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behaviour orders in Scotland strongly suggests that its intention was that applications for
these orders which were made in England and Wales should be made by way of civil
proceedings also. The grounds on which these applications may be made in both jurisdictions
are similar, and the consequences of the making of an anti-social behaviour order are the
same. In neither jurisdiction does an anti-social behaviour order have them. character of a
punishment for an offence such as a fine or imprisonment. The fact that an anti-social
behaviour order has been made against him does not appear on the person’s criminal record.
On the contrary, the order is described in both section 1(4) and section 1:9(3) as a prohibition.
In this respect it has the character of a civil injunction or, in Scotland, a civil interim interdict.
A criminal sanction is available in both jurisdictions if the person is convicted of having
breached the order: see section 1 (Ro) for England and Wales and section 1 for Scotland. But
the proceedings which must be brought in the event of a breach are separate proceedings.
Overall, the scheme is so similar in both jurisdictions that the intention of Parliament as to the
nature of the proceedings under which the application was to be made can be taken, in the
absence of any contrary indication, to have been the same.
127,
Simon Cordell’s Skeleton Argument (2) Pdf
79
R (McCann) v Manchester Crown Ct (HL(E)
[2003] AC
Lord Hope of Craighead
The second point is that it would not be inconsistent with a finding that the proceedings under
section I(I) of the Crime and Disorder Act 1998 were civil proceedings for your Lordships to
hold that the standard of proof to be applied was that which is required in criminal
proceedings. In Constanda v M r 997 SC 217 the ground on which the child had been
referred to a children’s hearing was that he was exposed to moral danger in terms of section 3
2. (2.) (b) of the Social Work (Scotland) Act 1968. The Court of Session held that, as the
whole substratum of the ground of referral was that the child had performed certain acts
which constituted criminal offences, the commission of these offences had to be proved to the
criminal standard. This was despite the fact that the proceedings before the sheriff were civil
proceedings, and in the absence of any rule laid down by the Act which required the criminal
standard to be applied in any case other than where the child had been referred under section
32(2) ^) on the ground that he had committed an offence.
Classification under the Convention
The fact that the proceedings are classified in our domestic law as civil proceedings is not
conclusive of the question whether they are of that character for the purposes of article 6 of
the Convention. It provides no more than a starting point, as the question has to be examined
in the light of the common denominator of the legislation of the contracting states: Engel v
The Netherlands (No 1) 1 EHRR 647, 678, para 82.
The examination must begin with the wording of article 6 itself, and in particular with the
opening sentence of article 6(1). It provides:
“In the determination of his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law.”
Then there are the opening words of article 6(3) which provides chat everyone “charged with
a criminal offence” is to have the minimum rights which are set out in that article.
There are two aspects of the wording of article 6 that I think are worth noting before I turn to
the authorities. The first is that, for article 6 to apply at all, the proceedings must be capable
of being classified either as proceedings for the determination of the person’s “civil rights and
obligations” or as proceedings for the determination of a “criminal charge” against him. Rut

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