R (McCann) v Manchester Crown Court

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date17 October 2002
Neutral Citation[2002] UKHL 39,[2002] UKHRR 1286

[2002] UKHL 39


Lord Steyn

Lord Hope of Craighead

Lord Hutton

Lord Hobhouse of Wood-borough

Lord Scott of Foscote

(Formerly C (A Minor)) (FC) (Appellant)
Royal Borough of Kensington

(On Appeal from a Divisional Court of the Queen's Bench Division)

Regina Crown Court at Manchester
Ex Parte McCann (FC)

And Others (FC)

(By Their Mother and Litigation Friend Margaret McCann)

My Lords,


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.


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.


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.


The Principal Issues.


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;

(d) 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.


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.


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:

(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 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

(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 …

(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 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 -

(a) persons in the local government area; and

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

(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 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.


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...

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