England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice The Strand London
		22 November 2000

1. THE LORD CHIEF JUSTICE: This is an application for judicial review made by three applicants. The application is to quash a decision of an order of His Honour Judge Rhys Davies QC, the Recorder of Manchester, and justices, dated 17 May 2000, to make an anti-social behaviour order against the applicants under section 1 of the Crime and Disorder Act 1998. The application raises a point of some importance: whether proceedings under section 1 of that Act to obtain an anti-social behaviour order are criminal proceedings so that they attract the additional protection provided by Article 6 of the European Convention on Human Rights and are to be subject to the normal rules of evidence which apply to a criminal prosecution and not court proceedings in this jurisdiction.
2. The Crown Court decided that the proceedings were not criminal but civil. The decision on this application will also have relevance as to the provisions of section 2 of the same Act. Section 1, with which we are primarily concerned, is designed to enable the court to make an order to protect the public against anti-social behaviour. Section 2 contains similar provisions designed to provide protection against the acts of sex offenders; it enables the court to make a Sex Offender Order.
3. 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.
4. The background to the application is as follows. The applicants are three boys aged 16, 15 and 13. They live in the Ardwick area of Manchester. On 22 October 1999, the Chief Constable made applications against all three applicants by way of complaint to the Manchester City Magistrates' Court for the orders under section 1 on the grounds that they had, on various dates between 1 April 1999 and 22 October 1999, acted in an anti-social manner, that is to say a manner that caused or was likely to cause harassment, alarm and distress to one or more persons not of the same household.
5. On 15 December 1999, the stipendiary magistrate made the anti-social behaviour orders against all three applicants. They then appealed to the Crown Court. The Crown Court came to the decision to which I have already made reference.
6. In order to consider the arguments which have been advanced before this court, it is first necessary to set out the provisions of section 1 of the Crime and Disorder Act 1998:

"(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 matter, 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 of 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 an 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 prohibition 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 and 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 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 the offence.

(12) In this section --

'the commencement date' means the date of the commencement of this section;

'local government area' means --

(a) in relation to England, a district or London borough, the City of London, the Isle of Wight and the Isles of Scilly;

(b) in relation to Wales, a county or county borough."

7. Article 6 of the European Convention on Human Rights provides:

"(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...."

8. In his very helpful submissions before this court, Mr Fulford QC identified five propositions to which he attaches considerable importance on behalf of the applicants. First, he drew attention to the fact that the Act bears the title "Crime and Disorder Act". To an extent that point loses some force when it is appreciated that it is common ground that section 1 creates a criminal offence. If, after an order has been made, there is contravention of that order, that is a matter which, it is accepted by both sides, has to be regarded as being the subject of criminal proceedings if enforcement action is taken. Those proceedings would draw to them the full panoply of Article 6 and the other rules which apply to criminal proceedings in this jurisdiction.
9. Secondly, Mr Fulford draws attention to the fact that it is only "relevant" authorities who are entitled to bring the application for an order. Again it can be said that this is a point which is perhaps not as forceful as it first appears because to breach a court order is undoubtedly to commit a criminal offence. It can result in proceedings being brought under section 1(10) in the ordinary way by those who can bring a prosecution. The restriction on those able to apply for an order to the Chief Constable or the other relevant authority (for these purpose the local authority) responsible for the local government area is not the normal restriction on who can bring a criminal prosecution.
10. Mr Fulford also relies on the fact that when section 1 is compared with the offences under the Public Order Act 1986, there is a considerable degree of similarity. The criminality proscribed by a series of Public Order Acts has culminated in section 4A of the Public Order Act 1986 which provides:

"(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."

11. There is clearly a marked similarity, as Mr Fulford submits, between the provisions of section 1 and the provision of section 4A, but section 4A is expressed in terms associated with a section of an Act of Parliament creating a criminal offence and section 1 is not. The opening words of section 1 of the same Act are in very different terms to section 4A. There are distinctions between what is required to be proved under section 1 and under section 4A.
12. Next, Mr Fulford makes a point which perhaps is the strongest and most difficult point in the way of the respondent. He submits that the effect of an order under section 1 is in itself capable of imposing a very substantial limitation on the liberty of the individuals affected by the order. He refers to the orders which were made in these very cases. I cite one as an example:

"1) [The person concerned] Is prohibited from entering the Beswick area as defined, edged in red, on the map attached to the rear of this sheet and contained on the summons.

2) Is prohibited 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) Is prohibited from threatening or engaging in violence or damage against any person or property within the City of Manchester.

4) Is prohibited from encouraging any other person to engage in any of the acts described in paragraphs 2 and 3 within the City of Manchester."

13. The map attached to the order indicates that, while not a particularly extensive area, the order has an effect on a significant locality in Manchester. Insofar as the applicants would not be in a position to go into that area under the terms of that order, that is a restriction on their normal freedom of action and not a matter to be disregarded.Mr Fulford realistically recognises that the other provisions of the order do no more than prevent the applicants from indulging in conduct which, if proved, would in itself be criminal and therefore cannot be regarded as a restriction upon their liberty.
14. The order therefore has a real effect. It is a restriction which Mr Fulford submits is punitive in its operation. A punitive order is clearly likely to be the consequence of a criminal process rather than a civil process. On the other hand, in a different context the courts do grant injunctions in civil proceedings restricting the sort of behaviour which is described in the order. It is certainly not unknown for the restrictions, where appropriate, to include a prohibition on entering a defined geographical area.
15. In addition, Mr Fulford refers to the fact that the order, once made, continues in existence for at least two years. He relies on that as an indication of the extensive nature of the prohibition so far as his clients are concerned.
16. The fifth and final matter to which he attached particular importance at the outset of his submissions was the fact that, when he gave his detailed reasons, the Recorder of Manchester thought that, although these were civil proceedings, their nature meant that in civil proceedings the appropriate standard of proof was the same as the criminal. His clear reasons were expressed as follows:

".... 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."

17. The fact that the Recorder felt that it was appropriate to apply the criminal standard of proof supports the approach of Mr Fulford. It shows that while the Recorder was not satisfied that these were criminal proceedings, he recognised that they were civil proceedings where serious allegations were involved, justifying the application of a criminal standard of proof.
18. What are criminal as opposed to civil proceedings is a matter which can be difficult to determine. There is no one overriding test within our domestic law for determining whether proceedings are civil or criminal. To some extent it is like describing an elephant; it is recognised when seen but it is difficult effectively to describe.
19. In support of his contention that so far as obtaining an order is concerned, this section involves criminal proceedings, Mr Fulford first referred to Smith and Hogan, 9th edition, the well-known text book on the criminal law, and in particular to pages 1, 16, 17 and 18, which underline the point I have just made. The learned editors say that the characteristic of a crime is that it is a public wrong. They indicate that a crime warrants the application of a criminal procedure and that a crime is usually also a moral wrong. They indicate that a decisive test can be that the proceedings are of a criminal nature. They refer to the decisions considered by the courts as to whether a matter is "a criminal cause or matter". They point out that that issue has frequently come before the courts and that the decisions on it -- and it is an important issue in determining the roots of appeal in criminal cases -- throw some light on the subject. However, the help which can be obtained on the issue as to whether proceedings are properly categorised as a criminal cause or matter is subject to limitations, as was made clear in a recent decision of the Divisional Court in Customs and Excise Commissioners v City of London Magistrates' Courts and others [2000] 4 All ER 763. We are grateful to Mr Garside QC, who appears on behalf of the respondent, for drawing that case to our attention. It involves a very different situation from that in the present case, but in his judgment at page 768 Lord Bingham of Cornhill CJ said:

"Moreover, it refers to a 'criminal cause or matter' and not to 'criminal proceedings'. I would accept the argument advanced by Mr Barlow for the fourth respondent to this extent: that if the order made by the justice in this case had been made by the High Court and if the question had been whether an appeal against that decision lay to the Civil Division of the Court of Appeal, I could see very powerful grounds for concluding that it was a decision in a criminal cause or matter within the statutory definition against which an appeal would not lie to the Court of Appeal, Civil Division. But that, as I think, is an answer to a question which it is inappropriate to ask. The correct question is whether Customs' application under paragraph 11 of Schedule 11 to the 1994 Act was a criminal proceeding. Mr Barlow argues that it was. He submits, first, that it was a proceeding and, secondly, that it was criminal. Even if it be accepted that it was a proceeding, it is in my judgment quite plain that it was not a criminal proceeding for the reasons given by Customs. Although the respondents were suspected of criminal offences, no formal accusation had been made against any of them on behalf of the state or any private prosecutor and there were no proceedings in being which could have led to the conviction of the respondents of any breach of the criminal law or to their condemnation. In my judgment the only answer which can be given to the question posed is 'No'."

20. That decision is relevant here because the majority of the cases upon which Mr Fulford relies are indeed cases where the issue was whether the proceedings involved a criminal cause or matter and not whether the proceedings were criminal. However, notwithstanding that, I believe that assistance can be obtained from those cases. In particular I would refer to Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147, 162 when Lord Wright said:

".... 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 case or matter by an English court, is an order in a criminal cause or matter ...."

21. Lord Porter, in his speech at page 164, said:

"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 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...."

22. Mr Fulford particularly relied upon those passages because Lord Porter acknowledged that there could be a section where proceedings have a criminal and a non-criminal aspect. He would apply those passages to the situation here. It is necessary, however, to point out that there is a distinction between one set of proceedings which have a criminal and a non-criminal aspect and two sets of proceedings. Where there are two sets of proceedings, then a different approach is justifiable. If, as here, there is an order made and there is then an attempt to enforce a breach of that order, those are undoubtedly criminal proceedings. However, the enforcement proceedings are quite separate and distinct from the initial application. Although this may not be the usual state of affairs, where there are two sets of proceedings, as is envisaged in section 1 -- one set of proceedings to obtain the order and a second set of proceedings to enforce the order -- it does not, in my the judgment, necessarily follow that, because the second set of proceedings are criminal, the first set of proceedings must also be criminal. If the civil courts make an order for an injunction, they make such an order in civil proceedings. If that order is then breached, contempt proceedings are brought. Contempt proceedings are usually criminal in nature. To some extent that is an apt analogy to apply to the situation here because the order which is made by the court under section 1, which restricts the activities of the person subject to the order, has very many characteristics of an injunction, albeit that the ability to apply for an order is limited to the authorities to which the section refers.
23. The procedure provided for by section 1 involves making a complaint. In the ordinary way such a procedure is a civil procedure. As the passages in Smith and Hogan make clear, that often is a very important indication as to whether the proceedings are civil or criminal. However, this is not always conclusive. That is made clear by the authorities on which Mr Fulford relies, Botross v Hammersmith and Fulham Borough Council (1994) 93 LGR 268 and R v Dudley Magistrates' Court, ex parte Hollis and others (unreported). The facts of those cases are very different from the facts here, but they make the point that proceedings which are brought by complaint can, in some situations, be properly be categorised by the courts as criminal proceedings.
24. Looking at the situation as a whole, and bearing in mind the submissions which have been made by Mr Fulford, I have no difficulty in coming to the conclusion that, under English domestic law, these proceedings for an order under section 1 are properly categorised as civil and not criminal proceedings. In coming to that conclusion I bear in mind the reasons given by the Recorder of Manchester. It is for very similar reasons that I come to the same conclusion. First, this is clearly a two-stage exercise: the obtaining of the order, and proceedings for breach of the order. Secondly, I rely on the fact that the process is one which is generally used for civil proceedings. Thirdly, I rely on the fact that there is no punishment properly involved here; there is, at most, a restriction on the activities of those subject to the order. Fourthly, I rely on the fact that the objective of making an order, as is clear from the statutory provisions and their historical background, is designed not to punish but to protect; it is not an order made to deprive those subject to the order of any of their normal rights. It is an order, however, which impinges on those rights, but does so for the protection of a section of the public who would otherwise be likely to be subjected to conduct of a socially disruptive nature by those subject to the order. Finally, the administrative nature of the proceedings, involving the requirement that it "appears" to the relevant authority is inconsistent with the proceedings being criminal. I therefore reject the argument which is advanced on behalf of the applicants as to the position in domestic law. I do so with some relief because it seems to me that otherwise the intent of Parliament in respect of the jurisdiction to make orders would be frustrated.
25. Next, Mr Fulford relies upon the series of decisions before the European Court of Human Right. I can deal with these cases fairly shortly. I accept that the jurisprudence of the European Court is clear. The domestic classification is not conclusive, but it is a consideration which can be relevant. It is particularly relevant if the domestic law classifies the conduct as criminal. It is also necessary to look at the nature of the conduct and the proceedings in question and the severity of any possible penalty.
26. The authority which perhaps most satisfactorily sets out that position is the decision of the European Court in Engel and others v The Netherlands (1976) 1 EHRR 647. There are a number of other cases which can equally be looked at for this purpose. It is not necessary to refer to the facts in Engel because there was not involved a procedure having two stages as exists under section 1 of the Act. The Court was merely looking at a one-stage procedure.
27. The next case is one which came before the European Court, having previously been before the courts in this jurisdiction, Benham v United Kingdom (1996) 22 EHRR 293. That was a case where execution proceedings were brought in respect of the non-payments of a community charge. The execution stage was regarded by the European Court as being of the nature of a criminal proceeding rather than a civil proceeding. The case provides little assistance in regard to section 1 of the 1998 Act because of the difference in the statutory procedure involved.
28. The case to which I should next refer is Lauko v Slovakia (4/1998/907/1119), a decision of 2 September 1998, of which we have been provided with transcript. Its relevance is that it involved an offence under the 1990 Minor Offences Act in the jurisdiction from which that appeal came. Section 7 of that Act provided the sanctions which may be imposed for a minor offence. They were a reprimand, a fine, a prohibition to exercise a certain activity and the confiscation of an object. Mr Fulford particularly stresses the fact that the section provided for a prohibition to exercise a certain activity. That, he contended, fits in well with an order made under section 1 of the 1998 Act. The European Court considered that the proceedings which could result in those sanctions were criminal proceedings. However, it is to be noted that there was a choice of sanctions, one of which at least (namely the fine) was very much of a criminal nature. For that reason I would not regard that case as being on all fours with this.
29. Mr Fulford also regarded Deweer v Belgium (1980) 2 EHRR 439 as being of assistance. Again, the facts are very different and therefore not helpful, but that case concerned a preliminary procedural point in what were essentially criminal proceedings. In that context the European Court of Human Rights came to the conclusion that the whole process was a criminal process. In paragraph 46 of their judgment they said:

"There accordingly exists a combination of concordant factors conclusively demonstrating that the case has a criminal character under the Convention. The 'charge' could, for the purposes of Article 6(1), be defined as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence."

30. They regarded all that occurred after the charge being made in that way as being criminal proceedings to which Article 6 was applicable. I would distinguish that case from the present because here, as I have said more than once, there are two separately identifiable proceedings and it is not possible to adopt the approach which the European Court adopted in Deweer to the different statutory provision which we are considering here.
31. I do not regard it as necessary to refer to any other authority apart from a decision of this court in B v Chief Constable of Avon & Somerset Constabulary (5 April 2000), of which we have been provided with a transcript. I have left this decision to last because realistically Mr Fulford regards it as a hurdle. It is a decision in relation to section 2 of the 1998 Act rather than section 1, but in his judgment Lord Bingham CJ very carefully considered the position under section 2 and came to the clear conclusion that proceedings to obtain a Sex Offender Order under section 2 are not criminal. Mr Fulford seeks to distinguish that case on differing grounds. I hope he does not regard this as too cavalier an approach to his argument if I merely say that, although I recognise that our decision relates to section 1 and my predecessor was dealing with section 2, notwithstanding Mr Fulford's arguments it seems to me that the situations are not significantly different. If it was necessary to obtain confirmation of what I have said earlier in this judgment, I would respectfully adopt the language of Lord Bingham in that case as making the position clear. Here, both under domestic law and under the jurisprudence of the European Court of Human Rights the proceedings with which we are concerned are civil proceedings and not criminal. The applicants were not charged with a criminal offence. It accordingly follows that this application must be dismissed.
32. MRS JUSTICE RAFFERTY: I agree.
33. MR FULFORD: My Lord, as canvassed during the course of argument, the next stage for us is the Court of Appeal, Civil Division, given that this is not a criminal cause or matter.
34. THE LORD CHIEF JUSTICE: So if you were to succeed before the Court of Appeal, you would establish that the Court of Appeal does not have jurisdiction?
35. MR FULFORD: Yes, I think that would be right -- that would be the inevitable consequence. But I think as a result of the judgment today of my Lord and my Lady, the Court of Appeal, Civil Division must be our next port of call, if my Lord today will give permission. We apply to this court for permission. You may feel that it is an important and novel point.
36. (The court conferred)
37. THE LORD CHIEF JUSTICE: I am afraid not. We are required to give reasons for our refusing permission for the benefit of the Court of Appeal. The reasons I would give are that when the authorities are examined, the position is clear. The matter has already been considered by two courts -- the Reorder of Manchester in the Crown Court, and this court today. Furthermore, there is also the decision of Lord Bingham CJ in B v Chief Constable of Avon & Somerset Constabulary, which is wholly consistent with the view that we have formed.
38. MR FULFORD: Can I finally ask for a legal aid assessment?
39. THE LORD CHIEF JUSTICE: Certainly. Thank you very much for your help.