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A finding that the proceedings were classified as criminal in domestic law is likely to be
conclusive. But a finding that they are civil is of relative weight and serves only as a starting
point: Benham v United Kingdom 22 EHRR 293, 323, para 56. In Lauko v Slovakia (1998)
33 EHRR 994, 1010-1011, para 57 the court observed that the criteria are alternative and ^
not cumulative: see also Garyfallou AEBE v Greece (1997) EHRR 344. As it was put in
Ozturk v Germany 6 EHRR 409, 424, para 54, one criterion cannot be applied so as to divest
an offence of a criminal character if that has been established under another criterion. But it
was recognised in Lauko v Slovakia, at p ion, para 57, that a cumulative approach may be
adopted if the separate analysis of each of them does not lead to a clear conclusion as to the
existence of a “criminal charge”. For the reasons already given, I consider that the position
under domestic law is that the proceedings are classified as civil proceedings and not
criminal. In their helpful written submissions which were developed before us in oral
argument Liberty, to whom leave was given to intervene in these appeals, have contended
that the essential question is how domestic law classifies the conduct which is at issue, not
the proceedings themselves, d hey submit that the conduct which requires to be demonstrated
falls within the scope of the criminal law, and that for this reason the proceedings should be
treated as criminal proceedings in domestic law for the purposes of the Convention. They
point out that the definition of “anti-social behaviour” in section 1(1) of the Crime and
Disorder Act 1998 is modelled on
PART 5 © SWEET & MAXWELL
37,
Simon Cordell’s Skeleton Argument (2) Pdf
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R (McCann) v Manchester Crown Ct (HL(E))
Lord Hope of Craighead
A “harassment” in the Protection from Harassment Act 1997, which is a criminal offence
under section z of that Act, and that such conduct may also be treated as criminal under
section 5 of the Public Order Act 1986 and a variety of other statutory provisions dealing
with offences such as assault, theft and burglary. They also invoke section 3 of the Human
Rights Act 1998 in support of the proposition that an application made under section 1 of the
Crime and Disorder Act 3 998 should be construed in domestic law as 6 criminal proceedings
in the absence of an express provision in the legislation to the contrary.
• 1 would reject these arguments. The question is whether, as it was put in Engel v The
Netherlands (No 1) 1 EHRR 647, 678, para 81, the provision defining the offence belongs to
criminal law, disciplinary law or both concurrently. It cannot be answered without examining
the nature and purpose of the proceedings in which the conduct is alleged. The analogies to
which Liberty refer are all examples of situations in which the conduct described is defined in
the statute for the purpose of enabling a charge to be brought with a view to the imposition of
a penalty. In Engel v The Netherlands (No 1), at p 677, para 79 the court described the aim
of repressing the applicants’ conduct through penalties as an objective which was analogous
to the “general goal of the criminal law”. I hat is not the 0 purpose for which proceedings for
the imposition of an anti-social behaviour order are brought. Their purpose is to protect the
public from further antisocial acts by the defendant. As for the argument regarding section 3
of the Human Rights Act 1998, it is, as Liberty themselves recognise, circular. According to
the jurisprudence of the Strasbourg Court, the first criterion is how the proceedings are
classified according to the legal system of the £ respondent state: Engel v The Netherlands
(No 1), at p 678, para 8z. Section z of the Human Rights Act 1998 provides that a court or
tribunal determining a question which has arisen in connection with a Convention right must
take the Strasbourg jurisprudence into account. Strasbourg jurisprudence tells us that the