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arrested for breach of the peace and subsequently bound over ‘to keep the peace or be of
good behaviour’, in which case no penalty will be enforced, and the punitive element derives
from the fact that if a person does not agree to be bound over, he will be imprisoned for a
period of up to six months.
“68. In these circumstances, the commission considers the charge of breach of the peace to be
a criminal offence and binding over proceedings to be ‘criminal’ in nature, for the purposes
of article 6 of the Convention.”
The court stated, at pp 63 5-636:
“48. Breach of the peace is not classed as a criminal offence under ^ English law. However,
the court observes that the duty to keep the peace is in the nature of a public duty; the police
have powers to arrest any person who has breached the peace or whom they reasonably fear
will breach the peace; and the magistrates may commit to prison any person who refuses to
be bound over not to breach the peace where there is evidence beyond reasonable doubt that
his or her conduct caused or was likely to cause a breach of the peace and that he or she
would otherwise cause a breach of the peace in the future.
“49. Bearing in mind the nature of the proceedings in question and the penalty at stake, the
court considers that breach of the peace must be regarded as an ‘offence’ within the meaning
of article 5(r)(c).”
- The defendants’ principal submission in reliance on Steel was that both in
proceedings for a breach of the peace and in proceedings for an antisocial behaviour order
there was a two-stage process. First, there was a finding of a breach of the peace or a finding
of anti-social behaviour and, secondly, there was imprisonment if the defendant refused to be
bound over
or if the defendant chose to disobey the anti-social behaviour order. Accordingly, if binding
over proceedings are criminal proceedings for the purposes of article 6 it follows that an
application for an anti-social behaviour order is also a criminal proceeding within the
meaning of article 6.
- I am unable to accept the defendants’ submissions for the reasons given by Lord
Phillips of Worth Matravers MR in his judgment in McCann
PART 5 © SWEET & MAXWELL
49,
Simon Cordell’s Skeleton Argument (2) Pdf
Page: 298
R (McCann) v Manchester Crown Ct (HL(E)
Lord Hutton
[zoo1] I WLR 1084, 1100-1101, para 62, with which I am in respectful agreement. In
particular I consider that the view expressed by the European Commission and the court is
primarily based on the consideration that in the proceedings for breach of the peace before
the magistrates’ court the court has power in those proceedings themselves to commit the
defendant to prison if he or she refuses to be bound over. Thus the commission stated, at 28
EHRR 603, 616, para 67: “the punitive clement derives from the fact that if a person does not
agree to be bound over, he will be imprisoned for a period of up to six months” and the court
stated, at p 636, para 45:
“Bearing in mind the nature of the proceedings in question and the penalty at stake, the court
considers that breach of the peace must be regarded as an ‘offence’ within the meaning of
article 5 (1) (c) The importance of the distinction between the power to commit to prison
immediately on refusal to be bound over and the need for a subsequent prosecution to impose
a punishment for breach of an anti-social behaviour order or a sex offender order under
section 2 of the 1998 Act is referred to by Lord Bingham of Cornhill C] in B v Chief
Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, 353, para 27: