R (McCann) v Manchester Crown Court

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMRS JUSTICE RAFFERTY
Judgment Date17 October 2002
Judgment citation (vLex)[2000] EWHC J1122-7
Date17 October 2002
Docket NumberCO/3055/2000

[2000] EWHC J1122-7

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

The Strand

London

Before:

The Lord Chief Justice of England and Wales

(The Lord Woolf of Barnes)

Mrs Justice Rafferty

CO/3055/2000

Between:
The Queen
on the application of
(1) Sean Mccann
(2) Joseph Mccann
(3) Michael Mccann
(proceeding by their Mother and Litigation friend
Margaret McCann)
and
Manchester Crown Court

MR A FULFORD QC and MR J STARK (instructed by Messrs Burton Copeland, Manchester M3 3NE) appeared on behalf of THE APPLICANTS

THE RESPONDENTS were not represented

MR C GARSIDE QC (instructed by The Force Solicitor, Greater Manchester Police Authority, Manchester M16 ORE) appeared on behalf of THE INTERESTED PARTY

Wednesday 22 November 2000

THE LORD CHIEF JUSTICE
1

: This is an application for judicial review made by three applicants. The application is to quash a decision of an order of His Honour Judge Rhys Davies QC, the Recorder of Manchester, and justices, dated 17 May 2000, to make an anti-social behaviour order against the applicants under section 1 of the Crime and Disorder Act 1998. The application raises a point of some importance: whether proceedings under section 1 of that Act to obtain an anti-social behaviour order are criminal proceedings so that they attract the additional protection provided by Article 6 of the European Convention on Human Rights and are to be subject to the normal rules of evidence which apply to a criminal prosecution and not court proceedings in this jurisdiction.

2

The Crown Court decided that the proceedings were not criminal but civil. The decision on this application will also have relevance as to the provisions of section 2 of the same Act. Section 1, with which we are primarily concerned, is designed to enable the court to make an order to protect the public against anti-social behaviour. Section 2 contains similar provisions designed to provide protection against the acts of sex offenders; it enables the court to make a Sex Offender Order.

3

The significance of whether the proceedings are civil or criminal arises because of the difficulty that exists in relation to the proof of the sort of conduct against which section 1 is designed to provide protection. Understandably, in a locality those who are subject to anti-social behaviour are chary about giving evidence in criminal proceedings. It is in particular because of those difficulties that, after a consultation process, the legislation which is contained in Part 1 of the 1998 Act was passed. The object of making the proof of conduct which is anti-social more easy to prove would be defeated if in fact the proceedings were criminal. Then the normal rules of evidence which apply to criminal proceedings would have to be complied with and furthermore the proceedings would be subject to the additional protection provided by Article 6 of the European Convention in relation to criminal proceedings.

4

The background to the application is as follows. The applicants are three boys aged 16, 15 and 13. They live in the Ardwick area of Manchester. On 22 October 1999, the Chief Constable made applications against all three applicants by way of complaint to the Manchester City Magistrates' Court for the orders under section 1 on the grounds that they had, on various dates between 1 April 1999 and 22 October 1999, acted in an anti-social manner, that is to say a manner that caused or was likely to cause harassment, alarm and distress to one or more persons not of the same household.

5

On 15 December 1999, the stipendiary magistrate made the anti-social behaviour orders against all three applicants. They then appealed to the Crown Court. The Crown Court came to the decision to which I have already made reference.

6

In order to consider the arguments which have been advanced before this court, it is first necessary to set out the provisions of section 1 of the Crime and Disorder Act 1998:

"(1) 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 —

(a) that the person has acted, since the commencement date, in an anti-social matter, 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

(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;

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.

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

(3) Such an application shall be made by complaint to the magistrates' court whose commission area includes the place where it is alleged that the harassment, alarm or distress was caused or was likely to be caused.

(4) 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.

(5) 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.

(6) The prohibition that may be imposed by an anti-social behaviour order are those necessary for the purpose of protecting from further anti-social acts by the defendant —

(a) persons in the local government area; and

(b) persons in any adjoining local government area specified in the application for the order;

and a relevant authority shall not specify an adjoining local government area in the application without consulting the council for that area and each chief officer of police any part of whose police area lies within that area.

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

(8) 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.

(9) 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.

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

(a) 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

(b) on conviction 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.

(12) In this section —

'the commencement date' means the date of the commencement of this section;

'local government area' means —

(a) in relation to England, a district or London borough, the City of London, the Isle of Wight and the Isles of Scilly;

(b) in relation to Wales, a county or county borough."

7

Article 6 of the European Convention on Human Rights provides:

"(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 interests 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 of examination of witnesses on his behalf under the same conditions as witnesses against him…."

8

In his very helpful submissions before this court, Mr Fulford QC identified five propositions to which he attaches considerable importance on behalf of the applicants. First, he drew attention to the fact that the Act bears the title " Crime and Disorder Act". To an extent that point loses some force when it is appreciated that it is common ground that section 1 creates a criminal offence. If, after an order has been made, there is contravention of that order, that is a matter which, it is accepted by both sides, has to be regarded as being the subject of criminal proceedings if enforcement action is taken. Those proceedings would draw to them the full panoply of...

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