R (McCann) v Manchester Crown Court

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD PHILLIPS, MR,LORD JUSTICE KENNEDY,LORD JUSTICE DYSON
Judgment Date01 March 2001
Neutral Citation[2001] EWCA Civ 281
Docket NumberCO/3055/2000
Date01 March 2001

[2001] EWCA Civ 281

IN THE SUPREMECOURTOFJUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

SITTING IN THE MANCHESTER DISTRICT REGISTRY

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

(LORD WOOLF, CJ AND MRS JUSTICE RAFFERTY)

Crown Square

Manchester M

Before:

The Master Of The Rolls

(lord Phillips)

Lord Justice Kennedy

Lord Justice Dyson

CO/3055/2000

The Queen On The Application Of
1. Sean Mccann
2. Joseph Mccann
2. Michael Mccann
(proceeding By Their Mother And Litigation Friend Margaret Mccann)
Applicants
and
Manchester Crown Court
Respondent
and
the Chief Constable Of Greater Manchester
Interested Party

MR A FULFORD QC and MR STARK (Instructed by Messrs Burton Copeland, Manchester) appeared on behalf of the Applicants

MR C GARSIDE QC and MR P CADWALLADER (Instructed by The Force Solicitor, Greater Manchester Police, Manchester, M16 ORE) appeared on behalf of the Interested Party.

MISS J SIMOR (Instructed by the National Council for Civil Liberties) appeared on behalf of the Intervenor

LORD PHILLIPS, MR
1

This is an appeal from the judgment of Lord Woolf CJ and Rafferty J sitting in the Administrative Court. It was delivered on 22 November 2000 and dismissed an application for judicial review made by the three Appellants. That application sought to quash anti-social behaviour orders made against each of the Appellants on 17 May 2000 under section 1 of the Crime and Disorder Act 1998 ("the 1998 Act"). The orders were made by His Honour Judge Rhys Davies, the Recorder or Manchester, sitting with Lay Magistrates in the Crown Court.

2

The ground for the application was that the Recorder wrongly treated the applications for the orders as being made in civil proceedings when in fact they were made in criminal proceedings. It was contended that this resulted in the admission of hearsay evidence under the Civil Evidence Act when, under the rules of evidence that should have been applied to criminal proceedings, this evidence was inadmissible.

Jurisdiction

3

After judgment was given in the Administrative Court, the Appellants asked for permission to appeal to this court on the premise that, as the Administrative Court have held this is a civil cause or matter, that was the correct avenue of appeal. The Appellants seek to establish, however, that these are criminal proceedings. If that contention is correct, the Court of Appeal has no jurisdiction to entertain the appeal.

4

Although the Administrative Court recognised this paradox, they did not refuse permission to appeal because of it. They refused permission because they considered that the position in law was clear. Equally, when the paper application for permission to appeal came before me, I did not think it right to refuse permission on this technical point. I gave permission to appeal because the case raises a point of general importance which merits consideration by this court. Mr Adrian Fulford QC, for the Appellants, accepted that, if his argument succeeded, the fruits of his success would be a declaration that this court had no jurisdiction to entertain his appeal.

5

Anti-social behaviour orders are a recent arrival on the English legal scene. Whether the proceedings in which they are sought are criminal or civil is a question of general public importance. If they are criminal, the criminal rules of evidence and the criminal standard of proof apply and they attract the protection of Articles 6(2) and (3) of the European Convention on Human Rights.

6

Provision for making anti-social behaviour orders is made by section 1 of the 1998 Act. That provides:

"(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 or 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 and 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 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 an 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 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 this offence."

7

Section 2 makes similar provisions in relation to convicted sex offenders. It provides for the making of Sex Offender Orders and subsections (1) to (4) read as follows:

"(1) If it appears to a chief officer of police that the following conditions are fulfilled with respect to any person in his police area, namely-

(a) that the person is a sex offender; and

(b) that the person has acted, since the relevant date, in such a way as to give reasonable cause to believe that an order under this section is necessary to protect the public from serious harm from him, the chief officer may apply for an order under this section to be made in respect of the person.

(2) Such an application shall be made by complaint to the magistrates' court whose commission area includes any place where it is alleged that the defendant acted in such a way as is mentioned in subsection (1)(b) above.

(3) 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 (a 'sex offender order') which prohibits the defendant from doing anything described in the order.

(4) The prohibitions that may be imposed by a sex offender order are those necessary for the purpose of protecting the public from serious harm from the defendant."

The facts

8

Sean McCann was aged 16, Joseph McCann was aged 15 and Michael McCann was aged 13 at the time that the orders under challenge were made. All three of them live at 29A Ardwick Green North, Ardwick, Manchester. On 22 October 1999 the Chief Constable for Greater Manchester made an application under section 1(1) of the 1998 Act in relation to each youth. Pursuant to section 1(3) of the 1998 Act, that application was made by complaint to the Manchester City Magistrates' Court.

9

The application in relation to each of the brothers was in the following identical terms:

"The respondent has acted on various dates between 1 April 1999 and 22 October 1999 in the Beswick area of Manchester in an anti-social manner, that is to say, in a manner that caused, or was likely to cause, harassment, harm or distress to one or more persons not of the same household as himself."

Each application averred:

"That an anti-social behaviour order is necessary to protect persons in the City of Manchester local Government area in which the harassment, alarm or distress was caused, or was likely to be caused by anti-social acts by him."

10

On 15 December 1999 the applications were heard before Mr Alan Berg, a Stipendiary Magistrate. Mr Berg granted the applications and made orders against each Applicant.

11

The McCann brothers appealed to the Crown Court, pursuant to section 4 of the...

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