Coercive human rights beyond the criminal law

Much of the recent discussion around coercive human rights has tended to focus on the way in which protective duties result in a sharpening of the criminal law or a greater push for criminalisation. This equation between coercion and the criminal law is too narrow, however, and loses sight of a significant and pernicious territory in which coercive overreach is at risk. This paper considers how protective human rights obligations also potentially result in the civil law liability of criminal justice agencies, a factor which in turn reshapes the way in which these agencies operate. These duties place considerable pressure on policing institutions to act pre-emptively to avoid human rights breaches, or even civil liability. The shift then is towards a more risk averse criminal justice system which views itself as bound by human rights to act preventively. In this territory, where inscrutable claims of future risks are at stake, the risk of coercive overreach is high.