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small in number, sometimes effectively silenced communities, bear of the consequences of
complaining to the police dominated the thoughts of people: reporting incidents to the police
entailed a serious risk of reprisals.
The criminal law by itself offered inadequate protection to them. There was a model available
for remedial legislation. Before 1998 Parliament had, on a number of occasions, already used
the technique of prohibiting by statutory injunction conduct deemed to be unacceptable and
making a breach of the g injunction punishable by penalties. It may be that the Company
Directors Disqualification Act 1986 was the precedent for subsequent use of the technique.
The civil remedy of disqualification enabled the court to prohibit a person from acting as a
director: section 1(1) of the 1986 Act: R v Secretary of State for Trade and Industry, Ex p
McCormick [1998] BCC 379, 395C-F; Official Receiver v Stern [2.000] 1 WLR 2.2.30.
Breach of the order made available criminal penalties: sections 13 and 14 of the 1986 Act. In
1994 c Parliament created the power to prohibit trespassory assemblies which could result in
serious disruption affecting communities, movements, and so forth: see section 70 of the
Criminal Justice and Public Order Act 1994 which amended Part II of the Public Order Act
1986 by inserting section 14A. Section 14B which was introduced by the 1994 Act, created
criminal offences in respect of breaches. In the field of family law, statute created the power
to make residence orders, requiring a defendant to leave a dwelling house; or non-molestation
orders, requiring a defendant to abstain from threatening an associated person: sections 3 3
(3)(4) and 42 of the Family Law Act 1996. The penalty for breach is punishment for
contempt of court. The Housing Act 1996 created the power to grant injunctions against
anti-social behaviour: section 152; section 153 (breach). This was, however, a power ^
severely restricted in respect of locality. A broadly similar technique was adopted in the
Protection from Harassment Act 1997: section 3; section 3(6) (breach). Post-dating the Crime
and Disorder Act 1998, which is the subject matter of the present appeals, Parliament adopted
a similar model in sections 14A and 14J (breach) of the Football Spectators Act T989,
inserted by section 1(1) of and Schedule 1 to the Football (Disorder) Act 2000: Gough v
Chief Constable of the Derbyshire Constabulary [2002J QB 459. In all these cases the
requirements for the granting of the statutory injunction depend on the criteria specified in the
particular statute. The unifying clement is, however, the use of the civil remedy of an
injunction to prohibit conduct considered to be utterly unacceptable, with a remedy of
criminal penalties in the event of disobedience.
There is no doubt that Parliament intended to adopt the model of a civil remedy of an
injunction, hacked up by criminal penalties, when its enacted section 1 of the Crime and
Disorder Act 1998. The view was taken that the proceedings for an anti-social behaviour
order would be civil and would not attract the rigour of the inflexible and sometimes absurdly
technical hearsay rule which applies in criminal cases. If this supposition was wrong, in the
sense that Parliament did not objectively achieve its aim, it would inevitably follow that the
procedure for obtaining anti-social behaviour orders is completely or virtually unworkable
and useless. If that is what the law decrees, so be it. My starting point is, however, an initial
scepticism of an outcome which would deprive communities of their fundamental rights: sec
Brown v Stott I2003] 1: AC 681, per Lord
116,
Simon Cordell’s Skeleton Argument (2) Pdf
68
[2003] 1 AC
R (McCann) v Manchester Crown Ct (HL(E)
Lord Steyn
Bingham of Cornhill, at p 704E-F; per Lord Hope of Craighead, at pp 718G, 719B-C; my
judgment, at p 707G-H.

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