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question of classification is a matter for our own domestic system. Under our system, for the
reasons already given, the proceedings arc civil proceedings and not criminal.
The second criterion: the nature of the offence
• This question looks to the nature of the offence charged. But there is a preliminary question
that has to be examined. Do proceedings for the imposition of an anti-social behaviour order
involve the bringing of a charge at all? For the reasons already given, 1 think that the answer
to this question in domestic law is clear. They do not involve the bringing of a charge because
the purpose of the procedure is to impose a prohibition, not a penalty. But the domestic
answer to this question does not resolve the issue, because for tire purposes of the Convention
it is necessary to look at the substance of what is involved and not the form. Moreover, the
question cannot be answered according to what Parliament is thought to have intended. In
this context it is the effect of what Parliament has done that has H to be examined. The court
looks behind the appearances and investigates the realities of the procedure: Deweer v
Belgium (1980) z EHRR. 439, 438, para 44.
• The grounds for making the application involve making an allegation against the defendant
that he has acted in a manner which may
PART 5 © SWEET & MAXWELL
38,
Simon Cordell’s Skeleton Argument (2) Pdf
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R (McCann) v Manchester Crown Ct (HL)
Lord Hope of Craighead
we’ll have involved criminal conduct. A formal accusation is made, and the court to which it
is made has to reach a decision as to whether or not the allegation has been made out. The
situation can be distinguished from that where a sex offender order is sought under section 2
of the Crime and Disorder Act 1998, as it is a precondition for the making of the application
that the defendant is already a sex offender as defined in section 3(1) of the Act. It can also be
distinguished from that where a confiscation order is sought under the Drug Trafficking
Offences Act 1986, as it is a precondition for the making of an application for such an order
that the person against whom the order is sought has been convicted of a drug trafficking
offence as defined in the Act. A previous conviction for the acts which are said to have
amounted to anti-social behaviour is not required for the purposes of section 1 of the Crime
and Disorder Act 1998. For the defendants it was contended that these features of the
proceedings showed that they were directed at the world at large, rather than a pre-defined or
limited class of persons, and that offences which were of this character were apt to be
regarded as involving a criminal charge within the meaning of article 6.
- I do not think that the fact that no previous criminal conviction is required before an
application for an and-social behaviour order can be made under section 1 of the Crime and
Disorder Act .1998 has the significance which the defendants seek to attach to it. A
distinction is drawn in the jurisprudence of the Strasbourg court between charges which are
addressed to a pre-defined or limited class of persons, such as those who are serving in the
armed forces or are serving sentences of imprisonment as in Engel v The Netherlands (No 1)
1 EHRR 647 and McEeeley v United Kingdom (1980) 3 EHRR 161 or those who take part in
proceedings before
a court as in Ravnsborg v Sweden 18 EHRR 38, on the one hand and charges which are
directed to the world at large on the other, as in Ben denoun u France (1994) 18 EHRR 54
which was concerned with a provision in the tax code applicable to all citizens. The
distinction which is drawn here is between proceedings which are disciplinary in character
and those which are criminal. Where a limited group of persons possessing a special status is