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complaint, and a bind over order ^ does not constitute a criminal conviction. It was
contended foi the defendants that that decision is directly in point in this case and
indistinguishable, and that contention was strongly supported by Liberty.

- But I would hold that it is distinguishable, for the reasons which were given by Lord
Phillips of Worth Matravers MR. in the Court of Appeal in the McCann case [2001]
rWLRro84, 1100H—1 to b. As he pointed out, in contrast to proceedings for breach of the
peace, there is no power of arrest for the purpose of proceedings under section 1 of the Crime
and Disorder Act 1998. The fact that a warrant may be issued for the defendant’s arrest if he
fails to attend the hearing or an adjourned hearing does not show that they are criminal
proceedings. Rather it shows that he has failed to respond to a summons by the court. In itself
this is far from conclusive, as there are numerous offences in English law which are non-
arrestable. But it has to be ^ taken together with the other factors. Proof of anti-social
behaviour is not the only criterion for the making of the order, nor is proof that the defendant
is likely to cause further anti-social acts in the future. 'the orders must be shown to be
necessary for the purpose of protecting people against further such behaviour by him. This is
not a distinction of form rather than
PART 5 © SWEET & MAXWELL
40,
Simon Cordell’s Skeleton Argument (2) Pdf
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R (McCann) v Manchester Crown Ct (HL(E))
Lord Hope of Craighead
substance at all. The last criterion is of fundamental importance to the A decision as to the
prohibitions that are required. And in contrast to proceedings for breach of the peace, which
can lead to the immediate imposition of a sentence of imprisonment under section 11.5(3) of
the Magistrates’ Courts Act 1980 for up to six months if the defendant fails to comply with
the order because he does not agree to enter into a recognisance to keep the peace or to be of
good behaviour, proceedings under section 1 of g the Crime and Disorder Act 1998 cannot in
themselves result in the immediate imposition of a penalty.
The third criterion: is an antisocial behaviour order a penalty
- This question looks to the nature of the penalty. But here again there is a preliminary
question that has to be examined. Is an anti-social behaviour order a penalty at all? The
essential characteristics of an antisocial behaviour order are that the defendant is prohibited
from doing something. The purpose of the prohibition is to protect people in the area to
which the order relates. Section 1(6) of the Crime and Disorder Act 1998 provides that the
prohibitions that may be imposed are those necessary for the purposes of protecting persons
from further anti-social conduct that is, from conduct which will cause, or is likely to cause,
them harassment, alarm D or distress. It is true that no limits are set as to the prohibitions that
may he imposed, so long as they are found to be necessary. The defendants say that
prohibitions which banish the defendant from an area of the city where he lives, or which
expose him to harsher penalties than he would normally face if he commits an offence, have
all the characteristics of a penalty for the antisocial acts which he is found to have committed.
- An anti-social behaviour order may well restrict the freedom of the defendant to do
what he wants and to go where he pleases. But these restrictions are imposed for preventive
reasons, not as punishment. 1 he tests that has to be applied under section 1(6) is confined to
what is necessary foi the purpose of protecting persons from further anti-social acts by the
defendant. The court is not being required, nor indeed is it permitted, to consider what an
appropriate sanction would be for his past conduct. Moreover, while the court may restrict