R (McCann) v Crown Court at Manchester (Clingham v Kensington and Chelsea Royal London Borough Council)

Proceedings for an anti-social behaviour order under section 1 of the Crime and Disorder Act 1998 are civil proceedings under domestic law and for the purposes of article 6 of the European Convention on Human Rights. The order protects the community from future conduct. It neither determines a criminal charge nor imposes punishment for past conduct.

The civil standard of proof therefore applies. Its flexibility nevertheless requires strictness appropriate to the seriousness and consequences of the allegations. In most anti-social behaviour order cases, the appropriate standard will for practical purposes be indistinguishable from proof beyond reasonable doubt.

The Chief Constable of Greater Manchester obtained anti-social behaviour orders against three children under section 1 of the Crime and Disorder Act 1998. The magistrates’ orders were upheld on a rehearing in the Crown Court. That court treated the applications as civil proceedings, admitted hearsay under civil evidence rules and applied a standard equivalent in practice to the criminal standard.

The Administrative Court dismissed an application for judicial review. The children appealed, contending that the applications were criminal proceedings under domestic law or under article 6 of the European Convention on Human Rights. The questions were whether the proceedings were civil or criminal and, consequently, which evidential rules and standard of proof applied.

1. Appeal dismissed unanimously. Lord Phillips MR, with whom Kennedy and Dyson LJJ agreed, held that applications for anti-social behaviour orders are civil proceedings under domestic law and for the purposes of article 6 of the European Convention on Human Rights.

2. Under domestic law, a criminal proceeding ordinarily entails an accusation of a criminal offence and the possibility of punishment. An application under section 1 of the Crime and Disorder Act 1998 has neither feature. It is commenced by complaint, the civil initiating process in a magistrates’ court. Anti-social conduct is not alone sufficient: the applicant must also prove that an order is necessary to protect persons from further anti-social acts.

3. The restrictions imposed by an order may be severe, but their character depends on their purpose. Section 1(6) confines the prohibitions to those necessary for future protection. They are therefore protective rather than punitive. A later breach is a separate criminal offence under section 1(10); the possibility of those later proceedings does not convert the original application into a criminal proceeding or criminal cause or matter.

4. The same conclusion followed from the autonomous Convention classification. The relevant considerations were domestic classification, the nature of the alleged offence and the nature and severity of the possible penalty. Domestic classification was civil; no offence was charged; and the application itself could produce neither imprisonment nor another penalty. Binding-over proceedings considered in Steel v United Kingdom were materially different because refusal to be bound over could itself lead to imprisonment.

5. The civil standard of proof applied. That standard is flexible and must be applied with strictness proportionate to the seriousness of the allegations and the consequences of an order. The Crown Court had required proof so that it was sure. Lord Phillips MR commended that course as likely to be appropriate in most anti-social behaviour order cases.

6. The powers must also be exercised with careful observance of proportionality because an order may risk interference with several Convention rights. That wider issue did not determine this appeal. Leave to appeal to the House of Lords was refused.

1. Court of Appeal: Dismissed the appeal and upheld the Administrative Court’s classification of the proceedings as civil. Leave to appeal to the House of Lords was refused.
2. Administrative Court: Lord Woolf CJ and Rafferty J dismissed the application for judicial review of the Crown Court’s orders.
3. Crown Court: The Recorder of Manchester, sitting with lay magistrates, dismissed the appeals by rehearing and made anti-social behaviour orders.
4. Manchester City Magistrates’ Court: A stipendiary magistrate granted the Chief Constable’s applications and made anti-social behaviour orders against each applicant.