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involved the conclusion is more readily drawn that the proceedings are ^ disciplinary. But
that is not a distinction which falls to be drawn in this case.
The question is whether the person against whom an anti-behaviour order is being sought is
“charged” with an offence at all. There are several indications that this is not so.
- The conduct which requires to be demonstrated is not necessarily conduct which
would be capable of being treated as criminal. It has to be shown that the defendant has acted
in a manner that caused or was likely to cause harassment, alarm, or distress. But in order to
prove that an offence under section 1of the Public Order Act 1986 was committed by him it
would be necessary to go further and prove that he intended to cause these consequences. In
order to prove that an offence was committed under section 1 of the Protection from
Harassment Act 1997 it would be necessary
to prove that he was engaged in a course of conduct which in fact amounted to harassment
and that he knew or ought to have known that his conduct amounted to harassment.
- Furthermore, the decision whether or not to make the order does not depend solely on
proof of the defendant’s conduct. The application may only be made if it appears to the local
council or the chief constable that an
PART 5 © SWEET & MAXWELL
39,
Simon Cordell’s Skeleton Argument (2) Pdf
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R (McCann) v Manchester Crown Ct (HL (E))
Lord Hope of Craighead
An order is necessary to protect persons in the area, and consultation between them is
required before the application is made. Thus, the proceedings are identified from the outset
as preventive in character rather than punitive or disciplinary. This is a strong indication that
they are not proceedings for the determination of a criminal charge against the defendant. In
Lattko v Slovakia 33 EHRR 9514, ion, para 58 the court said that the fine imposed in that
case was intended as a punishment to deter re-offending and that it had 6 “a punitive
character, which is the customary distinguishing feature of criminal penalties”. In Guzzardi v
Italy (3980) 3 EHRR 333, 369-37°, para o the court said that proceedings under which the
applicant, as a suspected Mafioso, had been placed under special supervision with an
obligation of compulsory residence within a restricted area did not involve the determination
of a criminal charge against him within the meaning of C article. see also Raimondo v Italy
18 EHRR 137. In M v Italy (199r) 70 DR 59, the commission held that article 6(2) did not
apply to confiscation of property belonging to a person suspected of being a member of a
mafia- type organisation. In neither of these cases was the imposition of the order regarded as
being punitive. In Gough v Chief Constable of the Derbyshire Constabulary [2002] QB 459
the Divisional Court held that the imposition of a banning order under the Football
(Spectators) Act 1989 as amended by the Football (Disorder) Act 2000, which was designed
to combat what Laws I.J described as “the shame and menace of football hooliganism”, was
not in conflict with article 6. This decision has been affirmed by the Court of Appeal [2002]
QB 1 2T 3.

- In contrast to those decisions, which support the proposition that a distinction is
drawn between proceedings for the imposition of preventive measures and those for the
imposition of a penalty or punishment, there is Steel v United Kingdom 28 FJIRR 603, In
that case the court held that article 6(3) applied to proceedings in which the applicants, who
had been arrested and charged with breach of the peace, were brought before a magistrate and
bound over to keep the peace. As in the case of applications for an anti-social behaviour
order, the procedure is initiated under section 51 of the Magistrates’ Courts Act 1980 by a