T H E QUEEN v ON THE APPLICATION OF [2001] EWCA Civ 281

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
SITTING IN THE MANCHESTER DISTRICT REGISTRY
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(LORD WOOLF, CJ AND MRS JUSTICE RAFFERTY)
[2001] EWCA Civ 281Case No CO/3055/2000Venue Crown Square, Manchester M, Thursday 1 March 2001
Between
T H E QUEENON THE APPLICATION OF1. SEAN MCCANN2. JOSEPH MCCANN2. MICHAEL MCCANN(Proceeding by their Mother and Litigation friendMARGARET MCCANN)ApplicantsMANCHESTER CROWN COURTRespondentTHE CHIEF CONSTABLE OF GREATER MANCHESTERInterested Party
Before
The Master of the RollsLord PhillipsLord Justice KennedyLord Justice DysonMR A FULFORD QC and MR STARK (Instructed by Messrs Burton Copeland, Manchester) appeared on behalf of the ApplicantsMR C GARSIDE QC and MR P CADWALLADER (Instructed by The Force Solicitor, Greater Manchester Police, Manchester, M16 ORE)appeared on behalf of the Interested Party.MISS J SIMOR (Instructed by the National Council for Civil Liberties) appeared on behalf of the Intervenor.Date 1 March 2001
[1]LORD PHILLIPS, MR:This is an appeal from the judgment of Lord Woolf CJ and Rafferty J sitting in the Administrative Court. It was delivered on 22 November 2000 and dismissed an application for judicial review made by the three Appellants. That application sought to quash anti-social behaviour orders made against each of the Appellants on 17 May 2000 under section 1 of the Crime and Disorder Act 1998 ("the 1998 Act"). The orders were made by His Honour Judge Rhys Davies, the Recorder or Manchester, sitting with Lay Magistrates in the Crown Court.[2]The ground for the application was that the Recorder wrongly treated the applications for the orders as being made in civil proceedings when in fact they were made in criminal proceedings. It was contended that this resulted in the admission of hearsay evidence under the Civil Evidence Act when, under the rules of evidence that should have been applied to criminal proceedings, this evidence was inadmissible. Jurisdiction[3]After judgment was given in the Administrative Court, the Appellants asked for permission to appeal to this court on the premise that, as the Administrative Court have held this is a civil cause or matter, that was the correct avenue of appeal. The Appellants seek to establish, however, that these are criminal proceedings. If that contention is correct, the Court of Appeal has no jurisdiction to entertain the appeal.[4]Although the Administrative Court recognised this paradox, they did not refuse permission to appeal because of it. They refused permission because they considered that the position in law was clear. Equally, when the paper application for permission to appeal came before me, I did not think it right to refuse permission on this technical point. I gave permission to appeal because the case raises a point of general importance which merits consideration by this court. Mr Adrian Fulford QC, for the Appellants, accepted that, if his argument succeeded, the fruits of his success would be a declaration that this court had no jurisdiction to entertain his appeal.[5]Anti-social behaviour orders are a recent arrival on the English legal scene. Whether the proceedings in which they are sought are criminal or civil is a question of general public importance. If they are criminal, the criminal rules of evidence and the criminal standard of proof apply and they attract the protection of Articles 6(2) and (3) of the European Convention on Human Rights.[6]Provision for making anti-social behaviour orders is made by section 1 of the 1998 Act. That provides:
"(1) An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely- (a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and (b) that such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him; and in this section 'relevant authority' means the council for the local government area or any chief officer or police any part of whose police area lies within that area. (2) A relevant authority shall not make such an application without consulting each other relevant authority. (3) Such an application shall be made by complaint to the magistrates' court whose commission area includes the place where it is alleged that the harassment, alarm or distress was caused or was likely to be caused. (4) If, on such an application, it is proved that the conditions mentioned in subsection (1) above are fulfilled, the magistrates' court may make and order under this section (an 'anti-social behaviour order') which prohibits the defendant from doing anything described in the order. (5) For the purpose of determining whether the condition mentioned in subsection (1)(a) above is fulfilled, the court shall disregard any act of the defendant which he shows was reasonable in the circumstances. (6) The prohibitions that may be imposed by an anti-social behaviour order are those necessary for the purpose of protecting from further anti-social acts by the defendant- (a) persons in the local government area; and (b) persons in any adjoining local government area specified in the application for the order; and a relevant authority shall not specify an adjoining local government area in the application without consulting the council for that area an each chief officer of police any part of whose police area lies within that area. (7) An anti-social behaviour order shall have effect for a period (not less than two years) specified in the order or until further order. (8) Subject to subsection (9) below, the applicant or the defendant may apply by complaint to the court which made an anti-social behaviour order for it to be varied or discharged by a further order. (9) Except with the consent of both parties, no anti-social behaviour order shall be discharged before the end of the period of two years beginning with the date of service of the order. (10) If without reasonable excuse a person does anything which he is prohibited from doing by an anti-social behaviour order, he shall be liable- (a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or (b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both. (11) Where a person is convicted of an offence under subsection (10) above, it shall not be open to the court by or before which he is so convicted to make an order under subsection (1)(b) (conditional discharge) of section 1A of the Powers of Criminal Courts Act 1973 ('the 1973 Act') in respect of this offence."
[7]Section 2 makes similar provisions in relation to convicted sex offenders. It provides for the making of Sex Offender Orders and subsections (1) to (4) read as follows:
"(1) If it appears to a chief officer of police that the following conditions are fulfilled with respect to any person in his police area, namely- (a) that the person is a sex offender; and (b) that the person has acted, since the relevant date, in such a way as to give reasonable cause to believe that an order under this section is necessary to protect the public from serious harm from him, the chief officer may apply for an order under this section to be made in respect of the person. (2) Such an application shall be made by complaint to the magistrates' court whose commission area includes any place where it is alleged that the defendant acted in such a way as is mentioned in subsection (1)(b) above. (3) If, on such an application, it is proved that the conditions mentioned in subsection (1) above are fulfilled, the magistrates' court may make an order under this section (a 'sex offender order') which prohibits the defendant from doing anything described in the order. (4) The prohibitions that may be imposed by a sex offender order are those necessary for the purpose of protecting the public from serious harm from the defendant."
The facts[8]Sean McCann was aged 16, Joseph McCann was aged 15 and Michael McCann was aged 13 at the time that the orders under challenge were made. All three of them live at 29A Ardwick Green North, Ardwick, Manchester. On 22 October 1999 the Chief Constable for Greater Manchester made an application under section 1(1) of the 1998 Act in relation to each youth. Pursuant to section 1(3) of the 1998 Act, that application was made by complaint to the Manchester City Magistrates' Court.[9]The application in relation to each of the brothers was in the following identical terms:
"The respondent has acted on various dates between 1 April 1999 and 22 October 1999 in the Beswick area of Manchester in an anti-social manner, that is to say, in a manner that caused, or was likely to cause, harassment, harm or distress to one or more persons not of the same household as himself."
Each application averred:
"That an anti-social behaviour order is necessary to protect persons in the City of Manchester local Government area in which the harassment, alarm or distress was caused, or was likely to be caused by anti-social acts by him."
[10]On 15 December 1999 the applications were heard before Mr Alan Berg, a Stipendiary Magistrate. Mr Berg granted the applications and made orders against each Applicant.[11]The McCann brothers appealed to the Crown Court, pursuant to section 4 of the 1998 Act, on 16 and 17 May. The appeal, in the form of a rehearing, was heard by the Recorder of Manchester sitting with Justices. The appeal was dismissed. The terms of the order made by the court prohibited each Appellant:
"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."
[12]Before hearing the evidence, the Crown Court heard argument and made rulings on preliminary issues. These were:(1) Were the proceedings under English domestic law to be regarded as civil or criminal proceedings?(2) If the proceedings were to be regarded as civil under English domestic law, should they, nevertheless, be treated as criminal proceedings by virtue of the application of Article 6 of the European Convention on Human Rights which was about to be incorporated into English domestic law by the Human Rights Act 1998?[13]The Crown Court held that, as a matter of domestic law, an application under section 1 of the 1998 Act was a civil proceeding. The court further held that the application was a civil proceeding under the jurisprudence of the European Court of Human Rights. Those findings were upheld by the Administrative Court.[14]This appeal raises two closely inter-related questions:(i) how does our domestic law classify these proceedings;(ii) how would the our European Court of Human Rights classify these proceedings?[15]Article 6 of the European Convention on Human Rights provides:
"(1) In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. (2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. (3) Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance of examination of witnesses on his behalf under the same conditions as witnesses against him."
[16]The question of whether particular proceedings are criminal or civil in character is one that has arisen often at Strasbourg in the context of Article 6. The first question that the Strasbourg court asks is how the relevant domestic law of the country concerned classifies the proceedings? Conversely, under the Human Rights Act 1998, it is the duty of this court to interpret the 1998 Act in accordance with Convention and to have regard to the Strasbourg jurisprudence in so doing. In these circumstances, I propose to approach the issue, first, having regard to considerations of our domestic law before turning to consider the implications of the Strasbourg jurisprudence. Domestic Law[17]In the court below, Lord Woolf said (paragraph 3):
"The significance of whether the proceedings are civil or criminal arises because of the difficulty that exists in relation to the proof of the sort of conduct against which section 1 is designed to provide protection. Understandably, in a locality those who are subject to anti-social behaviour are chary about giving evidence in criminal proceedings. It is in particular because of those difficulties that, after a consultation process, the legislation which is contained in Part 1 of the 1998 Act was passed. The object of making the proof of conduct which is anti-social more easy to prove would be defeated if in fact the proceedings were criminal. Then the normal rules of evidence which apply to criminal proceedings would have to be complied with and furthermore the proceedings would be subject to the additional protection provided by Article 6 of the European Convention in relation to criminal proceedings."
[18]The Home Office has published a guidance document which, it emphasises, is non-statutory and should not be regarded as authoritative legal advice. This includes the following commentary:
"The order making process itself is a civil one akin to that for an injunction. The order is aimed at deterring anti-social behaviour and preventing escalation of the behaviour, without recourse to criminal sanctions. Breach of the order, however, is a criminal offence. The process is not suitable for private disputes between neighbours (which are usually civil matters), but is intended to deal with criminal or sub-criminal activity which, for one reason or another, cannot be proven to the criminal standard, or where criminal proceedings are not appropriate. The orders are not intended to replace existing criminal offences, for example in the Public Order Act 1986, but there may be circumstances where they provide alternative means to deal with such behaviour."
[19]It may be that Lord Woolf had this passage in mind when he spoke of an object of the legislation as being to make anti-social behaviour easier to prove. It may be that he had in mind the legislative history. No evidence has been put before us in relation to this, but it is apparent from the Act itself that its purpose is to adopt a novel method of attacking anti-social behaviour. It can properly be implied that the reason for so doing was that the existing provisions of the criminal law were not proving adequate for this purpose.[20]So far as domestic law is concerned, the first argument advanced by the respondent in support of the proposition that the proceedings are civil proceedings relates to the form of procedure laid down by the 1998 Act. Criminal proceedings are begun by arrest, charge and production at court or by the laying of information followed by summons or warrant. Applications for anti-social orders are begun by complaint. That is the method for commencing civil proceedings in Magistrates' Courts (see section 51 of the Magistrates' Courts Act 1980). This is a simple point, swiftly made, but it is a cogent one. The fact that the statutory form is that appropriate for civil rather than criminal proceedings is a powerful indication of Parliament's intention as to the nature of the proceedings.[21]Mr Fulford submitted that the form of the proceedings cannot be conclusive of their nature. In support of this submission he referred us to Botrass v London Borough of Fulham [1995] 16 Cr App Rp (S) 622 where the Divisional Court held that proceedings for committing a nuisance under section 82(1) of the Environmental Protection Act were criminal in character, although commenced by way of complaint. This case does not take Mr Fulford far, however, for the court held at page 629E, after considering the legislative history, that the use of the word "complaint" had been incorporated in the legislation by an oversight. Nonetheless, I would accept that the statutory form of the procedure cannot be conclusive even under English law. One must look at the substance. What are the substantive elements of the proceedings that are said to give them a criminal character?[22]Mr Fulford first referred us to a statement in the opinion of the Privy Council, delivered by Lord Atkin in Proprietary Articles Trade Association v Attorney General for Canada [1931] AC 310 at 324:
"'Criminal law' means 'the criminal law in its widest sense': Attorney-General for Ontario v Hamilton Street Ry. Co (1) [1903] AC 524 . It certainly is not confined to what was criminal by the law of England or of any Province in 1867. The power must extend to legislation to make new crimes. Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the State. The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences?"
[23]I accept the relevance of this reference. It requires one to look for(i) a prohibited act which has(ii) penal consequences.[24]Mr Fulford next referred us to two cases ( Ex parte Alice Woodhall (1888) 20 QB 832 and Amand v The Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147), each of which raised the question of whether a decision whether to issue a writ of habeas corpus was given in a criminal cause or matter. Mr Garside QC, for the Respondent, sought to brush these cases aside on the basis, as I understood him, that the issue in the present case is not whether an application for an anti-social behaviour order is a step in a criminal cause or matter, but whether it is a criminal proceeding. He relied before us, as he had before the Administrative Court, on a passage in the judgment of Lord Bingham CJ in Customs and Excise Commissioners v City of London Magistrates' Court and Others [2000] 4 All ER 763 at 768. In this passage Lord Bingham drew a distinction between criminal proceedings and a criminal cause or matter. I do not find this distinction helpful in the present case. In Customs and Excise v City Magistrates the court was concerned with a proceedings which was an incident in a wider cause or matter. In the present case the application for, and making of, the anti-social behaviour orders have so far constituted discrete proceedings. There has been no sequel to these proceedings. There may never be a sequel to them. On the other hand, they may prove to be a precursor to further proceedings - criminal proceedings for breach of the anti-social behaviour orders.[25]In the Administrative Court Lord Woolf held that where the making of an anti-social behaviour order is followed by proceedings for breach of the order, the two sets of proceedings fall to be separately classified. He held that the proceedings in which the order is made constitute civil proceedings and the proceedings for breach of the order constitute criminal proceedings. He did not expressly consider the question of whether the first set of proceedings was, or was part of, a criminal cause or matter. Had he considered it was, the appropriate response to the request for permission to appeal to this court would have been to refuse it on that ground. It is implicit in his judgment that he did not consider the proceedings that led to the making of the anti-social behaviour orders to be either criminal proceedings or proceedings constituting or forming part of a criminal cause or matter.[26]Mr Fulford has launched a two-stage attack on the judgment of the Administrative Court:(1) if the proceedings leading to the making of anti-social behaviour orders fall to be considered as separate proceedings, they have the character of criminal proceedings and of a criminal cause or matter; but(2) those proceedings should not be considered as separate proceedings but as an initial step in a criminal cause or matter, thereby reinforcing the conclusion that they are criminal proceedings. I propose to consider each stage in turn. The order considered in isolation[27]I agree with Lord Woolf that certain passages in Amand are of assistance in considering whether an application for an anti-social behaviour order is a criminal proceeding or a criminal cause or matter.[28]The first is a passage from the judgment of Lord Wright at page 162 where he said that:
"....if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a 'criminal cause or matter'. The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter ...."
[29]And the further passage in the speech of Lord Porter at 164:
"This does not mean that the matter, to be criminal, must be criminal throughout. It is enough if the proceeding in respect of which mandamus was asked is criminal, eg, the recovery of a poor rate is not of itself a criminal matter, but its enforcement by magistrates by warrant of distress is, and if a cause be stated by them as to their right to enforce it and that the case is determined by the High Court, no appeal lies.... The proceeding from which the appeal is attempted to be taken must be a step in a criminal proceeding, but it need not of itself of necessity end in a criminal trial or punishment. It is enough if it puts the person brought up before the magistrate in jeopardy of a criminal charge...."
[30]These passages emphasise that if a proceeding is to rank as criminal cause or matter the proceeding must have as its possible culmination a punishment such as imprisonment or fine. The same message is given by a passage in the judgment of Lord Bingham in Customs and Excise Commissioners v City Magistrates at paragraph 17:
"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."
[31]Can one identify in the anti-social behaviour order proceedings the two elements of(i) a criminal offence and(ii) a punishment? Mr Fulford submits, first, that the element of a criminal offence is present. An application for an order involves, first, alleging and proving that a person has been guilty of conduct which almost certainly amounts to offences under criminal law. In so submitting, Mr Fulford drew attention to section 4A of the Public Order Act 1986, which provides:
"(1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he- (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b) displays any writing, sign or other visible representation which is threatening abusive or insulting, thereby causing that or another person harassment, alarm or distress."
[32]These ingredients of a criminal offence under the Public Order Act mirror, to a significant degree, the conduct which has to be proved before an anti-social behaviour order can be imposed. But the express ingredient of "threatening, abusive or insulting words or behaviour" does not form part of the definition of anti-social behaviour in the 1998 Act, nor does the express requirement of intent. The range of conduct which can lead to the imposition of an anti-social behaviour order is consequently wider, indeed, so it seems to me, potentially much wider, than that which constitutes a criminal offence under the Public Order Act. Nor does the wide description of anti-social behaviour carry sufficient certainty to form a satisfactory definition of a criminal offence.[33]In this context I note that the original order imposed by the Stipendiary Magistrate included a prohibition on engaging or threatening to engage in "any other anti-social behaviour or other conduct to the annoyance of any person or which is likely to cause alarm, harassment or distress". This part of the order was not reproduced in the order imposed by the Crown Court. I suspect that this was because it was appreciated that this language was not sufficiently specific to identify conduct forming the actus reas of a criminal offence.[34]There is, moreover, a further matter relevant in this context to which Mr Garside has drawn attention. Proof of the conduct specified in section 1(1)(a) of the 1998 Act is not the only precondition to the imposition of an anti-social behaviour order.

(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."
[35]This requirement is at odds with the thesis that section 1(1) of the Act is concerned with the definition of a criminal offence in the context of dealing with crime and punishment.[36]This observation leads me to the consideration of the other limb of criminal proceedings; the question of whether they are liable to culminate in the imposition of a punishment. At this point of the argument I am concerned only with the immediate consequences of the imposition of an anti-social behaviour order, not with the consequences of breach of such an order.[37]Section 1(4) of the 1998 Act provides that an anti-social behaviour order may prohibit the Defendant from doing anything described in the order. The width of that provision is, however, restricted by section 1(6) which provides that the prohibition must be necessary for the purpose of protecting persons in the relevant local government area from further anti-social acts by the Defendant.[38]Mr Fulford submitted that the prohibitions imposed by anti-social behaviour order can have sever consequences to a Defendant. In the present case the order prohibits the Defendants from going into an area of Manchester where they have family and friends. Mr Fulford submitted that such a restriction of liberty operates as a penalty.[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.[40]An order which is, in terms, restricted to the prohibition necessary to protect persons in a defined area from anti-social behaviour, is manifestly an order designed to protect in the future not to punish for past misconduct.[41]The imposition by section 1(6) of an additional obligation to consult before making an order in relation to an adjoining local government area, underlines the fact that we are not here dealing with the imposition of penal sanctions.[42]For these reasons, I find that proceedings leading to the imposition of an anti-social behaviour order, when considered in isolation, contain neither of the essential elements of criminal proceedings under English law and do not themselves constitute a criminal cause or matter.[43]I am supported in this conclusion by the observations of Lord Bingham CJ, sitting in the Divisional Court, in B v Chief Constable of Avon and Somerset Constabulary (5 April 2000). That case concerned a sex offender order made under section 2 of the 1998 Act. One issue was whether the Justices had erred in applying the civil rather than the criminal standard of proof when making the order. In relation to this issue, Lord Bingham said at paragraph 23 of his judgment: "I turn to the first issue, which concerns the standard of proof. It is common ground between the parties that Parliament intended an application for a sex offender order in the magistrates' court to be a civil proceeding and intended the civil standard of proof to apply. But Miss Booth QC for the appellant submits:(1) that, whatever its intention, Parliament has failed to express in the statute as enacted any stipulation that the civil standard of proof shall apply;(2) that, as a matter of domestic law an application for a sex offender order is to be regarded as a criminal proceeding;(3) that if it is not as a matter of domestic law to be regarded as a criminal proceeding, it is a civil proceeding of such a character that the criminal standard of proof should be applied; and(4) that, whatever the position in domestic law, this proceeding would for purposes of the European Convention be regarded as a criminal proceeding and so should attract the criminal standard of proof. As to the first point Miss Booth is correct. Parliament has not expressly enacted what standard of proof shall be applied on an application for a sex offender order. In relation to her second point Miss Booth relies on the severe consequences which may follow for the defendant on the making of a sex offender[44]Mr Fulford sought to distinguish this decision. He pointed out that the first precondition for the imposition of a sex offender order is that the Defendant should be a convicted sex offender. I am not sure which way this distinction cuts when the issue is whether the proceedings constitute a criminal cause or matter. What is more pertinent is that the nature and potential consequences of a sex offender order closely mirror those of an anti-social behaviour order. I consider that the observations of Lord Bingham can properly be applied to the present case. Mr Fulford stated that, if necessary, he would argue that B was wrongly decided. In my judgment it was correctly decided. The order in its wider context[45]Mr Fulford submitted that the anti-social behaviour order should not be considered in isolation, but in the context of the consequences that might flow from the breach of the order by virtue of section 1(10) of the 1998 Act. These were undoubtedly penal, with a maximum sentence of five years' imprisonment. Furthermore, section 1(11) precluded, when there was a breach of the order, the imposition of a conditional discharge. Mr Fulford submitted that the effect of the legislative scheme was that the original anti-social behaviour was an element, indeed the most significant element, of the criminal conduct leading to a conviction under section 1(10).[46]To my mind, this was the most cogent argument advanced in support of this appeal. Orders such as those imposed under sections 1 and 2 make those against whom they are made subject to the risk of criminal sanctions in respect of conduct which would not otherwise be criminal. In this respect there is an analogy, as Lord Bingham observed in B , with an injunction ordered in civil proceedings, but the analogy is not exact. Are these potential criminal consequences such that section 1(1) of the Act must be interpreted as giving rise to a criminal process subject to the criminal rules of evidence? No precedent drives one to this conclusion. There is no precedent to an anti-social behaviour order.[47]I return full circle to the intention of Parliament as deduced from the statutory language and the object of the legislation. My conclusion from these is that it was the intention of Parliament that an application for anti-social behaviour order should be a civil proceeding, subject to the more relaxed rules of evidence applicable to such proceedings. That intention of Parliament is consistent with the substantive provisions of the Act that I have just analysed. Thus, looking at the matter through the eyes of English domestic law, I conclude that these proceedings are civil proceedings.[48]That conclusion, however, now has to be tested for compatibility with the European Convention on Human Rights in the light of the Strasbourg jurisprudence. Human Rights[49]In relation to this area of the appeal, I acknowledge the assistance that the court has received from Miss Simor, instructed by the National Council for Civil Liberties, to whom we gave permission to intervene. I would observe at the outset that the exercise of the powers conferred by section 1(1) of the 1998 Act carries with it the risk of infringing a number of Articles of the European Convention. If this risk is to be avoided, the principle of proportionality must be carefully observed. But we are here concerned not with a wider attack on the order made, but with a question whether Article 6(2) and (3) of the Convention applied to the proceedings in which the order was made.[50]Mr Fulford and Miss Simor referred us to a substantial volume of Strasbourg jurisprudence in relation to this issue. As is the practice in this jurisprudence, principles ones established tend to be re-enunciated verbatim in subsequent decisions. I propose to be eclectic in my reference to these authorities.[51]The line of authorities starts with Engel & Ors v The Netherlands (No 1) (1976) 1 EHRR 647 . There the relevant issue was whether proceedings in a military court against soldiers for disciplinary offences involved criminal charges within the meaning of Article 6(1). In respect of this issue, the court held at paragraph 82:
"In this connection, it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States. The very nature of the offence is a factor of greater import. When a serviceman finds himself accused of an act or omission allegedly contravening a legal rule governing the operation of the armed forces, the State may in principle employ against him disciplinary law rather than criminal law. In this respect, the court expresses its agreement with the Government. However, supervision by the court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the criminal sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so. It is on the basis of these criteria that the court will ascertain whether some or all of the applicants were the subject of a 'criminal charge' within the meaning of Article 6(1)."
[52]This decision identified three principal criteria which it has become the European Court's practice to consider when deciding whether proceedings have a criminal character:(1) the manner in which the domestic state classifies the proceedings;(2) the nature of the offence; and(3) the character of the penalty to which the proceedings may give rise.[53]As far as the first criterion is concerned, this normally carries comparatively little weight. As the European Court observed in Ozturk v Germany 6 (1984) EHRR 409 at paragraphs 49 and 52:
"49. If the Contracting States were able at their discretion, by classifying an offence as 'regulatory' instead of criminal, to exclude the operation of the fundamental clauses of Articles 6 and 7, the application of these provisions would be subordinated to their sovereign will. A latitude extending thus far might lead to results incompatible with the object and purpose of the Convention. .... 52. ....the indications furnished by the domestic law of the respondent State have only a relative value ... the very nature of the offence, considered also in relation to the nature of the corresponding penalty represents a factor of appreciation of greater weight."
[54]When one examines the cases that followed Ozturk , it becomes apparent that neither the offence nor the penalty has to be particularly serious for the European Court to classify the proceedings as criminal. In Benham v United Kingdom (1996) 22 EHRR 293 , the Court held that the proceedings for non-payment of the community charge were criminal.[55]The Court noted at page 323 that:
".... the law concerning liability to pay the community charge and the procedure upon non-payment was of general application to all citizens, and that the proceedings in question were brought by a public authority under statutory powers of enforcement. In addition, the proceedings had some punitive elements. For example, the magistrates could only exercise their power of committal to prison on a finding of wilful refusal to pay or of culpable neglect. Finally, it is to be recalled that the applicant faced a relatively severe maximum penalty of three months' imprisonment, and was in fact ordered to be detained for 30 days. Having regard to these factors, the Court concludes that B was 'charged with a criminal offence' for the purposes of Article 6(1) and (3). Accordingly, these two paragraphs of Article 6 are applicable."
[56]In Lauko v Slovakia (judgment 2 September 1988), of which the provisional report is in Reports 1998-VI, the Court observed at page 12 that the three criteria were not cumulative and that it sufficed that the offence in question should, by its nature, be criminal from the point of view of the Convention, or should have made the person concerned liable to a sanction which, by its nature and degree of severity, belonged in general to the criminal sphere. At the same time a cumulative approach could be adopted where the separate analysis of each criterion did not make it possible to reach a clear conclusion as to the existence of a criminal charge.[57]That case concerned proceedings in Slovakia against a man for making an accusation against a family of causing a nuisance without justification. This was classified as a minor offence under the relevant statute in Slovakian law, namely, "a wrongful act which interferes with or causes danger to the public interest and is expressly classified as a minor offence". The sanctions that could be imposed were:(a) reprimand;(b) fine;(c) prohibition on the exercise of a certain activity; or(d) confiscation of an object or a combination of (b), (c) and (d). The Court held that the general character of the legal provision infringed, together with the detriment and punitive purpose of the penalty, sufficed to show that the offence was criminal in nature so that the relative lack of seriousness of the penalty was not material.[58]The case that comes closest to the present case is Steel and Others v United Kingdom (1988) 28 EHRR 603, where a number of Applicants had been arrested in different circumstances and each charged with breach of the peace contrary to common law. Under the Magistrates' Court Act 1980, the court can bind over a Defendant to keep the peace, if the Defendant consents, and impose a sentence of up to 6 months' imprisonment if the Defendant refuses to consent to a bind over. The procedure is initiated by a complaint and a bind over order does not constitute a criminal conviction.[59]The opinion of the European Commission appears at page 616 of the report at paragraph 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 enforce, and the punitive element derives from the fact that if a person does not agree to be bound over, he will be imprisoned for a period of up to 6 months. 68. In these circumstances, the Commission considers the charge of breach of the peace to be a criminal offence and binding over proceedings to be 'criminal' in nature, for the purposes of Article 6 of the Convention."
[60]At page 635 the Court agreed (paragraph 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.

(c) "

[61]On behalf of Liberty, Miss Simor made the following written submission:
"Liberty submits that the position under section 1 of the Act is indistinguishable from proceedings in which an individual is bound over to keep the peace. A finding of anti-social behaviour leading to the imposition of an ASBO [anti-social behaviour order] is a finding of a breach of a 'public duty'. It would be considered by the public at large to be a finding of culpability for 'criminal' conduct. The police have power of arrest in respect of anti-social conduct; put at its lowest the power to arrest for breach of the peace or risk of causing breach of the peace. The risk of 'arrest' for such conduct and subsequent proceedings has a 'deterrent' effect. The punitive element is arguably greater than in the case of a bind over to keep the peace because an ASBO can extend beyond a prohibition of anti-social behaviour and include additional prohibited conduct that would otherwise be lawful. Moreover, a refusal to comply with an ASBO can result in imprisonment for up to five years, while a refusal to be bound over can only result in imprisonment for six months. Its 'criminal nature' can also be seen in the fact that failure to attend the hearing before the Magistrates renders the Defendant liable to arrest."
[62]I do not agree that proceedings under section 1 of the 1998 Act are indistinguishable from those in which an individual is bound over to keep the peace for the following reasons: 1. There is no power to arrest for the purpose of proceedings under section 1. The fact that the failure to respond to a summons to attend the hearing before the Magistrates can render a Defendant liable to arrest, does not demonstrate the criminal nature of the proceedings. It demonstrates the appropriate response to a failure to comply with a court summons. 2. While the anti-social conduct that is one precondition to proceedings under the 1998 Act can be categorised as a breach of public duty, that conduct does not of itself justify the commencement of proceeding under section 1. The necessity to protect persons in a particular local government area also has to be demonstrated. 3. Proceedings under section 1 of the 1998 Act cannot, themselves, result in the imposition of a sentence of imprisonment or of any penalty. Contrast proceedings for breach of the peace in which, as the Commission remarked in Steel , the punitive element derives from the fact that if a person does not agree to be bound over he will be liable to be sent to prison for a period of up to 6 months.[63]Applications for anti-social behaviour orders have the procedural form of civil proceedings under English law. Neither of the other two criminal criteria for which the Strasbourg looks can be satisfactorily demonstrated. Offensive conduct is a prerequisite to proceedings under section 1, but not the only one. The order, while impacting adversely on the defendant, is not imposed as a punishment. In short, anti-social behaviour orders are not about crime and punishment, they are about protection of an identified section of the community. I do not consider that, applying the Strasbourg jurisprudence, they are criminal proceedings.[64]Lord Bingham in B dealt with Article 6 of the Convention somewhat more briefly than have I. He said at paragraph 28:
"Miss Booth submitted, rightly, that the European Court of Human Rights does not regard itself as bound by the classification of proceedings in domestic law. In deciding whether there is a criminal charge for purposes of Article 6 of the Convention the court has regard to the classification of proceedings in domestic law, but also to the nature of the offence itself and the severity of the penalty which may be imposed: see Lester and Pannick Human Rights Law and Practice (1999) paragraph 4.6.13. Here the proceedings are in my judgment classified as civil in domestic law. No offence is charged and the making of an order does not depend on proof of any offence. No penalty may be imposed. I am aware of no case in which the European Court has held a proceeding to be criminal even though an adverse outcome for the defendant cannot result in any penalty."
Lord Bingham's reasoning reflects my own.[65]Anti-social behaviour orders have serious implications. While, technically, the civil standard of proof applies to applications for them, that standard is a flexibile one. In B Lord Bingham observed at paragraph 31:
"In a serious case such as the present the difference between the two standards is, in truth, largely illusory. I have no doubt that, in deciding whether the condition in section 2(1)(a) is fulfilled, a magistrates' court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard. In deciding whether the condition in section 2(1)(b) is fulfilled the magistrates' court should apply the civil standard with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them."
[66]In his judgment in the present case, the Recorder of Manchester referred to this passage in Lord Bingham's judgment. He commented:
"Having considered this authority and the arguments, we are satisfied that the standard to be applied is the civil standard, but how are we to give effect to the guidance of the Lord Chief Justice, that is to apply the civil standard with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them. This is not an easy task and we have brought to bear the judicial experience of all three of us which, it has to be said, is considerable, and we have concluded that in reality it is difficult to establish reliable gradations between a heightened civil standard commensurate with seriousness and implications of proving the requirements, and the criminal standard. And we have concluded that for the purposes of this particular case, and we do not intend to lay down any form of precedent, so I emphasise that for the purposes of this particular case, we will apply the standard of being satisfied so that we are sure that the conditions are fulfilled before we would consider the making of an order in the case of each appellant severally, because, of course, each case must be considered separately."
[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.[68]For the reasons that I have given, I would dismiss this appeal.

LORD JUSTICE KENNEDY: I agree.

LORD JUSTICE DYSON: I also agree.

order

the duty to notify under the 1997 Act on pain of criminal penalty; the restriction on a defendant's freedom of movement and activity; and the possible penalty of up to five years' imprisonment on proof that the order has been broken. These are all important and legitimate considerations, but they do not persuade me that, as a matter of English domestic law, this is to be regarded as a criminal proceeding. Under that law a criminal proceeding is one in which a prosecutor accuses a defendant of committing a specific crime, on conviction of which the defendant will be susceptible to punishment. Here the application is made by a chief officer of police, but he is not acting as a prosecutor. The defendant is not accused of committing any specific crime. If the outcome of the application is adverse to the defendant, he does not become susceptible to punishment. It is true that in section 18(1)(a) of the Supreme Court Act 1981 the expression 'criminal cause or matter' has been interpreted more widely, so as to cover matters such as extradition. In my judgment, however, to assess the character of the present proceedings it is necessary to look more closely into the nature of the issue to be decided by the magistrates' court. Part I of the 1998 Act is concerned with the prevention of crime and disorder, not the trial and punishment of those convicted. Magistrates' court proceedings are initiated under the section by complaint, which is the initiating process for civil matters in the magistrates; court: see section 51 of the Magistrates' Courts Act 1980. The condition provided in section 2(1)(b) of the 1998 Act is in my judgment appropriate as a basis for administrative action, not criminal conviction. Furthermore, the problem to which section 2 is directed is not the detection, apprehension, trial and punishment of those who have committed crimes, but the restraint of those who have a proven record of sex offending and whose conduct founds a reasonable belief that a measure of restraint is necessary to protect members of the public against the risk of serious harm caused by further sex offending. There is no room for doubt about the mischief against which this legislation is directed, which is the risk of re-offending by sex offenders who have offended in the past and have shown a continuing propensity to offend. Parliament might have decided to wait until, if at all, the offender did offend again and then appropriate charges could be laid on the basis of that further offending. Before 1998 there was effectively no choice but to act in that way. But the obvious disadvantage was that, by the time the offender had offended again, some victim had suffered. The rationale of section 2 was, by means of an injunctive order, to seek to avoid the contingency of any further suffering by any further victim. It would also of course be to the advantage of a defendant if he were to be saved from further offending. As in the case of a civil injunction, a breach of the court's order may attract a sanction. But, also as in the case of a civil injunction, the order, although restraining the defendant from doing that which is prohibited, imposes no penalty or disability upon him. I am accordingly satisfied that, as a matter of English domestic law, the application is a civil proceeding, as Parliament undoubtedly intended it to be." Order: Appeal dismissed. Leave to appeal to the House of Lords refused. Community Legal Service Funding of applicants' costs.

Cited in 1 later judgment