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facts and circumstances that have been put before it in evidence and of the prohibitions, if
any, that are to be imposed, it must ensure that the defendant does not suffer any injustice.
Standard of proof
- As Lord Phillips of Worth Matravers MR observed in the Court of Appeal in the
McCann case [2001I t WLR 1.084, riot, para 65, anti-social behaviour orders have serious
consequences. It was with this point in mind that', at p 1101, para 67, he commended the
course which, the Recorder of Manchester followed in the Crown Court when he said that,
without- intending to lay down any form of precedent, the court had decided to apply
PART 5 © SWEET & MAXWELL
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Simon Cordell’s Skeleton Argument (2) Pdf
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R (McCann) v Manchester Crown Ct (HL(E)
Lord Hope of Craighead
the standard of being satisfied so that they were sure that the statutory conditions were
fulfilled before they would consider the making of an order in the case of each defendant. I
too would endorse this approach, for the following reasons.
- Mr Crow for the Secretary of State said that his preferred position was that the
standard to be applied in these proceedings should be the civil standard. His submission, as it
was put in his written case, was that g although the civil standard was a single, inflexible test,
the inherent probability or improbability of an event was a matter to be taken into account
when the evidence was being assessed. He maintained that this view was consistent with the
position for which lie contended, that these were civil proceedings which should be decided
according to the civil evidence rules. But it is not an invariable rule that the lower standard of
proof must be applied in civil proceedings. I think that there are good reasons, in the interests
of fairness, for applying the higher standard when allegations are made of criminal or quasi-
criminal conduct which, if proved, would have serious consequences for the person against
whom they are made.
- This, as I have already mentioned, was the view which the Court of Session took in
Constanda v M 1997 SC 217 when it decided that proof to the criminal standard was required
of allegations that a child had engaged in p criminal conduct although the ground of referral
to a children’s hearing was not that he had committed an offence hut that he was exposed to
moral danger. There is now a substantial body of opinion that, if the case for an order such as
a banning order or a sex offender order is to be made out, account should be taken of the
seriousness of the matters to be proved and the implications of proving them. It has also been
recognised that if this is done the civil standard of proof will for all practical purposes be E
indistinguishable from the criminal standard: see B u Chief Constable of Avon and Somerset
Constabulary [2001] 1 WLR 340, 354, para 31, per Lord Bingham of Cornlii.il CJ; Gough v
Chief Constable of the Derbyshire Constabulary [2002] QB 1213, 1242-1243, para 90, per
Lord Phillips of Worth Matravers MR. As Mr Crow pointed out, the condition in section I( 1
)(b) of the Crime and Disorder Act 1998 that a prohibition order is necessary to protect
persons in the local government area from further anti-social acts raises a question which is a
matter for evaluation and assessment. But the condition in section I(I)(a) that the defendant
has acted in an anti-social manner raises serious questions of fact, and the implications for
him of proving that he has acted in this way are also serious. I would hold that the standard of
proof that ought to be applied in these cases to allegations about the defendant’s conduct is
the criminal standard.
Conclusion
- In the Clingham case I would make the same order as that proposed by Lord Steyn. In
the McCann case I would dismiss the appeals.