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)

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    19. It is necessary to consider whether under domestic law proceedings under the first part of section 1 should be classified as criminal or civil proceedings. In law it is always essential to ask for what purpose a classification is to be made or a definition is to be attempted. It is necessary in order to decide whether the provisions of the Civil Evidence Act 1995, which permits the admission of hearsay evidence in civil proceedings, and the Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999, are available to establish the requirements of section 1(1). It is also relevant to the appropriate standard of proof to be adopted.

    20. In a classic passage in Proprietary Articles Trade Association v Attorney General for Canada [1931] AC 310, 324 Lord Atkin observed:

    "Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the state. The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences?"

In Customs and Excise Comrs v City of London Magistrates' Courts [2000] 1 WLR 2020, 2025 Lord Bingham of Cornhill CJ, expressed himself in similar vein:

    "It is in my judgment the general understanding that criminal proceedings involve a formal accusation made on behalf of the state or by a private prosecutor that a defendant has committed a breach of the criminal law, and the state or the private prosecutor has instituted proceedings which may culminate in the conviction and condemnation of the defendant."

    21. Absent any special statutory definition, in the relevant contexts, this general understanding must be controlling. Counsel for Clingham invited the House to approach the question from the point of view of the meaning given in decided cases to the words "criminal cause or matter" which appear in section 1(1)(a) of the Administration of Justice Act 1960 and section 18(1)(a) of the Supreme Court Act 1981. The decided cases on both sides of the line are helpfully summarised in Taylor On Appeals, (2000), pp 515-518, paras 14-020-14-021. The cases were decided in the context of regulating and determining the appropriate appeal route. Often pragmatic considerations played a role. These cases do not help the true inquiry before the House and distract attention from the ordinary meaning of civil proceedings which must prevail. Similarly, the fact that proceedings under the first part of section 1 of the Act are classified as criminal in order to ensure the availability to defendants of legal assistance is in my view entirely neutral: see section 12(2) of the Access to Justice Act 1999 and paragraph 1(2) of the Access to Justice Act 1999 (Commencement No 3, Transitional Provisions and Savings) Order 2000 (SI 2000/774). I would approach the matter by applying the tests enunciated by Lord Atkin and Lord Bingham of Cornhill, CJ.

    22. Counsel for the defendants accepted that the purpose of Parliament was to cast proceedings under the first part of section 1, as opposed to proceedings for breach, in a civil mould. However, counsel submitted that objectively considered the objective was not achieved. They argued that in reality and in substance such proceedings are criminal in character. This is an important argument which must be carefully examined. The starting point is that in proceedings under the first part of section 1 the Crown Prosecution Service is not involved at all. At that stage there is no formal accusation of a breach of criminal law. The proceedings are initiated by the civil process of a complaint. Under section 1(1)(a) all that has to be established is that the person has acted:

    "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;"

This is an objective inquiry: mens rea as an ingredient of particular offences need not be proved. It is unnecessary to establish criminal liability. The true purpose of the proceedings is preventative. This appears from the heading of Part 1. It is also clearly brought out by the requirement of section 1(1)(b):

    "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;"

It follows that the making of an anti-social behaviour order is not a conviction or condemnation that the person is guilty of an offence. It results in no penalty whatever. It cannot be entered on a defendant's record as a conviction. It is also not a recordable offence for the purpose of taking fingerprints: see section 27 of the Police and Criminal Evidence Act 1984.

    23. Counsel for the defendants sought to avoid the consequences of this analysis by various arguments. First, they argued that the procedure leading to the making of an order under section 1(4) must be considered together with the proceedings for breach under section 1(10), the latter being undoubtedly criminal in character. I do not agree. These are separate and independent procedures. The making of the order will presumably sometimes serve its purpose and there will be no proceedings for breach. It is in principle necessary to consider the two stages separately.

    24. Counsel next made a comparison between the requirements of section 1(1) and the ingredients of an offence under section 4A of the Public Order Act 1986. They submitted that there was a striking similarity. This proposition was not made good. It is sufficient to point out that section 4A of the 1986 Act requires proof of mens rea whereas section 1(1) does not. In any event, this is a barren exercise. It elides the critical point that section 1(1) itself does not prohibit any act. An anti-social behaviour order under section 1(4) does prohibit conduct specified in the order but by itself does not amount to a condemnation of guilt. It results in no penal sanction.

    25. Counsel for the defendants also emphasised the consequences which an anti-social behaviour order may have for a defendant. This is an important factor. Section 1 is not meant to be used in cases of minor unacceptable behaviour but in cases which satisfy the threshold of persistent and serious anti-social behaviour. Given the threshold requirements of section 1(1) it can readily be accepted that the making of such an order against a person inevitably reflects seriously on his character. In response to this argument Lord Phillips of Worth Matravers MR observed, at [2001] 1 WLR 1084, 1094-1095, para 39:

    "Many injunctions in civil proceedings operate severely upon those against whom they are ordered. In matrimonial proceedings a husband may be ordered to leave his home and not to have contact with his children. Such an order may be made as a consequence of violence which amounted to criminal conduct. But such an order is imposed not for the purpose of punishment but for protection of the family. This demonstrates that, when considering whether an order imposes a penalty or punishment, it is necessary to look beyond its consequence and to consider its purpose."

Similarly, Mareva injunctions, which are notified to a defendant's bank, may have serious consequences. An Anton Piller order operates in some ways like a civil search warrant and may be particularly intrusive in its operation. Breach of such orders may result in penalties. Nevertheless, the injunctions are unquestionably civil.

    26. The view that proceedings for an anti-social behaviour order under section 1 are civil in character is further supported by two important decisions. In B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 the question arose whether proceedings for a sex offender order under section 2 of the Act are civil. Section 2 is different in conception from section 1 in as much as an order can only be made in respect of a person who has already been convicted as a sex offender. On the other hand, its purpose is preventative "to protect the public from serious harm from him". Lord Bingham of Cornhill CJ held, at p 352, para 25:

    "The rationale of section 2 was, by means of an injunctive order, to seek to avoid the contingency of any further suffering by any further victim. It would also of course be to the advantage of a defendant if he were to be saved from further offending. As in the case of a civil injunction, a breach of the court's order may attract a sanction. But, also as in the case of a civil injunction, the order, although restraining the defendant from doing that which is prohibited, imposes no penalty or disability upon him. I am accordingly satisfied that, as a matter of English domestic law, the application is a civil proceeding, as Parliament undoubtedly intended it to be."

    To the same effect was the detailed reasoning in Gough v Chief Constable of the Derbyshire Constabulary [2002] QB 459; and on appeal at [2002] 3 WLR 289. It was held that a football banning order under sections 14A and 14B of the Football Spectators Act 1989 do not involve criminal penalties and are therefore civil character.

    27. I conclude that proceedings to obtain an anti-social behaviour order are civil proceedings under domestic law.

IX. The Classification Under Article 6.

    28. The question now arises whether, despite its domestic classification, an anti-social behaviour order nevertheless has a criminal character in accordance with the autonomous concepts of article 6. The fair trial guarantee under article 6(1) applies to both "the determination of a (person's) civil rights" and "the determination of any criminal charge". On the other hand, only the latter attract the additional protections under article 6(2) and 6(3). Insofar as the latter provisions apply to "everyone charged with a criminal offence" it is well established in the jurisprudence of the European Court of Human Rights that this concept is co-extensive with the concept of the determination of any criminal charge: Lutz v Germany (1987) 10 EHRR 182. Germane to the present case is the minimum right under article 6(3)(d) of everyone charged with a criminal offence to examine or have examined witnesses against him or to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. If the proceedings under section 1 of the Act are criminal within the meaning of article 6, this provision is applicable. If it is civil, article 6(3)(d) is inapplicable.

    29. Before I examine directly in the light of European jurisprudence the question whether proceedings involve a criminal charge, it is necessary to make clear that this is not one of those cases where the proceedings may fall outside article 6 altogether. Examples of such cases are given by Emmerson and Ashworth, Human Rights and Criminal Justice, (2001), pp 152-166. In the cases before the House the two principal respondents accept that the proceedings are civil in character and that they attract the fair trial guarantee under article 6(1). Counsel for the Secretary of State in the McCann case reserved his position. For my part, in the light of the particular use of the civil remedy of an injunction, as well as the defendant's right under article 8 to respect for his private and family life, it is clear that a defendant has the benefit of the guarantee applicable to civil proceedings under article 6.1. Moreover, under domestic English law they undoubtedly have a constitutional right to a fair hearing in respect of such proceedings.

    30. In Engel v The Netherlands (No 1) (1976) 1 EHRR 647, 678-679, para 82, the European Court established three criteria for determining whether proceedings are "criminal" within the meaning of the Convention, namely (a) the domestic classification, (b) the nature of the offence, and (c) the severity of the potential penalty which the defendant risks incurring. The character and attributes of the proceedings for an anti-social behaviour order have been outlined. Domestically, they are properly classified as civil. That is, however, only a starting point. Turning to factor (b), the position is that the order under the first part of section 1 does not constitute a finding that an offence has been committed: contrast the community charge decision in Benham v United Kingdom (1996) 22 EHRR 293. It is right, however, to observe that the third factor is the most important. Here the position is that the order itself involves no penalty. The established criteria suggest that the proceedings were not in respect of a criminal charge.

    31. The House has been taken on a tour d'horizon of the leading decisions of the European Court: see the judgment of Potter LJ in Han v Customs and Excise Comrs [2001] 1 WLR 2253, 2269-2273, paras 55-64 for a recent review of the European case law. It will serve no purpose to review again decisions far removed from the present case. What does emerge, however, is that there is, as Lord Bingham of Cornhill CJ pointed out in B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, no case in which the European Court has held proceedings to be criminal even though an adverse outcome for the defendant cannot result in any penalty. It could be said, of course, that there is scope for the law to be developed in this direction. On the other hand, an extensive interpretation of what is a criminal charge under article 6(1) would, by rendering the injunctive process ineffectual, prejudice the freedom of liberal democracies to maintain the rule of law by the use of civil injunctions.

    32. The closest case in support of the defendants' submission is Steel v The United Kingdom (1998) 28 EHRR 603, 636, paras 48-49, which is authority for the proposition that proceedings whereby in England and Wales a person may be bound over to keep the peace involve the determination of a criminal charge for the purposes of article 6. This power goes back many centuries: see Percy v Director of Public Prosecutions [1995] 1 WLR 1382, 1389H-1390H. It is in a very real sense a judicial power sui generis. The European Court found a punitive element in the fact that the magistrates may commit to prison any person who refuses to be bound over not to breach the peace where there is evidence beyond reasonable doubt that his or her conduct caused or was likely to cause a breach of the peace and that he would otherwise cause a breach of the peace: paragraph 48. There was an immediate and obvious penal consequence. Properly analysed this case does not assist the defendant's argument.

    33. The conclusion I have reached is reinforced by a cogently reasoned judgment on the interpretation of article 6 by the Lord President (Rodger) in S v Miller 2001 SC 977. Section 52(2) of the Children (Scotland) Act 1995 provides that a child may have to be subjected to compulsory measures of supervision when he "has committed an offence". The question arose whether in such proceedings article 6 is applicable. The Lord President observed, at pp 989-990:

    "23 . . . at the stage when S was arrested and charged by the police on 31 October, he was indeed 'charged with a criminal offence' in terms of article 6, since he was liable to be brought before a criminal court in proceedings which could have resulted in the imposition of a penalty. He remained 'charged with a criminal offence' in terms of article 6 until the procurator fiscal decided the following day - in the language of section 43(5) of the Criminal Procedure Act - 'not to proceed with the charge'. At that point the criminal proceedings came to an end and the reporter initiated the procedures under the 1995 Act by arranging a hearing in terms of section 63(1). In my view, once the procurator fiscal has decided not to proceed with the charge against a child and so there is no longer any possibility of proceedings resulting in a penalty, any subsequent proceedings under the 1995 Act are not criminal for the purposes of article 6. Although the reporter does indeed intend to show that the child concerned committed an offence, this is not for the purpose of punishing him but in order to establish a basis for taking appropriate measures for his welfare. That being so, the child who is notified of grounds for referral setting out the offence in question is not thereby 'charged with a criminal offence' in terms of article 6.

    24 It is not now disputed, of course, that the children's hearing proceedings involve the determination of civil rights and obligations. Article 6 therefore applies. But, since the proceedings are not criminal, the specific guarantees in article 6(2) and (3) do not apply."

I am in complete agreement with this reasoning as correctly reflecting the purpose of article 6. And it applies a fortiori to proceedings under section 1. After all, section 1(1) does not require proof of a criminal offence.

    34. In my view an application for an anti-social behaviour order does not involve the determination of a criminal charge.

X. The Admission of Hearsay Evidence.

    35. Having concluded that the proceedings in question are civil under domestic law and article 6, it follows that the machinery of the Civil Evidence Act 1995 and the Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 allow the introduction of such evidence under the first part of section 1. The weight of such evidence might be limited. On the other hand, in its cumulative effect it could be cogent. It all depends on the particular facts. In my view the ruling of the Divisional Court, set out in paragraph 10 above, was correct.

    36. It is submitted that, even if the relevant proceedings are civil, words must be implied into the Civil Evidence Act 1995 which give the court a wider power to exclude hearsay evidence. As the Divisional Court judgment makes clear this is unnecessary and unwarranted. Counsel in the Clingham case then argued that, even if the proceedings are civil, nevertheless the introduction of hearsay evidence infringes a defendants right to a fair trial under article 6(1) "in the determination of his civil rights and obligations". This is a misconceived argument. The case has not been heard. Such a challenge is premature. Upon a due consideration of the evidence, direct or hearsay, it may turn out that the defendant has no answer to the case under section 1(1). For the sake of completeness, I need only add that the use of the Civil Evidence Act 1995 and the Rules in cases under the first part of section 1 are not in any way incompatible with the Human Rights Act 1998.

X1 The standard of proof.

    37. Having concluded that the relevant proceedings are civil, in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply. However, I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary: In re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, 586D-H, per Lord Nicholls of Birkenhead. For essentially practical reasons, the Recorder of Manchester decided to apply the criminal standard. The Court of Appeal said that would usually be the right course to adopt. Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable. I do not disagree with any of these views. But in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard. If the House takes this view it will be sufficient for the magistrates, when applying section 1(1)(a) to be sure that the defendant has acted 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. The inquiry under section 1(1)(b), namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard of proof: it is an exercise of judgment or evaluation. This approach should facilitate correct decision-making and should ensure consistency and predictability in this corner of the law. In coming to this conclusion I bear in mind that the use of hearsay evidence will often be of crucial importance. For my part, hearsay evidence depending on its logical probativeness is quite capable of satisfying the requirements of section 1(1).

XII. The Submissions of Liberty.

    38. The House gave permission to Liberty to intervene in the McCann cases in writing and orally. The contribution of Liberty has helped to sharpen the focus of the debate on issues under the Human Rights Act 1998. It is, however, unnecessary to deal separately with the submissions of Liberty. The reasons I have given are also dispositive of the issues and arguments raised by Liberty.

XIII. Jurisdiction.

    39. Section 1(1)(a) of Administration of Justice Act 1960 only permits an appeal from a decision of the High Court "in any criminal case or matter". In my view the proceedings under the first part of section 1 do not satisfy this criterion. It follows that in the Clingham case the House did not have jurisdiction to entertain the appeal.

XIV. Disposal.

    40. For these reasons as well as the reasons given by Lord Hope of Craighead I would dismiss the appeals in the McCann cases and formally declare that there was no jurisdiction to hear the Clingham case.

LORD HOPE OF CRAIGHEAD

My Lords,

    41. In a democratic society the protection of public order lies at the heart of good government. This fundamental principle has a prominent place in the European Convention for the Protection of Human Rights and Fundamental Freedoms. Among the grounds on which a public authority may interfere with the rights described in articles 8 to 11 of the Convention are public safety, the protection of public order and the protection of the rights and freedoms of others. It is only in article 10(1) that one finds an express declaration that the exercise of freedoms carries with it duties and responsibilities. But it is a theme which runs right through the Convention. Respect for the rights of others is the price that we must all pay for the rights and freedoms that it guarantees.

    42. On the whole we live in a law-abiding community. Most people respect the rights of others, most of the time. People usually refrain from acts which are likely to cause injury to others or to their property. On the occasions when they do not, the sanctions provided by the criminal law are available. But it is a sad fact that there are some individuals for whom respect for the law and for the rights of others has no meaning. Taken one by one, their criminal or sub-criminal acts may seem to be, and indeed often are, relatively trivial. But, taken together, the frequency and scale of their destructive and offensive conduct presents a quite different picture. So does the aggression and intimidation with which their acts are perpetrated. The social disruption which their behaviour creates is unacceptable. So too is the apparent inability of the criminal law to restrain their activities. This provides the background to the enactment of section 1 of the Crime and Disorder Act 1998 with which your Lordships are concerned in these appeals.

    43. The main question which they raise is the familiar one of classification. If proceedings under section 1 of the Crime and Disorder Act 1998 are to be classified as criminal proceedings for the purposes of article 6 of the Convention, all the normal rules of evidence which apply to a criminal prosecution in domestic law must be applied to them. This is of crucial importance to the use which may be made in these proceedings of hearsay evidence. In domestic terms, hearsay evidence under the Civil Evidence Act 1995 would be inadmissible in these proceedings if they are to be classified as criminal. In Convention terms, the persons against whom anti-social behaviour orders were sought would be entitled to the protection of article 6(3)(d) if it applies to them. Under that paragraph every person charged with a criminal offence has the right to examine or have examined the witnesses against him. But much of the benefit which the legislation was designed to achieve would be lost if this is how these proceedings have to be classified. It would greatly disturb the balance which section 1 of the Crime and Disorder Act 1998 seeks to strike between the interests of the individual and those of society.

    44. The reason for this is not hard to find. So often those who are directly affected by this conduct lack both the inclination and the resources to do anything about it. Above all, they have been intimidated and they are afraid. They know that they risk becoming targets for further anti-social behaviour if they turn to the law for their protection. It is unrealistic to expect them to seek the protection of an injunction under the civil law. Reports to the police about criminal conduct are likely to result in their having to give evidence. In this situation the opportunity which civil proceedings provide for the use of hearsay evidence is a valuable safeguard. It greatly increases the prospect of persuading those who are likely to be exposed to further anti-social behaviour to co-operate with the authorities in protecting them from such conduct.

The facts

    45. The facts of the Clingham case have been described by my noble and learned friend Lord Steyn, and I gratefully adopt his account. As he has pointed out, it is a striking feature of that case that two of the statements relied on were anonymous and two of them were by persons who were in fear of reprisals if they were to be called on to give evidence. I should like to deal in my speech with the facts in the case of McCann, which has similar characteristics.

    46. The defendants in the case of McCann are three brothers who all live in the Ardwick area of Manchester. They were aged 16, 15 and 13 on 17 May 2000 when anti-social behaviour orders were made against them by Judge Rhys Davies QC, the Recorder of Manchester, sitting in the Crown Court with lay magistrates.

    47. The Chief Constable of Greater Manchester had been collecting evidence against the defendants for a period of about five months between May and September 1999. They had been accused by various members of the public in the Beswick area of Manchester of threatening and abusive behaviour, causing criminal damage, theft and burglary. On 28 September 1999 the Chief Constable consulted with Manchester City Council, the council for the relevant local government area, as required by section 1(2) of the Crime and Disorder Act 1998. They agreed that an application for anti-social behaviour orders should be made. The Chief Constable laid complaints against the defendants at Manchester Magistrates Court on 22 October 1999, and summonses were served on them on 1 November 1999. On 15 December 1999 Mr Alan Berg, a stipendiary magistrate, made anti-social behaviour orders against each of them, which they then appealed. Their appeal was heard in the form of a rehearing by the Crown Court.

 
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