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in in the present cases the determination of the applications did not involve “the
determination, of a criminal charge” and the orders were designed to prevent the commission
of anti-social behaviour in the future.
A fair bearing in the determination of civil rights
1.12 A further question arises whether the admission of hearsay evidence against the
defendants constitutes a violation of their rights under article 6 to have a fair hearing in the
determination of their civil rights.
A person against whom an anti-social behaviour order is made can have no valid claim that
those parts of the order which prohibit him from using or engaging in any abusive, insulting,
offensive, threatening or intimidating language or behaviour or from threatening or engaging
in violence or damage against any person or property relate to his civil rights. A person has
no civil right under domestic law to engage in such behaviour. To the extent that the order
prohibits a defendant from entering a particular area or engaging in some activity which is
prima facie lawful it can be argued that part of the order affects his civil rights so that article
6(1) is engaged. Articles 8(2) and 11(2} of the Convention permit such restrictions on the
rights specified in them as are necessary in a democratic society for the prevention of
disorder or crime or for the protection of the rights and freedoms of others, and Lord Nicholls
of Birkenhead has discussed the relationship between civil rights under domestic law {to
which article 6(1) relates) and the rights guaranteed by the Convention in paragraphs 65 to 72
of his judgment in In re S (Minors) (Care Order: Implementation of Care Rian) [ 2002] 2
AC 291, 319-3 20. I wish to reserve my opinion on the question whether article 6(r) is
engaged, but if there is a valid argument that the hearing of an application for an anti-social
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51,
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R (McCann) v Manchester Crown Ct (HL(E)
Lord Hutton
behaviour order against a defendant involves a determination of his civil rights and engages
article 6(I), I am of the opinion that there is no unfairness in the admission of hearsay
evidence against him, because the provisions of section 4 of the Civil Evidence Act 1995 lay
down considerations which ensure that hearsay evidence is fairly weighed and assessed,
section 4 providing:
“(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the
court shall have regard to any circumstances from which any inference can reasonably be
drawn as to the reliability or otherwise of the evidence.
“(z) Regard may be had, in particular, to the following—(a) whether it would have been
reasonable and practicable for the party by whom the evidence was adduced to have produced
the maker of the original statement as a witness; (b) whether the original statement was made
contemporaneously with the occurrence or existence of the matters stated; (c) whether the
evidence involves multiple hearsay; (d) whether any person involved had any motive to
conceal or misrepresent matters; (e) whether the original statement was an edited account, or
was made in collaboration with another or for a particular purpose; (f) whether the
circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt
to prevent proper evaluation of its weight.”
- The submissions of counsel on behalf of the defendants and on behalf of Liberty have
laid stress on the human rights of the defendants. However the European Court has frequently
affirmed the principle stated in Sporrong and Lonnroth v Sweden 5 F.HRR 35, 52, para 69,
that the search for the striking of a fair balance “between the demands of the general interest
of the community and the requirements of the protection of the individual’s fundamental