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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    48. The stipendiary magistrate held that the defendants had acted in a manner which caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as themselves by offensive, abusive, insulting, threatening and intimidating words and behaviour as well as violent behaviour towards people in the local authority area of Manchester. He also held that an anti-social behaviour order was necessary to protect persons in that area and he made prohibitions against each of them. Dismissing their appeals, the Crown Court made identical orders to those made by the magistrate which prohibited each of them: (1) From entering the Beswick area as defined, edged in red on the map attached; (2) from using or engaging in any abusive, insulting, offensive, threatening or intimidating language or behaviour in any public place in the City of Manchester; (3) from threatening or engaging in violence or damage against any person or property within the City of Manchester; (4) from encouraging any other person to engage in any of the acts described in paragraphs 2 and 3 within the City of Manchester.

    49. The evidence against the defendants consisted in part of direct evidence and in part of hearsay evidence. Four members of the public gave evidence of various acts of anti-social behaviour. One said that he had been abused on one occasion by two of the defendants and that he had been threatened and assaulted on another occasion by the third. The second said that he had been abused on one occasion by one of the defendants, who on the same occasion also assaulted an unknown youth. The third was an employee of a local supermarket who said that on a number of occasions between April and November 1999 she had been abused, threatened, harassed and alarmed by all three defendants. The fourth said that he and his customers had been abused by all three defendants between April and September 1999 and that the defendants had sought to intimidate them. Three police officers also gave evidence. One said that on one occasion the oldest defendant caused alarm and physical danger to others by driving a vehicle recklessly. Another said that on another occasion the same defendant was party to the theft of a bag from a car. A third gave direct evidence of threats and abuse by two of the defendants of a householder by banging on the door and interfering with the electrics of the property. This incident was also the subject of anonymous hearsay evidence. Anonymous hearsay evidence was also given by the police of four other incidents. One was burglary of domestic premises by two of the defendants. The second was damage to a motor vehicle by the same two defendants. The third was the throwing of items into the street from scaffolding which they had climbed. The fourth was the abuse by one of them of market stall holders. There was also a hearsay witness statement of the abuse by two of the defendants of firefighters.

    50. The overall picture which was painted by the evidence was of a prolonged course of behaviour which caused or was likely to cause harassment, alarm or distress to many people in the local government area during this six month period. The contribution which was made to the picture by the hearsay evidence, while not perhaps crucial, was certainly significant.

Classification in domestic law

    51. I agree with Lord Steyn, for all the reasons that he has given, that proceedings leading to the imposition of an anti-social behaviour order under section 1 of the Crime and Disorder Act 1998 are civil proceedings in domestic law. I should like to add only a few observations to what he has said.

    52. Section 19 of the Crime and Disorder Act 1998 provides for the imposition of anti-social behaviour orders in Scotland. There are some differences of detail in the scheme which this section lays down from that which section 1 lays down for use in England and Wales. But the broad aim is the same. It is designed to deal with persons who have acted in an anti-social manner or have pursued a course of anti-social conduct that caused or was likely to cause alarm or distress. A conviction for breach of an anti-social behaviour order in Scotland carries with it the same penalties under section 22(1) as those prescribed for England and Wales by section 1(10). The important point for present purposes lies in the choice which Parliament has made as to the proceedings which are to be used for making these applications in Scotland. Section 19(2) provides that an application for an anti-social behaviour order shall be made by summary application to the sheriff within whose sheriffdom the alarm or distress was alleged to have been caused or was likely to have been caused.

    53. The question whether a summary application to a sheriff is a civil proceeding in Scots domestic law is quite straightforward in comparison with the equivalent and more complex question under English law. This is because the Scottish system has always maintained a firm distinction at levels between criminal and civil procedure. The civil nature of the procedure for the imposition of anti-social behaviour order is indicated at the outset by the fact that section 19(1) of the Crime and Disorder Act 1998 provides that an application for an anti-social behaviour order is to be made by the local authority. Criminal proceedings cannot be brought by a local authority in Scotland. They can be brought only by or on the authority of the Lord Advocate. Then there is the nature of the procedure that is prescribed by section 19(2). A summary application to the sheriff is defined by section 3(p) of the Sheriff Courts (Scotland) Act 1907 as including all applications, whether by appeal or otherwise, brought under any Act of Parliament which provides, or, according to any practice in the sheriff court, which allows that the same shall be disposed of in a summary manner, but which does not more particularly define in what form it is to be heard, tried or determined. The long title of the 1907 Act states that it is an Act to regulate and amend the laws and practice relating to the civil procedure in sheriff courts in Scotland. An appeal against the judgment of the sheriff on a summary application lies to the sheriff principal and to the Court of Session, either direct or from the sheriff principal, under sections 27 and 28 of the 1907 Act. The fact that appeals do not lie to the High Court of Justiciary, which has exclusive jurisdiction for the hearing of appeals in criminal cases, is a further sign, if more were needed, that in domestic terms this is a civil proceeding.

    54. It is worth noting that in S v Miller 2001 SC 977, 988A-B, para 19 Lord President Rodger said that children's hearings under section 52 of the Children (Scotland) Act 1995, and the related proceedings before the sheriff, have always been regarded as being civil in character, even where they contain a ground for referral under section 52(2)(i) which is that the child has committed an offence. In McGregor v D 1977 SC 330, 336 Lord President Emslie said, with reference to the provisions of Part III of the Social Work (Scotland) Act 1968 which have now been re-enacted with amendments in Part II of the Children (Scotland) Act 1995, that in no sense were these proceedings criminal proceedings. As he put it, they are on the contrary civil proceedings sui generis. Where the ground of referral is that the child has committed an offence and the sheriff is asked to consider whether this ground has been established under section 68 of the 1995 Act, the standard of proof which must be applied is that which is required in criminal procedure: section 68(3)(b). The Civil Evidence (Scotland) Act 1988 provides for the abolition of corroboration and the admission of hearsay evidence in civil proceedings. But section 9 of that Act excepts from the definition of "civil proceedings" for the purposes of that Act any hearing by a sheriff of an application under what is now Part II of the Children (Scotland) Act 1995 where the ground of referral was that the child has committed an offence. Nevertheless, the proceedings which Parliament has laid down for the determination of these applications by the sheriff is civil procedure. The reason for this, as the Lord President (Rodger) said in S v Miller 2001 SC 977, 989D, para 20, is that, even though the proceedings may involve establishing that the child has committed an offence, there is no possibility of the child being punished for the offence under them by the imposition of a penalty. This approach is consistent with the principle which was referred to by Lord Wright in Amand v Home Secretary [1943] AC 147, 162 where he said that a criminal cause or matter was one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment.

    55. I think that two important points can be derived from these provisions relating to Scotland in support of the proposition that proceedings which are brought in England and Wales under section 1 of the Crime and Disorder Act 1998 are civil proceedings. The first is that the fact that Parliament chose to provide for the use of civil proceedings in applications for anti-social behaviour orders in Scotland strongly suggests that its intention was that applications for these orders which were made in England and Wales should be made by way of civil proceedings also. The grounds on which these applications may be made in both jurisdictions are similar, and the consequences of the making of an anti-social behaviour order are the same. In neither jurisdiction does an anti-social behaviour order have the character of a punishment for an offence such as a fine or imprisonment. The fact that an anti-social behaviour order has been made against him does not appear on the person's criminal record. On the contrary, the order is described in both section 1(4) and section 19(3) as a prohibition. In this respect it has the character of a civil injunction or, in Scotland, a civil interim interdict. A criminal sanction is available in both jurisdictions if the person is convicted of having breached the order: see section 1(10) for England and Wales and section 22(1) for Scotland. But the proceedings which must be brought in the event of a breach are separate proceedings. Overall, the scheme is so similar in both jurisdictions that the intention of Parliament as to the nature of the proceedings under which the application was to be made can be taken, in the absence of any contrary indication, to have been the same.

    56. The second point is that it would not be inconsistent with a finding that the proceedings under section 1(1) of the Crime and Disorder Act 1998 were civil proceedings for your Lordships to hold that the standard of proof to be applied was that which is required in criminal proceedings. In Constanda v M 1997 SC 217 the ground on which the child had been referred to a children's hearing was that he was exposed to moral danger in terms of section 32(2)(b) of the Social Work (Scotland) Act 1968. The Court of Session held that, as the whole substratum of the ground of referral was that the child had performed certain acts which constituted criminal offences, the commission of these offences had to be proved to the criminal standard. This was despite the fact that the proceedings before the sheriff were civil proceedings, and in the absence of any rule laid down by the Act which required the criminal standard to be applied in any case other than where the child had been referred under section 32(2)(g) on the ground that he had committed an offence.

Classification under the Convention

    57. The fact that the proceedings are classified in our domestic law as civil proceedings is not conclusive of the question whether they are of that character for the purposes of article 6 of the Convention. It provides no more than a starting point, as the question has to be examined in the light of the common denominator of the legislation of the contracting states: Engel v The Netherlands (No 1) (1976) 1 EHRR 647, 678, para 82.

    58. The examination must begin with the wording of article 6 itself, and in particular with the opening sentence of article 6(1). It provides:

    "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."

Then there are the opening words of article 6(3) which provides that everyone "charged with a criminal offence" is to have the minimum rights which are set out in that article.

    59. There are two aspects of the wording of article 6 that I think are worth noting before I turn to the authorities. The first is that, for article 6 to apply at all, the proceedings must be capable of being classified either as proceedings for the determination of the person's "civil rights and obligations" or as proceedings for the determination of a "criminal charge" against him. But it would be wrong to approach the article on the assumption that all that is in issue is the question as to which of these two descriptions better fits the nature of the proceedings. It is not a straight choice between one description and the other. It is possible that the proceedings which are in issue in a given case will fit neither description. In Albert and Le Compte v Belgium (1983) 5 EHRR 533, 539, para 25 the court observed that there are some cases which are not comprised within either of these categories and which thus fall outside the ambit of article 6(1). For example, in Ravnsborg v Sweden (1994) 18 EHRR 38 the court held that article 6 did not apply to proceedings where the applicant had been fined for making improper statements in written observations before the Swedish courts. The proceedings were regarded as being outside the ambit of article 6 because they were disciplinary in character: p 52, para 34. In Raimondo v Italy (1994) 18 EHRR 237 the court held that article 6 did not apply to the proceedings which led to the applicant being placed under special police supervision.

    60. The second aspect of the wording that is worth noting is that those parts of article 6 which refer to criminal proceedings make it clear that the essential feature of proceedings that have that character for the purposes of the Convention is that the person is "charged with a criminal offence". This expression is to be interpreted as having an autonomous meaning in the context of the Convention: Adolf v Austria (1982) 4 EHRR 313, 322, para 30. So careful attention must be paid to the meaning which as been attached to these words by the Strasbourg Court. As is by now very well known, the case law has established that there are three criteria to be taken into account. They are not always stated in precisely the same language, but they are usually said to be (1) the classification of the proceedings under national law, (2) the nature of the offence and (3) the nature and degree of severity of the penalty: Engel v The Netherlands (No 1) 1 EHRR 647, 678-679, paras 82-83; Benham v United Kingdom (1996) 22 EHRR 293, 323, para 56.

    61. The words "criminal charge" themselves suggest that the proceedings which they have in mind are not just proceedings where a "charge" is made. The question is whether they are proceedings which may result in the imposition of a penalty. This point emerges clearly from the French text of article 6(1), as the Lord President (Rodger) pointed out in S v Miller 2001 SC 977, 988G, para 21. It states that the matter which is to be determined must be either a dispute "sur ses droits et obligations de caractère civil" or an "accusation en matière pénale". The words "en matière pénale" indicate it is envisaged that there will be a penal element. The court seems to have had this point in mind when, in Engel v The Netherlands (No 1), p 678, para 82, it asked itself when it was setting out the first criterion "whether the provision(s) defining the offence charged belong, according to the legal system of the respondent state, to criminal law, disciplinary law or both concurrently." In other words, proceedings involving a charge which is merely disciplinary in character will not fall within the ambit of article 6.

    62. In Öztürk v Germany (1984) 6 EHRR 409, 421, para 50 the court said that the first matter to be ascertained was "whether or not the text defining the offence in issue belongs, according to the legal system of the respondent state, to criminal law." In the continental systems the texts in question are likely to be found in a code, and there is often a separate criminal code which can readily be identified. As the Lord President (Rodger) in S v Miller observed at 2001 SC 977, 988I-989B, para 21:

    "the very titles of such codes of criminal law will often reveal that they are indeed concerned essentially with 'matière pénale'. For instance, in France there is a 'code pénale', in Italy a 'codice penale', in Spain a 'código penal' and in Germany a 'Strafgesetzbuch'. It follows that when, in such cases as Öztürk, the court investgiates whether the text defining the offence belongs to criminal law, it is investigating whether the text belongs to an area of the law where proceedings can result in a penalty being imposed."

    63. This view as to the meaning of the phrase "criminal charge" is reinforced by the third criterion, which is the nature and degree of severity of the penalty. The formulation of this criterion in the early case of Engel v The Netherlands (No 1) 1 EHRR 647, 678, para 82 is instructive:

    "[Supervision by the court] would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the 'criminal' sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the contracting states and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so."

    64. The underlying idea is that proceedings do not lie within the criminal sphere for the purposes of article 6 unless they are capable of resulting in the imposition of a penalty by way of punishment. In B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, 353F, para 28 Lord Bingham of Cornhill CJ said that he was aware of no case in which the European Court has held a proceeding to be criminal even though an adverse outcome for the defendant cannot result in any penalty. I agree. Although there are other aspects of the procedure which suggest that in proceedings for the imposition of an anti-social behaviour order the person is not "charged with a criminal offence", the critical question as I see it is whether the making of such an order amounts to the imposition of a penalty. But it is first necessary to consider whether either of the first two criteria are satisfied.

The first criterion: classification in domestic law

    65. A finding that the proceedings were classified as criminal in domestic law is likely to be conclusive. But a finding that they are civil is of relative weight and serves only as a starting point: Benham v United Kingdom 22 EHRR 293, 323, para 56. In Lauko v Slovakia (1998) 33 EHRR 994, 1011, para 57 the court observed that the criteria are alternative and not cumulative: see also Garyfallou AEBE v Greece (1997) 28 EHRR 344. As it was put in Öztürk v Germany 6 EHRR 409, 424, para 54, one criterion cannot be applied so as to divest an offence of a criminal character if that has been established under another criterion. But it was recognised in Lauko v Slovakia, at p 1011, para 57, that a cumulative approach may be adopted if the separate analysis of each of them does not lead to a clear conclusion as to the existence of a "criminal charge". For the reasons already given, I consider that the position under domestic law is that the proceedings are classified as civil proceedings and not criminal.

    66. In their helpful written submissions which were developed before us in oral argument Liberty, to whom leave was given to intervene in these appeals, have contended that the essential question is how domestic law classifies the conduct which is at issue, not the proceedings themselves. They submit that the conduct which requires to be demonstrated falls within the scope of the criminal law, and that for this reason the proceedings should be treated as criminal proceedings in domestic law for the purposes of the Convention. They point out that the definition of "anti-social behaviour" in section 1(1) of the Crime and Disorder Act 1998 is modelled on "harassment" in the Protection from Harassment Act 1997, which is a criminal offence under section 2 of that Act, and that such conduct may also be treated as criminal under section 5 of the Public Order Act 1986 and a variety of other statutory provisions dealing with offences such as assault, theft and burglary. They also invoke section 3 of the Human Rights Act 1998 in support of the proposition that an application made under section 1 of the Crime and Disorder Act 1998 should be construed in domestic law as criminal proceedings in the absence of an express provision in the legislation to the contrary.

    67. I would reject these arguments. The question is whether, as it was put in Engel v The Netherlands (No 1) 1 EHRR 647, 678, para 82, the provision defining the offence belongs to criminal law, disciplinary law or both concurrently. It cannot be answered without examining the nature and purpose of the proceedings in which the conduct is alleged. The analogies to which Liberty refer are all examples of situations in which the conduct described is defined in the statute for the purpose of enabling a charge to be brought with a view to the imposition of a penalty. In Engel v The Netherlands (No 1), p 677, para 79 the court described the aim of repressing the applicants' conduct through penalties as an objective which was analogous to the "general goal of the criminal law". That is not the purpose for which proceedings for the imposition of an anti-social behaviour order are brought. Their purpose is to protect the public from further anti-social acts by the defendant. As for the argument regarding section 3 of the Human Rights Act 1998, it is, as Liberty themselves recognise, circular. According to the jurisprudence of the Strasbourg Court, the first criterion is how the proceedings are classified according to the legal system of the respondent state: Engel v The Netherlands (No 1), p 678, para 82. Section 2 of the Human Rights Act 1998 provides that a court or tribunal determining a question which has arisen in connection with a Convention right must take the Strasbourg jurisprudence into account. Strasbourg jurisprudence tells us that the question of classification is a matter for our own domestic system. Under our system, for the reasons already given, the proceedings are civil proceedings and not criminal.

The second criterion: the nature of the offence

    68. This question looks to the nature of the offence charged. But there is a preliminary question that has to be examined. Do proceedings for the imposition of an anti-social behaviour order involve the bringing of a charge at all? For the reasons already given, I think that the answer to this question in domestic law is clear. They do not involve the bringing of a charge because the purpose of the procedure is to impose a prohibition, not a penalty. But the domestic answer to this question does not resolve the issue, because for the purposes of the Convention it is necessary to look at the substance of what is involved and not the form. Moreover the question cannot be answered according to what Parliament is thought to have intended. In this context it is the effect of what Parliament has done that has to be examined. The court looks behind the appearances and investigates the realities of the procedure: Deweer v Belgium (1980) 2 EHRR 439, 458, para 44.

    69. The grounds for making the application involve making an allegation against the defendant that he has acted in a manner which may well have involved criminal conduct. A formal accusation is made, and the court to which it is made has to reach a decision as to whether or not the allegation has been made out. The situation can be distinguished from that where a sex offender order is sought under section 2 of the Crime and Disorder Act 1998, as it is a precondition for the making of the application that the defendant is already a sex offender as defined in section 3(1) of the Act. It can also be distinguished from that where a confiscation order is sought under the Drug Trafficking Offences Act 1986, as it is a precondition for the making of an application for such an order that the person against whom the order is sought has been convicted of a drug trafficking offence as defined in the Act. A previous conviction for the acts which are said to have amounted to anti-social behaviour is not required for the purposes of section 1 of the Crime and Disorder Act 1998. For the defendants it was contended that these features of the proceedings showed that they were directed at the world at large, rather than a pre-defined or limited class of persons, and that offences which were of this character were apt to be regarded as involving a criminal charge within the meaning of article 6.

    70. I do not think that the fact that no previous criminal conviction is required before an application for an anti-social behaviour order can be made under section 1 of the Crime and Disorder Act 1998 has the significance which the defendants seek to attach to it. A distinction is drawn in the jurisprudence of the Strasbourg Court between charges which are addressed to a pre-defined or limited class of persons, such as those who are serving in the armed forces or are serving sentences of imprisonment as in Engel v The Netherlands (No 1) 1 EHRR 647 and McFeeley v United Kingdom (1980) 3 EHRR 161 or those who take part in proceedings before a court as in Ravnsborg v Sweden 18 EHRR 38, on the one hand and charges which are directed to the world at large on the other, as in Bendenoun v France (1994) 18 EHRR 54 which was concerned with a provision in the tax code applicable to all citizens. The distinction which is drawn here is between proceedings which are disciplinary in character and those which are criminal. Where a limited group of persons possessing a special status is involved the conclusion is more readily drawn that the proceedings are disciplinary. But that is not a distinction which falls to be drawn in this case. The question is whether the person against whom an anti-behaviour order is being sought is "charged" with an offence at all. There are several indications that this is not so.

 
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