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established is that the person has acted “in an anti-social manner, that is to say, in a manner
that caused or was likely to cause harassment, alarm or distress to one or more persons not of
the same household as himself’. This is an objective inquiry: men’s rea as an ingredient of
particular offences need is not proved. It is unnecessary to establish criminal liability. The
true purpose of the proceedings is preventative. This appears from the heading of Part I. It is
also clearly brought out by the requirement of section I(I)(b}:
“that such an order is necessary to protect persons in the local government area in which the
harassment, alarm or distress was caused or was likely to be caused from further anti-social
acts by him. It follows that the making of an anti-social behaviour order is not a conviction or
condemnation that the person is guilty of an offence. It results in no penalty whatever. It
cannot be entered on a defendant’s record as a conviction. It is also not a recordable offence
for the purpose of taking fingerprints: see section 27 of the Police and Criminal Evidence Act
1:984.
Counsel for the defendants sought to avoid the consequences of this analysis by various
arguments. First, they argued that the procedure leading to the making of an order under
section 1(4) must be considered together with the proceedings for breach under section
1(1.0), the latter being undoubtedly criminal in character. I do not agree. These are separate
and independent procedures. The making of the order will presumably sometimes serve its
purpose and there will be no proceedings for breach. It is
in principle necessary to consider the two stages separately.
Counsel next made a comparison between the requirements of section 1 and the ingredients
of an offence under section 4A of the Public Order Act 1986. They submitted that there was a
striking similarity. This proposition was not made good. It is sufficient to point out that
section 4A of the 1986 Act requires proof of men’s rea whereas section 1(1) does not. In any
event, this is a barren exercise. It elides the critical point that section 1 itself does not prohibit
any act. An anti-social behaviour order under C section 1(4) does prohibit conduct specified
in the order but by itself does not amount to a condemnation of guilt, ft results in no penal
sanction.
Counsel for the defendants also emphasised the consequences which an anti-social behaviour
order may have for a defendant. This is an important factor. Section 1 is not meant to be used
in cases of minor unacceptable behaviour but in cases which satisfy the threshold of
persistent and serious anti-social behaviour. Given the threshold requirements of section 1 (1)
it can readily be accepted that the making of such an order against a person inevitably reflects
seriously on his character. In response to this argument Lord Phillips of Worth Matravers MR
observed 1200 t] 1: W I R 1084,1094-1095, para 39:
118,
Simon Cordell’s Skeleton Argument (2) Pdf
12003] I AC
70
R (McCann) v Manchester Crown Ct (HL(E))
Lord Steyn
“Many injunctions in civil proceedings operate severely upon those against whom they are
ordered. In matrimonial proceedings a husband may be ordered to leave his home and not to
have contact with his children. Such an order may be made as a consequence of violence
which amounted to criminal conduct. But such an order is imposed not for the purpose of
punishment but for protection of the family. This demonstrates that, when considering
whether an order imposes a penalty or punishment, it is necessary to look beyond its
consequence and to consider its purpose.”
Similarly, Mareva injunctions, which are notified to a defendant’s bank, may have serious
consequences. An Anton Filler order operates in some ways like a civil search warrant and

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