Page 299 - 6. 2016 Diary 1st half New 26-05-21 No Table

“In Percy v Director of Public Prosecutions I1995I 1 WLR 1382 the defendant had a choice
between agreeing to be bound over and going to prison. Her refusal to agree to be bound over
had an immediate and obvious penal consequence without any intervening stage. The threat
of imprisonment was no doubt intended to be coercive, but it was also punitive, in my
judgment that is a crucial distinction between Percy’s case and any injunctive procedure such
as in play here.”
- The fact that the defendant would be liable to imprisonment under section 1(10) of the
1:998 Act if he chooses within the period specified in the order without reasonable excuse to
do anything which he is prohibited from doing by the order, does not mean that the order
itself constitutes a punishment or penalty. In my opinion, the reasoning of Lord Bingham of
Cornhill CJ in B v Chief Constable of Avon and Somerset Constabulary [LOOT] IWLR
340, 3 52, para 25 in respect of a sex offender order made under section 2 of the 1998 Act
applies with equal force to section 1: “The rationale of section 2 was, by means of an
injunctive order, to seek to avoid the contingency of any further suffering by any further
victim. It would also of course be to the advantage of a defendant if he were to be saved from
further offending. As in the case of a civil injunction, a breach of the court’s order may attract
a sanction. But, also as in the case of a civil injunction, the order, although restraining the
defendant from doing that which is prohibited, imposes no penalty or disability upon him.”
- The jurisprudence of the European Court recognises that proceedings taken to obtain
an order designed to prevent future harmful conduct, but not to impose a penalty for past
offences, does not constitute the bringing of a criminal charge. In Guzzardi v Italy 3 EHRR
333 the complainant, a suspected Mafioso, by an order of the Milan Regional Court was
placed under special supervision for three years with an obligation to reside within an area of
2.5 square kilometres on an island. He brought
PART 5 © SWEET & MAXWELL
50,
Simon Cordell’s Skeleton Argument (2) Pdf
Page: 299
R (McCann) v Manchester Crown Ct (HL(E)
Lord Hutton
proceedings challenging the order and the proceedings terminated in the Court of Cassation
which dismissed Guzzardi’s appeal. The European Court held that article 6 was not engaged
and stated, at pp 369-370, para 108:
“In the court’s opinion, those proceedings did not involve the ‘determination ... of a criminal
charge’, even when these words are construed within the meaning of the Convention.
Whether the right to liberty, which was at stake (see paragraph 62 above), is to be qualified as
a ‘civil right’ is a matter of controversy; in any event, the evidence does not reveal any
infringement of paragraph 1 of article 6.”
no In Raimondo v Italy 18 F.HRR 237 the applicant who was suspected of association with a
Mafia-type organisation, was made subject to preventive measures which included being
placed under special police supervision. He complained (inter alia) that the proceedings
relating to his appeal against the special supervision had taken an unreasonable time in
violation of article 6(1) of the Convention. The European Court rejected his complaint and
held, referring to Guzzardi, at p 264, para 43 of its judgment:
“The court shares the view taken by the Government and the commission that special
supervision is not comparable to a criminal sanction because it is designed to prevent the
commission of offences. It follows that proceedings concerning it did not involve ‘the
determination, of a criminal charge’.”