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“It appears to their Lordships to be of little value to seek to confine
crimes to a category of acts which by their very nature belong to the domain of ‘criminal
jurisprudence1; for the domain of criminal jurisprudence can only be ascertained by
examining what acts at any particular period are declared by the state to be crimes, and the
only common nature they will be found to possess is that they are prohibited by the state and
that those who commit them are punished.”
In Exp Alice Woodbail (1888) io QBD 832, 837-838, Lindley LJ stated:
“Can we say that the application in the present case is not an application in a criminal cause
or matter? I think that in substance it certainly is. Its whole object is to enable the person in
custody to escape being sent for trial in America upon a charge of forgery.”
In Amand v Home Secretary [1943] AC 147,156 Viscount Simon LC stated:
“If the matter is one the direct outcome of which may be trial of the applicant and his possible
punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is
criminal.”
Lord "Wright stated, at p 162:
“if the cause or matter is one which, if carried to its conclusion, might
result in the conviction of the person charged and in a sentence of some punishment, such as
imprisonment or fine, it is a ‘criminal cause or matter’.” I am unable to accept these
submissions. The application for an anti-social behaviour order does not charge the defendant
with having committed a crime. The purpose of the application is to obtain an order
prohibiting the defendant from doing anti-social acts in the future and its object is not the
obtaining of a conviction against him resulting in the imposition of a punishment. I am in
respectful agreement with the statement of Lord Bingham of Cornhili CJ in Customs and
Excise Comrs v City of London Magistrates' Court [2000] 1 WLR 2020, 2025 that:
“criminal proceedings involve a formal accusation made on behalf of the state or by a private
prosecutor that a defendant has committed a breach of the criminal law, and the state or the
private prosecutor has instituted proceedings which may culminate in the conviction and
condemnation of the defendant.” The passages in the judgments relied on by the defendants
do not, in my opinion, assist them because they emphasise that the imposition of a conviction
may be a consequence of the proceedings in which the application is brought. Thus in the
Proprietary Articles Trade Association case j T 9 31 ] AC 310, 324 Lord Atkin stated that
“those who commit them are punished”; in Ex p Alice Woodball 20 QBD 832, 838 Lindley
LJ stated: “[the] whole object [of the application] is to enable the person in custody to escape
being sent for trial in America upon a charge of forgery”; in Amand s case 11:9431 AC 147
Viscount Simon LC stated, at p T 56, that the matter is criminal if it is one “the direct
outcome of which may be trial of the applicant and his possible punishment”; and Lord
Wright stated, at p 162, that a matter is a criminal one which, “if carried to its conclusion,
might result in
PART 5 © SWEET & MAXWELL
46,
Simon Cordell’s Skeleton Argument (2) Pdf
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R (McCann) v Manchester Crown Ct (HL(E)
Lord Hutton
conviction and punishment. But an application for an anti-social behaviour order, if carried to
its conclusion, will not result in conviction and punishment, it will result in the making of an
order which cannot be regarded as a punishment. A conviction and punishment will only be
imposed if the defendant, by his own choice, subsequently breaches the order and separate
and distinct proceedings are brought against him.