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Please find the papers attached. Could you please provide us with your son's email address as
well too.
Regards.
36,
Simon Cordell’s Skeleton Argument (2) Pdf
Page: 820
R (McCann) v Manchester Crown Ct (HL(E))
Lord Hope of Craighead
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) r EHRR
647, 678-679, 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 B 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.”

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, 353, 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 1 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.

The first criterion: classification in domestic law
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, 1010-1011, para 57 the court observed that the criteria are alternative and ^
not cumulative: see also Garyfallou AEBE v Greece (1997) EHRR 344. As it was put in
Ozturk 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 ion, 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. 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, d hey 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

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