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Session 2001- 02
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Judgments - 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)


Lord Steyn Lord Hope of Craighead Lord Hutton Lord Hobhouse of Wood-borough Lord Scott of Foscote















ON 17 OCTOBER 2002

[2002] UKHL 39


My Lords,

    1. Section 1 of the Crime and Disorder Act 1998 ("the Act") provides for the making of anti-social behaviour orders against any person aged 10 years or over. It came into force on 1 April 1999. Between 1 April 1999 and 31 December 2001 magistrates in England and Wales made 588 such orders and refused 19. It is important social legislation designed to remedy a problem which the existing law failed to deal with satisfactorily. This is the first occasion on which the House has had to examine the implications of section 1.

    2. There are two appeals before the House. They are unrelated but raise overlapping issues. Both cases involve the power of the magistrates court under section 1 of the Act, upon being satisfied of statutory requirements, to make an anti-social behaviour order prohibiting a defendant from doing prescribed things. Breach of such an order may give rise to criminal liability. That stage has, however, not been reached in either case. In the case of Clingham no order has been made. In the case of the McCann brothers anti-social behaviour orders have been made against all three. The appeals are therefore concerned only with the first stage of the procedure under the Act, namely, the application for such an order, and the making of it, and not with the second stage, namely proceedings taken upon an alleged breach of such an order.

    3. In Clingham the district judge gave a preliminary ruling on 14 September 2000. In the McCann case the recorder gave judgement on an appeal from a stipendiary magistrate on 16 May 2000. In both cases the Human Rights Act 1998 is not directly applicable: R v Kansal (No 2) [2002] 2 AC 69. The House has, however, been invited by all counsel to deal with the appeals as if the Human Rights Act 1998 is applicable. My understanding is that your Lordships are willing to do so.

I. The Principal Issues.

    4. It is common ground that proceedings taken for breach of an anti-social behaviour order are criminal in character under domestic law and fall within the autonomous concept "a criminal charge" under article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1998. The principal general and common questions are:

    (a) whether as a matter of domestic classification proceedings leading to the making of an anti-social behaviour order are criminal in nature; and

      (b) whether under article 6 of the European Convention such proceedings involve "a criminal charge".

Underlying these questions are two specific issues, namely:

    (c) whether under section 1 of the Act hearsay evidence is admissible in proceedings seeking such an order;


      what the standard of proof is in such proceedings.

The evidential question arises primarily in the Clingham case and the question as to standard of proof arises mainly in the McCann cases. On the other hand, counsel for the defendants to a considerable extent adopted each other's submissions.

II. Jurisdiction.

    5. If under domestic law an application for an anti-social behaviour order under section 1 of the Act properly falls to be classified as civil proceedings, the House may not have jurisdiction in the Clingham case. The House has, however, jurisdiction to inquire into its own jurisdiction and to deal with all relevant matters pertinent to that inquiry. Moreover, the jurisdictional issue causes no real problem since the points which arise in the Clingham case arguably could arise in the McCann cases. All parties wish the House to deal with the general and specific issues outlined which could arise in many proceedings under section 1. In these circumstances the jurisdictional question can be considered briefly at the very end of this judgment.

III. Section 1 of the Act and Article 6 of the European Convention.

    6. In order to render the proceedings and issues intelligible it is necessary to set out section 1 of the Act. It appears in Part 1 of the Act under the heading "Prevention of Crime and Disorder". The material parts of section 1 read as follows:


    An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely -


      that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself: and


      that such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him;

    and in this section 'relevant authority' means the council for the local government area or any chief officer of police any part of whose police area lies within that area.


    A relevant authority shall not make such an application without consulting each other relevant authority.


    Such an application shall be made by complaint to the magistrates' court . . .


    If, on such an application, it is proved that the conditions mentioned in subsection (1) above are fulfilled, the magistrates' court may make an order under this section (an 'anti-social behaviour order') which prohibits the defendant from doing anything described in the order.


    For the purpose of determining whether the condition mentioned in subsection (1)(a) above is fulfilled, the court shall disregard any act of the defendant which he shows was reasonable in the circumstances.


    The prohibitions that may be imposed by anti-social behaviour order are those necessary for the purpose of protecting from further anti-social acts by the defendant -


      persons in the local government area; and


      persons in any adjoining local government area specified in the application for the order;. . .


    An anti-social behaviour order shall have effect for a period (not less than two years) specified in the order or until further order.


    Subject to subsection (9) below, the applicant or the defendant may apply by complaint to the court which made an anti-social behaviour order for it to be varied or discharged by a further order.


    Except with the consent of both parties, no anti-social behaviour order shall be discharged before the end of the period of two years beginning with the date of service of the order.


    If without reasonable excuse a person does anything which he is prohibited from doing by an anti-social behaviour order, he shall be liable -


      on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or


      on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.

    (11)Where a person is convicted of an offence under subsection (10) above, it shall not be open to the court by or before which he is so convicted to make an order under subsection (1)(b) (conditional discharge) of section 1A of the Powers of Criminal Courts Act 1973 ('the 1973 Act') in respect of the offence."

The section falls into two distinct parts. Subsection (1) deals with the making of the application, the requirements for the making of an order, the making of an order, and consequential matters. Subsections (10) and (11) deal with the consequences of a breach of the order.

    7. Article 6 of the European Convention provides as follows:

    "1  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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

    2  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

    3  Everyone charged with a criminal offence has the following minimum rights:

    (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

    (b) to have adequate time and facilities for the preparation of his defence;

    (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

    (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

    (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

    While the guarantee of a fair trial under article 6(1) applies to both criminal and civil proceedings article 6 prescribes in paragraphs 2 and 3 additional protections applicable only to criminal proceedings. It is also well established in European jurisprudence that "the contracting states have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases": Dombo Beheer BV v The Netherlands (1993) 18 EHRR 213, 229, para 32.

IV. The Clingham Case.

    8. In late February 2000, the Royal Borough of Kensington and Chelsea received a report by a housing trust about the behaviour of the defendant, then aged 16, who lived on an estate within the Borough. After detailed investigations the Borough resolved to apply to the magistrates' court for an anti-social behaviour order. The complaint was supported by witness statements containing some first hand evidence of the defendant's behaviour. The application was, however, primarily based on hearsay evidence contained in records of complaints received by the trust and in crime reports compiled by the police. The latter contained information relating to a wide range of behaviour, from allegations of verbal abuse to serious criminal activities including assault, burglary, criminal damage and drug dealing dating from April 1998 to December 2000. The allegations revealed a high level of serious and persistent anti-social behaviour. The material from the records of the trust and the police fell into three categories:

    (i)  anonymous complaints where the source was never


    (ii)  complaints where the source was known but was not disclosed;

    (iii) computerised reports made by police officers in the course of their duties, where the source of the complaint was either unknown or not disclosed.

    The Borough served its supporting material on the defendant. In substance the material in its cumulative effect was, subject to any answer by the defendant, logically probative of the statutory requirements under section 1. The statements and exhibits were not, however, accompanied by a hearsay notice under the Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 (SI 1999/681).

    9. Pursuant to an order by the judge a hearsay notice was served on the defendant. The defendant challenged the validity of the hearsay notice on the ground that it did not identify the makers of the hearsay statements. At a pre-trial review the district judge ruled that on reflection, the 1999 Rules did not apply as the Borough's supporting material involved no hearsay. The judge stated a case for the decision of the Divisional Court which raised questions about the admissibility of hearsay evidence in the proceedings under section 1(1) of the Act.

    10. In the Divisional Court the view of the district judge as to what amounted to hearsay evidence was rejected. In an unreported judgment Schiemann LJ observed that "If the policeman could only say that he had been told by such persons [who had seen the behaviour in question] that Mr Clingham had behaved in an anti-social manner that would be hearsay evidence of the behaviour": [2001] EWCA Admin 582, para 15. Relying on the then unreported decisions of the Divisional Court in R (McCann) v Crown Court at Manchester [2001] 1 WLR 358 and B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 the Divisional Court ruled that the proceedings were not criminal proceedings under domestic law and did not involve a criminal charge under article 6. In these circumstances Schiemann LJ concluded, in paragraphs 19-20:

    "The [hearsay] evidence can be admitted. If its weight is slight or it is not probative the judge can say so. If he comes to an unlawful conclusion his decision can be appealed. . . . In the light of this judgment, it is unnecessary for us to make any order . . . The matter will remain to be dealt with by the magistrates court. That court will consider the evidence on the basis that it is hearsay evidence and therefore subject to the criticisms which can be made of hearsay evidence. The court will have to consider what weight to give to the evidence in the light of those criticisms. I do not consider it appropriate for this court to express any views as to weight."

Poole J took the same view, at paragraphs 21 and 22.

V. The McCann Case.

    11. I gratefully refer to the account given by my noble and learned friend Lord Hope of Craighead of the background to these cases. I can therefore deal with the matter briefly. Between May and September 1999 the Chief Constable of Manchester collected evidence with a view to seeking anti-social behaviour orders against the three McCann brothers who were then respectively aged 13, 15 and 16. They had been accused by various members of the public of criminal activity and other anti-social behaviour including burglary, theft, threatening and abusive behaviour, and criminal damage in the Beswick area of Manchester. Complaints were duly lodged by the Chief Constable against them. The applications sought various prohibitions against them including orders excluding them from Beswick. The seriousness and persistence of their alleged anti-social behaviour is clearly described by Lord Hope of Craighead. The evidence against them consisted of oral evidence of eye witnesses, as well as hearsay evidence consisting of a number of witness statements, and police evidence of what had been reported to them by complainants.

    12. A stipendiary magistrate found the requirements of section 1(1) satisfied and made anti-social behaviour orders against all three McCann brothers on 15 December 1999. Each order provided as follows:

    (The defendant) is prohibited from entering the Beswick area as defined, edged in red, on the map attached.

    (The defendant) is prohibited from using or engaging in any abusive, insulting, offensive, threatening or intimidating language or behaviour in any public place in the City of Manchester.

    (The defendant) is prohibited from threatening or engaging in violence or damage against any person or property within the City of Manchester.

    (The defendant) is prohibited from encouraging any other person to engage in any of the acts described in paragraphs 2 and 3 within the City of Manchester.

The defendants appealed to the Crown Court.

    13. Sir Rhys Davies QC, the Recorder of Manchester, sat with two magistrates. After a review of the domestic and European case law he concluded that the proceedings under section 1(1) are correctly to be classified as civil under domestic law and for the purposes of article 6. The recorder then turned to the argument that, despite this classification, the criminal standard should apply under section 1(1). He cited an observation in B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, 354, para 31, where Lord Bingham of Cornhill CJ described, in the context of section 2 of the Act, which deals with orders against sex offenders, the heightened civil standard of proof as "for all practical purposes . . . indistinguishable from the criminal standard". The recorder stated:

    "Having considered this authority and the arguments, we are satisfied that the standard to be applied is the civil standard, but how are we to give effect to the guidance of the Lord Chief Justice, that is to apply the civil standard with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them. This is not an easy task and we have brought to bear the judicial experience of all three of us which, it is has to be said, is considerable, and we have concluded that in reality it is difficult to establish reliable gradations between a heightened civil standard commensurate with [the] seriousness and implications of proving the requirements, and the criminal standard. And we have concluded that for the purposes of this particular case, and we do not intend to lay down any form of precedent, so I emphasises that for the purposes of this particular case, we will apply the standard of being satisfied so that we are sure that the conditions are fulfilled before we would consider the making of an order in the case of each [defendant] severally, because, of course, each case must be considered separately."

This is an important observation, by a highly experienced judge, to which I must in due course return.

    14. The defendants appealed to the Divisional Court. Lord Woolf CJ (with the agreement of Rafferty J) ruled that the proceedings under section 1(1) were properly to be classified under domestic law and under article 6 of the European Convention as civil proceedings and not criminal proceedings. The court dismissed the appeal: R (McCann) v Crown Court at Manchester [2001] 1 WLR 358.

    15. The defendants then appealed to the Court of Appeal (Civil Division). The leading judgment was given by Lord Phillips of Worth Matravers MR; Kennedy and Dyson LJJ agreed: R (McCann) v Crown Court at Manchester [2001] 1 WLR 1084. In a detailed judgment Lord Phillips MR concluded that both under domestic law and under article 6 the correct categorisation of proceedings under section 1 of the Act is civil. He then turned to the issue whether the standard of proof should nevertheless be the criminal one. He referred to the observation of Lord Bingham of Cornhill CJ in B v Chief Constable of Avon and Somerset Constabulary that the heightened civil standard is for all practical purposes indistinguishable from the criminal standard: p 1101, para 65. He quoted the passage from the judgment of the recorder about the difficulty of establishing "reliable gradations between a heightened civil standard commensurate with the seriousness and implications of proving the requirements, and the criminal standard" and pointed out that the Crown Court decided to apply the criminal standard. Lord Phillips MR observed, at p 1102, para 67:

    "I believe that the course followed by the Crown Court in this case is likely to be appropriate in the majority of cases where an anti-social behaviour order is sought and I would commend it."

At present therefore the position is that in proceedings under section 1(1) magistrates have to decide, on a case by case basis, what standard of proof to apply. The Secretary of State has challenged this ruling of the Court of Appeal. Counsel submitted on his behalf that it is preferable to apply a single fixed standard of a balance of probabilities.

VI. The Social Problem.

    16. Before the issues can be directly addressed it is necessary to sketch the social problem which led to the enactment of section 1(1) and the technique which underlies the first part of section 1. It is well known that in some urban areas, notably urban housing estates and deprived inner city areas, young persons, and groups of young persons, cause fear, distress and misery to law-abiding and innocent people by outrageous anti-social behaviour. It takes many forms. It includes behaviour which is criminal such as assaults and threats, particularly against old people and children, criminal damage to individual property and amenities of the community, burglary, theft, and so forth. Sometimes the conduct falls short of cognisable criminal offences. The culprits are mostly, but not exclusively, male. Usually they are relatively young, ranging particularly from about 10 to 18 years of age. Often people in the neighbourhood are in fear of such young culprits. In many cases, and probably in most, people will only report matters to the police anonymously or on the strict understanding that they will not directly or indirectly be identified. In recent years this phenomenon became a serious social problem. There appeared to be a gap in the law. The criminal law offered insufficient protection to communities. Public confidence in the rule of law was undermined by a not unreasonable view in some communities that the law failed them. This was the social problem which section 1 was designed to address.

VII. The Legislative Technique.

    17. The aim of the criminal law is not punishment for its own sake but to permit everyone to go about their daily lives without fear of harm to person or property. Unfortunately, by intimidating people the culprits, usually small in number, sometimes effectively silenced communities. Fear of the consequences of complaining to the police dominated the thoughts of people: reporting incidents to the police entailed a serious risk of reprisals. The criminal law by itself offered inadequate protection to them. There was a model available for remedial legislation. Before 1998 Parliament had, on a number of occasions, already used the technique of prohibiting by statutory injunction conduct deemed to be unacceptable and making a breach of the injunction punishable by penalties. It may be that the Company Directors Disqualification Act 1986 was the precedent for subsequent use of the technique. The civil remedy of disqualification enabled the court to prohibit a person from acting as a director: section 1(1) of the 1985 Act: R v Secretary of State for Trade and Industry, Ex p McCormick [1998] BCC 379, 395C-F; Official Receiver v Stern [2000] 1 WLR 2230. Breach of the order made available criminal penalties: sections 13 and 14 of the 1986 Act. In 1994 Parliament created the power to prohibit trespassory assemblies which could result in serious disruption affecting communities, movements, and so forth: see section 70 of the Criminal Justice and Public Order Act 1994 which amended Part II of the Public Order Act 1986 by inserting section 14A. Section 14B which was introduced by the 1994 Act, created criminal offences in respect of breaches. In the field of family law, statute created the power to make residence orders, requiring a defendant to leave a dwelling house; or non molestation orders, requiring a defendant to abstain from threatening an associated person: sections 33(3) and (4) and section 42 of the Family Law Act 1996. The penalty for breach is punishment for contempt of court. The Housing Act 1996 created the power to grant injunctions against anti-social behaviour: section 152; section 153 (breach). This was, however, a power severely restricted in respect of locality. A broadly similar technique was adopted in the Protection from Harassment Act 1997: section 3; section 3(6) (breach). Post-dating the Crime and Disorder Act 1998, which is the subject matter of the present appeals, Parliament adopted a similar model in sections 14A and 14J (breach) of the Football Spectators Act 1989, inserted by section 1(1) of the Football (Disorder) Act 2000: Gough v Chief Constable of the Derbyshire Constabulary [2001] 3 WLR 1392. In all these cases the requirements for the granting of the statutory injunction depend on the criteria specified in the particular statute. The unifying element is, however, the use of the civil remedy of an injunction to prohibit conduct considered to be utterly unacceptable, with a remedy of criminal penalties in the event of disobedience.

    18. There is no doubt that Parliament intended to adopt the model of a civil remedy of an injunction, backed up by criminal penalties, when it enacted section 1 of the Crime and Disorder Act 1998. The view was taken that the proceedings for an anti-social behaviour order would be civil and would not attract the rigour of the inflexible and sometimes absurdly technical hearsay rule which applies in criminal cases. If this supposition was wrong, in the sense that Parliament did not objectively achieve its aim, it would inevitably follow that the procedure for obtaining anti-social behaviour orders is completely or virtually unworkable and useless. If that is what the law decrees, so be it. My starting point is, however, an initial scepticism of an outcome which would deprive communities of their fundamental rights: see Brown v Stott [2001] 2 WLR 817; per Lord Bingham of Cornhill, at p 836D; per Lord Hope of Craighead, at pp 850D and 850G; my judgment, at p 839E-F.

VIII. The Classification Under Domestic Law.