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Clingham v Kensington and Chelsea Royal London Borough Council
APPEAL from the Divisional Court of the Queen’s Bench Division
This was an appeal, with leave of the House granted on 23 October 2001, by the defendant,
Andrew George Clingham, against a decision of the Divisional Court (Schiemann LJ and
Poole J) dated 11 January 2001 dismissing his appeal by way of case stated against a decision
on the admissibility of evidence by District Judge David Kennett Brown, sitting as a
magistrate at Marylebone Magistrates’ Court on 14 September 2000 at a pre-trial review of
an application by Kensington and Chelsea Royal London I3orough Council for an anti-social
behaviour order against the defendant.
In refusing leave to appeal the Divisional Court certified, under section 1(2) c of the
Administration of justice Act i960, that the following point of law of general public
importance was involved in its decision: “Whether hearsay evidence is admissible in
proceedings to secure the making of an anti-social behaviour order under the Crime and
Disorder Act 1998?”
The facts are stated in the opinion of Lord Steyn.
Stephen Salley QC and Alan Fraser for Clingham. Seen as a whole, the scheme provided for
by the Crime and Disorder Act 1998 for the making of and enforcement of anti-social
behaviour orders is punitive, rather than preventative, and therefore truly criminal. The
sanctions for breach of such an order, which include imprisonment for a maximum of five
years, are clearly penal in nature. The proper application of the relevant criteria leads to the
conclusion that it is properly categorised as criminal even in respect of ^ the initial imposition
of the order looked at alone. Consequently, the usual, criminal procedures apply and the Civil
Evidence Act 1995 and the Magistrates’ Courts (Hearsay Evidence in Civil Proceedings)
Rules 1999 (SI 1999/681) do not.
The absence of any real restriction on the possible ambit of anti-social behaviour orders also
presents the risk of ad hoc, novel and ill-defined “criminal offences” (founded on the terms of
any such order), that is a matter of concern and possible injustice in that it is effectively
creating “offences” attracting substantial penalties without the direct involvement of
Parliament and in circumstances lacking the sort of certainty that should characterise any
prohibition carrying such penal sanctions. The fact that the conduct originally complained of
is inevitably reflected in the formulation of the “offence”, it is an integral and inextricable
part of a single process with punitive sanction.
Geographical exclusion from a particular area is also properly regarded as punitive. It
encroaches on freedom of movement and may in some circumstances amount to an
infringement of the right to respect for private and family life (contrary to article 8 of the
Convention) and/or freedom of association (contrary to article 11). Although each of these
rights is subject to restriction for reasons including the “prevention of crime and disorder”
and the “protection of rights of others” that reinforces the argument that such, a sanction is a
punitive order.
Even if it is held that the proceedings are properly characterised as “civil”, defendants are
entitled to a “fair” hearing in accordance with article 6 (R) “in
100,
Simon Cordell’s Skeleton Argument (2) Pdf
53
[2003] 1 AC R (McCann) v Manchester Crown Ct (HL(E)
A determination of his civil] rights and obligations”. In determining what is “fair” in this
context an almost (or “quasi”) criminal approach should be adopted not only in relation to the
standard of proof but in interpretation of wider procedural issues. In the circumstances that
would include having particular regard to the minimum requirements that would attach to
criminal proceedings under article 6(3), even if those did not directly apply g by virtue of

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