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In the first case the Chief Constable applied to the magistrates’ court for anti- social
behaviour orders to be made against each of the defendants, three brothers aged 16, 15 and
13, pursuant to section 1 of the Crime and Disorder Act 1998'. The stipendiary magistrate
made the orders, which, inter alia, prohibited the defendants from entering a particular area of
the city in which they lived. On the defendants’ appeal to the Crown Court, the judge held
chat the proceedings for the making of an order were civil rather than criminal and that,
therefore, they were not subject to the rules of evidence which applied in criminal
prosecutions or to the protection of article 6(2) of the Convention for the Protection of
Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1.998c
However, the court applied the standard of proof of being “satisfied so that it was sure” that
the orders should be made and, having done so, dismissed the appeals.
The defendants brought judicial review proceedings seeking an order of certiorari to quash
the judge’s decision.
The Divisional Court dismissed the application and the Court of Appeal upheld that decision.
The defendants appealed.
In the second case the local authority applied to the magistrates’ court for an antisocial
behaviour order to be made against the defendant. The application was based primarily on
hearsay evidence including evidence from anonymous complainants and evidence from
complainants whose identities were not disclosed. A hearsay notice under the Magistrates’
Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 was served on the defendant,
who challenged its validity. Following a pre-trial review, the district judge stated a case for
the Divisional Court raising questions about the admissibility of hearsay evidence in the
proceedings. The Divisional Court, in reliance on the decision of the Divisional Court in the
first case, ruled that the proceedings were civil and that the hearsay evidence could be
admitted. The defendant appealed pursuant to a certificate granted under section 1 of the
Administration of Justice Act 1960.
On the appeals—
Held, dismissing the appeal in the first case and declaring that the house had no jurisdiction
to hear the appeal in the second case, that since applications for antisocial behaviour orders
under section 1 of the Crime and Disorder Act 1 998 were initiated by the civil process of
complaint and did not charge the defendant with any
Crime and Disorder Act 1998, s r: see post, para 6.
Human Rights Act 1998, Sell 1, Pt., art 6: see post, para 7.
97,
Simon Cordell’s Skeleton Argument (2) Pdf
50
R (McCann) v Manchester Crown Ct (HL(E)
(2003] 1 AC
crime or involve the Crown Prosecution Service, and since the making of such an order, the
purpose of which was preventive not punitive, was not a conviction, did not appear on the
defendant’s criminal record and resulted in no penalty, the proceedings were civil under
domestic law; that, since the proceedings did not involve the determination of a criminal
charge and could not result in the imposition of an immediate penalty on the defendant, they
therefore could not be classified as criminal for the purposes of article 6 of the Convention;
that, in so far as the proceedings involved a determination of the defendants’ civil rights and
thereby engaged the right to a fair trial under article 6(r),
the use of hearsay evidence admissible under the Civil Evidence Act 1995 in such
proceedings was not unfair and involved no violation of that right; that hearsay evidence
under the 1995 Act and the 1999 Rules was therefore admissible on an application for an
anti-social behaviour order under section 1 of the 1998 Act; but that, given the seriousness of

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