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R (McCann) v Manchester Crown Ct (HL (E))
Lord Hope of Craighead
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
Lattko v Slovakia 33 EHRR 9514, ion, 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 6 “a punitive
character, which is the customary distinguishing feature of criminal penalties”. In Guzzardi v
Italy (3980) 3 EHRR 333, 369-37°, para o 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 C article. see also Raimondo v Italy
18 EHRR 137. In M v Italy (199r) 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 I.J 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]
QB 1 2T 3.

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 Steel v United Kingdom 28 FJIRR 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 foi the
defendants that that decision is directly in point in this case and indistinguishable, and that
contention was strongly supported by Liberty.

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] rWLRro84,
1100H—1 to b. 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 orders must be shown to be necessary for the purpose of
protecting people against further such behaviour by him. This is not a distinction of form
rather than
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