R (McCann) v Crown Court at Manchester

The House held that applications under section 1 of the Crime and Disorder Act 1998 for anti-social behaviour orders are civil proceedings in domestic law and do not involve a "criminal charge" for the purposes of article 6(2) and (3) of the European Convention on Human Rights. Applying the Engel criteria, the court emphasised that the orders are preventive civil prohibitions rather than convictions or penalties. As a consequence hearsay evidence is admissible under the Civil Evidence Act 1995 and the Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999, subject to the court's assessment of weight and reliability. Nevertheless, because of the seriousness of the allegations, the House ruled that magistrates should apply the criminal standard of proof (that they are sure) when determining whether the defendant has acted in an anti-social manner under section 1(1)(a); the necessity inquiry under section 1(1)(b) is evaluative. The House dismissed the appeals in the McCann cases and declared it had no jurisdiction to hear the Clingham appeal.

The appeals concerned applications under section 1 of the Crime and Disorder Act 1998 by local authorities and the chief constable for anti-social behaviour orders against young persons. The cases raised three principal issues: (1) whether proceedings to obtain such orders are criminal or civil in domestic law; (2) whether they constitute a "criminal charge" under article 6 of the European Convention; and (3) evidential and standard of proof questions, specifically the admissibility of hearsay and whether the civil or criminal standard of proof applies.

The facts: in Clingham the Royal Borough relied mainly on police and trust records containing anonymous and non-disclosed complaints and computerised police reports; in McCann the Chief Constable sought banning and prohibitory orders against three brothers using both direct eyewitness and hearsay police material. At first instance and on intermediate appeals the proceedings were treated as civil in character, but the admissibility of hearsay and the appropriate standard of proof were disputed and pursued to the House of Lords.

The House set out the legal framework and applied the threefold Engel test (domestic classification, nature of the offence, and severity of the penalty). It emphasised Parliament's intention to create a civil injunctive remedy, noted that an anti-social behaviour order imposes prohibitions for protective purposes and does not itself impose a penalty or conviction, and distinguished cases where immediate penal consequences arise (for example binding-over). It concluded that the proceedings are civil for domestic law and for article 6: therefore hearsay may be admitted under the Civil Evidence Act 1995 and the 1999 hearsay rules, though the court must assess weight and reliability (section 4 of the 1995 Act provides relevant safeguards). Because of the seriousness of the allegations and their consequences, the House directed that the magistrates must apply the criminal standard of proof (be sure) when deciding whether the defendant has acted in an anti-social manner under section 1(1)(a); the necessity inquiry under section 1(1)(b) is evaluative rather than a question of proof.

Procedural posture and relief sought: the McCann defendants appealed orders made by magistrates and affirmed by the Crown Court and the Divisional Court; the Clingham appellant appealed from a Divisional Court ruling. The House dismissed the McCann appeals and declared that it had no jurisdiction to hear the Clingham appeal. The decision preserves the use of hearsay in ASBO applications while imposing a strict standard of proof on the factual element that the defendant acted in an anti-social manner.

Appeals in the McCann cases were dismissed; the House declared it had no jurisdiction to hear the Clingham appeal. The court held that: (1) applications under section 1 Crime and Disorder Act 1998 are civil proceedings in domestic law and do not amount to a "criminal charge" under article 6(2) and (3); (2) hearsay evidence is admissible under the Civil Evidence Act 1995 and the Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999, subject to assessment of weight and reliability; and (3) because of the seriousness of the allegations, magistrates must apply the criminal standard of proof (the requirement to be sure) when determining whether the defendant has acted in an anti-social manner under section 1(1)(a).

Appeals from decisions at magistrates' court and Crown Court levels progressed through the Divisional Court and the Court of Appeal (Civil Division) to the House of Lords. Reported intermediate authorities include R (McCann) v Crown Court at Manchester [2001] 1 WLR 358 (Divisional Court) and R (McCann) v Crown Court at Manchester [2001] 1 WLR 1084 (Court of Appeal). The Clingham matter came from a District Judge's case stated to the Divisional Court: [2001] EWCA Admin 582 (Divisional Court).