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- The complaints against the defendants under section 1 of the 1998 Act do not allege
the commission of criminal offences for which punishment is sought. The fact that the
backgrounds to the complaints were the alleged commission of a number of criminal offences
does not mean that the complaints constituted charges of criminal offences. In LS’ v Miller
2001 SC 977, the Inner House was considering section 52.(a.)(I) of the Children (Scotland)
Act 1995 which provides that a child may be in need of compulsory measures of supervision
where he “has committed an offence”, and Lord President Rodger stated, at pp 989-990, para
23:
“In my view, once the procurator fiscal has decided not to proceed with the charge against a
child and so there is no longer any possibility of proceedings resulting in a penalty, any
subsequent proceedings under the 1995 Act are not criminal for the purposes of article 6.
Although the reporter does indeed intend to show that the child concerned committed an
offence, this is not for the purpose of punishing him but in order to establish a basis for taking
appropriate measures for his welfare. That being so, the child who is notified of grounds for
referral setting out the offence in question is not thereby ‘charged with a criminal offence’ in
terms of article 6.”
- In relation to the third criterion, I consider that the making of an anti-social behaviour
order does not constitute a punishment or penalty imposed on the defendant. In my opinion
the magistrate who heard the complaint against the defendant Clingham was correct when in
the case stated for the opinion of the High Court he stated:
“These were civil proceedings of an injunctive nature imposing no penalty on the appellant
but providing such measure of restraint as the court may find necessary to protect members of
the public from his misbehaviour.”
- The defendants relied on the decision of the European Commission of Human Rights
(“the commission”) and of the European Court in Steel v United Kingdom 28 EHRR 603. In
that case some of the applicants who had been charged with a breach of the peace were
committed to prison for refusing to agree to be bound over to keep the peace. The applicants
complained (inter alia) that their rights under article 5 and article 6(3)(a) had been violated. In
considering the claims of the applicants both the commission and the European Court
expressed the opinion that, notwithstanding that breach of the peace is not classified as a
criminal offence under English law, breach of the peace must be regarded as an
PART 5 © SWEET & MAXWELL
48,
Simon Cordell’s Skeleton Argument (2) Pdf
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R (McCann) v Manchester Crown Ct (HL(E)
Lord Hutton
“offence” within the meaning of article y (I)(c). The commission stated in its A opinion, at pp
61 5-616:
The commission notes that under the domestic legal system, breach of the peace is not a
criminal offence and binding over is a civil procedure. However, as the European Court of
Human Rights has held [Ozturk v Germany (1984) 6 EHRR 409, 4x3-424, para 53]: ‘[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 rule at issue prescribes conduct of a certain
kind and makes the resultant requirement subject to a sanction that is punitive . . . the general
character of the rule and the purpose of the penalty, being both deterrent and punitive, suffice
to show that the offence was, in terms of article 6 of the Convention, criminal in nature.’
“67. The proceedings brought against the first applicant for breaching the peace also display
these characteristics: their deterrent nature is apparent from the way in which a person can be