Page 291 - 6. 2016 Diary 1st half New 26-05-21 No Table

the defendant’s liberty where this is shown to be necessary to protect persons in the area from
further anti-social acts by him, it may not deprive him of it nor may it impose a fine on him.
Conclusion on classification
- For these reasons I do not think that any of the criteria for a finding c that proceedings
under section r of the Crime and Disorder Act 1998 have the character of criminal
proceedings for the purposes of article 6 are satisfied. The consequence of so holding is of
fundamental importance to the future of this legislation. Cases such as Unterpertinger v
Austria (1986) 13 FURR .175, Kostovski v The Netherlands (1989) 1.1 F.HRR 434 and
Saidi v France (1993) 17 EHRR 2.51 illustrate the reluctance of the Staatsburg court to
accept that the use of hearsay evidence is compatible with a defendant’s right under article
6(3)(d) to examine or have examined witnesses against him. But I would hold that article 6(3)
does not apply to these proceedings and that the rules of evidence that are to be applied are
the civil evidence rules. This means that hearsay evidence under the Civil
PART 5 © SWEET & MAXWELL
41,
Simon Cordell’s Skeleton Argument (2) Pdf
Page: 291
R (McCann) v Manchester Crown Ct (HL(E)
Lord Hope of Craighead
A Evidence Act 1995, the use of which will be necessary in many cases if the magistrates are
to be properly informed about the scale and nature of the anti-social behaviour and the
prohibitions that are needed for the protection of the public, is admissible.
Are the proceedings civil proceedings?
Counsel for the respondents and the Secretary of State were agreed that, if your Lordships
were to hold that the specific guarantees in article 6(2.) and article 6(3) did not apply to these
proceedings, they were nevertheless subject to the provisions of article 6(1). The question of
classification is critical in this case, so it is important that the basis for these concessions
should be clearly understood. They could only be accepted as well-founded if it was clear that
the proceedings involved the determination of the defendant’s civil rights and obligations.
- At first sight an order which prohibits a person from behaving in an anti-social
manner has nothing to do with his civil rights and obligations. He has no right in domestic
private law to use or engage in abusive, insulting, offensive, threatening language or
behaviour or to threaten or engage in violence or damage against any person or property,
which are among the acts which the defendants have been prohibited from doing in the
McCann case. But, as Lord Nicholls of Birkenhead said in In re S (Minors) (Care Order:
Implementation of Care Plan) [2002] AC 291, 32,0, para 71., by virtue of the Human Rights
Act 1998 the right to respect for private and family life which is guaranteed by article 8 of the
Convention is now part of a person’s civil rights in domestic law for the purposes of article
6(1}. In my opinion the same can be said of the rights to freedom of expression and of
assembly and association which are guaranteed by articles 10 and 1 r.
- Section 1(6) of the Crime and Disorder Act 1998 sets no limits to the prohibitions that
may be imposed, except that they must be necessary for the protection of people in the local
government area against further anti-social acts by the defendant. Among the range of orders
that might reasonably be thought to be necessary are orders which may interfere with the
defendant’s private life, his freedom to express himself either by words or conduct and his
freedom to associate with other people. Although the jurisprudence of the Strasbourg court
appears to me as yet to be unclear on this point, 1 would hold that the fact that prohibitions
made under section I(d) of that Act may have this effect is sufficient to attract the right to a
fair trial which is guaranteed by article 6(1). This means that the court must act with
scrupulous fairness at all stages in the proceedings. When it is making its assessment of the