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Secretary of State in the McCann case reserved his position. For my part, in the light of the
particular use of the civil remedy of an injunction, as well as the defendant’s right under
article 8 to respect for his private and family life, it is dear that a defendant Q has the benefit
of the guarantee applicable to civil proceedings under article 6(1). Moreover, under domestic
English law they undoubtedly have a constitutional right to a fair hearing in respect of such
proceedings.
- In Engel v The Netherlands (No 1) (1976) 1 EHRR 647, 678-679, para 82, the
European Court established three criteria for determining whether proceedings are “criminal”
within the meaning of the Convention, namely (a) the domestic classification, (b) the nature
of the offence, and (c) the severity of the potential penalty which the defendant risks
incurring.
The character and attributes of the proceedings for an anti-social behaviour order have been
outlined. Domestically, they are properly classified as civil.
That is, however, only a starting point. Turning to factor (b), the position is that the order
under the first part of section 1 does not constitute a finding that an offence has been
committed: contrast the community charge decision
in Benhatn v United Kingdom (1996) 22 EHRR 293. It is right, however, to observe that the
third factor is the most important. Here the position is that the order itself involves no
penalty. The established criteria suggest that the proceedings were not in respect of a criminal
charge.
- The House has been taken on a tour d’horizon of the leading decisions of the
European Court: see the judgment of Potter LJ in Han v Customs and Excise Comrs [2001]
1 WLR 2253, 2269-2273, paras 55-64 C for a recent review of the European case law. It will
serve no purpose to review again decisions far removed from the present case. What does
emerge, however, is that there is, as Lord Bingham of Cornhill CJ pointed out in B v Chief
Constable of Avon and Somerset Constabulary [2001]
1 WLR 340, no case in which the European Court has held proceedings to be criminal even
though an adverse outcome for the defendant cannot result in ^ any penalty. It could be said,
of course, that there is scope for the law to be developed in this direction. On the other hand,
an extensive interpretation of what is a criminal charge under article 6(r) would, by rendering
the injunctive process ineffectual, prejudice the freedom of liberal democracies to maintain
the rule of law by the use of civil injunctions.
120,
Simon Cordell’s Skeleton Argument (2) Pdf
81 1
[2003] 1 AC R (McCann) v Manchester Crown Ct (HL (£)
Lord Steyn
A 32 The closest case in support of the defendants' submission is Steel v United Kingdom
(1998) 28 EHRR 603, 635-636, paras 48-49, which is authority for the proposition that
proceedings whereby in England and Wales a person may be bound over to keep the peace
involve the determination of a criminal charge for the purposes of article 6. This power goes
back many centuries: see Percy v Director of Public Prosecutions [1995] 1 WLR 1382,
138911-139011. It is in a very real sense a judicial power sui generis. The European Court
found a punitive element in the fact that 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 would otherwise cause a breach of the peace: para 48. There was an immediate
and obvious penal consequence. Properly analysed this case does not assist the defendant’s
argument.