IN THE COURT OF APPEAL (CIVIL DIVISION)
SITTING IN THE MANCHESTER DISTRICT REGISTRY
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(LORD WOOLF, CJ AND MRS JUSTICE RAFFERTY)
Thursday 1 March 2001
B e f o r e :
LORD JUSTICE KENNEDY
LORD JUSTICE DYSON
|T H E Q U E E N|
|ON THE APPLICATION OF|
|1. SEAN MCCANN|
|2. JOSEPH MCCANN|
|2. MICHAEL MCCANN|
|(Proceeding by their Mother and Litigation friend|
|- v -|
|MANCHESTER CROWN COURT||Respondent|
|THE CHIEF CONSTABLE OF GREATER MANCHESTER||Interested Party|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
Official Shorthand Writers to the Court)
MR C GARSIDE QC and MR P CADWALLADER (Instructed by The Force Solicitor, Greater Manchester Police, Manchester, M16 ORE)
appeared on behalf of the Interested Party. MISS J SIMOR (Instructed by the National Council for Civil Liberties) appeared on behalf of the Intervenor.
Crown Copyright ©
"(1) An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely-
(a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and(b) that such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him;
and in this section 'relevant authority' means the council for the local government area or any chief officer or police any part of whose police area lies within that area.
(2) A relevant authority shall not make such an application without consulting each other relevant authority.
(3) Such an application shall be made by complaint to the magistrates' court whose commission area includes the place where it is alleged that the harassment, alarm or distress was caused or was likely to be caused.
(4) If, on such an application, it is proved that the conditions mentioned in subsection (1) above are fulfilled, the magistrates' court may make and order under this section (an 'anti-social behaviour order') which prohibits the defendant from doing anything described in the order.
(5) For the purpose of determining whether the condition mentioned in subsection (1)(a) above is fulfilled, the court shall disregard any act of the defendant which he shows was reasonable in the circumstances.
(6) The prohibitions that may be imposed by an anti-social behaviour order are those necessary for the purpose of protecting from further anti-social acts by the defendant-
(a) persons in the local government area; and(b) persons in any adjoining local government area specified in the application for the order;
and a relevant authority shall not specify an adjoining local government area in the application without consulting the council for that area an each chief officer of police any part of whose police area lies within that area.
(7) An anti-social behaviour order shall have effect for a period (not less than two years) specified in the order or until further order.
(8) Subject to subsection (9) below, the applicant or the defendant may apply by complaint to the court which made an anti-social behaviour order for it to be varied or discharged by a further order.
(9) Except with the consent of both parties, no anti-social behaviour order shall be discharged before the end of the period of two years beginning with the date of service of the order.
(10) If without reasonable excuse a person does anything which he is prohibited from doing by an anti-social behaviour order, he shall be liable-
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.
(11) Where a person is convicted of an offence under subsection (10) above, it shall not be open to the court by or before which he is so convicted to make an order under subsection (1)(b) (conditional discharge) of section 1A of the Powers of Criminal Courts Act 1973 ('the 1973 Act') in respect of this offence."
"(1) If it appears to a chief officer of police that the following conditions are fulfilled with respect to any person in his police area, namely-
(a) that the person is a sex offender; and(b) that the person has acted, since the relevant date, in such a way as to give reasonable cause to believe that an order under this section is necessary to protect the public from serious harm from him, the chief officer may apply for an order under this section to be made in respect of the person.
(2) Such an application shall be made by complaint to the magistrates' court whose commission area includes any place where it is alleged that the defendant acted in such a way as is mentioned in subsection (1)(b) above.
(3) If, on such an application, it is proved that the conditions mentioned in subsection (1) above are fulfilled, the magistrates' court may make an order under this section (a 'sex offender order') which prohibits the defendant from doing anything described in the order.
(4) The prohibitions that may be imposed by a sex offender order are those necessary for the purpose of protecting the public from serious harm from the defendant."
"The respondent has acted on various dates between 1 April 1999 and 22 October 1999 in the Beswick area of Manchester in an anti-social manner, that is to say, in a manner that caused, or was likely to cause, harassment, harm or distress to one or more persons not of the same household as himself."
Each application averred:
"That an anti-social behaviour order is necessary to protect persons in the City of Manchester local Government area in which the harassment, alarm or distress was caused, or was likely to be caused by anti-social acts by him."
"1. From entering the Beswick area as defined, edged in red on the map attached;
2. from using or engaging in any abusive, insulting, offensive, threatening or intimidating language or behaviour in any public place in the City of Manchester;
3. from threatening or engaging in violence or damage against any person or property within the City of Manchester;
4. from encouraging any other person to engage in any of the acts described in paragraphs 2 and 3 within the City of Manchester."
(1) Were the proceedings under English domestic law to be regarded as civil or criminal proceedings?
(2) If the proceedings were to be regarded as civil under English domestic law, should they, nevertheless, be treated as criminal proceedings by virtue of the application of Article 6 of the European Convention on Human Rights which was about to be incorporated into English domestic law by the Human Rights Act 1998?
"(1) In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
(3) Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;(b) to have adequate time and facilities for the preparation of his defence;(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance to be given it free when the interests of justice so require;(d) to examine or have examined witnesses against him and to obtain the attendance of examination of witnesses on his behalf under the same conditions as witnesses against him."
"The significance of whether the proceedings are civil or criminal arises because of the difficulty that exists in relation to the proof of the sort of conduct against which section 1 is designed to provide protection. Understandably, in a locality those who are subject to anti-social behaviour are chary about giving evidence in criminal proceedings. It is in particular because of those difficulties that, after a consultation process, the legislation which is contained in Part 1 of the 1998 Act was passed. The object of making the proof of conduct which is anti-social more easy to prove would be defeated if in fact the proceedings were criminal. Then the normal rules of evidence which apply to criminal proceedings would have to be complied with and furthermore the proceedings would be subject to the additional protection provided by Article 6 of the European Convention in relation to criminal proceedings."
"The order making process itself is a civil one akin to that for an injunction. The order is aimed at deterring anti-social behaviour and preventing escalation of the behaviour, without recourse to criminal sanctions. Breach of the order, however, is a criminal offence. The process is not suitable for private disputes between neighbours (which are usually civil matters), but is intended to deal with criminal or sub-criminal activity which, for one reason or another, cannot be proven to the criminal standard, or where criminal proceedings are not appropriate. The orders are not intended to replace existing criminal offences, for example in the Public Order Act 1986, but there may be circumstances where they provide alternative means to deal with such behaviour."
"'Criminal law' means 'the criminal law in its widest sense': Attorney-General for Ontario v Hamilton Street Ry. Co (1)  AC 524. It certainly is not confined to what was criminal by the law of England or of any Province in 1867. The power must extend to legislation to make new crimes. Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the State. The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences?"
(1) if the proceedings leading to the making of anti-social behaviour orders fall to be considered as separate proceedings, they have the character of criminal proceedings and of a criminal cause or matter; but
(2) those proceedings should not be considered as separate proceedings but as an initial step in a criminal cause or matter, thereby reinforcing the conclusion that they are criminal proceedings. I propose to consider each stage in turn.
The order considered in isolation
"....if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a 'criminal cause or matter'. The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter ...."
"This does not mean that the matter, to be criminal, must be criminal throughout. It is enough if the proceeding in respect of which mandamus was asked is criminal, eg, the recovery of a poor rate is not of itself a criminal matter, but its enforcement by magistrates by warrant of distress is, and if a cause be stated by them as to their right to enforce it and that the case is determined by the High Court, no appeal lies.... The proceeding from which the appeal is attempted to be taken must be a step in a criminal proceeding, but it need not of itself of necessity end in a criminal trial or punishment. It is enough if it puts the person brought up before the magistrate in jeopardy of a criminal charge...."
"It is in my judgment the general understanding that criminal proceedings involve a formal accusation made on behalf of the state or by a private prosecutor that a defendant has committed a breach of the criminal law, and the state or the private prosecutor has instituted proceedings which may culminate in the conviction and condemnation of the defendant."
"(1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he-
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or(b) displays any writing, sign or other visible representation which is threatening abusive or insulting, thereby causing that or another person harassment, alarm or distress."
"....such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him."
"I turn to the first issue, which concerns the standard of proof. It is common ground between the parties that Parliament intended an application for a sex offender order in the magistrates' court to be a civil proceeding and intended the civil standard of proof to apply. But Miss Booth QC for the appellant submits: (1) that, whatever its intention, Parliament has failed to express in the statute as enacted any stipulation that the civil standard of proof shall apply; (2) that, as a matter of domestic law an application for a sex offender order is to be regarded as a criminal proceeding; (3) that if it is not as a matter of domestic law to be regarded as a criminal proceeding, it is a civil proceeding of such a character that the criminal standard of proof should be applied; and (4) that, whatever the position in domestic law, this proceeding would for purposes of the European Convention be regarded as a criminal proceeding and so should attract the criminal standard of proof.
As to the first point Miss Booth is correct. Parliament has not expressly enacted what standard of proof shall be applied on an application for a sex offender order. In relation to her second point Miss Booth relies on the severe consequences which may follow for the defendant on the making of a sex offender order: the duty to notify under the 1997 Act on pain of criminal penalty; the restriction on a defendant's freedom of movement and activity; and the possible penalty of up to five years' imprisonment on proof that the order has been broken. These are all important and legitimate considerations, but they do not persuade me that, as a matter of English domestic law, this is to be regarded as a criminal proceeding. Under that law a criminal proceeding is one in which a prosecutor accuses a defendant of committing a specific crime, on conviction of which the defendant will be susceptible to punishment. Here the application is made by a chief officer of police, but he is not acting as a prosecutor. The defendant is not accused of committing any specific crime. If the outcome of the application is adverse to the defendant, he does not become susceptible to punishment. It is true that in section 18(1)(a) of the Supreme Court Act 1981 the expression 'criminal cause or matter' has been interpreted more widely, so as to cover matters such as extradition. In my judgment, however, to assess the character of the present proceedings it is necessary to look more closely into the nature of the issue to be decided by the magistrates' court. Part I of the 1998 Act is concerned with the prevention of crime and disorder, not the trial and punishment of those convicted. Magistrates' court proceedings are initiated under the section by complaint, which is the initiating process for civil matters in the magistrates; court: see section 51 of the Magistrates' Courts Act 1980. The condition provided in section 2(1)(b) of the 1998 Act is in my judgment appropriate as a basis for administrative action, not criminal conviction. Furthermore, the problem to which section 2 is directed is not the detection, apprehension, trial and punishment of those who have committed crimes, but the restraint of those who have a proven record of sex offending and whose conduct founds a reasonable belief that a measure of restraint is necessary to protect members of the public against the risk of serious harm caused by further sex offending.
There is no room for doubt about the mischief against which this legislation is directed, which is the risk of re-offending by sex offenders who have offended in the past and have shown a continuing propensity to offend. Parliament might have decided to wait until, if at all, the offender did offend again and then appropriate charges could be laid on the basis of that further offending. Before 1998 there was effectively no choice but to act in that way. But the obvious disadvantage was that, by the time the offender had offended again, some victim had suffered. 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."
The order in its wider context
"In this connection, it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States.
The very nature of the offence is a factor of greater import. When a serviceman finds himself accused of an act or omission allegedly contravening a legal rule governing the operation of the armed forces, the State may in principle employ against him disciplinary law rather than criminal law. In this respect, the court expresses its agreement with the Government.
However, supervision by the court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the criminal sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so.
It is on the basis of these criteria that the court will ascertain whether some or all of the applicants were the subject of a 'criminal charge' within the meaning of Article 6(1)."
(1) the manner in which the domestic state classifies the proceedings;
(2) the nature of the offence; and
(3) the character of the penalty to which the proceedings may give rise.
"49. If the Contracting States were able at their discretion, by classifying an offence as 'regulatory' instead of criminal, to exclude the operation of the fundamental clauses of Articles 6 and 7, the application of these provisions would be subordinated to their sovereign will. A latitude extending thus far might lead to results incompatible with the object and purpose of the Convention.
52. ....the indications furnished by the domestic law of the respondent State have only a relative value ... the very nature of the offence, considered also in relation to the nature of the corresponding penalty represents a factor of appreciation of greater weight."
".... the law concerning liability to pay the community charge and the procedure upon non-payment was of general application to all citizens, and that the proceedings in question were brought by a public authority under statutory powers of enforcement. In addition, the proceedings had some punitive elements. For example, the magistrates could only exercise their power of committal to prison on a finding of wilful refusal to pay or of culpable neglect.
Finally, it is to be recalled that the applicant faced a relatively severe maximum penalty of three months' imprisonment, and was in fact ordered to be detained for 30 days.
Having regard to these factors, the Court concludes that B was 'charged with a criminal offence' for the purposes of Article 6(1) and (3). Accordingly, these two paragraphs of Article 6 are applicable."
(c) prohibition on the exercise of a certain activity; or
(d) confiscation of an object or a combination of (b), (c) and (d). The Court held that the general character of the legal provision infringed, together with the detriment and punitive purpose of the penalty, sufficed to show that the offence was criminal in nature so that the relative lack of seriousness of the penalty was not material.
"The proceedings brought against the first applicant for breaching the peace also display these characteristics: their deterrent nature is apparent from the way in which a person can be 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 enforce, 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 6 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."
"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(1)(c)."
"Liberty submits that the position under section 1 of the Act is indistinguishable from proceedings in which an individual is bound over to keep the peace. A finding of anti-social behaviour leading to the imposition of an ASBO [anti-social behaviour order] is a finding of a breach of a 'public duty'. It would be considered by the public at large to be a finding of culpability for 'criminal' conduct. The police have power of arrest in respect of anti-social conduct; put at its lowest the power to arrest for breach of the peace or risk of causing breach of the peace. The risk of 'arrest' for such conduct and subsequent proceedings has a 'deterrent' effect. The punitive element is arguably greater than in the case of a bind over to keep the peace because an ASBO can extend beyond a prohibition of anti-social behaviour and include additional prohibited conduct that would otherwise be lawful. Moreover, a refusal to comply with an ASBO can result in imprisonment for up to five years, while a refusal to be bound over can only result in imprisonment for six months.
Its 'criminal nature' can also be seen in the fact that failure to attend the hearing before the Magistrates renders the Defendant liable to arrest."
1. There is no power to arrest for the purpose of proceedings under section 1. The fact that the failure to respond to a summons to attend the hearing before the Magistrates can render a Defendant liable to arrest, does not demonstrate the criminal nature of the proceedings. It demonstrates the appropriate response to a failure to comply with a court summons.
2. While the anti-social conduct that is one precondition to proceedings under the 1998 Act can be categorised as a breach of public duty, that conduct does not of itself justify the commencement of proceeding under section 1. The necessity to protect persons in a particular local government area also has to be demonstrated.
3. Proceedings under section 1 of the 1998 Act cannot, themselves, result in the imposition of a sentence of imprisonment or of any penalty. Contrast proceedings for breach of the peace in which, as the Commission remarked in Steel, the punitive element derives from the fact that if a person does not agree to be bound over he will be liable to be sent to prison for a period of up to 6 months.
"Miss Booth submitted, rightly, that the European Court of Human Rights does not regard itself as bound by the classification of proceedings in domestic law. In deciding whether there is a criminal charge for purposes of Article 6 of the Convention the court has regard to the classification of proceedings in domestic law, but also to the nature of the offence itself and the severity of the penalty which may be imposed: see Lester and Pannick Human Rights Law and Practice (1999) paragraph 4.6.13. Here the proceedings are in my judgment classified as civil in domestic law. No offence is charged and the making of an order does not depend on proof of any offence. No penalty may be imposed. I am aware of no case in which the European Court has held a proceeding to be criminal even though an adverse outcome for the defendant cannot result in any penalty."
Lord Bingham's reasoning reflects my own.
"In a serious case such as the present the difference between the two standards is, in truth, largely illusory. I have no doubt that, in deciding whether the condition in section 2(1)(a) is fulfilled, a magistrates' court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard. In deciding whether the condition in section 2(1)(b) is fulfilled the magistrates' court should apply the civil standard with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them."
"Having considered this authority and the arguments, we are satisfied that the standard to be applied is the civil standard, but how are we to give effect to the guidance of the Lord Chief Justice, that is to apply the civil standard with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them. This is not an easy task and we have brought to bear the judicial experience of all three of us which, it has to be said, is considerable, and we have concluded that in reality it is difficult to establish reliable gradations between a heightened civil standard commensurate with seriousness and implications of proving the requirements, and the criminal standard. And we have concluded that for the purposes of this particular case, and we do not intend to lay down any form of precedent, so I emphasise that for the purposes of this particular case, we will apply the standard of being satisfied so that we are sure that the conditions are fulfilled before we would consider the making of an order in the case of each appellant severally, because, of course, each case must be considered separately."