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There are fundamental differences between an anti-social behaviour order and a sex offender
order under section 2 of the Crime and Disorder Act 1998. Section 1 requires proof. Section 2
only requires “reasonable cause to believe”. Thus, the court does not, under section 2, apply a
simple objective test of whether acts took place as in section 1 but has a further subjective
element to apply that is not consistent with a criminal offence. Furthermore, the sex offender
has already had his fair trial to the criminal standard of proof on the conduct which gave rise
to the jurisdiction to make an order. The sex offender order is a mechanism to control the
further conduct of those already convicted of criminal offences. The essential prerequisite for
the order does not need to be proved in proceedings for making the order. In the context of
European jurisprudence a sex offender order is made against a very limited class of persons,
those already convicted of sex offences while the anti-social behaviour order is of general
application. That is a significant factor: see Benbam v United Kingdom (1996) 22 EHRR 293
The relevant criteria for the consideration of whether proceedings are criminal for the
purpose of article 6 of the Convention rights are: (a) the domestic classification; (b) The
nature of the proceedings; (c) The nature and severity of the punishment: see Engel v The
Netherlands (No 1) (1976) I EHRR 647. Those criteria are not cumulative. Any one of the
three may render the proceedings as being in respect of criminal charge: see Garyfallou
AEBE v Greece (1997) 28 EHRR 344; Lauko v Slovakia (1998) 33 EHRR 994. There does
not have to be tile formal constituent elements of an offence as recognised in domestic law:
see Deiveer v Belgium (1980) 2 EHRR 439. There is a broad similarity between proceedings
for anti-social behaviour orders and breach of the peace. In both cases what is effectively
sought is an order prohibiting a certain kind of behaviour. The intention was almost certainly
to create a civil procedure, but it did not actually achieve that: see Steel v United Kingdom
(1998) 28 EHRR 603. A penalty is still a penalty even when it takes a novel form. See also
Han v Customs and Excise GAMUTS [ 2001 j 1 WFR 2253 for a review of the European
jurisprudence.
The original anti-social behaviour is the most significant element of the criminal conduct
leading to a criminal sanction under section 1(10). Thus the crucial conduct of a criminal
nature that lies at the heart of the order and to which it is most important for the procedural
safeguards of article 6(2) and (3) to be applied occurs at the first stage on the application for
an order. It is
103,
Simon Cordell’s Skeleton Argument (2) Pdf
56
R (McCann) v Manchester Crown Ct (HL(E)
[2003] AC
thus impossible, when applying the autonomous test from the Convention as A to the genera!
nature of the proceedings, to escape the conclusion that they are in respect of a criminal
charge. Thus, the orders made in the instant proceedings on the basis that they were civil
proceedings not subject to such safeguards should be quashed.
Having a shifting or varying burden of proof may impose on justices an almost impossible
task and could lead to the wholly undesirable practice of g justices being asked about the
approach they are going to adopt.
A professional judge could mould proceedings to meet the particular dictates of the case more
easily: see Official Receiver v Stern I2000] I WLR 2230, 2257-2258. Other issues also arise:
the protections under the Police and Criminal Evidence Act 1984 would not apply and there
could be profound problems regarding the weight to be given to identification evidence.
Brodie Thompson QC for Liberty. There are fundamental implications in the development of
criminal law involved in the use of anti-social behaviour orders. It is important that all the
full protections of criminal procedure are maintained when people are in effect accused of

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