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- I further consider that a complaint brought against a defendant under section 1(3} of
the 1998 Act does not constitute an allegation of a crime. The fact that the background to the
complaint will very often be the alleged commission of a number of criminal offences does
not mean that the complaint constitutes a charge of a criminal offence: see S v Miller 2001
SC 977, 989-990, para 23 cited subsequently in paragraph 1.02 of this opinion.
- There are two further considerations which support the conclusion C that an
application for an anti-social behaviour order is a civil proceeding and not a criminal
proceeding. First, section 1 is contained in Part I of the Act under the heading “Prevention of
crime and disorder” whereas Part II under the heading “Criminal law” creates a number of
offences and provides for their punishment. Secondly, section 1(3) provides that an
application for an anti-social behaviour order shall be made by complaint to a magistrates’
court, and a complaint is the appropriate procedure for commencing civil proceedings in a
magistrates’ court: see section 51 of the Magistrates ‘Courts Act 1980.
- Accordingly, I conclude that under domestic law an application for an anti-social
behaviour order is not a criminal proceeding but is a civil proceeding.
The European Convention on Human Rights
- Article 6(1) provides: “In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair and public hearing. Article 6(3)
provides: “Everyone charged with a criminal offence has the following minimum rights . . .
(d) to examine . . . witnesses against him . . .” The defendants submitted that under the
jurisprudence of the Convention an application for an anti-social behaviour order is a
criminal charge, and accordingly the defendants will not have a fair hearing under article 6 if
the evidence against them of anti-social behaviour is hearsay evidence and they do not have
the opportunity to cross-examine in court the persons who have made allegations of such
behaviour against them. In these submissions the defendants were supported by the
submissions advanced by counsel on behalf of Liberty which was given leave to intervene in
these appeals.
room in deciding whether there is a criminal charge for the purposes of article 6 the
European Court of Human Rights stated in Engel v The Netherlands (No 1) r EHRR 647,
678, para 82. that it has regard to three criteria, which are the classification of the proceedings
in domestic law, the nature of the offence, and the severity of the penalty which may be
imposed. Whilst I am satisfied that the application for an anti-social behaviour order is a civil
proceeding in domestic law the European Court has stated that the classification of the
proceedings in domestic law is of limited value and that the other two criteria are
considerations of greater weight: see Oztiirk v Germany 6 EHRR 409, 422, para 52.
PART 5 © SWEET & MAXWELL
47,
Simon Cordell’s Skeleton Argument (2) Pdf
Page: 296
R (McCann) v Manchester Crown Ct (HL(E)
Lord Hutton
rot in relation to the second and third criteria the European Court stated in Qztiirk, at pp 423-
414, para 53:
“according to the ordinary meaning of the terms, there generally come within the ambit of the
criminal law offences that make their perpetrator liable to penalties intended, inter alia, to be
deterrent and usually consisting of fines and of measures depriving the person of his liberty . .
. the general character of the rule [of law infringed by the applicant] and the purpose of the
penalty, being both deterrent and punitive, suffice to show that the offence in question was, in
terms of article 6 of the Convention, criminal in nature.”