Clingham (formerly C (a minor) v Royal Borough of Kensington and Chelsea (on Appeal from a Divisional Court of the Queen's Bench Division); Regina v Crown Court at Manchester Ex p McCann (FC) and Others (FC)

Proceedings for an anti-social behaviour order under section 1 of the Crime and Disorder Act 1998 are civil under domestic law and do not determine a criminal charge under article 6 of the Convention. The application and any later prosecution for breach are separate proceedings. The order is preventive and protective, rather than punitive.

Civil hearsay evidence is therefore admissible, subject to careful assessment of its reliability and weight. Fairness nevertheless requires allegations of past anti-social behaviour to be proved to the criminal standard. Whether an order is necessary to protect the public is an evaluative judgment, not a fact governed by a standard of proof.

These conjoined appeals concerned applications for anti-social behaviour orders under section 1 of the Crime and Disorder Act 1998. In Clingham, the local authority relied principally on anonymous or undisclosed hearsay. The Divisional Court held that the proceedings were civil and that the evidence was admissible: [2001] EWCA Admin 582.

In McCann, orders were made against three brothers after a hearing involving direct and hearsay evidence. The Crown Court applied the criminal standard to their past conduct. The Divisional Court and Court of Appeal held that the proceedings were civil; the Court of Appeal commended use of the criminal standard in most cases: [2001] 1 WLR 358; [2001] 1 WLR 1084.

The House considered domestic and Convention classification, admissibility of hearsay, the standard of proof and its jurisdiction in the Clingham appeal.

1. Disposition. The House unanimously dismissed the McCann appeals and declared that it lacked jurisdiction to hear the Clingham appeal. Lord Steyn and Lord Hope delivered the principal speeches. Lord Hutton agreed, and Lord Hobhouse and Lord Scott concurred in the proposed orders.

2. Domestic classification. Per Lord Steyn, Lord Hope and Lord Hutton, an application under section 1 of the Crime and Disorder Act 1998 is civil. It contains no formal accusation that the defendant committed an offence. Its purpose is to prevent further anti-social acts and protect the public. The resulting order is a prohibition, not a conviction, punishment or criminal record. A later prosecution for breach under section 1(10) is a separate criminal proceeding.

3. Article 6. Applying the Convention criteria of domestic classification, the nature of the alleged offence and the nature and severity of the possible penalty, the application does not determine a criminal charge. Anti-social conduct need not amount to a criminal offence, and the order itself imposes no fine or imprisonment. Its restrictions must be protective rather than punitive. Proceedings for binding over were distinguishable because refusal to be bound over could produce immediate imprisonment in those same proceedings.

4. Fair hearing and hearsay. Per Lord Steyn and Lord Hope, the possible effect of prohibitions upon private life, expression and association attracts the fair-hearing guarantee in article 6(1). Lord Hutton reserved the classification point but held that admission of hearsay was fair. Since article 6(3)(d) does not apply, hearsay is admissible under the Civil Evidence Act 1995 and the applicable magistrates’ court rules. Its reliability and weight require careful scrutiny; anonymous evidence may nevertheless be cogent in combination with other evidence.

5. Standard of proof. Per Lord Steyn, Lord Hope and Lord Hutton, fairness and practical consistency require the criminal standard for allegations under section 1(1)(a). Magistrates must be sure that the defendant acted anti-socially. The separate question under section 1(1)(b), whether an order is necessary to protect persons from further conduct, is an exercise of judgment or evaluation and involves no standard of proof.

1. House of Lords: The McCann appeals were dismissed unanimously. The House declared that it had no jurisdiction to entertain the Clingham appeal: [2002] UKHL 39.
2. Court of Appeal (Civil Division), McCann: The court held that section 1 proceedings were civil under domestic law and article 6, and commended application of the criminal standard in most cases: [2001] 1 WLR 1084.
3. Divisional Court, McCann: The appeal was dismissed on the basis that the proceedings were civil under domestic law and article 6: [2001] 1 WLR 358.
4. Crown Court at Manchester, McCann: On rehearing, the Crown Court dismissed the brothers’ appeals and made orders identical to those made by the stipendiary magistrate. It applied the criminal standard to the statutory conditions.
5. Divisional Court, Clingham: The court held that the disputed material was hearsay but admissible in civil proceedings, with its weight for the magistrates to assess: [2001] EWCA Admin 582.
6. Magistrates’ courts: Orders were made against the McCann brothers. In Clingham, only a preliminary evidential ruling had been given and no anti-social behaviour order had yet been made.