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written case, was that g although the civil standard was a single, inflexible test, the inherent
probability or improbability of an event was a matter to be taken into account when the
evidence was being assessed. He maintained that this view was consistent with the position
for which lie contended, that these were civil proceedings which should be decided according
to the civil evidence rules. But it is not an invariable rule that the lower standard of proof
must be applied in civil proceedings. I think that there are good reasons, in the interests of
fairness, for applying the higher standard when allegations are made of criminal or quasi-
criminal conduct which, if proved, would have serious consequences for the person against
whom they are made.
This, as I have already mentioned, was the view which the Court of Session took in
Constanda v M 1997 SC 217 when it decided that proof to the criminal standard was required
of allegations that a child had engaged in p criminal conduct although the ground of referral
to a children’s hearing was not that he had committed an offence hut that he was exposed to
moral danger. There is now a substantial body of opinion that, if the case for an order such as
a banning order or a sex offender order is to be made out, account should be taken of the
seriousness of the matters to be proved and the implications of proving them. It has also been
recognised that if this is done the civil standard of proof will for all practical purposes be E
indistinguishable from the criminal standard: see B u Chief Constable of Avon and Somerset
Constabulary [2001] 1 WLR 340, 354, para 31, per Lord Bingham of Cornlii.il CJ; Gough v
Chief Constable of the Derbyshire Constabulary [2002] QB 1213, 1242-1243, para 90, per
Lord Phillips of Worth Matravers MR. As Mr Crow pointed out, the condition in section I( 1
)(b) of the Crime and Disorder Act 1998 that a prohibition order is necessary to protect
persons in the local government area from further anti-social acts raises a question which is a
matter for evaluation and assessment. But the condition in section I(I)(a) that the defendant
has acted in an anti-social manner raises serious questions of fact, and the implications for
him of proving that he has acted in this way are also serious. I would hold that the standard of
proof that ought to be applied in these cases to allegations about the defendant’s conduct is
the criminal standard.
Conclusion
In the Clingham case I would make the same order as that proposed by Lord Steyn. In the
McCann case I would dismiss the appeals.
Lord Hutton
My Lords, section 1 of the Crime and Disorder Act 1998 was enacted to remedy a grave
social problem. In some parts of England, particularly in urban areas, there are vulnerable
people who live in constant fear and distress as a result of the anti-social behaviour of others.
The anti-social behaviour can take different forms and may consist of
PART 5 © SWEET & MAXWELL
43,
Simon Cordell’s Skeleton Argument (2) Pdf
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R (McCann) v Manchester Crown Ct (HL)
Lord Hutton
Insults and abuse and threats or assaults or damage to houses by stone throwing or the
painting of graffiti. Those who are victims of such behaviour are often too frightened to be
willing to go into the witness box in criminal proceedings to give evidence against those who
make their lives a misery, because they fear that they will be harassed or intimidated for so
doing.
The remedy provided by section I of the 1998 Act is to give power to a magistrates’ court to
make an order which imposes on the defendant the prohibitions which are necessary for the
purpose of protecting persons in the local area from further anti-social, acts by him. Such an

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