The Nature of the Anti‐Social Behaviour Order –R (McCann & Others) v Crown Court at Manchester
| DOI | http://doi.org/10.1111/1468-2230.6604007 |
| Published date | 01 July 2003 |
| Author | Stuart Macdonald |
| Date | 01 July 2003 |
The Nature of the Anti-Social Behaviour Order –
R (McCann & Others) vCrown Court at Manchester
Stuart Macdonald
n
Should proceedings under section 1(1) of the Crime and Disorder Act 1998 for the
imposition of an anti-social behaviour order (ASBO) be classified, both
domestically and for the purposes of Article 6 ECHR, as civil or criminal
proceedings? The importance of this question, which faced the House of Lords in
R (McCann & others) vCrown Court at Manchester, Clingham vKensington and
Chelsea Royal London Borough Council, lay in its implications for the admissibility
of hearsay evidence in these proceedings. If they were domestically classified as
criminal proceedings the rule against hearsay evidence would apply, and if they
involved the determination of a ‘criminal charge’ Article 6(3)(d) (‘everyone
charged with a criminal offence has the following minimum rights yto 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’) would apply.
ASBOs were designed to remedy a ‘serious social problem.’ The criminal law
‘offered insufficient protection to communities’ who were plagued by ‘young
persons, and groups of young persons, [causing] fear, distress and misery to law
abiding and innocent people by outrageous anti-social behaviour.’ (per Lord Steyn
at [16]) The structure of a civil injunction with criminal penalties for breach was
designed so as to allow the orders to be imposed without the necessity of these
frightened and intimidated people, frequently neighbours, giving direct evidence.
1
If they were to be classified as criminal proceedings, either domestically or for the
purposes of Article 6, ‘it would inevitably follow that the procedure for obtaining
anti-social behaviour orders is completely or virtually unworkable and useless.’
(per Lord Steyn at [18]) Lord Steyn thus commented
My starting point is, however, an initial scepticism of an outcome which would deprive
communities of their fundamental rights (emphasis original, at [18])
The facts
When the ASBO, created by section 1 of the Crime and Disorder Act 1998, was
devised by New Labour, it was defendants like the McCann brothers and Andrew
Clingham that they had in mind.
During a six month period in 1999, the McCanns had allegedly verbally abused,
threatened and assaulted several members of the public in the Beswick area of
Manchester, and committed acts of theft, burglary and criminal damage.
Manchester Crown Court, having heard evidence that consisted partly of hearsay
n
Lecturer in Law, University of Southampton. Thanks to Andrew Halpin, Ed Bates, and Andrew
Rutherford for their helpful comments
1 See, for example, A Quiet Life: Tough Action on Criminal Neighbours (London: Labour Party,
June 1995) in which the ASBO (then called the Community Safety Order) was first proposed
rThe Modern Law Review Limited 2003. (MLR 66:4, July). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
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