PREVENZIONE ANTE DELICTUM E DIRITTI FONDAMENTALI NELL'ORDINAMENTO INGLESE

The investigation takes its cue from an assessment and a question. The assessment is that recent years have seen a larger preoccupation with risk and public protection. In many European legal systems social insecurity has led to a shift in the criminal policy. This shift includes greater attention on risk management and, as a consequence, the implementation of preventive measures which can be applied on conviction or even before. On the other hand, the question sounds like: are preventive orders to be welcomed and what limits should be set to their use? The reasons of the comparison with the English legal system are twofold. First, the introduction of preventive orders in the English legal system is relatively recent. Courts have long had preventive powers (typically the power to bind a person over, which take different forms, some at the common law, some under various statues such as the Justice of the Peace Act 1361 and the Magistrates’ Courts Act 1980). However since 1998 there have been several additions to their powers, with various civil preventive orders becoming available. Second, the reflection on the justificatory framework for preventive measures, which focused on the endeavours of the European Court of Human Rights, gives us an interesting new perspective for embarking on the task of finding such a framework.