Page 356 - 6. 2016 Diary 1st half New 26-05-21 No Table

- The view that proceedings for an anti-social behaviour order under section 1 are civil
in character is further supported by two important decisions. In B v Chief Constable of Avon
and Somerset Constabulary [2001] 1 WLR 340 the question arose whether proceedings for a
sex offender order under section 2 of the Act are civil. Section 2 is different in conception
from section 1 in as much as an order can only be made in respect of a person who has
already been convicted as a sex offender. On the other hand, its purpose is preventative “to
protect the public from serious harm from him”. Lord Bingham of Cornhill CJ held, at p 3 52,
para 25:
“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. I am accordingly satisfied that, as a
matter of English domestic law, the application is a civil proceeding, as Parliament
undoubtedly intended it to be.”
To the same effect was the detailed reasoning in Gough v Chief Constable of the Derbyshire
Constabulary [2002] QB 459; an^ 0,1 appeal [2002] QB 121.3. h was held that a football
banning order under sections 14A and 1.4B of the Football Spectators Act 1989 do not
involve criminal penalties and are therefore civil character.
- conclude that proceedings to obtain an anti-social behaviour order are civil
proceedings under domestic law.
• The classification under article 6
- The question now arises whether, despite its domestic classification, an anti-social
behaviour order nevertheless has a criminal character in accordance with the autonomous
concepts of article 6. The fair trial guarantee under article 6(1) applies to both “the
determination of a (person’s) civil rights” and “the determination of any criminal charge”. On
the other hand, only the latter attract the additional protections under article 6(2} and 6(3). In
so far as the latter provisions apply to “everyone charged with a criminal offence” it is well
established in the jurisprudence of
119,
Simon Cordell’s Skeleton Argument (2) Pdf
[2003] AC
356
R (McCann) v Manchester Crown Ct (HL (E)
Lord Steyn
the European Court of Human Rights that this concept is co-extensive with A the concept of
the determination of any criminal charge: Lutz v Germany {1987) 10 EHRR i8z. Germane to
the present case is the minimum right under article 6'( 3 )(d) of everyone charged with a
criminal, offence to examine or have examined witnesses against him or to obtain the
attendance and examination of witnesses on his behalf under the same conditions as
witnesses against him. If the proceedings under section 1 of the Act are fi criminal within the
meaning of article 6, this provision is applicable. If it is civil, article 6(3){d) is inapplicable.
- Before I examine directly in the light of European jurisprudence the question whether
proceedings involve a criminal charge, it is necessary to make clear that this is not one of
those cases where the proceedings may fall outside article 6 altogether. Examples of such
cases are given by Emmerson
& Ashworth, Human Rights and Criminal Justice (2001), pp 152—166. In C the cases
before the House the two principal respondents accept that the proceedings are civil in
character and that they attract the fair trial guarantee under article 6(1). Counsel for the