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point out that the definition of “anti-social behaviour” in section 1(1) of the Crime and
Disorder Act 1998 is modelled on
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Simon Cordell’s Skeleton Argument (2) Pdf
Page: 3
R (McCann) v Manchester Crown Ct (HL(E))
Lord Hope of Craighead
A “harassment” in the Protection from Harassment Act 1997, which is a criminal offence
under section z 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 3 998 should be construed in domestic law as 6 criminal proceedings
in the absence of an express provision in the legislation to the contrary.
• 1 would reject these arguments. The question is whether, as it was put in Engel v The
Netherlands (No 1) 1 EHRR 647, 678, para 81, 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), at 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”. I hat is not the 0 purpose for which proceedings for
the imposition of an anti-social behaviour order are brought. Their purpose is to protect the
public from further antisocial 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), at p 678, para 8z. Section z 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 arc civil proceedings and not criminal.
The second criterion: the nature of the offence
• 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, 1 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 tire 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 H to be examined. The court
looks behind the appearances and investigates the realities of the procedure: Deweer v
Belgium (1980) z EHRR. 439, 438, para 44.
• The grounds for making the application involve making an allegation against the defendant
that he has acted in a manner which may
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