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prohibiting the defendant from doing anti-social acts in the future and its object is not the
obtaining of a conviction against him resulting in the imposition of a punishment. I am in
respectful agreement with the statement of Lord Bingham of Cornhili CJ in Customs and
Excise Comrs v City of London Magistrates' Court [2000] 1 WLR 2020, 2025 that:
“criminal proceedings involve a formal accusation made on behalf of the state or by a private
prosecutor that a defendant has committed a breach of the criminal law, and the state or the
private prosecutor has instituted proceedings which may culminate in the conviction and
condemnation of the defendant.” The passages in the judgments relied on by the defendants
do not, in my opinion, assist them because they emphasise that the imposition of a conviction
may be a consequence of the proceedings in which the application is brought. Thus in the
Proprietary Articles Trade Association case j T 9 31 ] AC 310, 324 Lord Atkin stated that
“those who commit them are punished”; in Ex p Alice Woodball 20 QBD 832, 838 Lindley
LJ stated: “[the] whole object [of the application] is to enable the person in custody to escape
being sent for trial in America upon a charge of forgery”; in Amand s case 11:9431 AC 147
Viscount Simon LC stated, at p T 56, that the matter is criminal if it is one “the direct
outcome of which may be trial of the applicant and his possible punishment”; and Lord
Wright stated, at p 162, that a matter is a criminal one which, “if carried to its conclusion,
might result in
PART 5 © SWEET & MAXWELL
46,
Simon Cordell’s Skeleton Argument (2) Pdf
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R (McCann) v Manchester Crown Ct (HL(E)
Lord Hutton
conviction and punishment. But an application for an anti-social behaviour order, if carried to
its conclusion, will not result in conviction and punishment, it will result in the making of an
order which cannot be regarded as a punishment. A conviction and punishment will only be
imposed if the defendant, by his own choice, subsequently breaches the order and separate
and distinct proceedings are brought against him.
I further consider that a complaint brought against a defendant under section 1(3} of the 1998
Act does not constitute an allegation of a crime. The fact that the background to the
complaint will very often be the alleged commission of a number of criminal offences does
not mean that the complaint constitutes a charge of a criminal offence: see S v Miller 2001
SC 977, 989-990, para 23 cited subsequently in paragraph 1.02 of this opinion.
There are two further considerations which support the conclusion C that an application for
an anti-social behaviour order is a civil proceeding and not a criminal proceeding. First,
section 1 is contained in Part I of the Act under the heading “Prevention of crime and
disorder” whereas Part II under the heading “Criminal law” creates a number of offences and
provides for their punishment. Secondly, section 1(3) provides that an application for an anti-
social behaviour order shall be made by complaint to a magistrates’ court, and a complaint is
the appropriate procedure for commencing civil proceedings in a magistrates’ court: see
section 51 of the Magistrates ‘Courts Act 1980.
Accordingly, I conclude that under domestic law an application for an anti-social behaviour
order is not a criminal proceeding but is a civil proceeding.
The European Convention on Human Rights
Article 6(1) provides: “In the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a fair and public hearing. Article 6(3)
provides: “Everyone charged with a criminal offence has the following minimum rights . . .
(d) to examine . . . witnesses against him . . .” The defendants submitted that under the
jurisprudence of the Convention an application for an anti-social behaviour order is a

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