums of money leasing Evolv sensors that frequently misidentify weapons and everyday objects;

• Venues continue to spend over 20 times the cost of comparable metal detectors on Evolv rentals, even as the company faces everything from federal investigations to lawsuits for false advertising and falsified earnings;

• S.T.O.P. and IPVM observed Evolv walk-through scanners in use at five top New York City attractions: three museums, one performing arts venue, and a sports stadium, as well as a popular bowling alley for comparison with the city’s largest venues;

• S.T.O.P. and IPVM’s research found Evolv sensors falsely claimed that one in four visitors had weapons, when, in practice, none did. On rainy days, the false alarm rate could reach 54%;

• Operators routinely ignored alarms or responded with only a cursory check, making the alerts almost entirely meaningless.

NOTE: S.T.O.P. and IPVM jointly conducted this study, including fieldwork and data collection. IPVM’s contributions focused on engineering analysis, survey methodology, and technical background, while S.T.O.P. took the lead in drafting the final report. S.T.O.P. reached out to Evolv and the venues for comment but the venues either failed to reply or declined to comment.

By David Siffert, Vibha Kannan, Dario Maestro. Jennifer Park, Claire Cleary, Taylor Skorpen, Emma Harman, Alissa Johnson, Alicia Abramson, Jimin Yoo. Patrick Li, Kevin Ye, Anya Weinstock, Marwa Sayed, Vianca Figueroa, Sophia Conrad, Malcom Rakshan. Nina Loshkajian, and Eleni Manis

Summary

This report, S.T.O.P., details the systematic failures of New York’s Freedom of Information Law (FOIL). Rather than promoting transparency, New York’s open records law has become a law of discretion rather than obligation, governed by vague timelines, nonbinding oversight, and an appeals process that favors the agencies it was designed to hold accountable.

Key Findings Include:

• New York’s open records system systemically obstructs record seekers. Journalists don’t get the records they need to root out corruption; taxpayer watchdogs can’t scrutinize government spending; and the public can’t find out what their governments are doing.

• State and local agencies routinely frustrate Freedom of Information Law (“FOIL”) requests by delaying excessively, by redacting records to the point of uselessness, and by claiming, groundlessly, that records are exempt from disclosure.

• Agencies face few consequences, because New Yorkers have little recourse when agencies block their requests. Agencies themselves decide first-round appeals; the state’s FOIL oversight body lacks any enforcement power; and the secondary appeals process is prohibitively costly and time-consuming.

• Unlike states such as Pennsylvania and Florida, which have implemented reforms such as binding oversight, consistent exemption interpretations, independent appeals, and enforceable timelines, New York lacks meaningful implementation mechanisms and continues to fall behind national transparency standards.

• Legislators must set enforceable deadlines for agencies, require agencies to report their reasons for denying records requests, require agencies to track their handling of FOIL requests, establish an independent appeals board and an empowered FOIL oversight committee, and shift the financial burden of appeals onto agencies that obstruct transparency.

By CTEC Staff

Local government officials experience increasingly high rates of threats and harassment, while lacking guidance about which threats amount to constitutionally protected political speech and which threats may justify legal action. This executive summary provides a brief overview of the two requirements for speech to constitute a “true threat,” at which point it is no longer protected by the First Amendment. The remainder of the document contains a detailed summary of these requirements, including case citations, and examples of relevant cases.

A threat may merit legal action when:

1. It is a threat to commit an act of unlawful violence, and 

2. The speaker or writer acts with reckless disregard, i.e., “the speaker is aware that others could regard his statements as threatening violence and delivers them anyway.”

First criteria: threat to commit unlawful violence

• An explicit threat to commit an act that is both illegal and violent is likely sufficient.

• Symbolic speech such as cross burning may be sufficient, but it depends on the context and the history of the use of such symbols.

Second criteria: speaker intent

• Courts have extensively debated the intent requirement, and future Supreme Court cases may alter the standard.

• Currently, the standard is recklessness: The speaker must have acted with reckless disregard for the threatening nature of their speech.

• The speaker must have been “aware that others could understand their statements as threatening violence, and delivers them anyway.”

• “Political hyperbole” does not lose constitutional protection (see below for example).

• A speaker does not have to intend to carry the threat out.

• Threatening speech that does not show sufficient intent can still be removed from public spaces such as social media platforms, public forums, etc.

• Indirect threats may be sufficient to qualify as true threats.

• Speech that does not qualify as a criminal threat under state statutes may still be sufficient to justify civil action such as protective orders against individuals, or other civil remedies such as civil assault claims.

This document is not intended to provide guidance as to what kinds of threats are credible, i.e., likely to be acted on by the speaker or their allies and therefore deserving of law enforcement scrutiny. Threats that fall outside the boundaries of “true threats” under the First Amendment may still warrant law enforcement attention and should be reported. Threats should quickly be reported to allow the relevant law enforcement agency to determine whether it meets the threshold for further action, especially if an individual is concerned about personal safety. Reporting subthreshold or edge-case threats also allows law enforcement to track and evaluate cumulative behavior, provide context for other actions, and allow for investigation of the speaker’s mental state. For guidance on threat assessment, please see resources in footnote, as featured in the PDF upload.

Monterey CA:  Center on Terrorism, Extremism and Counterterrorism, Middlebury Institute of International Studies.   2024. 8p.

ByPenelope Gibbs

The criminal justice system is in crying need of more efficiency but there is little space to be innovative. So what’s not to like about a process which has revolutionised the magistrates’ court? The single justice procedure, introduced ten years ago, makes summary justice far speedier and cheaper. It needs fewer court staff and judges than a traditional open court hearing, and defendants can plead guilty and submit mitigation online. A case can be processed within weeks rather than months. Transform Justice has followed the progress of the single justice procedure (SJP) since its launch in England and Wales in 2015. We have written many articles about it, briefed journalists and made it the subject of our first ever podcast episode, but never brought our evidence together. In this report we acknowledge the potential benefits of the SJP but also express our deep concerns about the justice it delivers. Just as in the case of the Post Office Scandal, the victims are organisations and companies who are trying to protect their revenue or ensure behavioral compliance. They are both victim and prosecutor, which may cloud their objectivity in decision-making. It is in the interests of any prosecutor to produce the minimum of evidence to get a conviction and to have as few people as possible contest the charge. The SJP fits the bill. Most offences are strict liability so prosecutors don’t have to prove the suspect intended to commit a crime, nor do they need to prove their prosecution is for the public benefit (partly because no-one ever challenges them to do so). So prosecution is relatively easy. Getting convictions is easy too, because most people don’t respond to their prosecution under SJP and are convicted in their absence. A tiny minority of defendants plead not guilty. No data is available on what proportion are acquitted. Procedural justice is defined as the fairness of processes used by those in positions of authority to reach specific outcomes or decisions. This report measures the SJP against that test and finds it wanting. Many people who transgress are willing to make amends. But SJP defendants also need to know what their rights are and how to exercise them, and most don’t. So far, no-one (apart from some journalists) has been that interested in finding out about their experience and amplifying their voice. But change is coming. We hope that procedural justice and fair trial rights will be at the heart of SJP reform.

London: Transform Justice, 2025. 36p.

By Mika Hagerlid, Görel Granström

Twenty years ago, the Swedish National Council for Crime Prevention presented a report that highlighted serious problems with regard to identifying, investigating, and sentencing ofenders for hate crimes. The same problems have also been described in international research from several other countries. Since then, several measures have been taken to remedy these problems, but it remains unknown whether these measures have been successful. The aim of the present study is therefore to trace developments over time, using Sweden as a case study, and to evaluate the extent to which the problems identifed earlier have been remedied. The results show that the problems identifed by the Swedish National Council for Crime Prevention still remain despite a continuous process of reform. Theoretical links and parallels to international research are discussed throughout the article.

European Journal on Criminal Policy and Research (2025) 31:193–210

By Organisation for Economic Co-operation and Development - OECD

Effective workplace supports can help to address the high social and economic costs of intimate partner violence (IPV) to individuals, businesses and societies. This paper highlights steps that employers and governments are taking to strengthen workplace approaches to IPV, particularly public policy measures across OECD countries to encourage an effective workplace response. Firms are taking action by developing workplace policies on IPV and establishing accompanying processes, building organisational capacity to respond to violence by upskilling staff, connecting workers with support, and offering flexible working arrangements to enable victim-survivors to continue working. Governments, too, are stepping up: several now offer employment protection for people subjected to IPV, a right to request flexible working arrangements, guidance for employers in developing workplace supports, and – in limited cases – paid domestic violence leave entitlements for employees.

OECD Employment Policy Papers, No. 13,

Paris: OECD Publishing, 2025. 49p.

By JUSTICE, Chair of the Committee George Lubega

The term ‘Behavioural Control Orders’ refers to a group of legal Orders that are imposed upon an individual via a civil court process or by an executive authority. They aim to address particular behaviours deemed to be objectionable. Sometimes the behaviours targeted constitute crimes in their own right; at other times the Orders are designed to tackle behaviour that falls below the criminal threshold. They do so by imposing restrictive conditions or requirements upon the person subject to them. These include conditions prohibiting association, being present within a particular geographical area, accessing the internet and can include electronic monitoring. Although Orders are imposed via a civil process and usually upon civil standards of evidence, breaching a condition within an Order is a criminal offence. There are an increasing number of Behavioural Control Orders (“Orders”) on the statute books of England and Wales, and their scope and availability appear to be ever-widening. Originally created to fill a gap present within the criminal law, e.g., the difficulty of prosecuting individual instances of football hooliganism, they have rapidly expanded to new areas and now cover behaviour which is, in and of itself, a criminal offence – punishable via the criminal law. For example, Orders now exist to address anti-social behaviour, protests, drug use, knife possession, gang-crime, stalking, and sexual offending, among other matters. Some Orders can differ in terms of who they protect (a specific individual, the public at large, or even a particular place); who may seek or impose an Order; whether an Order can be made on complaint, on conviction, or both; whether they can be imposed on children, or on adults only; the types of conditions and requirements that they can impose; what outcome the Order is intended to achieve and, accordingly, the legal test to be applied (including the standard of proof). The reasons for the variations is unclear and, in any event, has caused confusion across the country. This, in turn, has resulted in inconsistency in the ways in which Orders are used, and the protections afforded to victims. Surprisingly, despite their proliferation and the serious subject matter which they address, Behavioural Control Orders have never been the subject of any systematic, government-led review. It is not clear how the effectiveness of Orders should be measured, nor what ‘success’ should look like. Very little attention has been paid to whether the Behavioural Control Order ‘model’, works. The Working Party has sought to shed light on this question by examining the extent to which Orders are effective for victims, fair, accessible, proportionate, and rights compliant. Overarching Concerns Notwithstanding the variations between Orders, the Working Party identified a number of common, overarching concerns. Orders are often conceived of as a solution to complex social problems. They seek to prevent harms, protect vulnerable individuals, and offer rehabilitation to those accused of committing unwanted conduct. Whilst the policy papers accompanying their introduction stress that they are not intended to be punitive, their duration, the breadth of conditions they impose and the punishment for breach means that in practice, they are often perceived and experienced as such. Moreover, rather than diverting individuals out of the criminal justice system, the Working Party heard criticisms that Orders draw people, especially children, further intro the criminal justice system (owing to the possibility of criminal sanctions for breach). The bar for what conduct may be prohibited by an Order is very low in practice. For example, some Orders have been imposed on individuals as a result of them “closing the door too loudly" and impose conditions which prohibit “sitting on a pavement” or “wearing a bikini in the garden”. Arguably, such prohibitions are reflective of a loss of perspective on what degree of behaviour should properly be controlled by the State, and thereafter criminalised. At the same time, it risks diverting attention away from those really responsible for causing harm. On the other hand, some forms of Order can be said to criminalise individuals ‘by the back door’, by overlapping with existing criminal offences. Procedures for obtaining Orders generally do not require the rigour that proving a criminal charge does, with the tests to be applied often much broader than the wording of a statutory offence. Although proceedings for breach (as a separate offence) are brought before a criminal court, the conduct amounting to a breach may in fact be much less serious than the nature of the Order implies. Despite this, most contributors agreed that in certain circumstances, and when used appropriately, Orders could be useful tools in protecting victims from harm. This is especially true where used to protect a particular person, in the context of harms generally constituted by escalating or cumulative conduct. For example, Orders such as Stalking Protection Orders are effective, provided enforcement bodies apply for them. And Non-Molestation Orders can provide relief to victims of domestic abuse, as long as breaches are followed up and provided that victims are applying for them – not because the police have failed to help them - but because it is their preference to take action themselves. Nonetheless, more planning and consultation is required at the legislative phase, to ensure Orders are capable of achieving their aims, and enforcement bodies are set up to use them effectively. Little is currently done to assess how Orders will work in practice, and the views of interested parties, including experts and victims, and organisations working with offenders, are not meaningfully considered, nor their concerns adequately addressed. A consequence of this is that Orders can be performative in nature. The Working Party heard criticisms that Orders often reflect a “knee-jerk reaction” to high-profile issues, treating the symptom rather than the cause. It is doubtful whether a legal Order alone, can ever have a significant impact on reducing harm without the State taking responsibility for tackling the causes: inequality, poverty, inadequate housing, education and an under-resourced mental health service. Even where Orders have been found to be effective in providing relief to victims – as with Stalking Protection Orders, Non-Molestation Orders and Sexual Harm Prevention Orders - the failure to make resources available for training, enforcement and data sharing – mean that they are often deemed “a missed opportunity” and are not used widely enough. Moreover, whilst Behavioural Control Orders are meant to provide access to interventions, programmes and positive diversions – a lack of resources and available services often mean that this cannot take place. Without proper accreditation, there is also a risk that certain types of ‘perpetrator programme’ or diversionary schemes can cause further harm (continued)

London: JUSTICE, 2025. 144p.