United Kingdom House of Lords Decisions

HOUSE OF LORDS

Lord Steyn Lord Hope of Craighead Lord Hutton Lord Hobhouse of Wood-borough Lord Scott of Foscote

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

ON 17 OCTOBER 2002

[2002] UKHL 39

LORD STEYN

My Lords,

    1. Section 1 of the Crime and Disorder Act 1998 ("the Act") provides for the making of anti-social behaviour orders against any person aged 10 years or over. It came into force on 1 April 1999. Between 1 April 1999 and 31 December 2001 magistrates in England and Wales made 588 such orders and refused 19. It is important social legislation designed to remedy a problem which the existing law failed to deal with satisfactorily. This is the first occasion on which the House has had to examine the implications of section 1.

    2. There are two appeals before the House. They are unrelated but raise overlapping issues. Both cases involve the power of the magistrates court under section 1 of the Act, upon being satisfied of statutory requirements, to make an anti-social behaviour order prohibiting a defendant from doing prescribed things. Breach of such an order may give rise to criminal liability. That stage has, however, not been reached in either case. In the case of Clingham no order has been made. In the case of the McCann brothers anti-social behaviour orders have been made against all three. The appeals are therefore concerned only with the first stage of the procedure under the Act, namely, the application for such an order, and the making of it, and not with the second stage, namely proceedings taken upon an alleged breach of such an order.

    3. In Clingham the district judge gave a preliminary ruling on 14 September 2000. In the McCann case the recorder gave judgement on an appeal from a stipendiary magistrate on 16 May 2000. In both cases the Human Rights Act 1998 is not directly applicable: R v Kansal (No 2) [2002] 2 AC 69. The House has, however, been invited by all counsel to deal with the appeals as if the Human Rights Act 1998 is applicable. My understanding is that your Lordships are willing to do so.

I. The Principal Issues.

    4. It is common ground that proceedings taken for breach of an anti-social behaviour order are criminal in character under domestic law and fall within the autonomous concept "a criminal charge" under article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1998. The principal general and common questions are:

(a) whether as a matter of domestic classification proceedings leading to the making of an anti-social behaviour order are criminal in nature; and

(b) whether under article 6 of the European Convention such proceedings involve "a criminal charge".

Underlying these questions are two specific issues, namely:

(c) whether under section 1 of the Act hearsay evidence is admissible in proceedings seeking such an order;

what the standard of proof is in such proceedings.

The evidential question arises primarily in the Clingham case and the question as to standard of proof arises mainly in the McCann cases. On the other hand, counsel for the defendants to a considerable extent adopted each other's submissions.

II. Jurisdiction.

    5. If under domestic law an application for an anti-social behaviour order under section 1 of the Act properly falls to be classified as civil proceedings, the House may not have jurisdiction in the Clingham case. The House has, however, jurisdiction to inquire into its own jurisdiction and to deal with all relevant matters pertinent to that inquiry. Moreover, the jurisdictional issue causes no real problem since the points which arise in the Clingham case arguably could arise in the McCann cases. All parties wish the House to deal with the general and specific issues outlined which could arise in many proceedings under section 1. In these circumstances the jurisdictional question can be considered briefly at the very end of this judgment.

III. Section 1 of the Act and Article 6 of the European Convention.

    6. In order to render the proceedings and issues intelligible it is necessary to set out section 1 of the Act. It appears in Part 1 of the Act under the heading "Prevention of Crime and Disorder". The material parts of section 1 read as follows:

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 -

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

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.

A relevant authority shall not make such an application without consulting each other relevant authority.

Such an application shall be made by complaint to the magistrates' court . . .

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.

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.

The prohibitions that may be imposed by anti-social behaviour order are those necessary for the purpose of protecting from further anti-social acts by the defendant -

persons in the local government area; and

persons in any adjoining local government area specified in the application for the order;. . .

An anti-social behaviour order shall have effect for a period (not less than two years) specified in the order or until further order.

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.

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.

If without reasonable excuse a person does anything which he is prohibited from doing by an anti-social behaviour order, he shall be liable -

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

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 the offence."

The section falls into two distinct parts. Subsection (1) deals with the making of the application, the requirements for the making of an order, the making of an order, and consequential matters. Subsections (10) and (11) deal with the consequences of a breach of the order.

    7. Article 6 of the European Convention provides as follows:

"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 interest 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 and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

    While the guarantee of a fair trial under article 6(1) applies to both criminal and civil proceedings article 6 prescribes in paragraphs 2 and 3 additional protections applicable only to criminal proceedings. It is also well established in European jurisprudence that "the contracting states have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases": Dombo Beheer BV v The Netherlands (1993) 18 EHRR 213, 229, para 32.

IV. The Clingham Case.

    8. In late February 2000, the Royal Borough of Kensington and Chelsea received a report by a housing trust about the behaviour of the defendant, then aged 16, who lived on an estate within the Borough. After detailed investigations the Borough resolved to apply to the magistrates' court for an anti-social behaviour order. The complaint was supported by witness statements containing some first hand evidence of the defendant's behaviour. The application was, however, primarily based on hearsay evidence contained in records of complaints received by the trust and in crime reports compiled by the police. The latter contained information relating to a wide range of behaviour, from allegations of verbal abuse to serious criminal activities including assault, burglary, criminal damage and drug dealing dating from April 1998 to December 2000. The allegations revealed a high level of serious and persistent anti-social behaviour. The material from the records of the trust and the police fell into three categories:

(i)  anonymous complaints where the source was never

known;

(ii)  complaints where the source was known but was not disclosed;

(iii) computerised reports made by police officers in the course of their duties, where the source of the complaint was either unknown or not disclosed.

    The Borough served its supporting material on the defendant. In substance the material in its cumulative effect was, subject to any answer by the defendant, logically probative of the statutory requirements under section 1. The statements and exhibits were not, however, accompanied by a hearsay notice under the Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 (SI 1999/681).

    9. Pursuant to an order by the judge a hearsay notice was served on the defendant. The defendant challenged the validity of the hearsay notice on the ground that it did not identify the makers of the hearsay statements. At a pre-trial review the district judge ruled that on reflection, the 1999 Rules did not apply as the Borough's supporting material involved no hearsay. The judge stated a case for the decision of the Divisional Court which raised questions about the admissibility of hearsay evidence in the proceedings under section 1(1) of the Act.

    10. In the Divisional Court the view of the district judge as to what amounted to hearsay evidence was rejected. In an unreported judgment Schiemann LJ observed that "If the policeman could only say that he had been told by such persons [who had seen the behaviour in question] that Mr Clingham had behaved in an anti-social manner that would be hearsay evidence of the behaviour": [2001] EWCA Admin 582, para 15. Relying on the then unreported decisions of the Divisional Court in R (McCann) v Crown Court at Manchester [2001] 1 WLR 358 and B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 the Divisional Court ruled that the proceedings were not criminal proceedings under domestic law and did not involve a criminal charge under article 6. In these circumstances Schiemann LJ concluded, in paragraphs 19-20:

"The [hearsay] evidence can be admitted. If its weight is slight or it is not probative the judge can say so. If he comes to an unlawful conclusion his decision can be appealed. . . . In the light of this judgment, it is unnecessary for us to make any order . . . The matter will remain to be dealt with by the magistrates court. That court will consider the evidence on the basis that it is hearsay evidence and therefore subject to the criticisms which can be made of hearsay evidence. The court will have to consider what weight to give to the evidence in the light of those criticisms. I do not consider it appropriate for this court to express any views as to weight."

Poole J took the same view, at paragraphs 21 and 22.

V. The McCann Case.

    11. I gratefully refer to the account given by my noble and learned friend Lord Hope of Craighead of the background to these cases. I can therefore deal with the matter briefly. Between May and September 1999 the Chief Constable of Manchester collected evidence with a view to seeking anti-social behaviour orders against the three McCann brothers who were then respectively aged 13, 15 and 16. They had been accused by various members of the public of criminal activity and other anti-social behaviour including burglary, theft, threatening and abusive behaviour, and criminal damage in the Beswick area of Manchester. Complaints were duly lodged by the Chief Constable against them. The applications sought various prohibitions against them including orders excluding them from Beswick. The seriousness and persistence of their alleged anti-social behaviour is clearly described by Lord Hope of Craighead. The evidence against them consisted of oral evidence of eye witnesses, as well as hearsay evidence consisting of a number of witness statements, and police evidence of what had been reported to them by complainants.

    12. A stipendiary magistrate found the requirements of section 1(1) satisfied and made anti-social behaviour orders against all three McCann brothers on 15 December 1999. Each order provided as follows:

(The defendant) is prohibited from entering the Beswick area as defined, edged in red, on the map attached.

(The defendant) 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.

(The defendant) is prohibited from threatening or engaging in violence or damage against any person or property within the City of Manchester.

(The defendant) 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.

The defendants appealed to the Crown Court.

    13. Sir Rhys Davies QC, the Recorder of Manchester, sat with two magistrates. After a review of the domestic and European case law he concluded that the proceedings under section 1(1) are correctly to be classified as civil under domestic law and for the purposes of article 6. The recorder then turned to the argument that, despite this classification, the criminal standard should apply under section 1(1). He cited an observation in B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, 354, para 31, where Lord Bingham of Cornhill CJ described, in the context of section 2 of the Act, which deals with orders against sex offenders, the heightened civil standard of proof as "for all practical purposes . . . indistinguishable from the criminal standard". The recorder stated:

"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 is 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 [the] 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 emphasises 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 [defendant] severally, because, of course, each case must be considered separately."

This is an important observation, by a highly experienced judge, to which I must in due course return.

    14. The defendants appealed to the Divisional Court. Lord Woolf CJ (with the agreement of Rafferty J) ruled that the proceedings under section 1(1) were properly to be classified under domestic law and under article 6 of the European Convention as civil proceedings and not criminal proceedings. The court dismissed the appeal: R (McCann) v Crown Court at Manchester [2001] 1 WLR 358.

    15. The defendants then appealed to the Court of Appeal (Civil Division). The leading judgment was given by Lord Phillips of Worth Matravers MR; Kennedy and Dyson LJJ agreed: R (McCann) v Crown Court at Manchester [2001] 1 WLR 1084. In a detailed judgment Lord Phillips MR concluded that both under domestic law and under article 6 the correct categorisation of proceedings under section 1 of the Act is civil. He then turned to the issue whether the standard of proof should nevertheless be the criminal one. He referred to the observation of Lord Bingham of Cornhill CJ in B v Chief Constable of Avon and Somerset Constabulary that the heightened civil standard is for all practical purposes indistinguishable from the criminal standard: p 1101, para 65. He quoted the passage from the judgment of the recorder about the difficulty of establishing "reliable gradations between a heightened civil standard commensurate with the seriousness and implications of proving the requirements, and the criminal standard" and pointed out that the Crown Court decided to apply the criminal standard. Lord Phillips MR observed, at p 1102, para 67:

"I believe that the course followed by the Crown Court in this case is likely to be appropriate in the majority of cases where an anti-social behaviour order is sought and I would commend it."

At present therefore the position is that in proceedings under section 1(1) magistrates have to decide, on a case by case basis, what standard of proof to apply. The Secretary of State has challenged this ruling of the Court of Appeal. Counsel submitted on his behalf that it is preferable to apply a single fixed standard of a balance of probabilities.

    16. Before the issues can be directly addressed it is necessary to sketch the social problem which led to the enactment of section 1(1) and the technique which underlies the first part of section 1. It is well known that in some urban areas, notably urban housing estates and deprived inner city areas, young persons, and groups of young persons, cause fear, distress and misery to law-abiding and innocent people by outrageous anti-social behaviour. It takes many forms. It includes behaviour which is criminal such as assaults and threats, particularly against old people and children, criminal damage to individual property and amenities of the community, burglary, theft, and so forth. Sometimes the conduct falls short of cognisable criminal offences. The culprits are mostly, but not exclusively, male. Usually they are relatively young, ranging particularly from about 10 to 18 years of age. Often people in the neighbourhood are in fear of such young culprits. In many cases, and probably in most, people will only report matters to the police anonymously or on the strict understanding that they will not directly or indirectly be identified. In recent years this phenomenon became a serious social problem. There appeared to be a gap in the law. The criminal law offered insufficient protection to communities. Public confidence in the rule of law was undermined by a not unreasonable view in some communities that the law failed them. This was the social problem which section 1 was designed to address.

VII. The Legislative Technique.

    17. The aim of the criminal law is not punishment for its own sake but to permit everyone to go about their daily lives without fear of harm to person or property. Unfortunately, by intimidating people the culprits, usually small in number, sometimes effectively silenced communities. Fear of the consequences of complaining to the police dominated the thoughts of people: reporting incidents to the police entailed a serious risk of reprisals. The criminal law by itself offered inadequate protection to them. There was a model available for remedial legislation. Before 1998 Parliament had, on a number of occasions, already used the technique of prohibiting by statutory injunction conduct deemed to be unacceptable and making a breach of the injunction punishable by penalties. It may be that the Company Directors Disqualification Act 1986 was the precedent for subsequent use of the technique. The civil remedy of disqualification enabled the court to prohibit a person from acting as a director: section 1(1) of the 1985 Act: R v Secretary of State for Trade and Industry, Ex p McCormick [1998] BCC 379, 395C-F; Official Receiver v Stern [2000] 1 WLR 2230. Breach of the order made available criminal penalties: sections 13 and 14 of the 1986 Act. In 1994 Parliament created the power to prohibit trespassory assemblies which could result in serious disruption affecting communities, movements, and so forth: see section 70 of the Criminal Justice and Public Order Act 1994 which amended Part II of the Public Order Act 1986 by inserting section 14A. Section 14B which was introduced by the 1994 Act, created criminal offences in respect of breaches. In the field of family law, statute created the power to make residence orders, requiring a defendant to leave a dwelling house; or non molestation orders, requiring a defendant to abstain from threatening an associated person: sections 33(3) and (4) and section 42 of the Family Law Act 1996. The penalty for breach is punishment for contempt of court. The Housing Act 1996 created the power to grant injunctions against anti-social behaviour: section 152; section 153 (breach). This was, however, a power severely restricted in respect of locality. A broadly similar technique was adopted in the Protection from Harassment Act 1997: section 3; section 3(6) (breach). Post-dating the Crime and Disorder Act 1998, which is the subject matter of the present appeals, Parliament adopted a similar model in sections 14A and 14J (breach) of the Football Spectators Act 1989, inserted by section 1(1) of the Football (Disorder) Act 2000: Gough v Chief Constable of the Derbyshire Constabulary [2001] 3 WLR 1392. In all these cases the requirements for the granting of the statutory injunction depend on the criteria specified in the particular statute. The unifying element is, however, the use of the civil remedy of an injunction to prohibit conduct considered to be utterly unacceptable, with a remedy of criminal penalties in the event of disobedience.

    18. There is no doubt that Parliament intended to adopt the model of a civil remedy of an injunction, backed up by criminal penalties, when it enacted section 1 of the Crime and Disorder Act 1998. The view was taken that the proceedings for an anti-social behaviour order would be civil and would not attract the rigour of the inflexible and sometimes absurdly technical hearsay rule which applies in criminal cases. If this supposition was wrong, in the sense that Parliament did not objectively achieve its aim, it would inevitably follow that the procedure for obtaining anti-social behaviour orders is completely or virtually unworkable and useless. If that is what the law decrees, so be it. My starting point is, however, an initial scepticism of an outcome which would deprive communities of their fundamental rights: see Brown v Stott [2001] 2 WLR 817; per Lord Bingham of Cornhill, at p 836D; per Lord Hope of Craighead, at pp 850D and 850G; my judgment, at p 839E-F.

VIII. The Classification Under Domestic Law.

    19. It is necessary to consider whether under domestic law proceedings under the first part of section 1 should be classified as criminal or civil proceedings. In law it is always essential to ask for what purpose a classification is to be made or a definition is to be attempted. It is necessary in order to decide whether the provisions of the Civil Evidence Act 1995, which permits the admission of hearsay evidence in civil proceedings, and the Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999, are available to establish the requirements of section 1(1). It is also relevant to the appropriate standard of proof to be adopted.

    20. In a classic passage in Proprietary Articles Trade Association v Attorney General for Canada [1931] AC 310, 324 Lord Atkin observed:

"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?"

In Customs and Excise Comrs v City of London Magistrates' Courts [2000] 1 WLR 2020, 2025 Lord Bingham of Cornhill CJ, expressed himself in similar vein:

"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."

    21. Absent any special statutory definition, in the relevant contexts, this general understanding must be controlling. Counsel for Clingham invited the House to approach the question from the point of view of the meaning given in decided cases to the words "criminal cause or matter" which appear in section 1(1)(a) of the Administration of Justice Act 1960 and section 18(1)(a) of the Supreme Court Act 1981. The decided cases on both sides of the line are helpfully summarised in Taylor On Appeals, (2000), pp 515-518, paras 14-020-14-021. The cases were decided in the context of regulating and determining the appropriate appeal route. Often pragmatic considerations played a role. These cases do not help the true inquiry before the House and distract attention from the ordinary meaning of civil proceedings which must prevail. Similarly, the fact that proceedings under the first part of section 1 of the Act are classified as criminal in order to ensure the availability to defendants of legal assistance is in my view entirely neutral: see section 12(2) of the Access to Justice Act 1999 and paragraph 1(2) of the Access to Justice Act 1999 (Commencement No 3, Transitional Provisions and Savings) Order 2000 (SI 2000/774). I would approach the matter by applying the tests enunciated by Lord Atkin and Lord Bingham of Cornhill, CJ.

    22. Counsel for the defendants accepted that the purpose of Parliament was to cast proceedings under the first part of section 1, as opposed to proceedings for breach, in a civil mould. However, counsel submitted that objectively considered the objective was not achieved. They argued that in reality and in substance such proceedings are criminal in character. This is an important argument which must be carefully examined. The starting point is that in proceedings under the first part of section 1 the Crown Prosecution Service is not involved at all. At that stage there is no formal accusation of a breach of criminal law. The proceedings are initiated by the civil process of a complaint. Under section 1(1)(a) all that has to be established is that the person has acted:

"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;"

This is an objective inquiry: mens rea as an ingredient of particular offences need not be proved. It is unnecessary to establish criminal liability. The true purpose of the proceedings is preventative. This appears from the heading of Part 1. It is also clearly brought out by the requirement of section 1(1)(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;"

It follows that the making of an anti-social behaviour order is not a conviction or condemnation that the person is guilty of an offence. It results in no penalty whatever. It cannot be entered on a defendant's record as a conviction. It is also not a recordable offence for the purpose of taking fingerprints: see section 27 of the Police and Criminal Evidence Act 1984.

    23. Counsel for the defendants sought to avoid the consequences of this analysis by various arguments. First, they argued that the procedure leading to the making of an order under section 1(4) must be considered together with the proceedings for breach under section 1(10), the latter being undoubtedly criminal in character. I do not agree. These are separate and independent procedures. The making of the order will presumably sometimes serve its purpose and there will be no proceedings for breach. It is in principle necessary to consider the two stages separately.

    24. Counsel next made a comparison between the requirements of section 1(1) and the ingredients of an offence under section 4A of the Public Order Act 1986. They submitted that there was a striking similarity. This proposition was not made good. It is sufficient to point out that section 4A of the 1986 Act requires proof of mens rea whereas section 1(1) does not. In any event, this is a barren exercise. It elides the critical point that section 1(1) itself does not prohibit any act. An anti-social behaviour order under section 1(4) does prohibit conduct specified in the order but by itself does not amount to a condemnation of guilt. It results in no penal sanction.

    25. Counsel for the defendants also emphasised the consequences which an anti-social behaviour order may have for a defendant. This is an important factor. Section 1 is not meant to be used in cases of minor unacceptable behaviour but in cases which satisfy the threshold of persistent and serious anti-social behaviour. Given the threshold requirements of section 1(1) it can readily be accepted that the making of such an order against a person inevitably reflects seriously on his character. In response to this argument Lord Phillips of Worth Matravers MR observed, at [2001] 1 WLR 1084, 1094-1095, para 39:

"Many injunctions in civil proceedings operate severely upon those against whom they are ordered. In matrimonial proceedings a husband may be ordered to leave his home and not to have contact with his children. Such an order may be made as a consequence of violence which amounted to criminal conduct. But such an order is imposed not for the purpose of punishment but for protection of the family. This demonstrates that, when considering whether an order imposes a penalty or punishment, it is necessary to look beyond its consequence and to consider its purpose."

Similarly, Mareva injunctions, which are notified to a defendant's bank, may have serious consequences. An Anton Piller order operates in some ways like a civil search warrant and may be particularly intrusive in its operation. Breach of such orders may result in penalties. Nevertheless, the injunctions are unquestionably civil.

    26. 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 352, 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; and on appeal at [2002] 3 WLR 289. It was held that a football banning order under sections 14A and 14B of the Football Spectators Act 1989 do not involve criminal penalties and are therefore civil character.

    27. I conclude that proceedings to obtain an anti-social behaviour order are civil proceedings under domestic law.

    28. 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). Insofar as the latter provisions apply to "everyone charged with a criminal offence" it is well established in the jurisprudence of the European Court of Human Rights that this concept is co-extensive with the concept of the determination of any criminal charge: Lutz v Germany (1987) 10 EHRR 182. 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 criminal within the meaning of article 6, this provision is applicable. If it is civil, article 6(3)(d) is inapplicable.

    29. 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 and Ashworth, Human Rights and Criminal Justice, (2001), pp 152-166. In 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 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 clear that a defendant 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.

    30. 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 Benham 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.

    31. 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 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(1) 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.

    32. The closest case in support of the defendants' submission is Steel v The United Kingdom (1998) 28 EHRR 603, 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, 1389H-1390H. 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: paragraph 48. There was an immediate and obvious penal consequence. Properly analysed this case does not assist the defendant's argument.

    33. The conclusion I have reached is reinforced by a cogently reasoned judgment on the interpretation of article 6 by the Lord President (Rodger) in S v Miller 2001 SC 977. Section 52(2) of the Children (Scotland) Act 1995 provides that a child may have to be subjected to compulsory measures of supervision when he "has committed an offence". The question arose whether in such proceedings article 6 is applicable. The Lord President observed, at pp 989-990:

"23 . . . at the stage when S was arrested and charged by the police on 31 October, he was indeed 'charged with a criminal offence' in terms of article 6, since he was liable to be brought before a criminal court in proceedings which could have resulted in the imposition of a penalty. He remained 'charged with a criminal offence' in terms of article 6 until the procurator fiscal decided the following day - in the language of section 43(5) of the Criminal Procedure Act - 'not to proceed with the charge'. At that point the criminal proceedings came to an end and the reporter initiated the procedures under the 1995 Act by arranging a hearing in terms of section 63(1). In my view, once the procurator fiscal has decided not to proceed with the charge against a child and so there is no longer any possibility of proceedings resulting in a penalty, any subsequent proceedings under the 1995 Act are not criminal for the purposes of article 6. Although the reporter does indeed intend to show that the child concerned committed an offence, this is not for the purpose of punishing him but in order to establish a basis for taking appropriate measures for his welfare. That being so, the child who is notified of grounds for referral setting out the offence in question is not thereby 'charged with a criminal offence' in terms of article 6.

24 It is not now disputed, of course, that the children's hearing proceedings involve the determination of civil rights and obligations. Article 6 therefore applies. But, since the proceedings are not criminal, the specific guarantees in article 6(2) and (3) do not apply."

I am in complete agreement with this reasoning as correctly reflecting the purpose of article 6. And it applies a fortiori to proceedings under section 1. After all, section 1(1) does not require proof of a criminal offence.

    34. In my view an application for an anti-social behaviour order does not involve the determination of a criminal charge.

X. The Admission of Hearsay Evidence.

    35. Having concluded that the proceedings in question are civil under domestic law and article 6, it follows that the machinery of the Civil Evidence Act 1995 and the Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 allow the introduction of such evidence under the first part of section 1. The weight of such evidence might be limited. On the other hand, in its cumulative effect it could be cogent. It all depends on the particular facts. In my view the ruling of the Divisional Court, set out in paragraph 10 above, was correct.

    36. It is submitted that, even if the relevant proceedings are civil, words must be implied into the Civil Evidence Act 1995 which give the court a wider power to exclude hearsay evidence. As the Divisional Court judgment makes clear this is unnecessary and unwarranted. Counsel in the Clingham case then argued that, even if the proceedings are civil, nevertheless the introduction of hearsay evidence infringes a defendants right to a fair trial under article 6(1) "in the determination of his civil rights and obligations". This is a misconceived argument. The case has not been heard. Such a challenge is premature. Upon a due consideration of the evidence, direct or hearsay, it may turn out that the defendant has no answer to the case under section 1(1). For the sake of completeness, I need only add that the use of the Civil Evidence Act 1995 and the Rules in cases under the first part of section 1 are not in any way incompatible with the Human Rights Act 1998.

X1 The standard of proof.

    37. Having concluded that the relevant proceedings are civil, in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply. However, I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary: In re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, 586D-H, per Lord Nicholls of Birkenhead. For essentially practical reasons, the Recorder of Manchester decided to apply the criminal standard. The Court of Appeal said that would usually be the right course to adopt. Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable. I do not disagree with any of these views. But in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard. If the House takes this view it will be sufficient for the magistrates, when applying section 1(1)(a) to be sure that the defendant has acted 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. The inquiry under section 1(1)(b), namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard of proof: it is an exercise of judgment or evaluation. This approach should facilitate correct decision-making and should ensure consistency and predictability in this corner of the law. In coming to this conclusion I bear in mind that the use of hearsay evidence will often be of crucial importance. For my part, hearsay evidence depending on its logical probativeness is quite capable of satisfying the requirements of section 1(1).

XII. The Submissions of Liberty.

    38. The House gave permission to Liberty to intervene in the McCann cases in writing and orally. The contribution of Liberty has helped to sharpen the focus of the debate on issues under the Human Rights Act 1998. It is, however, unnecessary to deal separately with the submissions of Liberty. The reasons I have given are also dispositive of the issues and arguments raised by Liberty.

XIII. Jurisdiction.

    39. Section 1(1)(a) of Administration of Justice Act 1960 only permits an appeal from a decision of the High Court "in any criminal case or matter". In my view the proceedings under the first part of section 1 do not satisfy this criterion. It follows that in the Clingham case the House did not have jurisdiction to entertain the appeal.

XIV. Disposal.

    40. For these reasons as well as the reasons given by Lord Hope of Craighead I would dismiss the appeals in the McCann cases and formally declare that there was no jurisdiction to hear the Clingham case.

LORD HOPE OF CRAIGHEAD

My Lords,

    41. In a democratic society the protection of public order lies at the heart of good government. This fundamental principle has a prominent place in the European Convention for the Protection of Human Rights and Fundamental Freedoms. Among the grounds on which a public authority may interfere with the rights described in articles 8 to 11 of the Convention are public safety, the protection of public order and the protection of the rights and freedoms of others. It is only in article 10(1) that one finds an express declaration that the exercise of freedoms carries with it duties and responsibilities. But it is a theme which runs right through the Convention. Respect for the rights of others is the price that we must all pay for the rights and freedoms that it guarantees.

    42. On the whole we live in a law-abiding community. Most people respect the rights of others, most of the time. People usually refrain from acts which are likely to cause injury to others or to their property. On the occasions when they do not, the sanctions provided by the criminal law are available. But it is a sad fact that there are some individuals for whom respect for the law and for the rights of others has no meaning. Taken one by one, their criminal or sub-criminal acts may seem to be, and indeed often are, relatively trivial. But, taken together, the frequency and scale of their destructive and offensive conduct presents a quite different picture. So does the aggression and intimidation with which their acts are perpetrated. The social disruption which their behaviour creates is unacceptable. So too is the apparent inability of the criminal law to restrain their activities. This provides the background to the enactment of section 1 of the Crime and Disorder Act 1998 with which your Lordships are concerned in these appeals.

    43. The main question which they raise is the familiar one of classification. If proceedings under section 1 of the Crime and Disorder Act 1998 are to be classified as criminal proceedings for the purposes of article 6 of the Convention, all the normal rules of evidence which apply to a criminal prosecution in domestic law must be applied to them. This is of crucial importance to the use which may be made in these proceedings of hearsay evidence. In domestic terms, hearsay evidence under the Civil Evidence Act 1995 would be inadmissible in these proceedings if they are to be classified as criminal. In Convention terms, the persons against whom anti-social behaviour orders were sought would be entitled to the protection of article 6(3)(d) if it applies to them. Under that paragraph every person charged with a criminal offence has the right to examine or have examined the witnesses against him. But much of the benefit which the legislation was designed to achieve would be lost if this is how these proceedings have to be classified. It would greatly disturb the balance which section 1 of the Crime and Disorder Act 1998 seeks to strike between the interests of the individual and those of society.

    44. The reason for this is not hard to find. So often those who are directly affected by this conduct lack both the inclination and the resources to do anything about it. Above all, they have been intimidated and they are afraid. They know that they risk becoming targets for further anti-social behaviour if they turn to the law for their protection. It is unrealistic to expect them to seek the protection of an injunction under the civil law. Reports to the police about criminal conduct are likely to result in their having to give evidence. In this situation the opportunity which civil proceedings provide for the use of hearsay evidence is a valuable safeguard. It greatly increases the prospect of persuading those who are likely to be exposed to further anti-social behaviour to co-operate with the authorities in protecting them from such conduct.

    45. The facts of the Clingham case have been described by my noble and learned friend Lord Steyn, and I gratefully adopt his account. As he has pointed out, it is a striking feature of that case that two of the statements relied on were anonymous and two of them were by persons who were in fear of reprisals if they were to be called on to give evidence. I should like to deal in my speech with the facts in the case of McCann, which has similar characteristics.

    46. The defendants in the case of McCann are three brothers who all live in the Ardwick area of Manchester. They were aged 16, 15 and 13 on 17 May 2000 when anti-social behaviour orders were made against them by Judge Rhys Davies QC, the Recorder of Manchester, sitting in the Crown Court with lay magistrates.

    47. The Chief Constable of Greater Manchester had been collecting evidence against the defendants for a period of about five months between May and September 1999. They had been accused by various members of the public in the Beswick area of Manchester of threatening and abusive behaviour, causing criminal damage, theft and burglary. On 28 September 1999 the Chief Constable consulted with Manchester City Council, the council for the relevant local government area, as required by section 1(2) of the Crime and Disorder Act 1998. They agreed that an application for anti-social behaviour orders should be made. The Chief Constable laid complaints against the defendants at Manchester Magistrates Court on 22 October 1999, and summonses were served on them on 1 November 1999. On 15 December 1999 Mr Alan Berg, a stipendiary magistrate, made anti-social behaviour orders against each of them, which they then appealed. Their appeal was heard in the form of a rehearing by the Crown Court.

    48. The stipendiary magistrate held that the defendants had acted in a manner which caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as themselves by offensive, abusive, insulting, threatening and intimidating words and behaviour as well as violent behaviour towards people in the local authority area of Manchester. He also held that an anti-social behaviour order was necessary to protect persons in that area and he made prohibitions against each of them. Dismissing their appeals, the Crown Court made identical orders to those made by the magistrate which prohibited each of them: (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.

    49. The evidence against the defendants consisted in part of direct evidence and in part of hearsay evidence. Four members of the public gave evidence of various acts of anti-social behaviour. One said that he had been abused on one occasion by two of the defendants and that he had been threatened and assaulted on another occasion by the third. The second said that he had been abused on one occasion by one of the defendants, who on the same occasion also assaulted an unknown youth. The third was an employee of a local supermarket who said that on a number of occasions between April and November 1999 she had been abused, threatened, harassed and alarmed by all three defendants. The fourth said that he and his customers had been abused by all three defendants between April and September 1999 and that the defendants had sought to intimidate them. Three police officers also gave evidence. One said that on one occasion the oldest defendant caused alarm and physical danger to others by driving a vehicle recklessly. Another said that on another occasion the same defendant was party to the theft of a bag from a car. A third gave direct evidence of threats and abuse by two of the defendants of a householder by banging on the door and interfering with the electrics of the property. This incident was also the subject of anonymous hearsay evidence. Anonymous hearsay evidence was also given by the police of four other incidents. One was burglary of domestic premises by two of the defendants. The second was damage to a motor vehicle by the same two defendants. The third was the throwing of items into the street from scaffolding which they had climbed. The fourth was the abuse by one of them of market stall holders. There was also a hearsay witness statement of the abuse by two of the defendants of firefighters.

    50. The overall picture which was painted by the evidence was of a prolonged course of behaviour which caused or was likely to cause harassment, alarm or distress to many people in the local government area during this six month period. The contribution which was made to the picture by the hearsay evidence, while not perhaps crucial, was certainly significant.

    51. I agree with Lord Steyn, for all the reasons that he has given, that proceedings leading to the imposition of an anti-social behaviour order under section 1 of the Crime and Disorder Act 1998 are civil proceedings in domestic law. I should like to add only a few observations to what he has said.

    52. Section 19 of the Crime and Disorder Act 1998 provides for the imposition of anti-social behaviour orders in Scotland. There are some differences of detail in the scheme which this section lays down from that which section 1 lays down for use in England and Wales. But the broad aim is the same. It is designed to deal with persons who have acted in an anti-social manner or have pursued a course of anti-social conduct that caused or was likely to cause alarm or distress. A conviction for breach of an anti-social behaviour order in Scotland carries with it the same penalties under section 22(1) as those prescribed for England and Wales by section 1(10). The important point for present purposes lies in the choice which Parliament has made as to the proceedings which are to be used for making these applications in Scotland. Section 19(2) provides that an application for an anti-social behaviour order shall be made by summary application to the sheriff within whose sheriffdom the alarm or distress was alleged to have been caused or was likely to have been caused.

    53. The question whether a summary application to a sheriff is a civil proceeding in Scots domestic law is quite straightforward in comparison with the equivalent and more complex question under English law. This is because the Scottish system has always maintained a firm distinction at levels between criminal and civil procedure. The civil nature of the procedure for the imposition of anti-social behaviour order is indicated at the outset by the fact that section 19(1) of the Crime and Disorder Act 1998 provides that an application for an anti-social behaviour order is to be made by the local authority. Criminal proceedings cannot be brought by a local authority in Scotland. They can be brought only by or on the authority of the Lord Advocate. Then there is the nature of the procedure that is prescribed by section 19(2). A summary application to the sheriff is defined by section 3(p) of the Sheriff Courts (Scotland) Act 1907 as including all applications, whether by appeal or otherwise, brought under any Act of Parliament which provides, or, according to any practice in the sheriff court, which allows that the same shall be disposed of in a summary manner, but which does not more particularly define in what form it is to be heard, tried or determined. The long title of the 1907 Act states that it is an Act to regulate and amend the laws and practice relating to the civil procedure in sheriff courts in Scotland. An appeal against the judgment of the sheriff on a summary application lies to the sheriff principal and to the Court of Session, either direct or from the sheriff principal, under sections 27 and 28 of the 1907 Act. The fact that appeals do not lie to the High Court of Justiciary, which has exclusive jurisdiction for the hearing of appeals in criminal cases, is a further sign, if more were needed, that in domestic terms this is a civil proceeding.

    54. It is worth noting that in S v Miller 2001 SC 977, 988A-B, para 19 Lord President Rodger said that children's hearings under section 52 of the Children (Scotland) Act 1995, and the related proceedings before the sheriff, have always been regarded as being civil in character, even where they contain a ground for referral under section 52(2)(i) which is that the child has committed an offence. In McGregor v D 1977 SC 330, 336 Lord President Emslie said, with reference to the provisions of Part III of the Social Work (Scotland) Act 1968 which have now been re-enacted with amendments in Part II of the Children (Scotland) Act 1995, that in no sense were these proceedings criminal proceedings. As he put it, they are on the contrary civil proceedings sui generis. Where the ground of referral is that the child has committed an offence and the sheriff is asked to consider whether this ground has been established under section 68 of the 1995 Act, the standard of proof which must be applied is that which is required in criminal procedure: section 68(3)(b). The Civil Evidence (Scotland) Act 1988 provides for the abolition of corroboration and the admission of hearsay evidence in civil proceedings. But section 9 of that Act excepts from the definition of "civil proceedings" for the purposes of that Act any hearing by a sheriff of an application under what is now Part II of the Children (Scotland) Act 1995 where the ground of referral was that the child has committed an offence. Nevertheless, the proceedings which Parliament has laid down for the determination of these applications by the sheriff is civil procedure. The reason for this, as the Lord President (Rodger) said in S v Miller 2001 SC 977, 989D, para 20, is that, even though the proceedings may involve establishing that the child has committed an offence, there is no possibility of the child being punished for the offence under them by the imposition of a penalty. This approach is consistent with the principle which was referred to by Lord Wright in Amand v Home Secretary [1943] AC 147, 162 where he said that a criminal cause or matter was one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment.

    55. I think that two important points can be derived from these provisions relating to Scotland in support of the proposition that proceedings which are brought in England and Wales under section 1 of the Crime and Disorder Act 1998 are civil proceedings. The first is that the fact that Parliament chose to provide for the use of civil proceedings in applications for anti-social behaviour orders in Scotland strongly suggests that its intention was that applications for these orders which were made in England and Wales should be made by way of civil proceedings also. The grounds on which these applications may be made in both jurisdictions are similar, and the consequences of the making of an anti-social behaviour order are the same. In neither jurisdiction does an anti-social behaviour order have the character of a punishment for an offence such as a fine or imprisonment. The fact that an anti-social behaviour order has been made against him does not appear on the person's criminal record. On the contrary, the order is described in both section 1(4) and section 19(3) as a prohibition. In this respect it has the character of a civil injunction or, in Scotland, a civil interim interdict. A criminal sanction is available in both jurisdictions if the person is convicted of having breached the order: see section 1(10) for England and Wales and section 22(1) for Scotland. But the proceedings which must be brought in the event of a breach are separate proceedings. Overall, the scheme is so similar in both jurisdictions that the intention of Parliament as to the nature of the proceedings under which the application was to be made can be taken, in the absence of any contrary indication, to have been the same.

    56. The second point is that it would not be inconsistent with a finding that the proceedings under section 1(1) of the Crime and Disorder Act 1998 were civil proceedings for your Lordships to hold that the standard of proof to be applied was that which is required in criminal proceedings. In Constanda v M 1997 SC 217 the ground on which the child had been referred to a children's hearing was that he was exposed to moral danger in terms of section 32(2)(b) of the Social Work (Scotland) Act 1968. The Court of Session held that, as the whole substratum of the ground of referral was that the child had performed certain acts which constituted criminal offences, the commission of these offences had to be proved to the criminal standard. This was despite the fact that the proceedings before the sheriff were civil proceedings, and in the absence of any rule laid down by the Act which required the criminal standard to be applied in any case other than where the child had been referred under section 32(2)(g) on the ground that he had committed an offence.

    57. The fact that the proceedings are classified in our domestic law as civil proceedings is not conclusive of the question whether they are of that character for the purposes of article 6 of the Convention. It provides no more than a starting point, as the question has to be examined in the light of the common denominator of the legislation of the contracting states: Engel v The Netherlands (No 1) (1976) 1 EHRR 647, 678, para 82.

    58. The examination must begin with the wording of article 6 itself, and in particular with the opening sentence of article 6(1). It provides:

"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."

Then there are the opening words of article 6(3) which provides that everyone "charged with a criminal offence" is to have the minimum rights which are set out in that article.

    59. There are two aspects of the wording of article 6 that I think are worth noting before I turn to the authorities. The first is that, for article 6 to apply at all, the proceedings must be capable of being classified either as proceedings for the determination of the person's "civil rights and obligations" or as proceedings for the determination of a "criminal charge" against him. But it would be wrong to approach the article on the assumption that all that is in issue is the question as to which of these two descriptions better fits the nature of the proceedings. It is not a straight choice between one description and the other. It is possible that the proceedings which are in issue in a given case will fit neither description. In Albert and Le Compte v Belgium (1983) 5 EHRR 533, 539, para 25 the court observed that there are some cases which are not comprised within either of these categories and which thus fall outside the ambit of article 6(1). For example, in Ravnsborg v Sweden (1994) 18 EHRR 38 the court held that article 6 did not apply to proceedings where the applicant had been fined for making improper statements in written observations before the Swedish courts. The proceedings were regarded as being outside the ambit of article 6 because they were disciplinary in character: p 52, para 34. In Raimondo v Italy (1994) 18 EHRR 237 the court held that article 6 did not apply to the proceedings which led to the applicant being placed under special police supervision.

    60. The second aspect of the wording that is worth noting is that those parts of article 6 which refer to criminal proceedings make it clear that the essential feature of proceedings that have that character for the purposes of the Convention is that the person is "charged with a criminal offence". This expression is to be interpreted as having an autonomous meaning in the context of the Convention: Adolf v Austria (1982) 4 EHRR 313, 322, para 30. So careful attention must be paid to the meaning which as been attached to these words by the Strasbourg Court. As is by now very well known, the case law has established that there are three criteria to be taken into account. They are not always stated in precisely the same language, but they are usually said to be (1) the classification of the proceedings under national law, (2) the nature of the offence and (3) the nature and degree of severity of the penalty: Engel v The Netherlands (No 1) 1 EHRR 647, 678-679, paras 82-83; Benham v United Kingdom (1996) 22 EHRR 293, 323, para 56.

    61. The words "criminal charge" themselves suggest that the proceedings which they have in mind are not just proceedings where a "charge" is made. The question is whether they are proceedings which may result in the imposition of a penalty. This point emerges clearly from the French text of article 6(1), as the Lord President (Rodger) pointed out in S v Miller 2001 SC 977, 988G, para 21. It states that the matter which is to be determined must be either a dispute "sur ses droits et obligations de caractère civil" or an "accusation en matière pénale". The words "en matière pénale" indicate it is envisaged that there will be a penal element. The court seems to have had this point in mind when, in Engel v The Netherlands (No 1), p 678, para 82, it asked itself when it was setting out the first criterion "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." In other words, proceedings involving a charge which is merely disciplinary in character will not fall within the ambit of article 6.

    62. In Öztürk v Germany (1984) 6 EHRR 409, 421, para 50 the court said that the first matter to be ascertained was "whether or not the text defining the offence in issue belongs, according to the legal system of the respondent state, to criminal law." In the continental systems the texts in question are likely to be found in a code, and there is often a separate criminal code which can readily be identified. As the Lord President (Rodger) in S v Miller observed at 2001 SC 977, 988I-989B, para 21:

"the very titles of such codes of criminal law will often reveal that they are indeed concerned essentially with 'matière pénale'. For instance, in France there is a 'code pénale', in Italy a 'codice penale', in Spain a 'código penal' and in Germany a 'Strafgesetzbuch'. It follows that when, in such cases as Öztürk, the court investgiates whether the text defining the offence belongs to criminal law, it is investigating whether the text belongs to an area of the law where proceedings can result in a penalty being imposed."

    63. This view as to the meaning of the phrase "criminal charge" is reinforced by the third criterion, which is the nature and degree of severity of the penalty. The formulation of this criterion in the early case of Engel v The Netherlands (No 1) 1 EHRR 647, 678, para 82 is instructive:

"[Supervision by the court] 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."

    64. The underlying idea is that proceedings do not lie within the criminal sphere for the purposes of article 6 unless they are capable of resulting in the imposition of a penalty by way of punishment. In B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, 353F, para 28 Lord Bingham of Cornhill CJ said that he was 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. I agree. Although there are other aspects of the procedure which suggest that in proceedings for the imposition of an anti-social behaviour order the person is not "charged with a criminal offence", the critical question as I see it is whether the making of such an order amounts to the imposition of a penalty. But it is first necessary to consider whether either of the first two criteria are satisfied.

    65. A finding that the proceedings were classified as criminal in domestic law is likely to be conclusive. But a finding that they are civil is of relative weight and serves only as a starting point: Benham v United Kingdom 22 EHRR 293, 323, para 56. In Lauko v Slovakia (1998) 33 EHRR 994, 1011, para 57 the court observed that the criteria are alternative and not cumulative: see also Garyfallou AEBE v Greece (1997) 28 EHRR 344. As it was put in Öztürk v Germany 6 EHRR 409, 424, para 54, one criterion cannot be applied so as to divest an offence of a criminal character if that has been established under another criterion. But it was recognised in Lauko v Slovakia, at p 1011, para 57, that a cumulative approach may be adopted if the separate analysis of each of them does not lead to a clear conclusion as to the existence of a "criminal charge". For the reasons already given, I consider that the position under domestic law is that the proceedings are classified as civil proceedings and not criminal.

    66. In their helpful written submissions which were developed before us in oral argument Liberty, to whom leave was given to intervene in these appeals, have contended that the essential question is how domestic law classifies the conduct which is at issue, not the proceedings themselves. They submit that the conduct which requires to be demonstrated falls within the scope of the criminal law, and that for this reason the proceedings should be treated as criminal proceedings in domestic law for the purposes of the Convention. They point out that the definition of "anti-social behaviour" in section 1(1) of the Crime and Disorder Act 1998 is modelled on "harassment" in the Protection from Harassment Act 1997, which is a criminal offence under section 2 of that Act, and that such conduct may also be treated as criminal under section 5 of the Public Order Act 1986 and a variety of other statutory provisions dealing with offences such as assault, theft and burglary. They also invoke section 3 of the Human Rights Act 1998 in support of the proposition that an application made under section 1 of the Crime and Disorder Act 1998 should be construed in domestic law as criminal proceedings in the absence of an express provision in the legislation to the contrary.

    67. I would reject these arguments. The question is whether, as it was put in Engel v The Netherlands (No 1) 1 EHRR 647, 678, para 82, the provision defining the offence belongs to criminal law, disciplinary law or both concurrently. It cannot be answered without examining the nature and purpose of the proceedings in which the conduct is alleged. The analogies to which Liberty refer are all examples of situations in which the conduct described is defined in the statute for the purpose of enabling a charge to be brought with a view to the imposition of a penalty. In Engel v The Netherlands (No 1), p 677, para 79 the court described the aim of repressing the applicants' conduct through penalties as an objective which was analogous to the "general goal of the criminal law". That is not the purpose for which proceedings for the imposition of an anti-social behaviour order are brought. Their purpose is to protect the public from further anti-social acts by the defendant. As for the argument regarding section 3 of the Human Rights Act 1998, it is, as Liberty themselves recognise, circular. According to the jurisprudence of the Strasbourg Court, the first criterion is how the proceedings are classified according to the legal system of the respondent state: Engel v The Netherlands (No 1), p 678, para 82. Section 2 of the Human Rights Act 1998 provides that a court or tribunal determining a question which has arisen in connection with a Convention right must take the Strasbourg jurisprudence into account. Strasbourg jurisprudence tells us that the question of classification is a matter for our own domestic system. Under our system, for the reasons already given, the proceedings are civil proceedings and not criminal.

    68. This question looks to the nature of the offence charged. But there is a preliminary question that has to be examined. Do proceedings for the imposition of an anti-social behaviour order involve the bringing of a charge at all? For the reasons already given, I think that the answer to this question in domestic law is clear. They do not involve the bringing of a charge because the purpose of the procedure is to impose a prohibition, not a penalty. But the domestic answer to this question does not resolve the issue, because for the purposes of the Convention it is necessary to look at the substance of what is involved and not the form. Moreover the question cannot be answered according to what Parliament is thought to have intended. In this context it is the effect of what Parliament has done that has to be examined. The court looks behind the appearances and investigates the realities of the procedure: Deweer v Belgium (1980) 2 EHRR 439, 458, para 44.

    69. The grounds for making the application involve making an allegation against the defendant that he has acted in a manner which may well have involved criminal conduct. A formal accusation is made, and the court to which it is made has to reach a decision as to whether or not the allegation has been made out. The situation can be distinguished from that where a sex offender order is sought under section 2 of the Crime and Disorder Act 1998, as it is a precondition for the making of the application that the defendant is already a sex offender as defined in section 3(1) of the Act. It can also be distinguished from that where a confiscation order is sought under the Drug Trafficking Offences Act 1986, as it is a precondition for the making of an application for such an order that the person against whom the order is sought has been convicted of a drug trafficking offence as defined in the Act. A previous conviction for the acts which are said to have amounted to anti-social behaviour is not required for the purposes of section 1 of the Crime and Disorder Act 1998. For the defendants it was contended that these features of the proceedings showed that they were directed at the world at large, rather than a pre-defined or limited class of persons, and that offences which were of this character were apt to be regarded as involving a criminal charge within the meaning of article 6.

    70. I do not think that the fact that no previous criminal conviction is required before an application for an anti-social behaviour order can be made under section 1 of the Crime and Disorder Act 1998 has the significance which the defendants seek to attach to it. A distinction is drawn in the jurisprudence of the Strasbourg Court between charges which are addressed to a pre-defined or limited class of persons, such as those who are serving in the armed forces or are serving sentences of imprisonment as in Engel v The Netherlands (No 1) 1 EHRR 647 and McFeeley v United Kingdom (1980) 3 EHRR 161 or those who take part in proceedings before a court as in Ravnsborg v Sweden 18 EHRR 38, on the one hand and charges which are directed to the world at large on the other, as in Bendenoun v France (1994) 18 EHRR 54 which was concerned with a provision in the tax code applicable to all citizens. The distinction which is drawn here is between proceedings which are disciplinary in character and those which are criminal. Where a limited group of persons possessing a special status is involved the conclusion is more readily drawn that the proceedings are disciplinary. But that is not a distinction which falls to be drawn in this case. The question is whether the person against whom an anti-behaviour order is being sought is "charged" with an offence at all. There are several indications that this is not so.

    71. The conduct which requires to be demonstrated is not necessarily conduct which would be capable of being treated as criminal. It has to be shown that the defendant has acted in a manner that caused or was likely to cause harassment, alarm or distress. But in order to prove that an offence under section 4A(1) of the Public Order Act 1986 was committed by him it would be necessary to go further and prove that he intended to cause these consequences. In order to prove that an offence was committed under section 1 of the Protection from Harassment Act 1997 it would be necessary to prove that he was engaged in a course of conduct which in fact amounted to harassment and that he knew or ought to have known that his conduct amounted to harassment.

    72. Furthermore the decision whether or not to make the order does not depend solely on proof of the defendant's conduct. The application may only be made if it appears to the local council or the chief constable that an order is necessary to protect persons in the area, and consultation between them is required before the application is made. Thus the proceedings are identified from the outset as preventive in character rather than punitive or disciplinary. This is a strong indication that they are not proceedings for the determination of a criminal charge against the defendant. In Lauko v Slovakia 33 EHRR 994, 1011, para 58 the court said that the fine imposed in that case was intended as a punishment to deter re-offending and that it had "a punitive character, which is the customary distinguishing feature of criminal penalties." In Guzzardi v Italy (1980) 3 EHRR 333, 369-370, para 108 the court said that proceedings under which the applicant, as a suspected Mafioso, had been placed under special supervision with an obligation of compulsory residence within a restricted area did not involve the determination of a criminal charge against him within the meaning of article 6: see also Raimondo v Italy 18 EHRR 237. In M v Italy, Application No 12386/86, (1991) 70 DR 59, the commission held that article 6(2) did not apply to confiscation of property belonging to a person suspected of being a member of a mafia-type organisation. In neither of these cases was the imposition of the order regarded as being punitive. In Gough v Chief Constable of the Derbyshire Constabulary [2002] QB 459 the Divisional Court held that the imposition of a banning order under the Football (Spectators) Act 1989 as amended by the Football (Disorder) Act 2000, which was designed to combat what Laws LJ described as "the shame and menace of football hooliganism", was not in conflict with article 6. This decision has been affirmed by the Court of Appeal: [2002] 3 WLR 289.

    73. In contrast to those decisions, which support the proposition that a distinction is drawn between proceedings for the imposition of preventive measures and those for the imposition of a penalty or punishment, there is the case of Steel v United Kingdom (1998) 28 EHRR 603. In that case the court held that article 6(3) applied to proceedings in which the applicants, who had been arrested and charged with breach of the peace, were brought before a magistrate and bound over to keep the peace. As in the case of applications for an anti-social behaviour order, the procedure is initiated under section 51 of the Magistrates' Courts Act 1980 by a complaint, and a bind over order does not constitute a criminal conviction. It was contended for the defendants that that decision is directly in point in this case and indistinguishable, and that contention was strongly supported by Liberty.

    74. But I would hold that it is distinguishable, for the reasons which were given by Lord Phillips of Worth Matravers MR in the Court of Appeal in the McCann case: [2001] 1 WLR 1084, 1100H-1101B. As he pointed out, in contrast to proceedings for breach of the peace, there is no power of arrest for the purpose of proceedings under section 1 of the Crime and Disorder Act 1998. The fact that a warrant may be issued for the defendant's arrest if he fails to attend the hearing or an adjourned hearing does not show that they are criminal proceedings. Rather it shows that he has failed to respond to a summons by the court. In itself this is far from conclusive, as there are numerous offences in English law which are non-arrestable. But it has to be taken together with the other factors. Proof of anti-social behaviour is not the only criterion for the making of the order, nor is proof that the defendant is likely to cause further anti-social acts in the future. The order must be shown to be necessary for the purpose of protecting people against further such behaviour by him. This not a distinction of form rather than substance at all. The last criterion is of fundamental importance to the decision as to the prohibitions that are required. And in contrast to proceedings for breach of the peace, which can lead to the immediate imposition of a sentence of imprisonment under section 115(3) of the Magistrates' Courts Act 1980 for up to six months if the defendant fails to comply with the order because he does not agree to enter into a recognizance to keep the peace or to be of good behaviour, proceedings under section 1 of the Crime and Disorder Act 1998 cannot in themselves result in the immediate imposition of a penalty.

    75. This question looks to the nature of the penalty. But here again there is a preliminary question that has to be examined. Is an anti-social behaviour order a penalty at all? The essential characteristics of an anti-social behaviour order are that the defendant is prohibited from doing something. The purpose of the prohibition is to protect people in the area to which the order relates. Section 1(6) of the Crime and Disorder Act 1998 provides that the prohibitions that may be imposed are those necessary for the purposes of protecting persons from further anti-social conduct - that is, from conduct which will cause, or is likely to cause, them harassment, alarm or distress. It is true that no limits are set as to the prohibitions that may be imposed, so long as they are found to be necessary. The defendants say that prohibitions which banish the defendant from an area of the city where he lives, or which expose him to harsher penalties than he would normally face if he commits an offence, have all the characteristics of a penalty for the anti-social acts which he is found to have committed.

    76. An anti-social behaviour order may well restrict the freedom of the defendant to do what he wants and to go where he pleases. But these restrictions are imposed for preventive reasons, not as punishment. The test that has to be applied under section 1(6) is confined to what is necessary for the purpose of protecting persons from further anti-social acts by the defendant. The court is not being required, nor indeed is it permitted, to consider what an appropriate sanction would be for his past conduct. Moreover, while the court may restrict the defendant's liberty where this is shown to be necessary to protect persons in the area from further anti-social acts by him, it may not deprive him of it nor may it impose a fine on him.

    77. For these reasons I do not think that any of the criteria for a finding that proceedings under section 1 of the Crime and Disorder Act 1998 have the character of criminal proceedings for the purposes of article 6 are satisfied. The consequence of so holding is of fundamental importance to the future of this legislation. Cases such as Unterpertinger v Austria (1986) 13 EHRR 175, Kostovski v Netherlands (1989) 12 EHRR 434 and Saidi v France (1993) 17 EHRR 251 illustrate the reluctance of the Strasbourg Court to accept that the use of hearsay evidence is compatible with a defendant's right under article 6(3)(d) to examine or have examined witnesses against him. But I would hold that article 6(3) does not apply to these proceedings and that the rules of evidence that are to be applied are the civil evidence rules. This means that hearsay evidence under the Civil Evidence Act 1995, the use of which will be necessary in many cases if the magistrates are to be properly informed about the scale and nature of the anti-social behaviour and the prohibitions that are needed for the protection of the public, is admissible.

Are the proceedings civil proceedings?

    78. Counsel for the respondents and the Secretary of State were agreed that, if your Lordships were to hold that the specific guarantees in article 6(2) and article (3) did not apply to these proceedings, they were nevertheless subject to the provisions of article 6(1). The question of classification is critical in this case, so it is important that the basis for these concessions should be clearly understood. They could only be accepted as well-founded if it was clear that the proceedings involved the determination of the defendant's civil rights and obligations.

    79. At first sight an order which prohibits a person from behaving in an anti-social manner has nothing to do with his civil rights and obligations. He has no right in domestic private law to use or engage in abusive, insulting, offensive, threatening language or behaviour or to threaten or engage in violence or damage against any person or property, which are among the acts which the defendants have been prohibited from doing in the McCann case. But, as Lord Nicholls of Birkenhead said in In re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291, 320, para 71, by virtue of the Human Rights Act 1998 the right to respect for private and family life which is guaranteed by article 8 of the Convention is now part of a person's civil rights in domestic law for the purposes of article 6(1). In my opinion the same can be said of the rights to freedom of expression and of assembly and association which are guaranteed by articles 10 and 11.

    80. Section 1(6) of the Crime and Disorder Act 1998 sets no limits to the prohibitions that may be imposed, except that they must be necessary for the protection of people in the local government area against further anti-social acts by the defendant. Among the range of orders that might reasonably be thought to be necessary are orders which may interfere with the defendant's private life, his freedom to express himself either by words or conduct and his freedom to associate with other people. Although the jurisprudence of the Strasbourg Court appears to me as yet to be unclear on this point, I would hold that the fact that prohibitions made under section 1(6) of that Act may have this effect is sufficient to attract the right to a fair trial which is guaranteed by article 6(1). This means that the court must act with scrupulous fairness at all stages in the proceedings. When it is making its assessment of the facts and circumstances that have been put before it in evidence and of the prohibitions, if any, that are to be imposed, it must ensure that the defendant does not suffer any injustice.

Standard of proof

    81. As Lord Phillips of Worth Matravers MR observed in the Court of Appeal in the McCann case [2001] 1 WLR 1084, 1101G, para 65, anti-social behaviour orders have serious consequences. It was with this point in mind that, at p 1102D, para 67, he commended the course which the Recorder of Manchester followed in the Crown Court when he said that, without intending to lay down any form of precedent, the court had decided to apply the standard of being satisfied so that they were sure that the statutory conditions were fulfilled before they would consider the making of an order in the case of each defendant. I too would endorse this approach, for the following reasons.

    82. Mr Crow for the Secretary of State said that his preferred position was that the standard to be applied in these proceedings should be the civil standard. His submission, as it was put in his written case, was that although the civil standard was a single, inflexible test, the inherent probability or improbability of an event was a matter to be taken into account when the evidence was being assessed. He maintained that this view was consistent with the position for which he contended, that these were civil proceedings which should be decided according to the civil evidence rules. But it is not an invariable rule that the lower standard of proof must be applied in civil proceedings. I think that there are good reasons, in the interests of fairness, for applying the higher standard when allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made.

    83. This, as I have already mentioned, was the view which the Court of Session took in Constanda v M 1997 SC 217 when it decided that proof to the criminal standard was required of allegations that a child had engaged in criminal conduct although the ground of referral to a children's hearing was not that he had committed an offence but that he was exposed to moral danger. There is now a substantial body of opinion that, if the case for an order such as a banning order or a sex offender order is to be made out, account should be taken of the seriousness of the matters to be proved and the implications of proving them. It has also been recognised that if this is done the civil standard of proof will for all practical purposes be indistinguishable from the criminal standard: see B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, 354, para 31 per Lord Bingham of Cornhill CJ; Gough v Chief Constable of the Derbyshire Constabulary [2002] 3 WLR 289, 313, para 90 per Lord Phillips of Worth Matravers MR. As Mr Crow pointed out, the condition in section 1(1)(b) of the Crime and Disorder Act 1998 that a prohibition order is necessary to protect persons in the local government area from further anti-social acts raises a question which is a matter for evaluation and assessment. But the condition in section 1(1)(a) that the defendant has acted in an anti-social manner raises serious questions of fact, and the implications for him of proving that he has acted in this way are also serious. I would hold that the standard of proof that ought to be applied in these cases to allegations about the defendant's conduct is the criminal standard.

    84. In the Clingham case I would make the same order as that proposed by Lord Steyn. In the McCann case I would dismiss the appeals.

LORD HUTTON

My Lords,

    85. Section 1 of the Crime and Disorder Act 1998 was enacted to remedy a grave social problem. In some parts of England, particularly in urban areas, there are vulnerable people who live in constant fear and distress as a result of the anti-social behaviour of others. The anti-social behaviour can take different forms and may consist of insults and abuse and threats or assaults or damage to houses by stone throwing or the painting of graffiti. Those who are victims of such behaviour are often too frightened to be willing to go into the witness box in criminal proceedings to give evidence against those who make their lives a misery, because they fear that they will be harassed or intimidated for so doing.

    86. The remedy provided by section 1 of the 1998 Act is to give power to a magistrates' court to make an order which imposes on the defendant the prohibitions which are necessary for the purpose of protecting persons in the local area from further anti-social acts by him. Such an order will frequently prohibit the defendant from entering a defined area where he has been particularly troublesome and 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 within a somewhat wider area.

    87. Section 1(10) provides that if a person does anything which he is prohibited from doing by an anti-social behaviour order he shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding a specified amount, or to both, or on conviction on indictment to imprisonment for a term not exceeding five years or to a fine, or to both.

    88. The remedy given by section 1 has operated effectively because the courts have held that proceedings under section 1 are civil proceedings and not criminal proceedings. Therefore it has not been necessary for those who allege that they have suffered as a result of anti-social behaviour on the part of the defendant to go into the witness box to give evidence against him, because hearsay evidence can be given of their complaints and allegations pursuant to section 1 of the Civil Evidence Act 1995 which provides that in civil proceedings evidence shall not be excluded on the ground that it is hearsay.

    89. It is rulings that applications for anti-social behaviour orders are civil proceedings which are challenged by the defendants in these appeals. They submit that both under domestic law and under the jurisprudence of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") the proceedings against them under section 1 of the 1998 Act are criminal proceedings and constitute criminal charges against them so that hearsay evidence is not admissible. They contend in their submissions in reliance on the Convention that the use of hearsay evidence against them violates their human rights.

    90. The facts of the present cases and the proceedings before the magistrates and on appeal have been fully set out in the speeches of my noble and learned friends Lord Steyn and Lord Hope of Craighead. I gratefully adopt their accounts and I therefore turn to consider the submissions advanced on behalf of the defendants.

    91. Counsel for the defendants submitted that an application for an anti-social behaviour order is a criminal proceeding because the complaint against the defendant alleges anti-social behaviour which, in effect, is an allegation of the commission of criminal offences. Thus the complaint against the defendant Clingham alleged:

"1.  It appears to the local authority, the Royal Borough of Kensington and Chelsea, that the following conditions are fulfilled with respect to you, namely -

(a) that you have acted between 9 December 1999 and 15 April 2000 on or in the vicinity of the Wornington Green Estate, London W10 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 yourself, namely by : - assaulting residents, threatening to assault children of residents, verbally abusing residents and police officers, threatening and intimidating shopkeepers, engaging in car related crime, throwing objects at persons and property and entering property as a trespasser ; and

(b) that an anti-social behaviour order is necessary to protect persons in the Royal Borough of Kensington and Chelsea in which the harassment, alarm or distress was caused, or was likely to be caused from further anti-social acts by you…"

    92. Counsel submitted that the great majority of this conduct constituted the commission of separate criminal offences. They also relied on the close similarity between the wording of section 1(1)(a) of the 1998 Act and the wording of sections 4A and 5 of the Public Order Act 1986. Section 4A, as inserted by section 154 of the Criminal Justice and Public Order Act 1994, 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."

Section 5 provides:

"(1)  A person is guilty of an offence if 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,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby."

Section 1(1) of the 1998 Act provides:

"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."

    93. In reliance on authorities, the majority of which were considering the meaning of the term "criminal cause or matter", counsel further submitted that an application under section 1 of the 1998 Act is a criminal proceeding because it can result under section 1(10) in the imposition of a term of imprisonment. Counsel cited Proprietary Articles Trade Association v Attorney General for Canada [1931] AC 310, 324 where Lord Atkin stated:

"It appears to their Lordships to be of little value to seek to confine crimes to a category of acts which by their very nature belong to the domain of 'criminal jurisprudence'; for the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the state to be crimes, and the only common nature they will be found to possess is that they are prohibited by the state and that those who commit them are punished."

In Ex p Alice Woodhall (1888) 20 QBD 832, 837-838, Lindley LJ stated:

"Can we say that the application in the present case is not an application in a criminal cause or matter? I think that in substance it certainly is. Its whole object is to enable the person in custody to escape being sent for trial in America upon a charge of forgery."

In Amand v Home Secretary [1943] AC 147, 156 Viscount Simon LC stated:

"If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal."

Lord Wright stated, at p 162:

"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'."

    94. I am unable to accept these submissions. The application for a anti-social behaviour order does not charge the defendant with having committed a crime. The purpose of the application is to obtain an order prohibiting the defendant from doing anti-social acts in the future and its object is not the obtaining of a conviction against him resulting in the imposition of a punishment. I am in respectful agreement with the statement of Lord Bingham of Cornhill CJ in Customs and Excise Comrs v City of London Magistrates' Court [2000] 1 WLR 2020, 2025 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."

    95. The passages in the judgments relied on by the defendants do not, in my opinion, assist them because they emphasise that the imposition of a conviction may be a consequence of the proceedings in which the application is brought. Thus in the Proprietary Articles Trade Association case Lord Atkin stated that "those who commit them are punished"; in Ex p Alice Woodhall Lindley LJ stated: "[the] whole object [of the application] is to enable the person in custody to escape being sent for trial in America upon a charge of forgery"; in Amand Viscount Simon stated that the matter is criminal if it is one "the direct outcome of which may be trial of the applicant and his possible punishment"; and Lord Wright stated that a matter is a criminal one which, "if carried to its conclusion, might result" in conviction and punishment. But an application for an anti-social behaviour order, if carried to its conclusion, will not result in conviction and punishment, it will result in the making of an order which cannot be regarded as a punishment. A conviction and punishment will only be imposed if the defendant, by his own choice, subsequently breaches the order and separate and distinct proceedings are brought against him.

    96. I further consider that a complaint brought against a defendant under section 1(3) of the 1998 Act does not constitute an allegation of a crime. The fact that the background to the complaint will very often be the alleged commission of a number of criminal offences does not mean that the complaint constitutes a charge of a criminal offence: see S v Miller 2001 SC 977, 989-990, para 23 cited subsequently in paragraph 102 of this opinion.

    97. There are two further considerations which support the conclusion that an application for an anti-social behaviour order is a civil proceeding and not a criminal proceeding. First, section 1 is contained in Part I of the Act under the heading "Prevention Of Crime And Disorder" whereas Part II under the heading "Criminal Law" creates a number of offences and provides for their punishment. Secondly, section 1(3) provides that an application for an anti-social behaviour order shall be made by complaint to a magistrates' court, and a complaint is the appropriate procedure for commencing civil proceedings in a magistrates' court: see section 51 of the Magistrates' Courts Act 1980.

    98. Accordingly I conclude that under domestic law an application for an anti-social behaviour order is not a criminal proceeding but is a civil proceeding.

    99. Article 6 provides:

"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 …."

Article 6(3) provides:

"Everyone charged with a criminal offence has the following minimum rights: …

(d)  to examine …. witnesses against him …."

The defendants submitted that under the jurisprudence of the Convention an application for an anti-social behaviour order is a criminal charge, and accordingly the defendants will not have a fair hearing under article 6 if the evidence against them of anti-social behaviour is hearsay evidence and they do not have the opportunity to cross-examine in court the persons who have made allegations of such behaviour against them. In these submissions the defendants were supported by the submissions advanced by counsel on behalf of Liberty which was given leave to intervene in these appeals.

    100. In deciding whether there is a criminal charge for the purposes of article 6 the European Court of Human Rights ("the European Court") stated in Engel v The Netherlands (No 1) [1976] 1 EHRR 647, 678, para 82 that it has regard to three criteria, which are the classification of the proceedings in domestic law, the nature of the offence, and the severity of the penalty which may be imposed. Whilst I am satisfied that the application for an anti-social behaviour order is a civil proceeding in domestic law the European Court has stated that the classification of the proceedings in domestic law is of limited value and that the other two criteria are considerations of greater weight: see Öztürk v Germany (1984) 6 EHRR 409, 422, para 52.

    101. In relation to the second and third criteria the European Court stated in Öztürk, at pp 423-424, para 53:

"according to the ordinary meaning of the terms, there generally come within the ambit of the criminal law offences that make their perpetrator liable to penalties intended, inter alia, to be deterrent and usually consisting of fines and of measures depriving the person of his liberty.…

…. the general character of the rule [of law infringed by the applicant] and the purpose of the penalty, being both deterrent and punitive, suffice to show that the offence in question was, in terms of article 6 of the Convention, criminal in nature."

    102. The complaints against the defendants under section 1 of the 1998 Act do not allege the commission of criminal offences for which punishment is sought. The fact that the backgrounds to the complaints were the alleged commission of a number of criminal offences does not mean that the complaints constituted charges of criminal offences. In S v Miller 2001 SC 977, the Inner House was considering section 52(2)(i) of the Children (Scotland) Act 1995 which provides that a child may be in need of compulsory measures of supervision where he "has committed an offence", and Lord President Rodger stated, at pp 989-990, para 23:

"In my view, once the procurator fiscal has decided not to proceed with the charge against a child and so there is no longer any possibility of proceedings resulting in a penalty, any subsequent proceedings under the 1995 Act are not criminal for the purposes of article 6. Although the reporter does indeed intend to show that the child concerned committed an offence, this is not for the purpose of punishing him but in order to establish a basis for taking appropriate measures for his welfare. That being so, the child who is notified of grounds for referral setting out the offence in question is not thereby 'charged with a criminal offence' in terms of article 6."

    103. In relation to the third criteria, I consider that the making of an anti-social behaviour order does not constitute a punishment or penalty imposed on the defendant. In my opinion the magistrate who heard the complaint against the defendant Clingham was correct when in the case stated for the opinion of the High Court he stated:

"These were civil proceedings of an injunctive nature imposing no penalty on the appellant but providing such measure of restraint as the court may find necessary to protect members of the public from his misbehaviour."

    104. The defendants relied on the decision of the European Commission of Human Rights ("the Commission") and of the European Court in Steel v United Kingdom (1998) 28 EHRR 603. In that case some of the applicants who had been charged with a breach of the peace were committed to prison for refusing to agree to be bound over to keep the peace. The applicants complained (inter alia) that their rights under article 5 and article 6(3)(a) had been violated. In considering the claims of the applicants both the Commission and the European Court expressed the opinion that, notwithstanding that breach of the peace is not classified as a criminal offence under English law, breach of the peace must be regarded as an "offence" within the meaning of article 5(1)(c). The Commission stated in its opinion, at pp 615-616:

"66. …. The Commission notes that under the domestic legal system, breach of the peace is not a criminal offence and binding over is a civil procedure. However, as the European Court of Human Rights has held [Öztürk v Germany (1984) 6 EHRR 409, 423-424, para 53]:

'[T]here generally come within the ambit of the criminal law offences that make their perpetrator liable to penalties intended, inter alia, to be deterrent and usually consisting of fines and of measures depriving the person of his liberty … [The rule at issue] prescribes conduct of a certain kind and makes the resultant requirement subject to a sanction that is punitive … the general character of the rule and the purpose of the penalty, being both deterrent and punitive, suffice to show that the offence was, in terms of article 6 of the Convention, criminal in nature.'

67. 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 enforced, 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 six 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."

The court stated, at pp 635-636:

"48.  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)."

    105. The defendants' principal submission in reliance on Steel was that both in proceedings for a breach of the peace and in proceedings for an anti-social behaviour order there was a two stage process. First, there was a finding of a breach of the peace or a finding of anti-social behaviour and, secondly, there was imprisonment if the defendant refused to be bound over or if the defendant chose to disobey the anti-social behaviour order. Accordingly if binding over proceedings are criminal proceedings for the purposes of article 6 it follows that an application for an anti-social behaviour order is also a criminal proceeding within the meaning of article 6.

    106. I am unable to accept the defendants' submissions for the reasons given by Lord Phillips of Worth Matravers MR in his judgment in McCann [2001] 1 WLR 1084, 1100-1101, para 62 with which I am in respectful agreement. In particular I consider that the view expressed by the European Commission and the court is primarily based on the consideration that in the proceedings for breach of the peace before the magistrates' court the court has power in those proceedings themselves to commit the defendant to prison if he or she refuses to be bound over. Thus the Commission stated, at 28 EHRR 603, 616, para 67:

"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"

and the court stated, at p 636, para 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)."

    107. The importance of the distinction between the power to commit to prison immediately on refusal to be bound over and the need for a subsequent prosecution to impose a punishment for breach of an anti-social behaviour order or a sex offender order under section 2 of the 1998 Act is referred to by Lord Bingham of Cornhill CJ in B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, 353, para 27:

"In [Percy v Director of Public Prosecutions [1995] 1 WLR 1382] the defendant had a choice between agreeing to be bound over and going to prison. Her refusal to agree to be bound over had an immediate and obvious penal consequence without any intervening stage. The threat of imprisonment was no doubt intended to be coercive but it was also punitive. In my judgment that is a crucial distinction between Percy's case and any injunctive procedure such as in play here."

    108. The fact that the defendant would be liable to imprisonment under section 1(10) of the 1998 Act if he chooses within the period specified in the order without reasonable excuse to do anything which he is prohibited from doing by the order, does not mean that the order itself constitutes a punishment or penalty. In my opinion, the reasoning of Lord Bingham in B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, 352B, para 25 in respect of a sex offender order made under section 2 of the 1998 Act applies with equal force to section 1:

"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."

    109. The jurisprudence of the European Court recognises that proceedings taken to obtain an order designed to prevent future harmful conduct, but not to impose a penalty for past offences, does not constitute the bringing of a criminal charge. In Guzzardi v Italy (1980) 3 EHRR 333 the complainant, a suspected Mafioso, by an order of the Milan Regional Court was placed under special supervision for three years with an obligation to reside within an area of 2.5 square kilometres on an island. He brought proceedings challenging the order and the proceedings terminated in the Court of Cassation which dismissed Guzzardi's appeal. The European Court held that article 6 was not engaged and stated, at pp 369-370, para 108:

"In the court's opinion, those proceedings did not involve the 'determination …. of a criminal charge', even when these words are construed within the meaning of the Convention. Whether the right to liberty, which was at stake (see paragraph 62 above), is to be qualified as a 'civil right' is a matter of controversy; in any event, the evidence does not reveal any infringement of paragraph 1 of article 6."

    110. In Raimondo v Italy (1994) 18 EHRR 237 the applicant who was suspected of association with a Mafia-type organisation, was made subject to preventive measures which included being placed under special police supervision. He complained (inter alia) that the proceedings relating to his appeal against the special supervision had taken an unreasonable time in violation of article 6(1) of the Convention. The European Court rejected his complaint and held, referring to Guzzardi, at p 264, para 43 of its judgment:

"The court shares the view taken by the Government and the Commission that special supervision is not comparable to a criminal sanction because it is designed to prevent the commission of offences. It follows that proceedings concerning it did not involve 'the determination …. of a criminal charge'."

    111. 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.

    112. 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 that part of the order affects his civil rights so that article 6(1) is engaged. Articles 8(2) and article 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 Plan) [2002] 2 AC 291, 319-320. I wish to reserve my opinion on the question whether article 6(1) is engaged, but if there is a valid argument that the hearing of an application for an anti-social behaviour order against a defendant involves a determination of his civil rights and engages article 6(1), 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.

(2)  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."

    113. 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 Lönnroth v Sweden (1982) 5 EHRR 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 rights" is inherent in the whole of the Convention. In these cases which your Lordships have held are not criminal cases under the Convention and therefore do not attract the specific protection given by Article 6(3)(d) (though even in criminal cases the European Court has recognised that "principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify": see Doorson v Netherlands (1996) 22 EHRR 330, 358, para 70), and having regard to the safeguards contained in section 4 of the 1995 Act, I consider that the striking of a fair balance between the demands of the general interest of the community (the community in this case being represented by weak and vulnerable people who claim that they are the victims of anti-social behaviour which violates their rights) and the requirements of the protection of the defendants' rights requires the scales to come down in favour of the protection of the community and of permitting the use of hearsay evidence in applications for anti-social behaviour orders.

    114. I am in agreement with the opinions of my noble and learned friends Lord Steyn and Lord Hope of Craighead on this point and for the reasons which they give I would hold that in proceedings under section 1 of the 1998 Act the standard of proof that ought to be applied to allegations about the defendants' past behaviour is the criminal standard.

    115. For the reasons which I have given I would dismiss the appeals of the McCann defendants and would declare that the House had no jurisdiction to hear the appeal of the defendant Clingham.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

    116. For the reasons given by my noble and learned friends Lord Steyn and Lord Hope of Craighead and in agreement with the opinion of my noble and learned friend Lord Hutton, in particular what he has said in paragraph 113 of his opinion, I too would make the orders proposed.

LORD SCOTT OF FOSCOTE

My Lords,

    117. I agree that for the reasons given in the opinions of my noble and learned friends, Lord Steyn, Lord Hope of Craighead and Lord Hutton, the appeal in the McCann cases should be dismissed and in the Clingham case the House should make the order proposed by Lord Steyn. I, like my noble and learned friend Lord Hobhouse of Woodborough, am in full agreement with what Lord Hutton has said in paragraph 113 of his opinion.