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Simon Cordell’s Skeleton Argument (2) Pdf
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R (McCann) v Manchester Crown Ct (HL(E))
Lord Hope of Craighead
substance at all. The last criterion is of fundamental importance to the A decision as to the
prohibitions that are required. And in contrast to proceedings for breach of the peace, which
can lead to the immediate imposition of a sentence of imprisonment under section 11.5(3) of
the Magistrates’ Courts Act 1980 for up to six months if the defendant fails to comply with
the order because he does not agree to enter into a recognisance to keep the peace or to be of
good behaviour, proceedings under section 1 of g the Crime and Disorder Act 1998 cannot in
themselves result in the immediate imposition of a penalty.
The third criterion: is an antisocial behaviour order a penalty
This question looks to the nature of the penalty. But here again there is a preliminary question
that has to be examined. Is an anti-social behaviour order a penalty at all? The essential
characteristics of an antisocial behaviour order are that the defendant is prohibited from doing
something. The purpose of the prohibition is to protect people in the area to which the order
relates. Section 1(6) of the Crime and Disorder Act 1998 provides that the prohibitions that
may be imposed are those necessary for the purposes of protecting persons from further anti-
social conduct that is, from conduct which will cause, or is likely to cause, them harassment,
alarm D or distress. It is true that no limits are set as to the prohibitions that may he imposed,
so long as they are found to be necessary. The defendants say that prohibitions which banish
the defendant from an area of the city where he lives, or which expose him to harsher
penalties than he would normally face if he commits an offence, have all the characteristics of
a penalty for the antisocial acts which he is found to have committed.
An anti-social behaviour order may well restrict the freedom of the defendant to do what he
wants and to go where he pleases. But these restrictions are imposed for preventive reasons,
not as punishment. 1 he tests that has to be applied under section 1(6) is confined to what is
necessary foi the purpose of protecting persons from further anti-social acts by the defendant.
The court is not being required, nor indeed is it permitted, to consider what an appropriate
sanction would be for his past conduct. Moreover, while the court may restrict the
defendant’s liberty where this is shown to be necessary to protect persons in the area from
further anti-social acts by him, it may not deprive him of it nor may it impose a fine on him.
Conclusion on classification
For these reasons I do not think that any of the criteria for a finding c that proceedings under
section r of the Crime and Disorder Act 1998 have the character of criminal proceedings for
the purposes of article 6 are satisfied. The consequence of so holding is of fundamental
importance to the future of this legislation. Cases such as Unterpertinger v Austria (1986) 13
FURR .175, Kostovski v The Netherlands (1989) 1.1 F.HRR 434 and Saidi v France
(1993) 17 EHRR 2.51 illustrate the reluctance of the Staatsburg court to accept that the use of
hearsay evidence is compatible with a defendant’s right under article 6(3)(d) to examine or
have examined witnesses against him. But I would hold that article 6(3) does not apply to
these proceedings and that the rules of evidence that are to be applied are the civil evidence
rules. This means that hearsay evidence under the Civil
PART 5 © SWEET & MAXWELL
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Simon Cordell’s Skeleton Argument (2) Pdf
Page: 6
R (McCann) v Manchester Crown Ct (HL(E)
Lord Hope of Craighead

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