Knife Crime Prevention Orders: Punitive, not preventative
On 5 July 2021, the Metropolitan Police will commence a 14-month-long pilot of Knife Crime Prevention Orders (KCPOs), which were created by the Offensive Weapons Act 2019. The Home Office has already declared its intention to roll KCPOs out across England and Wales once the Met Police’s pilot concludes.
KCPOs resemble the now-infamous Anti-Social Behaviour Orders (ASBOs) introduced by New Labour in 1998. They are civil orders made by courts, following an application by the police or Crown Prosecution Service, against people who are thought to present a threat to the public by using or carrying knives or bladed articles. While KCPOs are civil orders, people found in breach of their Orders can be punished with a prison sentence of up to two years.
Although people who breach KCPOs may be sentenced to prison, government spokespeople have steadfastly held that the Orders are intended to be “preventative rather than punitive”. A spokesperson for the Met Police has further contended that the Orders would “no doubt … be well received” by the public when the KCPO pilot commences. These assertions are premised on the fact that KCPOs impose “positive requirements” on people subject to Orders, like participation in educational courses, drug rehabilitation programs, and relationship counselling.
To prevent harm and violence in our profoundly unjust and exploitative society it is crucial people can access systems of support that will not only reduce insecurity, but also help us build our collective capacities for practising community safety and accountability, and ultimately ensure that our communities thrive. However, the KCPO regime ties the support and opportunities people need to coercive Orders which enable the police to monitor and surveil KCPO subjects, and which hold the threat of imprisonment in waiting. At the same time, KCPOs treat harm and violence as though they arise from the behaviours of aberrant individuals; a sleight of hand that obscures the extent to which individual, interpersonal, and institutional violence – including that of the police – are intricately connected.
To be clear, even though many of us are taught to think that the police’s primary role is to ensure our safety, violence is not an occasional excess of police work: rather, in English-speaking jurisdictions, violence is intrinsic to police institutions and their mandates. That is because ‘modern’ police institutions in Britain and former British colonies were established to facilitate and sustain colonial and capitalist expansion. And today, in keeping with their raison d'être, police in the metropole “fabricate social order” and re-make racial ordering as they monitor and discipline formerly colonised peoples and the working classes.
Public concerns about police violence and expansions of police power have become heightened in England and Wales in recent years, not least following the Black Lives Matter protests of 2020 and the introduction of the Police, Crime, Sentencing and Courts Bill in 2021. In our conversations about police violence and expansions of police power, we must pay due consideration to policies and practices that are framed as being ‘non punitive’, including the KCPO regime. Failure to do so underestimates the coercive potential of ‘soft’ policing and the pernicious effects of a persistent police presence in people’s lives.
What do Knife Crime Prevention Orders entail?
As noted above, KCPOs are civil orders made by courts. However, courts cannot make KCPOs of their own volition; instead, they can only make an Order following an application by the police or the Crown Prosecution Service (whose applications will usually be supported by police intelligence or evidence). A KCPO can be made in respect of anybody aged over 12.
KCPOs can either be made “on conviction” or “in cases other than on conviction”. To make a KCPO “on conviction”, the court must be convinced that the intended recipient of the KCPO is “more likely than not” to have committed a relevant offence; that is, an offence involving violence, or the threat of violence, or where a bladed article was used or carried by the defendant or any other person in the commission of the offence.
Courts can also make KCPOs “in cases other than on conviction” if satisfied that the intended recipient of the Order is “more likely than not” to have had a bladed article with them in a public space, on school premises, or on further education premises “without good reason or lawful authority” at least twice in the preceding two years.
People subject to KCPOs will typically have prohibitions imposed upon them as terms of their Orders. Prohibitions are claimed to be necessary to prevent people subject to KCPOs from committing an offence involving a knife, and to protect members of the public from any harm that might arise from such an offence. In a non-exhaustive list, the Home Office has set out “non-association with other individuals”, “exclusion zones”, and “preventing [the person subject to the KCPO] from using the internet to facilitate or encourage crime involving bladed articles” as examples of KCPO prohibitions.
People subject to KCPOs will also typically have “positive requirements” imposed upon them. In fact, the government’s insistence that KCPOs are “intended to be preventative rather than punitive” pivots on the fact that KCPOs will entail “positive requirements”, which will ostensibly help ‘steer’ people away from ‘knife crime’. Examples of “positive requirements” listed by the Home Office include “educational courses”, “relationship counselling”, “anger management courses”, and “sporting participation”. This means that KCPOs will require police to participate in multi-agency ‘partnership’ work and will further entangle policing with social welfare provision and community organisations and infrastructure. So, while KCPOs may seem like a ‘softer’, ‘non-coercive’ approach to policing ‘knife crime’, they will inevitably become tools of monitoring and surveillance and bring a broad range of people into closer contact with the police.
Although KCPOs are civil orders, breaching the terms of an Order “without reasonable excuse” constitutes a criminal offence punishable by a prison sentence of up to two years. In practice, the police and Crown Prosecution Service will be vested with the discretion to decide whether to act when somebody breaches their KCPO, but it is impossible to know precisely how the police and CPS will exercise this discretion in advance of the KCPO trial. In any case, the fact that KCPO breaches are formally criminalised flies in the face of the government and police’s assertions that these Orders are not intended to be punitive. If KCPOs were not intended to be punitive then they would not hold the threat of imprisonment in waiting for those who do not comply with the terms of their Order.
Why did the government legislate Knife Crime Prevention Orders?
The government legislated KCPOs in 2019 at the police’s request, to provide police positioned on the ‘frontline’ in the ‘fight’ against violent crime with further ordnance – particularly in their efforts against ‘knife crime’.
‘Knife crime’ remains a topic of fervent discussion in political, police, and wider public discourses in the UK. However, the term ‘knife crime’ does not directly correspond with any existing criminal offence. Rather, it is a catch-all term denoting a range of knife-related offences, including both carrying a knife and using a knife in the course of violent crime. As explored by the authors of Empire’s Endgame, the use of the term ‘knife crime’ also conjures mental images of ‘gangs’, and of particular urban areas home to Black communities who have experienced intergenerational conflict with the police as they have resisted police and state violence. These areas tend to be racialised as enclaves of disorder, violence, crime, and disregard for the rule of law. The term ‘knife crime’ signifies the residents of these areas too, and especially those who are young Black men.
In effect, then, while the term ‘knife crime’ makes no explicit reference to race, it reconstitutes associations that have been drawn between Black British communities and crime over several decades. ‘Knife crime’, and those people allegedly involved in it, are characterized as being distinctly ‘un-British’ (irrespective of their places of birth) and said to evidence the erosion of social order and national institutions and values, and especially those pertaining to the law. At the same time, people and places racialised as Black are aggressively policed, owing to the notion that ‘knife crime’ and the violent threats it poses to people’s safety and security will begin a parasitic spread from the urban areas where it is said to originate unless contained by the police.
Given recent official figures indicating that offences involving knives and sharp instruments have reached their highest recorded rates in a decade, common sense might dictate that public concern with ‘knife crime’ is only reasonable. But it is worth bearing in mind that crime rates are determined by the offences police record in the course of their work. Crime rates are therefore heavily influenced by police institutional decisions about the behaviours, people, and places to be prioritised for attention and intervention. That politicians and police have continued to mobilise ever-greater resources to ‘combat’ ‘knife crime’, and adapted their recording practices to account for the incidence of ‘knife crime’ in recent years, will have affected recorded rates of ‘knife crime’.
Irrespective of the difficulties inherent in determining whether ‘knife crime’ is truly ‘on the rise’, extending police powers is one of the clearest ways for politicians to signal that they take public concerns about crime and (dis)order seriously. Perhaps it is unsurprising, then, that the government acceded to the police’s request that they legislate KCPOs – particularly in the face of public assertions by senior police that austerity measures have hampered their ability to check ‘knife crime’. More broadly, as is also highlighted by the authors of Empire’s Endgame, while the state has abandoned welfare, it has doubled down on authoritative and punitive practices – including introducing new police powers – to perform British national strength in the face of inherently racialised ‘types’ of crime and security threats, like ‘knife crime’.
Once the Met Police’s pilot of KCPOs commences, the Orders will enhance the assemblage of powers and resources that police already had at their disposal to ‘fight’ ‘knife crime’ and violent offending. Some of the existing powers and resources in this assemblage include gang injunctions, the Gangs Matrix, the common law doctrine of joint enterprise, and the powers contained in Section 60 of the Criminal Justice and Public Order Act 1994, which authorise police to stop and search any person present in an ‘authorised’ area, irrespective of whether that person is suspected of having committed an offence.
While Section 60 powers have been in place for the best part of three decades, the police’s use of them increased five-fold from the 2017-18 to 2018-19 financial year. This sharp uptake occurred after the government relaxed their guidance about when police could exercise certain stop and search powers, to encourage police to conduct more stops and searches as part of their attempts to crack down on ‘knife crime’. There are indications, including an Equality Impact Assessment published by the government, of there being a “disparity” or ‘disproportionality’ in the use of Section 60 powers against members of racialised communities, and especially Black men. Indeed, it is difficult to see how any power targeted at ‘knife crime’ was likely to ‘proportionately’ affect members of all racial and ethnic groups when Black communities continue to be positioned and policed as ‘the usual suspects’ in terms of violent crime, ‘knife crime’, and gang-related crime.
But government and police spokespeople have been at pains to stress that KCPOs signal a new approach to policing ‘knife crime’. As noted above, repeated claims have been made that KCPOs are “intended to be preventative rather than punitive”. Much of the official discourse around KCPOs has focused on the importance of deterring and preventing young people from becoming involved in violent offending, with KCPOs rationalised by the government as a way for “the state [to] wrap its arms around children if schools and police officers think they are at risk of carrying knives frequently”. Despite appearing race-neutral, this statement seemingly betrays the government’s expectation of who will be subject to KCPOs: young Black people, who over many decades have been portrayed as “children without fathers”, unlikely to receive ‘proper’ parenting or support at home. Latent here is the influence of the history of colonialism in positioning heteropatriarchal, nuclear families as ‘respectable’, as is a conservative, right-wing defence of such families against the alleged moral decline of the nation. In this way, KCPOs are positioned as a means for schools and the police, embodying the state, to step in and provide young Black people with the supportive embrace of a parent and the attention said to be missing from their home lives; never mind that the broad-ranging neglectfulness of the state in recent decades – particularly under austerity – has deepened poverty and inequality and reduced the opportunities available to young people, with disproportionate effects for members of racialised groups and the working classes.
In any case, a critical examination of the provisions made for KCPOs in the Offensive Weapons Act, alongside the Home Office’s existing Guidance, indicates that the state’s grasp of people who are subject to KCPOs will feel more like a headlock than a hug.
Are Knife Crime Prevention Orders ‘preventative’?
Just as the government and police’s assertion that KCPOs are ‘not punitive’ is partial and misleading, so too is their framing of KCPOs as ‘preventative’.
The term ‘crime prevention’ has no concrete meaning and can be used to describe a wide array of criminal justice policies and practices. Traditionally, these policies and practices have aimed to reduce the occurrence of future crime, taking past crimes an indication of the ‘risky’ people and places that should be targeted for ‘preventative’ intervention.
Discourses attesting to the importance of preventing crime gained traction in the UK, US, and other English-speaking jurisdictions in the 1960s and 1970s, when politicians and police leaders were faced with mounting evidence that traditional, reactive methods of policing and crime control could not be relied upon to reduce crime or increase community safety. Today, politicians and police leaders in these jurisdictions often affirm that members of the public and organisations and agencies aside from the police have a part to play in preventing crime. Nevertheless, the police tend to assume prominent (and indeed dominant) positions when they come together with others in multi-agency ‘partnerships’ concerned with crime prevention.
Police organisations are usually engaged in a number of crime prevention programs and ‘partnerships’ at once, some of which will incorporate ‘person-focused’ approaches. Person-focused approaches to crime prevention are premised on the thinking that a small number of people are responsible for a large proportion of crime and that directing policing efforts toward those people should deter them from engaging in further ‘offending’ behaviour, thereby substantially reducing crime. In practice, the police’s reliance on (police recorded) historical crime data as an indication of who should be targeted for person-focused crime prevention often results in the cyclical and self-perpetuating policing of ‘the usual suspects’ – that is, members of marginalised groups who have historically borne the brunt of police work. In any case, KCPOs made “on conviction” can be characterized as ‘person-focused’ ‘preventative’ measures in that they are made against people convicted of ‘knife crimes’ with the stated intention of stopping them from engaging in ‘knife crime’ again in the future.
But even if KCPOs made “on conviction” can be classified as ‘preventative’ in the narrow, technicist sense that the term tends to be employed in the realm of criminal justice policy and practice, they are certainly are not ‘preventative’ in the ordinary sense of the term. KCPOs made “on conviction” run the risk of pathologising those people convicted of ‘knife crime’ as being inherently ‘bad’, violent and in need of surveillance and control, without really grappling with the social, political, and economic conditions in which ‘knife crime’ occurs in the first place. Put differently, even though the “positive requirements” imposed by KCPOs purport to provide people subject to Orders with support and opportunities, tying that support to a coercive Order which police monitor for compliance will not transform the social and structural problems that lead to harm and crime in our unjust, exploitative, and violent society. Rather, by bringing people subject to KCPOs into closer contact with the police, and by dangling terms of imprisonment over their heads like the Sword of Damocles, these Orders will perpetuate harm, violence, and insecurity.
Moreover, while KCPOs made ‘on conviction’ can only be classified as ‘preventative’ if ‘prevention’ is construed narrowly, KCPOs made ‘in cases other than on conviction’ are more appropriately classified as ‘pre-emptive’ than ‘preventative’. Public tolerance for security threats is lower than ever before, at least in part because we are continually told that we are facing unprecedented threats to our security, like the threat of ‘knife crime’. As described by Jude McCulloch and Dean Wilson, policing and security practices are therefore increasingly premised on intervening against risks and threats to our security before they can take shape, in the interests of precaution. In this vein, preventative and pre-emptive approaches to policing are both concerned with anticipating future crime. The key distinction between the two, however, is that preventative approaches try to anticipate future crime by looking backward in time to compile risk profiles based on people’s previous behaviour and historical crime data, while pre-emptive approaches seek to intervene in people’s behaviour earlier, to forestall threats to our security before they emerge, and therefore do not look to people’s past behaviour as an indication of how they will act in the future. Instead, pre-emptive intervention is premised on slippery, speculative assessments police make about whether somebody is the ‘type’ of person who might offend at some point – about whether they are a “would-be criminal”.
In sum, then, KCPOs made “on conviction” can be classified as ‘preventative’ in the sense that they are made against people who have previously been convicted of ‘knife crime’ offences, and are intended to decrease the ‘risk’ of them engaging in ‘knife crime’ again; meanwhile, KCPOs made “in cases other than on conviction” are done so pre-emptively, against people the police and/or Crown Prosecution Service presume are the ‘sort’ of person who could possibly engage in ‘knife crime’.
When police adopt pre-emptive approaches which licence them to speculate about “would-be criminals” they will target people because of who they are. In other words, they will treat factors related to people’s identity and status, like their race, ethnicity, religious beliefs, class, place of residence, age, family background, and friends as ‘proxies’ for their criminal propensity and the ‘security threats’ they pose. Police will then surveil and intervene against those “would-be criminals”, ‘disrupting’ not only their political activities but also their daily routines and interactions with their families and friends in the hopes of impeding them from engaging in ‘threatening’ behaviours. This is precisely why the KCPO prohibitions proposed by the government include measures like barring associations between people and curtailing KCPO subjects’ movements.
Members of racialised groups are frequently policed pre-emptively as they have, through the invocation of various tropes, been historically associated with the threats of insurgency, disorder, and insecurity by European colonisers. In this way, even in the metropole, pre-emptive policing practices can work to sustain and re-create colonial relations of power and racial ordering as police zero in on, and suppress, members of racialised groups as ‘enemies within’, ‘rioters’, ‘criminals’, and ‘security threats’. It is in recognition of the nature of pre-emptive policing that organisations like 4Front and Liberty can assert that members of racialised groups are most likely to be affected by KCPOs, even though the Orders are framed in race-neutral language in the relevant legislation and the current Home Office guidance.
Distinguishing between KCPOs made ‘preventatively’ and those made ‘pre-emptively’ is not merely a matter of semantics: the KCPO regime will bring a substantial number of people into the police’s reach, but KCPOs made “on conviction” and those made “in cases other than on conviction” will contribute to the casting of this dragnet in different ways. KCPOs made “on conviction” will likely be made against ‘the usual suspects’ – people who are already subject to regular police monitoring and surveillance – thereby re-entrenching the police’s presence in their lives. Meanwhile, KCPOs made “in cases other than on conviction” will spread police presence throughout the communities from which ‘the usual suspects’ are drawn, given that they are intended to be made against people who are not proven to have engaged in ‘knife crime’, but whose familial relations, friendships, and day-to-day activities signal criminal propensity to the police. That the category ‘knife crime’ is itself inherently racialised suggests that Black people and communities will be disproportionately affected by the dispersal and deepening of police surveillance and intervention that the KCPO regime entails.
But while ‘preventative’ and ‘pre-emptive’ KCPOs may differ somewhat in their application, they share the same benchmark for ‘success’: non-events. In other words, to prevent or pre-empt crime means intervening to stop it from eventuating. Irrespective of the fact that it is ultimately impossible to know how the police’s targets would have acted in the absence of police intervention, people subject to KCPOs will bear the cost of pursuing ‘success’, as they will be subject to a persistent police presence that will affect their uses of public space, their movements, and their ability to maintain relationships with their families and friends. Even though some such interventions have been framed ‘positively’ by the government and police (that is, as “positive requirements”), they are likely to be perceived by people subject to KCPOs and those close to them as intrusions in their lives, and will facilitate police surveillance, intelligence-gathering, and authority imposition.
Are Knife Crime Prevention Orders a good way to respond to ‘knife crime’?
Violence – including knife-related violence – is a real problem in the UK. But recognizing that people are being seriously injured and killed in violent incidents involving knives does not preclude us from acknowledging that the government and police’s discourses about ‘knife crime’ have been deeply politicised, racialised, and coupled with punitive responses that treat ‘knife crime’ as though it arises from the actions of pathologically ‘bad’ people. These approaches have failed to acknowledge that ‘knife crime’ is not merely an individual problem but a social problem, inhibiting us from developing a fuller understanding about why people carry knives, and from addressing the insecurity and impoverishment that drive violence.
In its own guidance on Knife Crime Prevention Orders, the Home Office has acknowledged that people are most likely to desist from violent crime when supported by those close to them. The KCPO regime nevertheless centers police in a new governmental approach to ‘preventing’ ‘knife crime’ which is likely to disrupt KCPO subjects’ interactions and relationships with their families and friends. This is despite the fact that criminal justice-type ‘preventative’ approaches concede (at least implicitly) that the criminal justice system does not deliver on some of its foremost promises. Put differently, if the criminal justice system were able to ‘rehabilitate’ those convicted of offences, then people’s past offending behaviour would not signal that they were likely to reoffend in the future and therefore in need of preventative intervention.
What’s more, by centering the police in the government’s response to ‘knife crime’, the KCPO regime will expand the scope of policing by increasing the reach of the police in our communities and the funding available to them. While successive Conservative governments have scrapped the Education Maintenance Allowance, overseen an “almost … billion-pound decline in funding for youth services by local authorities across England and Wales”, and a “desperate” social housing crisis, the current government’s KCPO regime purports to provide people with access to support and opportunities like educational courses and participation in sports groups. In doing so, the “positive requirements” of KCPOs will entangle policing with social welfare, community organisations, and community infrastructure, so that people have to engage with the police to access the support and opportunities that they need. Indeed, KCPOs have been linked to a £200 million endowment fund for ‘intervention work’ targeted at young people deemed to be at risk of involvement in violent crime. Although it is not clear precisely how the police will benefit from this fund, there is definite potential for money and resources stemming from the fund to be siphoned into police coffers to fund pernicious ‘partnerships’ in which community groups become reliant on involvement with the police for funding.
In all, by bringing people into closer and persistent contact with the police and punishing non-compliance with the terms of a KCPO, and by spreading and deepening the police’s presence throughout our communities, the KCPO regime will exacerbate, not prevent, harm and violence.
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Megan McElhone organises with Abolitionist Futures and teaches in the School of Law at Birkbeck, University of London.