Page 62 - tmp

properly analysed Amand v Home Secretary [1943] AC 147 and R v Board of Visitors of
Hull Prison, Ex p St Germain [1979] QB 42,5 support that approach. They decide that a
cause or matter would be classified as criminal if, carried to its conclusion, it might result in a
conviction and sentence. That analysis demonstrates that the criminal sanction for a breach of
an anti-social behaviour order cannot affect the proper classification of the proceedings that
are brought for the imposition of ail anti-social behaviour order. It is also entirely consistent
with the analysis adopted in many other areas of the law, for example, interim injunctions,
sex offenders’ orders and orders under the Company Directors Disqualification Act 1986.
The question whether any act is “prohibited” by section r. of the 1998 Act is not answered by
reference to the question whether the preconditions for making an anti-social behaviour order
are exactly co-extensive with some other substantive criminal offence— e.g. under the Public
Order Act 1986 or the Prevention from Harassment Act 1997. The correct question is
whether section 1 itself prohibits any act. It does not. In any event there are substantial
differences between, on the one hand, section 4A of the Public Order Act 1986 and section 1
of the Protection from Harassment Act and, on the other, section 1: of the 1:998 Act.
Tor the purposes of article 6 there are several reasons why the preconditions to making an
anti-social behaviour order take it outside the criminal realm. The order seeks to deal with
anti-social behaviour, not with
107,
Simon Cordell’s Skeleton Argument (2) Pdf
60
R (McCann) v Manchester Crown Ct (HL(E)
[2003] 1 AC
crime, and it seeks to do so by preventing future crimes rather than by punishing past ones. If
a sanction is imposed for the purposes of deterrence or punishment, then it is likely to be
regarded as a criminal penalty: see Oztiirk v Germany (1984) 6 EHRR 409; Han v Customs
and Excise Comrs [2.001] 1 WLR 2253. By contrast, a sanction that is imposed for
preventive reasons is not so regarded (even if it involves a restriction on liberty, and/or an
interference with property rights, and/or it is imposed in the context of criminal proceedings:
see Raimondo v Italy (1994) £HRR 237; M v Italy (1990) 70 DR 59. A decision whether to
impose an anti-social behaviour order does not involve the determination of a criminal charge
simply because the matters on which reliance is placed might also happen to constitute the
necessary elements of a criminal offence: see Pelle v France (1986) 50 DR 263; McFeeley v
United Kingdom (1980) 3 EHRR 161. Finally, the existence of past misconduct cannot of
itself trigger an antisocial behaviour order: there must also be a need for protection for the
future under section r(I)(b).
An anti-social behaviour order is clearly not a criminal penalty. Section 1(4) precludes any
order being made other than as a prohibition. The court can neither fine nor imprison a
person. There is a very significant difference in the European jurisprudence between
imposing a restriction on a person’s liberty (which will not be a criminal penalty) and
depriving a person of his liberty (which will be a criminal penalty): see Guzzardi v Italy 3
LEIRR 333; Raimondo v Italy 18 EHRR 237. The court cannot deprive a person of his
liberty under the cloak of an anti-social behaviour order, and the fact that an order might
interfere with his freedom of movement (e g by excluding him from designated areas) does
not convert it into a criminal penalty.
The fact that a person may be imprisoned for acting in breach of an antisocial behaviour order
doc not mean that the imposition of the order itself involves any criminal penalty: see by
analogy Ibhotson v United Kingdom (1998) 27 EHRR CD 332. The reason why a different
conclusion was reached in Steel u United Kingdom 28 EHRR 603 was that the penalty was
available to he imposed at the outset by the sentencing court in order to enforce compliance

Page 60 of 139