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Lord Steyn
A Court at Manchester [2001] t 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 I.(T) magistrates have to
decide, on a case-by-case basis, what standard of proof to 0 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.
V! The social problem
Before the issues can be directly addressed it is necessary to sketch the social problem which
led to the enactment of section T{I) and the
E 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, F 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
1.0 to T,8 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. Ibis was the social problem which section 1 was
designed to address.
• The legislative technique
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
115,
Simon Cordell’s Skeleton Argument (2) Pdf
[2003] 1 AC
67
R (McCann) v Manchester Crown Ct (HL(E)
Lord Steyn

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