﻿<?xml version="1.0" encoding="utf-8"?><Search><pages Count="142"><page Index="1"><![CDATA[]]></page><page Index="2"><![CDATA[]]></page><page Index="3"><![CDATA[5.
               Additional Email Attachments & Emails / Issue:
               5. 1. 2
               Asbo Mother -FW Simon argument Papers 04-02-2016 21-08
               04/02/2016
               / Page Numbers: 35,36
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               --
               35,
               From: Lorraine Cordell <lorraine32@blueyonder.co.uk>
               Sent time: 04/02/2016 09:08:23 PM
               To: Rewired <re_wired@ymail.com>
               Subject: FW: Simon Cordell Skeleton Argument Papers
               Attachments: Simon Cordell Skeleton Argument.pdf
               Simon Cordell Skeleton Argument (2).pdf
               Simon Cordell Skeleton Argument (3).pdf
               here just got from Josey well Patrick
               From: Patrick Mc Elligott
               mailto: patrick@michaelcarrollandco.com
               Sent: 04 February 2016 17:35
               To: lorraine32@blueyonder.co.uk
               Cc: josie@michaelcarrollandco.com; clarence@michaelcarrollandco.com
               Subject: Re: Simon Cordell Skeleton Argument Papers
               Dear Ms Cordell,


                                                                                               Page 1 of 139]]></page><page Index="4"><![CDATA[Please find the papers attached. Could you please provide us with your son's email address as
               well too.
               Regards.
               36,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Page: 820
               R (McCann) v Manchester Crown Ct (HL(E))
               Lord Hope of Craighead
               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) r EHRR
               647, 678-679, 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 B 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.”

               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, 353, 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 1 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
               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, 1010-1011, para 57 the court observed that the criteria are alternative and ^
               not cumulative: see also Garyfallou AEBE v Greece (1997) EHRR 344. As it was put in
               Ozturk 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 ion, 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. 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, d hey 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


                                                                                               Page 2 of 139]]></page><page Index="5"><![CDATA[point out that the definition of “anti-social behaviour” in section 1(1) of the Crime and
               Disorder Act 1998 is modelled on
               PART 5 © SWEET & MAXWELL
               37,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Page: 3
               R (McCann) v Manchester Crown Ct (HL(E))
               Lord Hope of Craighead
               A “harassment” in the Protection from Harassment Act 1997, which is a criminal offence
               under section z 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 3 998 should be construed in domestic law as 6 criminal proceedings
               in the absence of an express provision in the legislation to the contrary.
               • 1 would reject these arguments. The question is whether, as it was put in Engel v The
               Netherlands (No 1) 1 EHRR 647, 678, para 81, 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), at 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”. I hat is not the 0 purpose for which proceedings for
               the imposition of an anti-social behaviour order are brought. Their purpose is to protect the
               public from further antisocial 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), at p 678, para 8z. Section z 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 arc civil proceedings and not criminal.
               The second criterion: the nature of the offence
               • 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, 1 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 tire 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 H to be examined. The court
               looks behind the appearances and investigates the realities of the procedure: Deweer v
               Belgium (1980) z EHRR. 439, 438, para 44.
               • The grounds for making the application involve making an allegation against the defendant
               that he has acted in a manner which may
               PART 5 © SWEET & MAXWELL
               38,


                                                                                               Page 3 of 139]]></page><page Index="6"><![CDATA[Simon Cordell’s Skeleton Argument (2) Pdf
               Page: 4
               R (McCann) v Manchester Crown Ct (HL)
               Lord Hope of Craighead
               we’ll 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.
               I do not think that the fact that no previous criminal conviction is required before an
               application for an and-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 McEeeley 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 Ben denoun u 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.
               The conduct which requires to be demonstrated is not necessarily conduct which would be
               capable of being treated as criminal. It has to be shown that the defendant has acted in a
               manner that caused or was likely to cause harassment, alarm, or distress. But in order to
               prove that an offence under section 1of the Public Order Act 1986 was committed by him it
               would be necessary to go further and prove that he intended to cause these consequences. In
               order to prove that an offence was committed under section 1 of the Protection from
               Harassment Act 1997 it would be necessary
               to prove that he was engaged in a course of conduct which in fact amounted to harassment
               and that he knew or ought to have known that his conduct amounted to harassment.
               Furthermore, the decision whether or not to make the order does not depend solely on proof
               of the defendant’s conduct. The application may only be made if it appears to the local
               council or the chief constable that an
               PART 5 © SWEET & MAXWELL
               39,
               Simon Cordell’s Skeleton Argument (2) Pdf


                                                                                               Page 4 of 139]]></page><page Index="7"><![CDATA[Page:  5
               R (McCann) v Manchester Crown Ct (HL (E))
               Lord Hope of Craighead
               An order is necessary to protect persons in the area, and consultation between them is
               required before the application is made. Thus, the proceedings are identified from the outset
               as preventive in character rather than punitive or disciplinary. This is a strong indication that
               they are not proceedings for the determination of a criminal charge against the defendant. In
               Lattko v Slovakia 33 EHRR 9514, ion, para 58 the court said that the fine imposed in that
               case was intended as a punishment to deter re-offending and that it had 6 “a punitive
               character, which is the customary distinguishing feature of criminal penalties”. In Guzzardi v
               Italy (3980) 3 EHRR 333, 369-37°, para o the court said that proceedings under which the
               applicant, as a suspected Mafioso, had been placed under special supervision with an
               obligation of compulsory residence within a restricted area did not involve the determination
               of a criminal charge against him within the meaning of C article. see also Raimondo v Italy
               18 EHRR 137. In M v Italy (199r) 70 DR 59, the commission held that article 6(2) did not
               apply to confiscation of property belonging to a person suspected of being a member of a
               mafia- type organisation. In neither of these cases was the imposition of the order regarded as
               being punitive. In Gough v Chief Constable of the Derbyshire Constabulary [2002] QB 459
               the Divisional Court held that the imposition of a banning order under the Football
               (Spectators) Act 1989 as amended by the Football (Disorder) Act 2000, which was designed
               to combat what Laws I.J described as “the shame and menace of football hooliganism”, was
               not in conflict with article 6. This decision has been affirmed by the Court of Appeal [2002]
               QB 1 2T 3.

               In contrast to those decisions, which support the proposition that a distinction is drawn
               between proceedings for the imposition of preventive measures and those for the imposition
               of a penalty or punishment, there is Steel v United Kingdom 28 FJIRR 603, In that case the
               court held that article 6(3) applied to proceedings in which the applicants, who had been
               arrested and charged with breach of the peace, were brought before a magistrate and bound
               over to keep the peace. As in the case of applications for an anti-social behaviour order, the
               procedure is initiated under section 51 of the Magistrates’ Courts Act 1980 by a complaint,
               and a bind over order ^ does not constitute a criminal conviction. It was contended foi the
               defendants that that decision is directly in point in this case and indistinguishable, and that
               contention was strongly supported by Liberty.

               But I would hold that it is distinguishable, for the reasons which were given by Lord Phillips
               of Worth Matravers MR. in the Court of Appeal in the McCann case [2001] rWLRro84,
               1100H—1 to b. As he pointed out, in contrast to proceedings for breach of the peace, there is
               no power of arrest for the purpose of proceedings under section 1 of the Crime and Disorder
               Act 1998. The fact that a warrant may be issued for the defendant’s arrest if he fails to attend
               the hearing or an adjourned hearing does not show that they are criminal proceedings. Rather
               it shows that he has failed to respond to a summons by the court. In itself this is far from
               conclusive, as there are numerous offences in English law which are non-arrestable. But it
               has to be ^ taken together with the other factors. Proof of anti-social behaviour is not the only
               criterion for the making of the order, nor is proof that the defendant is likely to cause further
               anti-social acts in the future. 'the orders must be shown to be necessary for the purpose of
               protecting people against further such behaviour by him. This is not a distinction of form
               rather than
               PART 5 © SWEET & MAXWELL
               40,


                                                                                               Page 5 of 139]]></page><page Index="8"><![CDATA[Simon Cordell’s Skeleton Argument (2) Pdf
               Page: 6
               R (McCann) v Manchester Crown Ct (HL(E))
               Lord Hope of Craighead
               substance at all. The last criterion is of fundamental importance to the A decision as to the
               prohibitions that are required. And in contrast to proceedings for breach of the peace, which
               can lead to the immediate imposition of a sentence of imprisonment under section 11.5(3) of
               the Magistrates’ Courts Act 1980 for up to six months if the defendant fails to comply with
               the order because he does not agree to enter into a recognisance to keep the peace or to be of
               good behaviour, proceedings under section 1 of g the Crime and Disorder Act 1998 cannot in
               themselves result in the immediate imposition of a penalty.
               The third criterion: is an antisocial behaviour order a penalty
               This question looks to the nature of the penalty. But here again there is a preliminary question
               that has to be examined. Is an anti-social behaviour order a penalty at all? The essential
               characteristics of an antisocial behaviour order are that the defendant is prohibited from doing
               something. The purpose of the prohibition is to protect people in the area to which the order
               relates. Section 1(6) of the Crime and Disorder Act 1998 provides that the prohibitions that
               may be imposed are those necessary for the purposes of protecting persons from further anti-
               social conduct that is, from conduct which will cause, or is likely to cause, them harassment,
               alarm D or distress. It is true that no limits are set as to the prohibitions that may he imposed,
               so long as they are found to be necessary. The defendants say that prohibitions which banish
               the defendant from an area of the city where he lives, or which expose him to harsher
               penalties than he would normally face if he commits an offence, have all the characteristics of
               a penalty for the antisocial acts which he is found to have committed.
               An anti-social behaviour order may well restrict the freedom of the defendant to do what he
               wants and to go where he pleases. But these restrictions are imposed for preventive reasons,
               not as punishment. 1 he tests that has to be applied under section 1(6) is confined to what is
               necessary foi the purpose of protecting persons from further anti-social acts by the defendant.
               The court is not being required, nor indeed is it permitted, to consider what an appropriate
               sanction would be for his past conduct.  Moreover, while the court may restrict the
               defendant’s liberty where this is shown to be necessary to protect persons in the area from
               further anti-social acts by him, it may not deprive him of it nor may it impose a fine on him.
               Conclusion on classification
               For these reasons I do not think that any of the criteria for a finding c that proceedings under
               section r of the Crime and Disorder Act 1998 have the character of criminal proceedings for
               the purposes of article 6 are satisfied. The consequence of so holding is of fundamental
               importance to the future of this legislation. Cases such as Unterpertinger v Austria (1986) 13
               FURR .175, Kostovski v The Netherlands (1989) 1.1 F.HRR 434      and Saidi v France
               (1993) 17 EHRR 2.51 illustrate the reluctance of the Staatsburg court to accept that the use of
               hearsay evidence is compatible with a defendant’s right under article 6(3)(d) to examine or
               have examined witnesses against him. But I would hold that article 6(3) does not apply to
               these proceedings and that the rules of evidence that are to be applied are the civil evidence
               rules. This means that hearsay evidence under the Civil
               PART 5 © SWEET & MAXWELL
               41,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Page: 6
               R (McCann) v Manchester Crown Ct (HL(E)
               Lord Hope of Craighead




                                                                                               Page 6 of 139]]></page><page Index="9"><![CDATA[A Evidence Act 1995, the use of which will be necessary in many cases if the magistrates are
               to be properly informed about the scale and nature of the anti-social behaviour and the
               prohibitions that are needed for the protection of the public, is admissible.
               Are the proceedings civil proceedings?
               Counsel for the respondents and the Secretary of State were agreed that, if your Lordships
               were to hold that the specific guarantees in article 6(2.) and article 6(3) did not apply to these
               proceedings, they were nevertheless subject to the provisions of article 6(1). The question of
               classification is critical in this case, so it is important that the basis for these concessions
               should be clearly understood. They could only be accepted as well-founded if it was clear that
               the proceedings involved the determination of the defendant’s civil rights and obligations.
               At first sight an order which prohibits a person from behaving in an anti-social manner has
               nothing to do with his civil rights and obligations. He has no right in domestic private law to
               use or engage in abusive, insulting, offensive, threatening language or behaviour or to
               threaten or engage in violence or damage against any person or property, which are among
               the acts which the defendants have been prohibited from doing in the McCann case. But, as
               Lord Nicholls of Birkenhead said in In re S (Minors) (Care Order: Implementation of Care
               Plan) [2002] AC 291, 32,0, para 71., by virtue of the Human Rights Act 1998 the right to
               respect for private and family life which is guaranteed by article 8 of the Convention is now
               part of a person’s civil rights in domestic law for the purposes of article 6(1}. In my opinion
               the same can be said of the rights to freedom of expression and of assembly and association
               which are guaranteed by articles 10 and 1 r.
               Section 1(6) of the Crime and Disorder Act 1998 sets no limits to the prohibitions that may
               be imposed, except that they must be necessary for the protection of people in the local
               government area against further anti-social acts by the defendant. Among the range of orders
               that might reasonably be thought to be necessary are orders which may interfere with the
               defendant’s private life, his freedom to express himself either by words or conduct and his
               freedom to associate with other people. Although the jurisprudence of the Strasbourg court
               appears to me as yet to be unclear on this point, 1 would hold that the fact that prohibitions
               made under section I(d) of that Act may have this effect is sufficient to attract the right to a
               fair trial which is guaranteed by article 6(1). This means that the court must act with
               scrupulous fairness at all stages in the proceedings. When it is making its assessment of the
               facts and circumstances that have been put before it in evidence and of the prohibitions, if
               any, that are to be imposed, it must ensure that the defendant does not suffer any injustice.
               Standard of proof
               As Lord Phillips of Worth Matravers MR observed in the Court of Appeal in the McCann
               case [2001I t WLR 1.084, riot, para 65, anti-social behaviour orders have serious
               consequences. It was with this point in mind that', at p 1101, para 67, he commended the
               course which, the Recorder of Manchester followed in the Crown Court when he said that,
               without- intending to lay down any form of precedent, the court had decided to apply
               PART 5 © SWEET & MAXWELL
               42,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Page:7
               R (McCann) v Manchester Crown Ct (HL(E)
               Lord Hope of Craighead
               the standard of being satisfied so that they were sure that the statutory conditions were
               fulfilled before they would consider the making of an order in the case of each defendant. I
               too would endorse this approach, for the following reasons.
               Mr Crow for the Secretary of State said that his preferred position was that the standard to be
               applied in these proceedings should be the civil standard. His submission, as it was put in his


                                                                                               Page 7 of 139]]></page><page Index="10"><![CDATA[written case, was that g although the civil standard was a single, inflexible test, the inherent
               probability or improbability of an event was a matter to be taken into account when the
               evidence was being assessed. He maintained that this view was consistent with the position
               for which lie contended, that these were civil proceedings which should be decided according
               to the civil evidence rules. But it is not an invariable rule that the lower standard of proof
               must be applied in civil proceedings. I think that there are good reasons, in the interests of
               fairness, for applying the higher standard when allegations are made of criminal or quasi-
               criminal conduct which, if proved, would have serious consequences for the person against
               whom they are made.
               This, as I have already mentioned, was the view which the Court of Session took in
               Constanda v M 1997 SC 217 when it decided that proof to the criminal standard was required
               of allegations that a child had engaged in p criminal conduct although the ground of referral
               to a children’s hearing was not that he had committed an offence hut that he was exposed to
               moral danger. There is now a substantial body of opinion that, if the case for an order such as
               a banning order or a sex offender order is to be made out, account should be taken of the
               seriousness of the matters to be proved and the implications of proving them. It has also been
               recognised that if this is done the civil standard of proof will for all practical purposes be E
               indistinguishable from the criminal standard: see B u Chief Constable of Avon and Somerset
               Constabulary [2001] 1 WLR 340, 354, para 31, per Lord Bingham of Cornlii.il CJ; Gough v
               Chief Constable of the Derbyshire Constabulary [2002] QB 1213, 1242-1243, para 90, per
               Lord Phillips of Worth Matravers MR. As Mr Crow pointed out, the condition in section I( 1
               )(b) of the Crime and Disorder Act 1998 that a prohibition order is necessary to protect
               persons in the local government area from further anti-social acts raises a question which is a
               matter for evaluation and assessment. But the condition in section I(I)(a) that the defendant
               has acted in an anti-social manner raises serious questions of fact, and the implications for
               him of proving that he has acted in this way are also serious. I would hold that the standard of
               proof that ought to be applied in these cases to allegations about the defendant’s conduct is
               the criminal standard.
               Conclusion
               In the Clingham case I would make the same order as that proposed by Lord Steyn. In the
               McCann case I would dismiss the appeals.
               Lord Hutton
               My Lords, section 1 of the Crime and Disorder Act 1998 was enacted to remedy a grave
               social problem. In some parts of England, particularly in urban areas, there are vulnerable
               people who live in constant fear and distress as a result of the anti-social behaviour of others.
               The anti-social behaviour can take different forms and may consist of
               PART 5 © SWEET & MAXWELL
               43,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Page: 8
               R (McCann) v Manchester Crown Ct (HL)
               Lord Hutton
               Insults and abuse and threats or assaults or damage to houses by stone throwing or the
               painting of graffiti. Those who are victims of such behaviour are often too frightened to be
               willing to go into the witness box in criminal proceedings to give evidence against those who
               make their lives a misery, because they fear that they will be harassed or intimidated for so
               doing.
               The remedy provided by section I of the 1998 Act is to give power to a magistrates’ court to
               make an order which imposes on the defendant the prohibitions which are necessary for the
               purpose of protecting persons in the local area from further anti-social, acts by him. Such an


                                                                                               Page 8 of 139]]></page><page Index="11"><![CDATA[order will frequently prohibit the defendant from entering a defined area where he has been
               particularly troublesome and from using or engaging in any abusive, insulting, offensive,
               threatening or intimidating language or behaviour or from threatening or engaging in violence
               or damage against any person or property within a somewhat wider area.
               Section 1 (to) provides that if a person does anything which he is prohibited from doing by an
               anti-social behaviour order he shall be liable oil summary conviction to imprisonment for a
               term not exceeding six months or to a fine not exceeding a specified amount, or to both, or on
               conviction on indictment to imprisonment for a term not exceeding five years or to a fine, or
               to both.
               The remedy given by section 1 has operated effectively because the courts have held that
               proceedings under section 1 are civil proceedings and not criminal proceedings. Therefore, it
               has not been necessary for those who allege that they have suffered as a result of anti-social
               behaviour on the part of the defendant to go into the witness box to give evidence against
               him, because hearsay evidence can be given of their complaints and allegations pursuant to
               section 1 of the Civil Evidence Act 1995 which provides that in civil proceedings evidence
               shall not be excluded on the ground that it is hearsay.
               It is rulings that applications for anti-social behaviour orders are civil proceedings which are
               challenged by the defendants in these appeals. They submit that both under domestic law and
               under the jurisprudence of the European Convention for the Protection of Human Rights and
               Fundamental Freedoms (“the Convention”) the proceedings against them under section 1 of
               the 1998 Act are criminal proceedings and constitute criminal charges against them so that
               hearsay evidence is not admissible. They contend in their submissions in reliance on the
               Convention that the use of hearsay evidence against them violates their human rights.
               The facts of the present cases and the proceedings before the magistrates and on appeal have
               been fully set out in the speeches of my noble and learned friends Lord Steyn and Lord Hope
               of Craighead. I gratefully adopt their accounts and I therefore turn to consider the
               submissions advanced on behalf of the defendants.
               Domestic law
               Counsel for the defendants submitted that an application for an antisocial behaviour order is a
               criminal proceeding because the complaint against the defendant alleges anti-social behaviour
               which, in effect, is an allegation of the commission of criminal offences. 1 bus the complaint
               against the defendant Clingham alleged:
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               Page: 9
               R (McCann) v Manchester Crown Ct (HL(E)) Lord Hutton
               It appears to the local authority, the Royal Borough of Kensington and Chelsea, that the
               following conditions are fulfilled with respect to you, namely—(a) chat you have acted
               between 9 December 1999 and 15 April 2.000 on or in the vicinity of the Wornington Green
               Estate, London W10 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 yourself, namely by: assaulting residents, threatening to assault children of
               residents, verbally abusing residents and police officers, threatening and intimidating
               shopkeepers, engaging in car related crime, throwing objects at persons and property and
               entering property as a trespasser; and (b) that an anti-social behaviour order is necessary to
               protect persons in the Royal Borough of Kensington and Chelsea in which the harassment,
               alarm or distress was caused, or was likely to be caused from further anti-social acts by you .
               Counsel submitted that the great majority of this conduct constituted the commission of
               separate criminal offences. They also relied on the dose similarity between the wording of


                                                                                               Page 9 of 139]]></page><page Index="12"><![CDATA[section I(I)(a) of the 1998 Act and the wording of sections 4A and 5 of the Public Order Act
               1986. Section 4A, as inserted by section 154 of the Criminal justice and Public- Order Act
               1994, provides:
               “(1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or
               distress, he—(a) uses threatening, abusive or insulting words or behaviour, or disorderly
               behaviour, or (b) displays any writing, sign or other visible representation which is
               threatening, abusive or insulting, thereby causing that or another person harassment, alarm or
               distress.”
               Section 5 provides:
               “(1) A person is guilty of an offence if he—(a) uses threatening, abusive or insulting words or
               behaviour, or disorderly behaviour, or (b) displays any writing, sign or other visible
               representation which is threatening, abusive or insulting, within the hearing or sight of a
               person likely to be p caused harassment, alarm or distress thereby.”
               Section 1. (1) of the 1998 Act provides:
               “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 ten 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. .
               In reliance on authorities, the majority of which were considering the meaning of the term
               “criminal cause or matter”, counsel further submitted that an application under section r of
               the 1998 Act. is a criminal proceeding because it can result under section 1(10) in the
               imposition of a term of imprisonment. Counsel cited Proprietary Articles Trade Association
               v Attorney General for Canada [1-931] AC 310, 324 where Lord Atkin stated:
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               R (McCann) v Manchester Crown Ct (HL(E)
               Lord Hutton
               “It appears to their Lordships to be of little value to seek to confine
               crimes to a category of acts which by their very nature belong to the domain of ‘criminal
               jurisprudence1; for the domain of criminal jurisprudence can only be ascertained by
               examining what acts at any particular period are declared by the state to be crimes, and the
               only common nature they will be found to possess is that they are prohibited by the state and
               that those who commit them are punished.”
               In Exp Alice Woodbail (1888) io QBD 832, 837-838, Lindley LJ stated:
               “Can we say that the application in the present case is not an application in a criminal cause
               or matter? I think that in substance it certainly is. Its whole object is to enable the person in
               custody to escape being sent for trial in America upon a charge of forgery.”
               In Amand v Home Secretary [1943] AC 147,156 Viscount Simon LC stated:
               “If the matter is one the direct outcome of which may be trial of the applicant and his possible
               punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is
               criminal.”
               Lord "Wright stated, at p 162:
               “if the cause or matter is one which, if carried to its conclusion, might
               result in the conviction of the person charged and in a sentence of some punishment, such as
               imprisonment or fine, it is a ‘criminal cause or matter’.” I am unable to accept these
               submissions. The application for an anti-social behaviour order does not charge the defendant
               with having committed a crime. The purpose of the application is to obtain an order


                                                                                              Page 10 of 139]]></page><page Index="13"><![CDATA[prohibiting the defendant from doing anti-social acts in the future and its object is not the
               obtaining of a conviction against him resulting in the imposition of a punishment. I am in
               respectful agreement with the statement of Lord Bingham of Cornhili CJ in Customs and
               Excise Comrs v City of London Magistrates' Court [2000] 1 WLR 2020, 2025 that:
               “criminal proceedings involve a formal accusation made on behalf of the state or by a private
               prosecutor that a defendant has committed a breach of the criminal law, and the state or the
               private prosecutor has instituted proceedings which may culminate in the conviction and
               condemnation of the defendant.” The passages in the judgments relied on by the defendants
               do not, in my opinion, assist them because they emphasise that the imposition of a conviction
               may be a consequence of the proceedings in which the application is brought. Thus in the
               Proprietary Articles Trade Association case j T 9 31 ] AC 310, 324 Lord Atkin stated that
               “those who commit them are punished”; in Ex p Alice Woodball 20 QBD 832, 838 Lindley
               LJ stated: “[the] whole object [of the application] is to enable the person in custody to escape
               being sent for trial in America upon a charge of forgery”; in Amand s case 11:9431 AC 147
               Viscount Simon LC stated, at p T 56, that the matter is criminal if it is one “the direct
               outcome of which may be trial of the applicant and his possible punishment”; and Lord
               Wright stated, at p 162, that a matter is a criminal one which, “if carried to its conclusion,
               might result in
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               R (McCann) v Manchester Crown Ct (HL(E)
               Lord Hutton
               conviction and punishment. But an application for an anti-social behaviour order, if carried to
               its conclusion, will not result in conviction and punishment, it will result in the making of an
               order which cannot be regarded as a punishment. A conviction and punishment will only be
               imposed if the defendant, by his own choice, subsequently breaches the order and separate
               and distinct proceedings are brought against him.
               I further consider that a complaint brought against a defendant under section 1(3} of the 1998
               Act does not constitute an allegation of a crime. The fact that the background to the
               complaint will very often be the alleged commission of a number of criminal offences does
               not mean that the complaint constitutes a charge of a criminal offence: see S v Miller 2001
               SC 977, 989-990, para 23 cited subsequently in paragraph 1.02 of this opinion.
               There are two further considerations which support the conclusion C that an application for
               an anti-social behaviour order is a civil proceeding and not a criminal proceeding. First,
               section 1 is contained in Part I of the Act under the heading “Prevention of crime and
               disorder” whereas Part II under the heading “Criminal law” creates a number of offences and
               provides for their punishment. Secondly, section 1(3) provides that an application for an anti-
               social behaviour order shall be made by complaint to a magistrates’ court, and a complaint is
               the appropriate procedure for commencing civil proceedings in a magistrates’ court: see
               section 51 of the Magistrates ‘Courts Act 1980.
               Accordingly, I conclude that under domestic law an application for an anti-social behaviour
               order is not a criminal proceeding but is a civil proceeding.
               The European Convention on Human Rights
               Article 6(1) 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. Article 6(3)
               provides: “Everyone charged with a criminal offence has the following minimum rights . . .
               (d) to examine . . . witnesses against him . . .” The defendants submitted that under the
               jurisprudence of the Convention an application for an anti-social behaviour order is a


                                                                                              Page 11 of 139]]></page><page Index="14"><![CDATA[criminal charge, and accordingly the defendants will not have a fair hearing under article 6 if
               the evidence against them of anti-social behaviour is hearsay evidence and they do not have
               the opportunity to cross-examine in court the persons who have made allegations of such
               behaviour against them. In these submissions the defendants were supported by the
               submissions advanced by counsel on behalf of Liberty which was given leave to intervene in
               these appeals.
               room in deciding whether there is a criminal charge for the purposes of article 6 the
               European Court of Human Rights stated in Engel v The Netherlands (No 1) r EHRR 647,
               678, para 82. that it has regard to three criteria, which are the classification of the proceedings
               in domestic law, the nature of the offence, and the severity of the penalty which may be
               imposed. Whilst I am satisfied that the application for an anti-social behaviour order is a civil
               proceeding in domestic law the European Court has stated that the classification of the
               proceedings in domestic law is of limited value and that the other two criteria are
               considerations of greater weight: see Oztiirk v Germany 6 EHRR 409, 422, para 52.
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               R (McCann) v Manchester Crown Ct (HL(E)
               Lord Hutton
               rot in relation to the second and third criteria the European Court stated in Qztiirk, at pp 423-
               414, para 53:
               “according to the ordinary meaning of the terms, there generally come within the ambit of the
               criminal law offences that make their perpetrator liable to penalties intended, inter alia, to be
               deterrent and usually consisting of fines and of measures depriving the person of his liberty . .
               . the general character of the rule [of law infringed by the applicant] and the purpose of the
               penalty, being both deterrent and punitive, suffice to show that the offence in question was, in
               terms of article 6 of the Convention, criminal in nature.”
               The complaints against the defendants under section 1 of the 1998 Act do not allege the
               commission of criminal offences for which punishment is sought. The fact that the
               backgrounds to the complaints were the alleged commission of a number of criminal offences
               does not mean that the complaints constituted charges of criminal offences. In LS’ v Miller
               2001 SC 977, the Inner House was considering section 52.(a.)(I) of the Children (Scotland)
               Act 1995 which provides that a child may be in need of compulsory measures of supervision
               where he “has committed an offence”, and Lord President Rodger stated, at pp 989-990, para
               23:
               “In my view, once the procurator fiscal has decided not to proceed with the charge against a
               child and so there is no longer any possibility of proceedings resulting in a penalty, any
               subsequent proceedings under the 1995 Act are not criminal for the purposes of article 6.
               Although the reporter does indeed intend to show that the child concerned committed an
               offence, this is not for the purpose of punishing him but in order to establish a basis for taking
               appropriate measures for his welfare. That being so, the child who is notified of grounds for
               referral setting out the offence in question is not thereby ‘charged with a criminal offence’ in
               terms of article 6.”
               In relation to the third criterion, I consider that the making of an anti-social behaviour order
               does not constitute a punishment or penalty imposed on the defendant. In my opinion the
               magistrate who heard the complaint against the defendant Clingham was correct when in the
               case stated for the opinion of the High Court he stated:






                                                                                              Page 12 of 139]]></page><page Index="15"><![CDATA[“These were civil proceedings of an injunctive nature imposing no penalty on the appellant
               but providing such measure of restraint as the court may find necessary to protect members of
               the public from his misbehaviour.”
               The defendants relied on the decision of the European Commission of Human Rights (“the
               commission”) and of the European Court in Steel v United Kingdom 28 EHRR 603. In that
               case some of the applicants who had been charged with a breach of the peace were committed
               to prison for refusing to agree to be bound over to keep the peace. The applicants complained
               (inter alia) that their rights under article 5 and article 6(3)(a) had been violated. In considering
               the claims of the applicants both the commission and the European Court expressed the
               opinion that, notwithstanding that breach of the peace is not classified as a criminal offence
               under English law, breach of the peace must be regarded as an
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               R (McCann) v Manchester Crown Ct (HL(E)
               Lord Hutton
               “offence” within the meaning of article y (I)(c). The commission stated in its A opinion, at pp
               61 5-616:
               The commission notes that under the domestic legal system, breach of the peace is not a
               criminal offence and binding over is a civil procedure. However, as the European Court of
               Human Rights has held [Ozturk v Germany (1984) 6 EHRR 409, 4x3-424, para 53]: ‘[There
               generally come within the ambit of the criminal law offences that make their perpetrator
               liable to penalties intended, inter alia, to be deterrent and usually consisting of fines and of
               measures depriving the person of his liberty. The rule at issue prescribes conduct of a certain
               kind and makes the resultant requirement subject to a sanction that is punitive . . . the general
               character of the rule and the purpose of the penalty, being both deterrent and punitive, suffice
               to show that the offence was, in terms of article 6 of the Convention, criminal in nature.’
               “67. The proceedings brought against the first applicant for breaching the peace also display
               these characteristics: their deterrent nature is apparent from the way in which a person can be
               arrested for breach of the peace and subsequently bound over ‘to keep the peace or be of
               good behaviour’, in which case no penalty will be enforced, and the punitive element derives
               from the fact that if a person does not agree to be bound over, he will be imprisoned for a
               period of up to six months.
               “68. In these circumstances, the commission considers the charge of breach of the peace to be
               a criminal offence and binding over proceedings to be ‘criminal’ in nature, for the purposes
               of article 6 of the Convention.”
               The court stated, at pp 63 5-636:
               “48. Breach of the peace is not classed as a criminal offence under ^ English law. However,
               the court observes that the duty to keep the peace is in the nature of a public duty; the police
               have powers to arrest any person who has breached the peace or whom they reasonably fear
               will breach the peace; and the magistrates may commit to prison any person who refuses to
               be bound over not to breach the peace where there is evidence beyond reasonable doubt that
               his or her conduct caused or was likely to cause a breach of the peace and that he or she
               would otherwise cause a breach of the peace in the future.
               “49. Bearing in mind the nature of the proceedings in question and the penalty at stake, the
               court considers that breach of the peace must be regarded as an ‘offence’ within the meaning
               of article 5(r)(c).”
               The defendants’ principal submission in reliance on Steel was that both in proceedings for a
               breach of the peace and in proceedings for an antisocial behaviour order there was a two-


                                                                                              Page 13 of 139]]></page><page Index="16"><![CDATA[stage process. First, there was a finding of a breach of the peace or a finding of anti-social
               behaviour and, secondly, there was imprisonment if the defendant refused to be bound over
               or if the defendant chose to disobey the anti-social behaviour order. Accordingly, if binding
               over proceedings are criminal proceedings for the purposes of article 6 it follows that an
               application for an anti-social behaviour order is also a criminal proceeding within the
               meaning of article 6.
               I am unable to accept the defendants’ submissions for the reasons given by Lord Phillips of
               Worth Matravers MR in his judgment in McCann
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               R (McCann) v Manchester Crown Ct (HL(E)
               Lord Hutton
               [zoo1] I WLR 1084, 1100-1101, para 62, with which I am in respectful agreement. In
               particular I consider that the view expressed by the European Commission and the court is
               primarily based on the consideration that in the proceedings for breach of the peace before
               the magistrates’ court the court has power in those proceedings themselves to commit the
               defendant to prison if he or she refuses to be bound over. Thus, the commission stated, at 28
               EHRR 603, 616, para 67: “the punitive clement derives from the fact that if a person does not
               agree to be bound over, he will be imprisoned for a period of up to six months” and the court
               stated, at p 636, para 45:
               “Bearing in mind the nature of the proceedings in question and the penalty at stake, the court
               considers that breach of the peace must be regarded as an ‘offence’ within the meaning of
               article 5 (1) (c) The importance of the distinction between the power to commit to prison
               immediately on refusal to be bound over and the need for a subsequent prosecution to impose
               a punishment for breach of an anti-social behaviour order or a sex offender order under
               section 2 of the 1998 Act is referred to by Lord Bingham of Cornhill C] in B v Chief
               Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, 353, para 27:
               “In Percy v Director of Public Prosecutions I1995I 1 WLR 1382 the defendant had a choice
               between agreeing to be bound over and going to prison. Her refusal to agree to be bound over
               had an immediate and obvious penal consequence without any intervening stage. The threat
               of imprisonment was no doubt intended to be coercive, but it was also punitive, in my
               judgment that is a crucial distinction between Percy’s case and any injunctive procedure such
               as in play here.”
               The fact that the defendant would be liable to imprisonment under section 1(10) of the 1:998
               Act if he chooses within the period specified in the order without reasonable excuse to do
               anything which he is prohibited from doing by the order, does not mean that the order itself
               constitutes a punishment or penalty. In my opinion, the reasoning of Lord Bingham of
               Cornhill CJ in B v Chief Constable of Avon and Somerset Constabulary [LOOT] IWLR
               340, 3 52, para 25 in respect of a sex offender order made under section 2 of the 1998 Act
               applies with equal force to section 1: “The rationale of section 2 was, by means of an
               injunctive order, to seek to avoid the contingency of any further suffering by any further
               victim. It would also of course be to the advantage of a defendant if he were to be saved from
               further offending. As in the case of a civil injunction, a breach of the court’s order may attract
               a sanction. But, also as in the case of a civil injunction, the order, although restraining the
               defendant from doing that which is prohibited, imposes no penalty or disability upon him.”
               The jurisprudence of the European Court recognises that proceedings taken to obtain an order
               designed to prevent future harmful conduct, but not to impose a penalty for past offences,
               does not constitute the bringing of a criminal charge. In Guzzardi v Italy 3 EHRR 333 the


                                                                                              Page 14 of 139]]></page><page Index="17"><![CDATA[complainant, a suspected Mafioso, by an order of the Milan Regional Court was placed under
               special supervision for three years with an obligation to reside within an area of 2.5 square
               kilometres on an island. He brought
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               Lord Hutton
               proceedings challenging the order and the proceedings terminated in the Court of Cassation
               which dismissed Guzzardi’s appeal. The European Court held that article 6 was not engaged
               and stated, at pp 369-370, para 108:
               “In the court’s opinion, those proceedings did not involve the ‘determination ... of a criminal
               charge’, even when these words are construed within the meaning of the Convention.
               Whether the right to liberty, which was at stake (see paragraph 62 above), is to be qualified as
               a ‘civil right’ is a matter of controversy; in any event, the evidence does not reveal any
               infringement of paragraph 1 of article 6.”
               no In Raimondo v Italy 18 F.HRR 237 the applicant who was suspected of association with a
               Mafia-type organisation, was made subject to preventive measures which included being
               placed under special police supervision. He complained (inter alia) that the proceedings
               relating to his appeal against the special supervision had taken an unreasonable time in
               violation of article 6(1) of the Convention. The European Court rejected his complaint and
               held, referring to Guzzardi, at p 264, para 43 of its judgment:
               “The court shares the view taken by the Government and the commission that special
               supervision is not comparable to a criminal sanction because it is designed to prevent the
               commission of offences. It follows that proceedings concerning it did not involve ‘the
               determination, of a criminal charge’.”
               in in the present cases the determination of the applications did not involve “the
               determination, of a criminal charge” and the orders were designed to prevent the commission
               of anti-social behaviour in the future.
               A fair bearing in the determination of civil rights
               1.12 A further question arises whether the admission of hearsay evidence against the
               defendants constitutes a violation of their rights under article 6 to have a fair hearing in the
               determination of their civil rights.
               A person against whom an anti-social behaviour order is made can have no valid claim that
               those parts of the order which prohibit him from using or engaging in any abusive, insulting,
               offensive, threatening or intimidating language or behaviour or from threatening or engaging
               in violence or damage against any person or property relate to his civil rights. A person has
               no civil right under domestic law to engage in such behaviour. To the extent that the order
               prohibits a defendant from entering a particular area or engaging in some activity which is
               prima facie lawful it can be argued that part of the order affects his civil rights so that article
               6(1) is engaged. Articles 8(2) and 11(2} of the Convention permit such restrictions on the
               rights specified in them as are necessary in a democratic society for the prevention of
               disorder or crime or for the protection of the rights and freedoms of others, and Lord Nicholls
               of Birkenhead has discussed the relationship between civil rights under domestic law {to
               which article 6(1) relates) and the rights guaranteed by the Convention in paragraphs 65 to 72
               of his judgment in In re S (Minors) (Care Order: Implementation of Care Rian) [ 2002] 2
               AC 291, 319-3 20. I wish to reserve my opinion on the question whether article 6(r) is
               engaged, but if there is a valid argument that the hearing of an application for an anti-social
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               Lord Hutton
               behaviour order against a defendant involves a determination of his civil rights and engages
               article 6(I), I am of the opinion that there is no unfairness in the admission of hearsay
               evidence against him, because the provisions of section 4 of the Civil Evidence Act 1995 lay
               down considerations which ensure that hearsay evidence is fairly weighed and assessed,
               section 4 providing:
               “(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the
               court shall have regard to any circumstances from which any inference can reasonably be
               drawn as to the reliability or otherwise of the evidence.
               “(z) Regard may be had, in particular, to the following—(a) whether it would have been
               reasonable and practicable for the party by whom the evidence was adduced to have produced
               the maker of the original statement as a witness; (b) whether the original statement was made
               contemporaneously with the occurrence or existence of the matters stated; (c) whether the
               evidence involves multiple hearsay; (d) whether any person involved had any motive to
               conceal or misrepresent matters; (e) whether the original statement was an edited account, or
               was made in collaboration with another or for a particular purpose; (f) whether the
               circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt
               to prevent proper evaluation of its weight.”
               The submissions of counsel on behalf of the defendants and on behalf of Liberty have laid
               stress on the human rights of the defendants. However, the European Court has frequently
               affirmed the principle stated in Sporrong and Lonnroth v Sweden 5 F.HRR 35, 52, para 69,
               that the search for the striking of a fair balance “between the demands of the general interest
               of the community and the requirements of the protection of the individual’s fundamental
               rights” is inherent in the whole of the Convention. In these cases which your Lordships have
               held are not criminal cases under the Convention and therefore do not attract the specific
               protection given by article 6(3)(d) (though even in criminal cases the European Court has
               recognised that “principles of fair trial also require that in appropriate cases the interests of
               the defence are balanced against those of witnesses or victims called upon to testify”: see
               Doorson v The Netherlands (1996) F.HRR 330, 358, para 70), and having regard to the
               safeguards contained in section 4 of the 1995 Act, I consider that the striking of a fair balance
               between the demands of the general interest of the community (the community in this case
               being represented by weak and vulnerable people who claim that they are the victims of anti-
               social behaviour which violates their rights) and the requirements of the protection of the
               defendants’ rights requires the scales to come down in favour of the protection of the
               community and of permitting the use of hearsay evidence in applications for anti-social
               behaviour orders.
               The standard of proof
               I am in agreement with the opinions of my noble and learned friends Lord Steyn and Lord
               Hope of Craighead on this point and for the reasons which they give I would hold that in
               proceedings under section 1 of the 1998 Act the standard of proof that ought to be applied to
               allegations about the defendants’ past behaviour is the criminal standard.
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               R (McCann) v Manchester Crown Ct (HL(E)


                                                                                              Page 16 of 139]]></page><page Index="19"><![CDATA[Lord Hutton
               For the reasons which I have given I would dismiss the appeals of A the McCann defendants
               and would declare that the House had no jurisdiction to hear the appeal of the defendant
               Clingham.
               LORD HOBHOUSE OF WOODBOROUGH
               My Lords, for the reasons given by my noble and learned friends Lord Steyn and Lord Hope
               of Craighead and in agreement with the opinion
               of my noble and learned friend Lord Hutton, in particular what he has said e in paragraph 113
               of his opinion, I too would make the orders proposed.
               LORD SCOTT OF FOSCOTE
               My Lords, I agree that for the reasons given in the opinions of my noble and learned friends,
               Lord Steyn, Lord Hope of Craighead and Lord Hutton, the appeal in the McCann case should
               be dismissed and in the Clingham case the House should make the order proposed by Lord
               Steyn.
               I, like my noble and learned friend Lord Hobhouse of Woodborough, am in full agreement
               with what Lord Hutton has said in paragraph 1.13 of his opinion.
               Appeals in McCann case dismissed. Declaration that no jurisdiction to hear appeal in
               Clingham case.
               Solicitors: Peter Kandler & Co; Burton Copeland, Manchester; James Welch; Director of
               Legal Services, Kensington, and Chelsea Royal London Borough Council; Winckworth
               Sherwood; Treasury Solicitor.
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               Page: 17
               R. v DEAN BONESS AND OTHERS
               COURT OF APPEAL (Lord Justice Hooper, Mr Justice Roderick Evans, and Mr Justice
               Pitchers): October 14, 2005
               [2005] EWCA Crim 2395; [2006] I Cr. App. R. (S.) 120
               Anti-social behaviour orders; Sentencing guidelines
               Crime and Disorder Act 1998, S. 1 C—antisocial behaviour order on conviction—general
               considerations
               H2 Observations on the considerations which are relevant to the making of orders under the
               Crime and Disorder Act 1998, s. 1C.
               H3      Bones: the appellant pleaded guilty to one count of burglary of a dwelling and
               one of handling stolen goods. The appellant and another person entered an unoccupied house
               and stole items to the value of £4,800. Following another burglary, the next day, a search of
               the appellant’s home resulted in the discovery of property stolen in that burglary. The
               appellant had six previous appearances for offences involving vehicle crime, attempted
               burglary, violence, handling stolen goods and using threatening behaviour. He was subject to
               two community orders at the time of the offences. Sentenced to three years’ detention in a
               young offender institution, and subjected to an order under the Crime and Disorder Act 1998,
               S.1  for a period of five years’ prohibiting him from entering any public car park within a
               specified area except in the course of lawful employment, entering any land or building on
               land which formed part of educational premises except as an enrolled pupil, wearing or
               having with him in any public place anything which covered or could be used to cover the
               face or part the face, having with him in a public place any item which could be used in the
               commission of a burglary or theft from vehicles except one door or bicycle lock key, having
               possession of any article or carried in public any vehicle that could be used as a weapon,
               remaining on any shop, commercial or hospital premises if asked to leave by staff or entering


                                                                                              Page 17 of 139]]></page><page Index="20"><![CDATA[any premises from which he was barred, entering any private land adjoining any dwelling
               premises or commercial premises outside the opening hours of those premises without
               express permission, touching or entering any unattended vehicle without the express
               permission of the owner, acting or inciting others to act in an anti-social manner,
               congregating in
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               Page: 18
               R. v DEAN BONES AND OTHERS
               groups in a manner causing or likely to cause any person to fear for their safety or
               congregating in groups of more than six persons in an outdoor public place, doing anything
               which might cause damage, not being anywhere but his home address or at an alternative
               address agreed in advance between the hours of 23.30 and 07.00, being carried on any vehicle
               other than a vehicle in lawful use, and being in company with 12 named individuals. The
               order was to run for five years from the appellant’s release from custody.
               H4 Bebbington and others: nine appellants pleaded guilty and one was convicted of affray or,
               in the case of Bebbington, threatening behaviour. The appellants with others were supporters
               of Chester City EC. They were drinking in a public house in Chester when a group of
               supporters of Wrexham EC. arrived at Chester station on their way home from a match. The
               appellants were warned by police not to leave the public house. The appellants did leave the
               public house and a confrontation occurred between them and the Wrexham supporters. The
               confrontation involved the singing of loud and abusive songs and threats of violence.
               Sentenced (except in the case of the appellant Bebbington) to custodial sentences of between
               four months and two years’ imprisonment, with an order under the Crime and Disorder Act
               1998 S.1C prohibiting the defendant from entering any premises for the purpose of attending
               any football matches in England and Wales which were regulated for the purposes of the
               Football Spectators Act 1989, entering a specified area on any day on which Chester City
               were playing at home, during a period beginning three hours before kick-off and ending six
               hours after kick off, attending within a 10-mile radius of any premises outside Chester at
               which Chester City were playing on the day of any away match, and on any day on which
               England or Wales played a regulated football match in England or Wales, going within a
               three-mile radius of the stadium where the match was being played during the period
               commencing three hours before kick-off and ending six hours after kick off. The orders were
               to last between four years and eight years in the different cases.
               Held: the power to make an anti-social behaviour order was introduced by the Crime and
               Disorder Act 1998, which came into force on April 1, 1999. There were various procedures
               which could lead to the making of an order, in particular one which involved an application
               by a relevant authority to a magistrates’ court. The Court was concerned with the power to
               make an order following a conviction for a relevant offence. The power was granted by the
               Crime and Disorder Act 1998 s. 1C, as inserted by the Police Reform Act 2002, and
               subsequently amended by the Anti-Social Behaviour Act 2003, s.86. The section provided
               that if the court considered that the offender had acted, at any time since April 1, 1999, in an
               anti-social manner, and that an order under the section was necessary to protect persons in
               any place in England and Wales from further anti-social acts by him, the court might make an
               order prohibiting the offender from doing anything described in the order. It had been held in
               McCann v Manchester Crown Court [2003] 1 Cr. App. R. 27 that proceedings on complaint
               under s. 1 of the Act were civil in nature, that hearsay evidence was admissible, and that the
               magistrates’ court had to be satisfied to the criminal standard that the defendant had acted in
               an anti-social manner. The test for whether the order was necessary


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               required an exercise of judgement or evaluation. That did not require proof beyond a
               reasonable doubt. In A v Acton Youth Court (unreported, April 26, 2005) it had been said
               that the actual and potential consequences of an order made it particularly important that
               procedural fairness should be scrupulously observed. In (Shane Tony) [2004] 2 Cr. App. R.
               (S.) 63 (p.343) the Court had stated that the terms of the order must be precise and capable of
               being understood by the offender, the findings of fact giving rise to the making of the order
               must be recorded, the order must be explained to the offender, the exact terms of the order
               must be pronounced in open court and a written order must accurately reflect the order as
               pronounced. Because an order must be precise and capable of being understood, a court
               should ask itself before making an order “are the terms of this order clear so that the offender
               will know precisely what it is that he is prohibited from doing?” The Home Office had
               published guidance on the use of anti-social behaviour orders.
               H6 An order under s. 1C took effect on the day on which it was made, but a court might
               provide that requirements be suspended until the offender was released from custody. The
               Court had observed that where custodial sentences in excess of a few months were passed
               and offenders were liable to be released on licence, the circumstances in which there would
               be a demonstrable necessity to make a suspended anti-social behaviour order to take effect on
               release would be limited, although there would be cases in which geographical restraints
               could properly supplement licence conditions. In Vittles [2005] 1 Cr. App. R. (S.) 8 (p.3!) a
               suspended order had been upheld.
               An order had effect for the period specified, not less than two years, or until further order. In
               lonergan v Lewes Crown Court [2005] EWHC 457 (Admin), it was said that just because an
               order must run for a minimum of two years, it did not follow that each prohibition must
               endure for the life of the order.
               H8 The essential requirement of the section was that an order could be made only if it was
               necessary to protect persons in any place in England and Wales from further anti-social acts
               by the offender. The lest for making an order prohibiting the offender from doing something
               was necessity. Each separate order prohibiting a person from doing a specified thing must be
               necessary to protect persons from further anti-social acts by him. Any order should be tailor-
               made for the individual offender, not designed on a word processor for use in every case. The
               court must ask itself when considering any specific order prohibiting the offender from doing
               something, “is this order necessary to protect persons in any place in England and Wales
               from further anti-social acts by him?” The purpose of an order was not to punish an offender.
               This followed from the requirement that the order must be necessary to protect persons from
               further anti-social acts by him. The Court had been told that the imposition of an order was
               sometimes sought by the defendant’s advocate at the sentencing stage, in the hope that the
               court might make an order as an alternative to a custodial sentence. A court must not allow
               itself to be diverted in this way—it might be better to decide the appropriate sentence and
               then move on to consider whether an order should be made or not after the sentence had been
               passed, albeit at the same hearing.
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                                                                                              Page 19 of 139]]></page><page Index="22"><![CDATA[H9 It followed from the requirement that the order must be necessary to protect persons from
               further anti-social acts by the offender, that the court should not impose an order which
               prohibited an offender from committing a specified criminal offence if the sentence which
               could be passed following a conviction for the offence should be a sufficient deterrent. If
               following a conviction for the offence, the offender would be liable to imprisonment, then the
               order would add nothing other than to increase the sentence, if the sentence for the offence
               was less than five years’ imprisonment. If the offender was not deterred from compelling the
               offence by a sentence of imprisonment for the offence, the order was not likely further to
               deter and therefore was not necessary. It had been said in that the Court was not persuaded
               that the inclusion of matters among the prohibitions which were criminal offences was to be
               actively discouraged. The Court in that case took the view that there was no harm in
               reminding offenders that certain matters did constitute criminal conduct. The Court would
               only comment that the test for making an order was not whether the offender needed
               reminding that certain matters did constitute criminal conduct, but whether the order was
               necessary.
               H10 It had been held, rightly in the Court’s view, that an order should not be used merely to
               increase the sentence of imprisonment which an offender was liable to receive. In Kirby
               [2006] 1 Cr. App. R. f S.) 26 (p. 151) an order had been made prohibiting the offender from
               driving, attempting to drive or allowing himself to be carried in any motor vehicle which
               been taken without the consent of the owner, and driving or attempting to drive a motor
               vehicle until the expiration of the appellant’s period of disqualification. The judge’s purpose
               in making the order was to secure the result that if the appellant committed such offence
               again the court would not be limited to the maximum penalty for the offences themselves but
               would be able to impose up to five years’ imprisonment for breaches of the anti-social
               behaviour order. The Court in Kirby considered that this was not a way in which the power
               should normally be exercised. This decision was in conflict with Hall |2005] 1 Cr. App. R.
               (S.) 118 (p.671), but in Williams [2006] 1 Cr. App. R. f S.) 56 (p.305) the Court preferred
               Kirby to Hall. The Court in the present case also agreed with Kirby. Different considerations
               might apply where the maximum sentence was only a fine, but the court must still go through
               all the steps to make sure that an order was necessary.
               HI I The aim of an order was to prevent anti-social behaviour. What the police or other
               authorities needed was to be able to lake action before the anti-social behaviour look place. If
               for example a court was faced by an offender who caused criminal damage by spraying
               graffiti, then the order should be aimed at facilitating action to be taken to prevent graffiti
               being sprayed by him or others. An order in clear and simple terms preventing the offender
               from being in possession of a can of spray paint in a public place gave the police or others
               responsible for protecting property an opportunity to take action in advance of the actual
               spraying and made it clear lo the offender that he had lost the right to carry such a can for the
               duration of the order.
               H12 In addition to the court considering that the order prohibiting the offender from doing
               something was necessary to protect persons from further anti-social acts by the offender, the
               terms of the order must be proportionate in the sense that they
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               must be commensurate with the risk to be guarded against. This was particularly important
               where the order might interfere with Convention rights protected by the Human Rights Act
               1998. In considering the order made against the appellant Bones, the Court accepted that the


                                                                                              Page 20 of 139]]></page><page Index="23"><![CDATA[appellant had consistently engaged in antisocial behaviour over a period of approximately
               three years. He was a persistent prolific offender. His anti-social behaviour included
               threatening behaviour, vehicle crime and offences of dishonesty including burglary. He was
               sentenced to a custodial sentence of three years’ detention and was thus subject to a period on
               licence subject to recall or return to custody. It was far from clear that it was necessary to
               make an order in respect of the appellant. Considering the detailed terms of the order, some
               of the terms were unnecessary or unclear. The order would be quashed. In the case of
               Bebbington and others it was not necessary to make an order in respect of all but two of the
               appellants in view of their antecedent history. So far as the other two appellants were
               concerned, all the prohibitions would be quashed except the prohibitions relating to attending
               football matches played at the home ground of Chester City, and orders would be added in
               both cases restricting the appellants concerned from entering a specified area in the vicinity
               of Chester railway station on any day on which Wrexham were playing a regulated football
               match away from their home stadium, during a period commencing three hours before the
               beginning of that match and ending six hours after the beginning of that match.
               Cases cited:
               McCann v Manchester Crown Court [2002] UKHL 39; [2003] 1 A.C. 787; [2003] 1Cr.App.
               R. 27 (p.419),
               Lonergan v Lewes Crown Court [2005] EWHC 457.1 W.L.R. 2570; [2005] A.C.D. 84,
               Kirby [2005] EWC1A Crim 1228.I Cr. App. R. (S.) 26 (p. 151),
               Hall [2004] EWCA Crim 2671; [2005]! Cr. App. R. (S.) 118 (p.671),
               Williams [2006] EWCA Crim 1796; [2006] 1 Cr. App. R. (S.) 56 (p.305)
               References: orders under the Crime and Disorder Act 1998, Current Sentencing Practice
               Commentary: [2006] Crim. L.R 160
               J.G.J. Sharp for the appellant Bones.
               CLP. Hennell for the appellants in Bebbington and others.
               M. Sullivan and./. Rees for the Crown in the appeal of Bones.
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               JUDGMENT
               Hooper L.J.: On April 7, 2005 we reduced the sentence of imprisonment passed on the
               appellant Dean Bones and adjourned the appeal against the making of an anti-social
               behaviour order (“ASBO”) to enable the CPS to instruct counsel who would be able to give
               us both general assistance about ASBOs and specific assistance about the ASBO in this case.
               We resumed the hearing on July 5, 2005 and announced, at the conclusion, that the ASBO
               was quashed for reasons which we would give later. Mr Rees had prepared a comprehensive
               skeleton argument and we are particularly grateful to him for his help and to those in the
               Home Office who have assisted him. We have incorporated much of what he wrote into the
               judgment.
               On July 5, we also heard the appeals of Shaun Anthony Bebbington and others.
               We granted leave to appeal and any necessary extensions of time. At the conclusion of the
               hearing we announced our decision to reduce the sentence of 2 years’ imprisonment passed
               on Lee William Schofield and substitute for it a sentence of 18 months’ imprisonment. We
               look the view that a sentence of that length was sufficient. That was the only sentence of
               imprisonment which we were asked to consider (the other appellants had served their
               sentences). We quashed all the ASBOs other than those in respect of Schofield and Ian
               Jeremy Stuart Bruce. In these two cases we announced that we would alter the terms of the
               orders substantially but, given that we needed further material, we said that the precise detail


                                                                                              Page 21 of 139]]></page><page Index="24"><![CDATA[of the amended orders would be announced with our reserved judgment. We have now
               received that detail.
               Bones
               On April 7, Pilchers J. gave the following reasons for reducing the sentence of imprisonment
               passed on Bones:
               a.  This 18-year-old appellant pleaded guilty to one count of dwelling house burglary and
                   one of the handing stolen goods in the Basingstoke Magistrates’ Court and was
                   committed to the Crown Court for sentence. On 17th December 2004 at the Crown Court
                   at Winchester he was sentenced to a total of three years’ custody and made subject to an
                   Anti-Social Behaviour Order for a period of five years to run from the date of his release.
               b.  The events of burglary were committed during the morning of 23rd October 2004 at an
                   unoccupied house in Basingstoke. The appellant and another entered through a kitchen
                   window and carried out an untidy search, stealing items to the value of £4,800, some of
                   which were of great sentiment value to the owner. When the appellant was arrested a
                   watch, which had been taken during the burglary was recovered from him.
               c.  There was another burglary the next day from a house in Basingstoke. When the appellant
                   was arrested, his home was searched and property from that burglary was recovered. He
                   admitted buying these items knowing they were stolen.
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               The appellant has a number of previous convictions. He was before the courts on six
               occasions during 2002, 2003 and 2004 for offences involving vehicle crime, attempted
               burglary, an offence of violence, handling stolen goods and using threatening behaviour. He
               received a series of community orders and in respect of two of them he was in breach by
               reason of these offences.
               The judge heard evidence in addition to that which he found sufficient to make the ASBO as
               we have indicated. That, as we have also indicated, will be considered in detail and in
               principle on a later occasion.
               For the purposes of today’s hearing, we deal simply with the custodial sentence. It is argued
               by counsel that the sentence of three years was loo long following a very early plea of guilty.
               Applying the principles contained in the well-known case of Mainerney we are satisfied that
               this sentence for offences in respect of which early pleas had been entered is too long. Bear-
               ing in mind the clear refusal of the appellant to comply with community orders, a sentence of
               custody was inevitable.
               However, the dwelling house burglary, although of quite high value and causing considerable
               distress, fell into the category of an offence committed by a first-time burglar, albeit with
               those two aggravating features. There was also the receiving of stolen goods which the
               appellant must have known had come from a dwelling house burglary. The total sentence
               appropriate for that offending, in our judgment, would be one of 18 months.
               We therefore allow the appeal to the extent of reducing the sentences to 18 months and six
               months concurrently. To that extent, as we say, the appeal in relation to the custodial term is
               allowed.”
               The ASBO was in the following form:
               “The court found that
               (i) The defendant had acted in an anti-social manner which caused or was likely to cause
               harassment, alarm, or distress to one or more persons not of the same household as himself as
               shown by:


                                                                                              Page 22 of 139]]></page><page Index="25"><![CDATA[a.  The present conviction.
               b.  His previous convictions; and
               c.  The summary of anti-social behaviour acts set out in the request form attached
               And that
               (ii) an order was necessary to protect persons in England and Wales from further anti-social
               acts by him.
               It is ordered that the defendant, Dean Bones is prohibited from:
               In England and Wales:
               Entering any public car park within the Basingstoke and Deane Borough Council area, except
               in the course of lawful employment.
               Entering any land or building on the land which forms a part of educational premises except
               as an enrolled pupil with the agreement of the head of the establishment or in the course of
               lawful employment.
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               In any public place, wearing, or having with you anything which covers, or could be used to
               cover, the face or part of the face. This will include hooded clothing, balaclavas, masks, or
               anything else which could be used to hide identity, except that a motorcycle helmet may be
               worn only when lawfully riding a motorcycle.
               Having any item with you in public which could be used in the commission of a burglary, or
               theft of or from vehicles except that you may carry one door key for your house and one
               motor vehicle or bicycle lock key. A motor vehicle key can only be carried if you are able to
               inform a checking officer of the registration number of the vehicle and that it can be
               ascertained that the vehicle is insured for you to drive it.
               Having possession of any article in public or carried in any vehicle, that could be used as a
               weapon. This will include glass bottles, drinking glasses and tools.
               Remaining on any shop, commercial or hospital premises if asked to leave by staff. Entering
               any premises from which barred.
               Entering upon any private land adjoining any dwelling premises or commercial premises
               outside of opening hours of that premises without the express permission of a person in
               charge of that premises. This includes front gardens, driveways and paths. Except in the
               course of lawful employment. Touching or entering any unattended vehicle without the
               express permission of the owner.
               Acting or inciting others to act in an anti-social manner, that is to say, a manner that causes or
               is likely to cause harassment, alarm, or distress to one or more persons not of the same
               household.
               Congregating in groups of people in a manner causing or likely to cause any person to fear
               for their safety or congregating in groups of more than SIX persons in an outdoor public
               place.
               Doing anything which may cause damage.
               Not being anywhere but your home address as listed on this order between 2330 hours and
               0700 hours or at an alternative address as agreed in advance with the prolific and priority
               offender officer or anti-social behaviour coordinator at Basingstoke Police Station.
               Being carried on any vehicle other than a vehicle in lawful use.
               Being in the company of Jason Arnold, Richard Ashman, Corrine Barlow, Mark Bicknell,
               Joseph (Joe) Burford, Sean Condon, Alan Dawkins, Simon Lee, Daniel (Danny) Malcolm,
               Michael March, or Nathan Threshie. This order to run for 5 years after release from custody.”


                                                                                              Page 23 of 139]]></page><page Index="26"><![CDATA[Bebbington and others
               The appellants are: Regina v Shaun Anthony Bebington (21), Mark Graham Bateman (19);
               Lee William Schofield (37); Ian Jeremy Stuart Bruce (now 36); Dale Anthony Cooper (19);
               Howard John Stocking (19); Thomas Philip Sheridan (17); Russell Keeley (now 20); Thomas
               Turner (now 18) and John O’ Hanlon (17)
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               On September 13, 2004 at the Crown Court at Chester Bateman, Bruce, Cooper, Stocking,
               Sheridan, Keeley, Turner and O’Hanlon pleaded guilty. On November 17, 2004 Bebbington
               pleaded guilty on re-arraignment. On January 5, 2005 Schofield was convicted. On January 7,
               2005 (H.H. Judge Woodward) they were sentenced as follows:
               Bebbington
               Threatening behaviour—Community Punishment Order for 160 hours; anti-social behaviour
               order for four years.
               Bateman
               Affray—five months’ detention in a young offender institution; anti-social behaviour order
               for eight years
               Schofield
               Affray—two years’ imprisonment; anti-social behaviour order for 10 years
               Bruce
               Affray—eight months' imprisonment (E.D.R. 7/5/2005); anti-social behaviour order for 10
               years
               Cooper
               Threatening behaviour—Community Punishment Order for 160 hours; anti-social behaviour
               order for four years.
               Stocking
               Affray—five months’ detention in a young offender institution; anti-social behaviour order
               for eight years
               Sheridan
               Affray—four months’ detention and training order; anti-social behaviour order for six years
               Keeley
               Affray—five months’ detention in a young offender institution; anti-social behaviour order
               for eight years
               Turner
               Affray—four months’ detention and training order; anti-social behaviour order for six years
               O’Hanlon
               Affray—four months’ detention and training order; six-year anti-social behaviour order.
        -      There were three convicted co-defendants:
               Carl Graham Wood (d.o.b. 9/10/70) pleaded guilty to affray and was sentenced to 16 months’
               imprisonment and a 10-year anti-social behaviour order.
               Graham Jones (d.o.b. 7/12/71) pleaded guilty to affray and was sentenced to eight months’
               imprisonment and a 10-year anti-social behaviour order. Adam Paul Fulcher (d.o.b. n/k)
               pleaded guilty to affray and was sentenced to a four-month detention and training order and a
               six-year anti-social behaviour order.
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                                                                                              Page 24 of 139]]></page><page Index="27"><![CDATA[Page: 25
               R, v DEAN BONES AND OTHERS
               The ASBOs were in the terms of a football banning order, the court having no jurisdiction to
               pass an actual football banning order.
               “The defendant must not for the duration of the order,
               Enter any premises for the purpose of attending any football matches in England and Wales
               that are regulated for the purposes of the Football Spectators Act 1989.
               On any day that Chester City AFC play at a regulated football match at the Deva Stadium
               during the period commencing three hours prior to kick off and ending six hours after kick-
               off, enter any area inside the shaded boundary as defined in the two attached maps.
               Attend within a 10-mile radius of any premises outside Chester at which football matches are
               played by Chester AFC on the day of any away match.
               On any day that England or Wales play a regulated football match in England or Wales,
               during the period commencing three hours prior to kick-off and ending six hours after lick-
               off, go within a 3-mile radius of the relevant stadium where the match is being played.
               We take the facts from the CACD summary:
               “At about 7pm on 10 January 2004, there was a confrontation between supporters of
               Wrexham football club and Chester City football club in the centre of Chester. The applicants
               were all supporters of Chester City and some members of the two rival groups associated
               themselves with the hard core of the hooligan element attached to both football clubs. The
               two rival gangs came together through a mutual interest in football and they had stayed
               together because of a mutual interest in hooliganism and there had been a long-standing and
               deep antipathy between the two groups. The supporters of Wrexham had travelled back from
               a game at Chesterfield and had alighted at the station in Chester. The applicants were
               drinking in a public house and had been warned by the police not to leave the public house
               when the police became aware that the Wrexham group were at the station. However, the
               group did leave the public house and went across the road to the station with the intention of
               fighting with the group from Wrexham. There was an element of pre-meditation about the
               incident because the group left the public house as the group of Wrexham supporters arrived
               at the station and attempted to leave the station. The group from Chester did not enter the
               station because the groups were kept apart by police officers. The actions of the Chester
               group were caught on CCTV, they were heard responding to the taunts of the Wrexham
               group and began singing loud and abusive songs. Members of the public, employees at the
               station and the police officers felt threatened by their actions.
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               The applicants all played different roles in the incident, some having substantially more
               involvement than others and, on the prosecution’s case, some of the defendants, particularly
               Wood and Schofield, were the ringleaders and orchestrated the threats of violence. The
               CCTV evidence was the basis of the prosecution case against the applicants.”
               We have watched the CCTV evidence.
               All of the appellants were of good character other than Schofield and Bruce. Schofield had a
               previous conviction for affray as well as other offences. Bruce had one relevant previous
               conviction in 2004 for being drunk and disorderly. The authors of the various pre-sentence
               reports recommended non-custodial sentences given the low risk of reoffending. As the judge
               said in passing sentence all of the defendants other than Schofield had expressed remorse.
               Some of the appellants had good character references, including Bruce.


                                                                                              Page 25 of 139]]></page><page Index="28"><![CDATA[In passing sentence, the judge said that the defendants had deliberately left the public house
               with the intention of fighting the group from Wrexham. There could be no other sensible
               explanation as to what happened that day and it was clearly shown on the video. He said that
               the people of Chester and visitors to the city had to know that the courts would take a firm
               stand against this type of criminal behaviour. In addition, the evidence at Schofield’s trial
               indicated that the numbers of the younger element in the football hooligans in Chester had
               grown significantly over the last two years and that was an issue that could not be ignored.
               The courts would not tolerate such behaviour and a message had to be sent out to people like
               them that such behaviour would not be tolerated. All bar Schofield had pleaded guilty and
               they would receive credit for those pleas. Wood was the most prominent of the protagonists.
               He threw a bottle at the police and he had a bad record for offences of violence, including one
               for an offence very similar to this. Schofield was not only the oldest of the defendants, but he
               also directed others. He was not shown outwardly playing an active role, but by his mere
               presence he made sure that others were there. He was seen shouting and on a number of
               occasions had clearly instructed others to do things and they had followed his lead and
               instructions. He was the controlling mind behind what was going on. He also had a previous
               conviction for a very similar offence. The others had all expressed their remorse and had
               acted out of character.
               ASBOs
               The power to make an ASBO was introduced by s. 1 of the Crime and Disorder Act 1998
               (CDA 1998) which came into force on April 1, 1999. In McCann v Manchester Crown
               Court [2002} UKHL 39; [2003] 1 A.C. 787; [2003] 1 Cr. App. R. 27 (p.419) Lord Sleyn
               described the social problem that S.1 of the 1998 Act was designed to address. He referred to
               the fear, misery and distress that might be caused by outrageous anti-social behaviour,
               usually in urban areas, often by young persons and groups of young persons. He said:
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               “In recent years this phenomenon became a serious problem. There appeared to be a gap in
               the law. The criminal law offered insufficient protection to communities. Public confidence
               in the rule of law was undermined by a not unreasonable view in some communities that the
               law failed them.”
               There are various procedures which can lead to the making of an ASBO, in particular, that
               which involves an application by a relevant authority (e.g., a local authority) to a magistrates’
               court. We are concerned with the power to make an ASBO following conviction for a
               relevant offence, a power granted to avoid the need to invoke the procedure in the
               magistrates’ court and thus a further hearing. The power was granted by s. 1C of the Crime
               and Disorder Act 1988 (“CDA 1998)”, as inserted by s.64 of the Police Reform Act 2002 and
               amended by s.86 of the Anti-Social Behaviour Act 2003. However, the principles are the
               same irrespective of the procedural route.
               Section 1 C (2) of CDA 1998 provides:
               “If the court considers—
               1. that the offender has acted, at any time since the commencement date [1st April 1999] 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
               2. that an order under this section is necessary to protect persons in any place in England and
               Wales from further anti-social acts by him,




                                                                                              Page 26 of 139]]></page><page Index="29"><![CDATA[it may make an order which prohibits the offender from doing anything described in the
               order.” (Underlining added)
               An ASBO is an order prohibiting a person from doing the “thing” described in the order.
               We deal first with some procedural points. In McCann the House of Lords held that the
               proceedings on complaint by a relevant authority under s. 1 of CDA 1998 were civil in
               nature, that hearsay evidence was admissible, that the magistrates’ court had to be satisfied to
               the criminal standard that the defendant had acted in an anti-social manner, The test for
               whether the order was necessary required an exercise of judgment or evaluation and did not
               require proof beyond a reasonable doubt. In W. v Acton Youth Court [2005] EWHC 954
               (Sedley L.J. and Pitchers J.) confirmed that proceedings under s. 1C are civil proceedings.
               In that case Pitchers J. said that:
               “The actual and potential consequences for the subject of an ASBO make it particularly
               important that procedural fairness is scrupulously observed.”
               (Shane Tony) [2004] EWCA Grim 287; [20041 2 Cr. App. R. (S.) 63 (p.343) Henriques J.
               giving the judgment of the Court (presided over by Lord Woolf C.J.) said (para.[34]):
               “In our judgment the following principles clearly emerge:
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               The terms of the order must be precise and capable of being understood by offender.
               The findings of fact giving rise to the making of the order must be recorded.
               The order must be explained to the offender.
               The exact terms of the order must be pronounced in open court and the written order must
               accurately reflect the order as pronounced."
               Because an ASBO must obviously be precise and capable of being understood by the
               offender, a court should ask itself before making an order: “Are the terms of this order clear
               so that the offender will know precisely what it is that he is prohibited from doing?"
               The Home Office in a 2002 publication entitled “A Guide to Anti-Social Behaviour Orders
               and Acceptable Behaviour Contracts” gave examples of the types of anti-social behaviour
               which the Home Office considered could be tackled by ASBOs. The list (which does not
               purport to be exhaustive) comprises: harassment of residents or passers-by, verbal abuse,
               criminal damage, vandalism, noise nuisance, writing graffiti, engaging in threatening
               behaviour in large groups, racial abuse, smoking or drinking alcohol while under age,
               substance misuse, joyriding, begging, prostitution, kerb-crawling, throwing missiles, assault
               and vehicle crime.
               Home Office guidance suggests that prohibitions, should amongst other things:
               be reasonable and proportionate; be realistic and practical.
               be in terms which make it easy to determine and prosecute a breach.
               In the report of the working group set up under Thomas L.J. there is a section which
               identifies elements of best practice adopted within the courts when dealing with the terms of
               an ASBO. Included amongst these elements are:
               the prohibition should be capable of being easily understood by the defendant.
               the condition should be enforceable in the sense that it should allow a breach
               to be readily identified and capable of being proved.
               exclusion zones should be clearly delineated with the use of clearly marked
               maps.
               individuals whom the defendant is prohibited from contacting or associating with should be
               clearly identified.


                                                                                              Page 27 of 139]]></page><page Index="30"><![CDATA[in the case of a foreign national, consideration should be given to the need for the order to be
               translated.
               The report of the working group also provides examples of general prohibitions imposed by
               the courts which in their view were specific and enforceable and could be incorporated in
               ASBOs in order to protect persons from a wide range of anti-social behaviour. These include
               conditions prohibiting the offender from.
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               living anywhere other than a specified address without the permission of a nominated person.
               entering an area edged in red on the attached map including both footways of any road which
               forms the boundary area.
               visiting a named individual unless accompanied by a parent or legal guardian.
               associating with a named individual in a public place.
               leaving his home between certain hours except in the case of emergency etc.
               An order made under s. 1C lakes effect on the day on which it was made, but the court may
               provide in any such order that such requirements of the order as it may specify shall, during
               any period when the offender is detained in legal custody, be suspended until his release from
               that custody (S.1C(5)). In the Court observed that where custodial sentences in excess of a
               few months were passed and offenders were liable to be released on licence (and therefore
               subject to recall) the circumstances in which there would be a demonstrable necessity to
               make a suspended anti-social behaviour order, to take effect on release, would be limited,
               although there would be cases in which geographical restraints could properly supplement
               licence conditions.
               Anthony Malcolm Vittles ]2004] EWCA Crim 1089 [20051 1 Cr. App. R.(S.) 8 is an
               example of a case in which the Court of Appeal decided that there was a demonstrable
               necessity to make a “suspended” ASBO, despite the fact that the appellant was sentenced to a
               total of three years and 10 months' imprisonment, The appellant, who was a heavy drug user,
               admitted breaking into between 10 and 30 vehicles belonging to American servicemen who
               lived off airbases used by American forces. The offences involved theft of items from the
               motor cars to a value of £3,500. In upholding the making of the order, although reducing the
               term, the Court of Appeal referred to and said that they took the view that the transient,
               vulnerable, nature of the American population, specifically targeted by the appellant, made it
               appropriate that, exceptionally, an antisocial behaviour order should be made,
               notwithstanding the imposition of a substantial prison sentence.
               An order shall have effect for a period (not less than two years) specified in the order or until
               further order (S, l C (9) and 1C (7)). In Lonergan v Lewes Crown Court |20()5] EWHC 457;
               [2005] 1 W.L.R. 2570; [2005] A.C.D. 84 (Admin) Maurice Kay L.J. said in the course of
               delivering the judgment that just because an ASBO must run for a minimum of two years, it
               does not follow that each and every prohibition within a particular order must endure for the
               life of the order. Although doubt was expressed about this in the report of the working group
               set up by Thomas L.J., in our view Maurice Kay L.J. is right. It may be necessary to include a
               prohibition which would need to be amended or removed after a period of Lime for example
               when the offender starts work (provided that at least one prohibition is ordered to have effect
               for at least two years). Maurice Kay L.J. also said (para. [7)] that the statute requires the order
               to be “substantially and not just formally prohibitory.”
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                                                                                              Page 28 of 139]]></page><page Index="31"><![CDATA[Simon Cordell’s Skeleton Argument (2) Pdf
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               There are provisions for applications to vary or discharge an order (see s. 1 C (6) and s. 140
               of the Serious Organised Crime and Police Act 2005 which inserts s. 1CA of the CD A
               1998).
               We turn to the requirement that an order can only be made if it is necessary to protect persons
               in any place in England and Wales from further anti-social acts by the offender. Following a
               finding that the offender has acted in an anti-social manner (whether or not the act constitutes
               a criminal offence), the lest for making an order prohibiting the offender from doing
               something is one of necessity. Each separate order prohibiting a person from doing a
               specified thing must be necessary to protect persons from further anti-social acts by him. Any
               order should therefore be tailor-made for the individual offender, not designed on a word pro-
               cessor for use in every case. The court must ask itself when considering any specific order
               prohibiting the offender from doing something, “Is this order necessary to protect persons in
               any place in England and Wales from further anti-social acts by him?”
               The purpose of an ASBO is not to punish an offender (see Lonergan, para.[10]}. This
               principle follows from the requirement that the order must be necessary to protect persons
               from further anti-social acts by him. The use of an ASBO to punish an offender is thus
               unlawful. We were told during the course of argument that the imposition of an ASBO is
               sometimes sought by the defendant’s advocate at the sentencing stage, hoping that the court
               might make an ASBO order as an alternative to prison or other sanction. A court must not
               allow itself to be diverted in this way—indeed it may be better to decide the appropriate sen-
               tence and then move on to consider whether an ASBO should be made or not after sentence
               has been passed, albeit at the same hearing.
               It follows from the requirement that the order must be necessary to protect persons from
               further anti-social acts by him, that the court should not impose an order which prohibits an
               offender from committing a specified criminal offence if the sentence which could be passed
               following conviction for the offence should be a sufficient deterrent. If following conviction
               for the offence the offender would be liable to imprisonment, then an ASBO would add
               nothing other than to increase the sentence if the sentence for the offence is less than five
               years’ imprisonment. But if the offender is not going to be deterred from committing the
               offence by a sentence of imprisonment for that offence, the ASBO is not likely (it may be
               thought) further to deter and is therefore not necessary. In, Henriques J. said (para. [3()]):
               “Next, it is submitted that (two of] the prohibitions are redundant as they prohibit conduct
               which is already subject to a general prohibition by the Public Order Act 1986 and the
               Prevention of Crime Act 1953 respectively. In that regard we are by no means persuaded that
               the inclusion of such matters is to be actively discouraged. So far as more minor offences are
               concerned, we Lake the view that there is no harm in reminding offenders that certain matters
               do constitute criminal conduct, although we would only encourage the inclusion of
               comparatively minor criminal offences in the terms of such orders.”
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               We would only make one comment on this passage. The test for making an order is not
               whether the offender needs reminding that certain matters do constitute criminal conduct, but
               whether it is necessary.




                                                                                              Page 29 of 139]]></page><page Index="32"><![CDATA[It has been held, rightly in our view, that an ASBO should not be used merely to increase the
               sentence of imprisonment which an offender is liable to receive. In Kirby [2005] EWCA
               Crim 1228; [2006] I Cr. App. R. (S.) 26 (p.S51) an ASBO had been made prohibiting the
               offender from driving, attempting to drive or allowing himself to be carried in any motor
               vehicle which had been taken without the consent of the owner or other lawful authority, and
               driving or attempting to drive a motor vehicle until after the expiration of his period of
               disqualification. As the Court (presided over by Maurice Kay LJ) found, the judge’s purpose
               in making this order was to secure the result that if the appellant committed such offences
               again the court would not be limited to the maximum penalty for the offences themselves but
               would be able to impose up to five years’ imprisonment for breach of the anti-social
               behaviour order. David Clarke J giving the judgment of the Court said:
               “In our judgment this decision of the court [in R. r P] and the earlier case of [C v Sunderland
               Youth Court [2003] EWHC 2385; [2004] 1 Cr. App. R. (S.) 76 (p.443) ] serve to demonstrate
               that to make an anti-social behaviour order in a case such as the present case, where the
               underlying objective was to give the court higher sentencing powers in the event of future
               similar offending, is not a use of the power which should normally be exercised.”
               That decision was in conflict with an earlier decision Hall [2004] EWCA Crim 2671; [2005]
               1 Cr. App. R. (S.) 118 (p.671) (Hunt and Tugenhat J. J.), the correctness of which was
               doubled by Dr Thomas ([2005] Crim. L.R. 152). In Williams [2006] 1 Cr. App. R. (S.) 56
               (p.305), the Court (Mance L.J., Elias J. and Sir Charles Mantell) preferred Kirby to Hall. We
               also agree with the decision in Kirby.
               Different considerations may apply if the maximum sentence is only a fine, but the court
               must still go through all the steps to make sure that an ASBO is necessary.
               There is another reason why a court should be reluctant to impose an order which prohibits an
               offender from, or merely from, committing a specified criminal offence. The aim of an
               ASBO is to prevent anti-social behaviour. To prevent it the police or other authorities need to
               be able to take action before the anti-social behaviour it is designed to prevent takes place, if,
               for example, a court is faced by an offender who causes criminal damage by spraying graffiti
               then the order should be aimed at facilitating action to be taken to prevent graffiti spraying by
               him and/or his associates before it takes place. An order in clear and simple terms preventing
               the offender from being in possession of a can of spray paint in a public place gives the police
               or others responsible for protecting the property an opportunity to lake action in advance of
               the actual spraying and makes it clear to the offender that he has lost the right to carry such a
               can for the duration of the order.
               If a court wishes to make an order prohibiting a group of youngsters from racing cars or
               motor bikes on an estate or driving at excessive speed (anti-social
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               behaviour for those living on the estate), then the order should not (normally) prohibit driving
               whilst disqualified. It should prohibit, for example, the offender whilst on the estate from
               taking part in, or encouraging, racing, or driving at excessive speed. It might also prevent the
               group from congregating with named others in a particular area of the estate. Such an order
               gives those responsible for enforcing order on the estate the opportunity to take action to
               prevent the anti-social conduct, it is to be hoped, before its takes place. Neighbours can alert
               the police who will not have to wait for the commission of a particular criminal offence. The
               ASBO will be breached not just by the offender driving but by his giving encouragement by




                                                                                              Page 30 of 139]]></page><page Index="33"><![CDATA[being a passenger or a spectator. It matters not for the purposes of enforcing the ASBO
               whether he has or has not a driving licence entitling him to drive.
               Not only must the court before imposing an order prohibiting the offender from doing
               something consider that such an order is necessary to protect persons from further anti-social
               acts by him; the terms of the order must be proportionate in the sense that they must be
               commensurate with the risk to be guarded against. This is particularly important where an
               order may interfere with an ECHR right protected by the Human Rights Act 1998, e.g., Arts
               8, 10 and 11.
               We think that bail conditions provide a useful analogy. A defendant may be prohibited from
               contacting directly or indirectly a prosecution witness or entering a particular area near the
               alleged victim’s home. The aim is to prevent the defendant trying to tamper with witnesses or
               committing a further offence. But the police do not have to wait until he has tampered or
               committed a further offence and thus committed a very serious offence. If he breaks the
               conditions even without intending to tamper, he is in breach of his bail conditions and liable
               to be remanded in custody. The victim has the comfort of knowing that if the defendant
               enters the prescribed area, the police can be called Lo Lake action. The victim does not have
               to wait for the offence to happen again.
               We look at some examples of how the Divisional Court and this Court have approached
               ASBOs.
               In McGrath [2005] EWCA Crim 353; [2005] 2 Cr. App. R. (S.) 85 (p.529) considered the
               terms of an ASBO made under s. 1C in respect of an appellant, aged 25, with an appalling
               record who pleaded guilty to a count of theft which involved breaking into a car in a station
               car park and stealing various compact discs. The ASBO contained (amongst others) the
               following prohibitions:
               Entering any other car park whether on payment or otherwise within the counties of
               Hertfordshire, Bedfordshire, or Buckinghamshire.
               Trespassing on any land belonging to any person whether legal or natural within those
               counties.
               Having in his possession in any public place any window hammer, screwdriver, torch or any
               tool or implement which could be used for the purpose of breaking into motor vehicles.”
               In respect of term 2, the Court of Appeal held that it was unjustifiably draconian and loo
               wide; it would, for example, prevent the appellant from entering, even as a passenger, any car
               park in a supermarket. Similar considerations
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               applied lo term 3.11"the appellant look a wrong turn on a walk and entered someone’s
               property, he would be at risk of a five-year prison sentence. The Court of Appeal look the
               view that term 4 was unacceptably wide. The meaning of the words “too! or implement” was
               impossible to ascertain. Insofar as the wording of term 4 was sufficiently qualified by the
               final wording “which could be used for the purpose of breaking into motor vehicles”, the
               Court of Appeal observed that, effectively, the term overlaps with the offence of going
               equipped.
               In IV v DPP [2005] EWHC 1333 held that a clause in an ASBO made in respect of a young
               offender which prohibited him from committing any criminal offence was plainly loo wide
               and unenforceable. There was a danger that W would not know what a criminal offence was
               and what was not. It was well established that an order had to be clear and in terms that
               would enable an individual to know what he could and could not do. A general restriction


                                                                                              Page 31 of 139]]></page><page Index="34"><![CDATA[was not necessary where specific behaviour restrictions were in place. Brooke L.J. said
               (para.[8]) that, given the offender’s previous convictions for theft, a prohibition against
               committing theft “might not have been inappropriate”. We have already expressed our
               reservations about such a prohibition.
               In the Court expressed doubt about whether an ASBO is appropriate if the anti-social conduct
               is itself a serious offence, such as robbery. The Court reviewed the propriety of making an
               anti-social behaviour in respect of an appellant, aged 15 at the Lime of the offences, who
               pleaded guilty to assault with intent to rob, robbery, theft, false imprisonment, and attempted
               robbery. He was involved in a number of incidents in which he approached younger boys,
               threatened them and in one case struck a boy with a stick and stole their mobile phones. The
               appellant was made the subject of an order under S.1C of CDA 1998. The effect of the order
               was Lo prevent the appellant from acting in various ways, principally excluding him from
               two parks and an airport. In the course of the judgment, Henriques J. giving the judgment
               observed:
               “It will be readily observed from a consideration of the Home Office ‘Guide Lo anti-social
               behaviour orders’ that the conduct primarily envisaged as triggering these orders was for a
               less grave offence than street robbery, namely graffiti, abusive and intimidating language,
               excessive noise, fouling the street with litter, drunken behaviour and drug dealing. Doubtless
               in drafting that report the Home Office had in mind that courts have considerable powers to
               restrain robbers. We do not go so far as to suggest that anti-social behaviour orders are
               necessarily inappropriate in cases with characteristics such as the present.”
               We see no reason why, in appropriate circumstances, an order should not be made of the kind
               in excluding an offender from two parks and an airport if that is where he is committing
               robberies (or committing other anti-social behaviour). Such an order enables those
               responsible for the safety of the prescribed areas an opportunity to act before a robbery is
               committed by the offender.
               In Werner [2004] EWCA Grim 2931 the female appellant had committed a number of
               offences over a relatively short period of time which involved stealing credit cards, a cheque
               book, and other items from hotel rooms while the occupants
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               were out and using the cards to obtain services and goods. In addition to passing a sentence of
               imprisonment, the judge made the appellant the subject of an ASBO under s. 1C of CDA
               1998, prohibiting her from entering any hotel, guesthouse, or similar premises anywhere
               within the Greater London Area, It was submitted on the appellant’s behalf that this was an
               inappropriate and improper use of the power because the behaviour it sought to protect the
               public from was only anti-social in the sense that all criminal offences were anti-social and it
               was not the sort of behaviour that ASBOs were meant to target. The Court of Appeal declined
               to express a definitive view on this issue and quashed the order on a different ground, but
               they did make the following observations. The forms of conduct listed on p.8 of the 2002
               Home Office guide have a direct or indirect impact on the quality of life of people living in
               the community. They are different in character from offences of dishonesty committed in
               private against individual victims, distressing though such offences are to the victims. The
               Court said that it would not like Lo be taken to say that in no case could offences of this sort
               attract such an order.
               It seems to us that there is another problem with the kind of order in Werner. In the absence
               of a system to warn all hotels, guesthouses, or similar premises anywhere within the Greater


                                                                                              Page 32 of 139]]></page><page Index="35"><![CDATA[London Area, there is no practical way of policing the order. The breach of the ASBO will
               occur at the same time as the commission of any further offence in a hotel, guesthouse, or
               similar premises. The ASBO achieves nothing— if she is not to be deterred by the prospect
               of imprisonment for committing the offence, she is unlikely to be deterred by the prospect of
               being sentenced for breach of the ASBO. By committing the substantive offence, she will
               have committed the further offence of being in breach of her ASBO, but to what avail? The
               criminal statistics will show two offences rather than one. If on the other hand she “worked”
               a limited number of establishments, it would be practical to supervise compliance with the
               order. The establishments could be pull on notice about her and should she enter the premises
               the police could be called, whether her no Live in entering the premises was honest or not.
               In Rush 12005] EWCA Grim 1316; [2006] 1 Cr. App. R. (S.) 35 (p.200) the appellant
               appealed against a sentence of 30 months’ imprisonment and an ASBO of 10 years’ duration
               following a plea to burglary. The burglary involved pushing into his parents’ house (where he
               no longer lived) and stealing cigarettes from a cupboard. The appellant had a history of
               previous offending that was almost entirely targeted at his parents. The Court of Appeal
               reduced the sentence for the burglary to 12 months’ imprisonment and the duration of the
               ASBO to five years. In so doing, they said that the making of an ASBO should not be a
               normal part of the sentencing process especially if the case did not involve harassment or
               intimidation. Imposing an ASBO was a course to be taken in particular circumstances.
               In McGrath the Court observed that ASBOs should be treated with a proper degree of
               caution and circumspection. They were not cure-alls and were not lightly to be imposed
               (para.fi 2]),
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               In Lonergan the Divisional Court held that it was lawful for a prohibition in the nature of a
               curfew to be included in an ASBO made under s. 1 CDA 1998 if its imposition was necessary
               to provide protection for others.
               With these general observations in mind, we turn to the appeals against the ASBOs.
               The Dean Bones ASBO
               In favour of making an ASBO was the fact that the appellant had consistently engaged in
               anti-social behaviour over a period of approximately three years. He was a persistent prolific
               offender and had admitted to drug misuse in the community. There were three main aspects
               to his anti-social behaviour: threatening behaviour (two incidents), vehicle crime (three
               incidents) and other offences of dishonesty such as burglary and theft (three incidents and
               other incidents of handling stolen goods). On the other hand, he was being sentenced to a
               custodial sentence of three years’ detention in a young offender institution and was thus
               subject to a period on licence and subject to recall or return to custody.
               The respondent accepts, on the authorities and in particular having regard to (para.[25]
               above) that it is far from clear that it was necessary to make an ASBO in respect of the
               appellant. We agree.
               We turn to the various orders. The first order prohibited the appellant from:
               Entering any public car park within the Basingstoke and Deane Borough Council area, except
               in the course of lawful employment.
               The respondent submits:
               “The antecedent information does not state whether any of the vehicle crimes committed by
               the appellant took place in a public car park. However, it is submitted that it could sensibly be
               argued that a person intent on committing vehicle crime is likely to be attracted to car parks.


                                                                                              Page 33 of 139]]></page><page Index="36"><![CDATA[The prohibition as drafted does not appear to allow the offender to park his own vehicle in a
               public car park or, for example, to be a passenger in a vehicle driven into a public car park in
               the course of a shopping trip. Thus, in the absence of evidence showing that the appellant
               committed vehicle crime in car parks, there would appear to be a question mark over whether
               the prohibition is proportional, particularly as prohibition (3) seems to be drafted with a view
               to allowing the appellant to ride a motorcycle. If the court contemplated the lawful use of a
               motorbike as an activity which the appellant could pursue, then this prohibition would
               significantly limit the places he might be able to park it. It is of note that in McGrath the
               Court of Appeal held a similar prohibition to be too wide, although it covered a much larger
               geographical area.”
               We agree. Even if the order was necessary to prevent anti-social behaviour by the appellant,
               it was not proportionate.
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               The second order prohibited the appellant from:
               Entering any land or building on the land which forms a part of educational premises except
               as an enrolled pupil with the agreement of the head of the establishment or in the course of
               lawful employment.
               As to this the respondent submits:
               “It is not clear what information provided the basis for making this prohibition. There is
               nothing in the appellant’s previous offending history which suggests that he engages in anti-
               social behaviour in educational premises. It is submitted that the term ‘educational premises’
               arguably lacks clarity; for example, does it include teaching hospitals or premises where night
               classes are held? There also appears to be a danger that the appellant might unwittingly
               breach the terms of the order were he, for example, to play sport on playing fields associated
               with educational premises.”
               We agree with this analysis.
               The order was not necessary and is, in any event, unclear.
               The third order prohibited the appellant from:
               In any public place, wearing, or having with you anything which covers, or could be used to
               cover, the face or part of the face. This will include hooded clothing, balaclavas, masks, or
               anything else which could be used to hide identity, except that a motorcycle helmet may be
               worn only when lawfully riding a motorcycle.
               The respondent submits:
               “It is presumed that this prohibition was based upon the assertion that the appellant is
               forensically aware and will use items to attempt to prevent detection. It is submitted that the
               terms of the prohibition are too wide, resulting in a lack of clarity and consequences which
               are not commensurate with the risk which the prohibition seeks to address. The phrase
               “having with you anything which could be used to cover the face or part of the face” covers a
               huge number of items. For example, it is not unknown for those seeking to conceal their
               identity to pull up a jumper to conceal part of the face, but surely the prohibition cannot have
               been intended to limit so radically the choice of clothing that the appellant can wear? It seems
               that the appellant would potentially be in breach of the order were he to wear a scarf or carry
               a newspaper in public.”
               We agree.
               The fourth order prohibited the appellant from:




                                                                                              Page 34 of 139]]></page><page Index="37"><![CDATA[Having any item with you in public which could be used in the commission of a burglary, or
               theft of or from vehicles except that you may carry one door key for your house and one
               motor vehicle or bicycle lock key. A motor
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               vehicle key can only be carried if you are able to inform a checking officer of the registration
               number of the vehicle and that it can be ascertained that the vehicle is insured for you to drive
               it. We agree with the respondent’s submission that: the first part of this prohibition has been
               drafted too widely and lacks clarity.”
               The respondent points out that there are many items that might be used in the commission of
               a burglary, such as a credit card, a mobile phone, or a pair of gloves. Was the appellant being
               prohibited from carrying such items? If so, the order is neither clear nor proportionate,
               The fifth order prohibited the appellant from:
               Having possession of any article in public or carried in any vehicle, that could be used as a
               weapon. This will include glass bottles, drinking glasses and tools.
               The respondent submits and we agree:
               “that the necessity for such a prohibition is not supported by the material pull forward in
               support of the application. There is very Little in the appellant’s antecedent history which
               indicates a disposition to use a weapon. Furthermore, it is submitted that the wording of the
               prohibition is obviously too wide, resulting in lack of clarity and consequences which are not
               commensurate with the risk. Many otherwise innocent items have the capacity to be used as
               weapons, including anything hard or with an edge or point. This prohibition has draconian
               consequences. The appellant would be prohibited from doing a huge range of things
               including having a drink in a public bar.”
               We have already noted judicial criticism of the use of the word “tool” (see para.[42] above).
               The sixth order prohibited the appellant from:
               Remaining on any shop, commercial or hospital premises if asked to leave by staff. Entering
               any premises from which barred.
               The respondent submits:
               “The appellant has convictions for offences of dishonesty, including an attempted burglary of
               shop premises and he has been reprimanded for shoplifting. Thus, there appears to be a
               foundation for such a prohibition. It is submitted that this term is capable of being understood
               by the appellant and is proportionate given that it hinges upon being refused permission to
               enter/ remain on particular premises by those who have control of them.”
               We agree, although we wonder whether the appellant would understand the staccato
               sentence: “Entering any premises from which barred.”
               PART 5 © SWEET & MAXWELL
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               R. v DEAN BONES AND OTHERS
               The seventh order prohibited the appellant from:
               Entering upon any private land adjoining any dwelling premises or commercial premises
               outside of opening hours of that premises without the express permission of a person in
               charge of that premises. This includes front gardens, driveways and paths. Except in the
               course of lawful employment.




                                                                                              Page 35 of 139]]></page><page Index="38"><![CDATA[The respondent points out that in McGrath the Court of Appeal held that a term which
               prohibited the appellant from “trespassing on any land belonging to any person whether legal
               or natural within those counties” was too wide and harsh. If the appellant looks a wrong turn
               on a walk and entered someone’s property, he would be at risk of a five-year prison sentence.
               In our view this prohibition, albeit less open to criticism than the one in McGrath is also loo
               wide and harsh. Although certain pieces of land might easily be identified as being caught by
               the prohibition (such as a front garden, driveway, or path) it might be harder to recognise,
               say, in more rural areas. The absence of any geographical restriction reinforces our view.
               Furthermore, there is no practical way that compliance with the order could be enforced, at
               least outside the appellant’s immediate home area (see para.[47] above).
               The eighth order prohibited the appellant, from:
               Touching or entering any unattended vehicle without the express permission of the owner.
               The respondent submits:
               “The appellant has previous convictions for aggravated vehicle taking and interfering with a
               motor vehicle and has been reprimanded for theft of a motorcycle. It is submitted that the
               prohibition is sufficiently clear and precise and is commensurate with the risk it seeks to
               meet.”
               We agree generally but we would have preferred a geographical limit so as to make it feasible
               to enforce the order. Local officers, aware of the prohibition, would then have a useful
               weapon to prevent the appellant committing vehicle crime. They would not have to wait until
               he had committed a particular crime relating to vehicles,
               The ninth order prohibited the appellant from:
               Acting or inciting others to act in an anti-social manner, that is to say, a manner that causes or
               is likely to cause harassment, alarm, or distress to one or more persons not of the same
               household.
               The respondent submits that this was a proper order to make and is in accordance with the
               Home Office guidance. We would prefer some geographical limit, in the absence of good
               reasons for having no such limit.
               The tenth order prohibited the appellant from:
               Congregating in groups of people in a manner causing or likely to cause any person to fear
               for their safely or congregating in groups of more than six per- sons in an outdoor public
               place.
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               R. v DEAN BONES AND OTHERS
               Given the appellant’s previous history the first part of the prohibition can be justified as
               necessary. As the respondent points out, the final clause would appear to prohibit the
               appellant from attending sporting or other outdoor events. Such a prohibition is, in our view,
               disproportionate. Although, as the respondent points out, the appellant would be able to argue
               that he had a reasonable excuse for attending the event, this is, in our view, an insufficient
               safeguard.
               The eleventh order prohibited the appellant from:
               Doing anything which may cause damage.
               The respondent submits that this prohibition, even if justified (which is far from clear), is far
               too wide. In the words of the respondent: “Is the appellant prohibited from scuffing his
               shoes?” We agree.
               The twelfth order prohibited the appellant from:




                                                                                              Page 36 of 139]]></page><page Index="39"><![CDATA[Not being anywhere but your home address as listed on this order between 2330 hours and
               0700 hours or at an alternative address as agreed in advance with the prolific and priority
               offender officer or anti-social behaviour coordinator at Basingstoke Police Station.
               Although curfews can properly be included in an ASBO, we doubt, as does the respondent,
               that such an order was necessary in this case. Although the offences of interfering with a
               motor vehicle and attempted burglary (for which the appellant was sentenced on 16/5/02)
               were both committed between 10pm and midnight on the same evening, there is no
               suggestion that other offences have been committed at night. Moreover, the author of the pre-
               sentence report states that the appellant’s offending behaviour did not fit a pattern which
               could be controlled by the use of a curfew order.
               We would go further than the respondent. Even if an ASBO was justified a 5-year curfew to
               follow release is not, in our view, proportionate.
               The thirteenth order prohibited the appellant from:
               Being carried on any vehicle other than a vehicle in lawful use.
               The respondent submits this prohibition is sufficiently clear and proportionate. We are not
               convinced. We do not find the expression “lawful use” to be free from difficulty. If “the
               carrying” is likely to constitute a specific criminal offence (e.g. one of the family of taking
               without consent offences), what does this order add? We would also have preferred some
               geographical limit.
               The final order prohibited the appellant from:
               Being in the company of Jason Arnold, Richard Ashman, Corrine Barlow, Mark Bicknell,
               Joseph (Joe) Burford, Sean Condon, Alan Dawkins, Simon Lee, Daniel (Danny) Malcolm,
               Michael March, or Nathan Threshie.
               The respondent submits:
               “This prohibition seems to be based on the assertion in PC Woods’ document that the
               appellant is associating with other criminals who were also nominated as persistent prolific
               offenders. The appellant admitted that the
               PART 5 © SWEET & MAXWELL
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               Page:37
               R. v DEAN BONES AND OTHERS
               offending spree which recently brought him before the court was the result of being contacted
               by an old friend. It is submitted that care has been taken to identify the individuals with
               whom the appellant is not to associate.”
               The respondent, however, has doubts whether a prohibition that prevents the appellant from
               associating with any of the named individuals for five years after his release, even in a private
               residence where one or more resides, is disproportionate to the risk of anti-social behaviour it
               is designed to prevent. We share those doubts.
               Bebbington and others— the ASBOs
               We have no doubt that in respect of all the appellants, other than Schofield and Bruce, it was
               not “necessary” to make any ASBO, given their antecedent history, reports, and references.
               Counsel on behalf of Schofield attacked the judge's findings of fact. The judge conducted the
               trial and was in the best position to decide upon Schofield’s role.
               For Scofield and Bruce, given their history and the judge’s findings, an order could properly
               have been made to prevent a repetition of the disgraceful conduct of that night. The judge
               was entitled, absent any special circumstances, to make only one of the orders, namely:
               On any day that Chester City AFC play at a regulated football match at the Deva Stadium
               during the period commencing three hours prior to kick off and ending six hours after kick-
               off, enter any area inside the shaded boundary as defined in the attached map.


                                                                                              Page 37 of 139]]></page><page Index="40"><![CDATA[We amend the ASBO made in respect of Bruce by quashing the other orders and confirming
               this part only of the original order. In so far as Schofield is concerned, he will be living and
               working within the exclusion zone, so the order made is inappropriate. In his case the order
               will read:
               On any day that Chester City AFC play at a regulated football match at the Deva Stadium
               during the period commencing three hours prior to kick off and ending six hours after kick-
               off, enter any area which is within 100 yards of the main entrance to Chester Station except
               for the purposes of his work with the Royal Mail.
               As the trouble that arose in this case did so on a day when Wrexham AFC was playing away
               and the club’s supporters were returning home via Chester railway station there will be in the
               case of both Bruce and Schofield an additional term in the ASBO as follows.
               In the case of Bruce:
               On any day that Wrexham Town AFC play a regulated football match away from their home
               stadium during the period commencing three hours prior to kick off and ending six hours
               after kicking off, enter any area inside the shaded boundary as defined in the attached map.
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               Page: 7 85
               In the cases of Schofield:
               On any day that Wrexham Town AFC play a regulated football match away from their home
               stadium during the period commencing three hours prior to kick off and ending six hours
               after kick-off, enter any area which is within 100 yards of the main entrance to Chester
               railway station except for the purposes of his work with the Royal Mail,
               The period of 10 years for which the judge ordered the ASBOs to run is manifestly excessive.
               In the case of each appellant the order will last for four years from January 7, 2005, the date
               when they were sentenced.
               PART 5 © SWEET & MAXWELL
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               Page 1
               Status: S Law in Force © Amendment(s) Pending
                      Criminal Justice and Public Order Act 1994 c. 33 Part V PUBLIC ORDER:
                                COLLECTIVE TRESPASS OR NUISANCE ON LAND
                                               Powers in relation to raves
               This version in force from: January 1, 2006 to present (version 4 of 5)
               The text of this provision varies depending on jurisdiction or other application, see parallel
               texts relating to:
               England and Wales | Scotland
               England and Wales
               63.— Powers to remove persons attending or preparing for a rave.
               1.  This section applies to a gathering on land in the open air of 20 or more persons (whether
                   or not trespassers) at which amplified music is played during the night (with or without
                   intermissions) and is such as, by reason of its loudness and duration and the time at which
                   it is played, is likely to cause serious distress to the inhabitants of the locality; and for this
                   purpose—
               A. such a gathering continues during intermissions in the music and, where the gathering
               extends over several days, throughout the period during which amplified music is played at
               night (with or without intermissions); and




                                                                                              Page 38 of 139]]></page><page Index="41"><![CDATA[B. "music includes sounds wholly or predominantly characterised by the emission of a
               succession of repetitive beats.
               (1 A) This section also applies to a gathering if-
               a.  it is a gathering on land of 20 or more persons who are trespassing on the land; and
               b.  it would be a gathering of a kind mentioned in subsection (1} above if it took place on
                   land in the open air.
               2.  If, as respects any land, a police officer of at least the rank of superintendent reasonably
                   believes that—
               (a) two or more persons are making preparations for the holding there of a gathering to
               www.WestLaw.uk
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               Page39
               which this section applies,
               (b) ten or more persons are waiting for such a gathering to begin there, or
               (c) ten or more persons are attending such a gathering which is in progress,
               he may give a direction that those persons and any other persons who come to prepare or wait
               for or to attend the gathering are to leave the land and remove any vehicles or other property
               which they have with them on the land.
               3.  A direction under subsection (2) above, if not communicated to the persons referred to in
                   subsection (2) by the police officer giving the direction, may be communicated to them
                   by any constable at the scene.
               4.  Persons shall be treated as having had a direction under subsection (2) above
                   communicated to them if reasonable steps have been taken to bring it to their attention.
               5.  A direction under subsection (2) above does not apply to an exempt person.
               6.  If a person knowing that a direction has been given which applies to him—
               a.  fails to leave the land as soon as reasonably practicable, or
               b.  having left again enters the land within the period of 7 days beginning with the day on
                   which the direction was given, he commits an offence and is liable on summary
                   conviction to imprisonment for a term not exceeding three months or a fine not exceeding
                   level 4 on the standard scale, or both.
               7.  In proceedings for an offence under subsection (6) above it is a defence for the accused to
                   show that he had a reasonable excuse for failing to leave the land as soon as reasonably
                   practicable or, as the case may be, for again entering the land.
               (7  A) A person commits an offence if-
               a.  he knows that a direction under subsection (2) above has been given which applies to
                   him, and
               b.  he prepares for or attends a gathering to which this section applies within the period of 24
                   hours starting when the direction was given.
               (7B) A person guilty of an offence under subsection (7A) above is liable on summary
               conviction to imprisonment for a term not exceeding three months or a fine not exceeding
               level 4 on the standard scale, or both.
               (8) ...l
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               (9) This section does not apply—






                                                                                              Page 39 of 139]]></page><page Index="42"><![CDATA[(a) in England and Wales, to a gathering in relation to a licensable activity within section 1(1
               Vet of the Licensing Act 2003 (provision of certain forms of entertainment) carried on under
               and in accordance with an authorisation within the meaning of section 136 of that Act.
               2
               (b) in Scotland, to a gathering in premises which, by virtue of section 41 of the Civic
               Government (Scotland) Act 1982, are licensed to be used as a place of public entertainment.
               (10) In this section—
               “exempt person", in relation to land (or any gathering on land), means the occupier, any
               member of his family and any employee or agent of his and any person whose home is
               situated on the land.
               "land in the open air” includes a place partly open to the air.
               2
               "occupier”
               "trespasser”
               and “vehicle ‘have the same meaning as in section 61.
               Back to Top
               Scotland
               63.— Powers to remove persons attending or preparing for a rave.
               This section applies to a gathering on land in the open air of 100 or more persons (whether or
               not trespassers) at which amplified music is played during the night (with or without
               intermissions) and is such as, by reason of its loudness and duration and the time at
               www.WestLaw.uk
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               Simon Cordell’s Skeleton Argument (2) Pdf
               Page40
               which it is played, is likely to cause serious distress to the inhabitants of the locality, and for
               this purpose—
               (a) such a gathering continues during intermissions in the music and, where the gathering
               extends over several days, throughout the period during which amplified music is played at
               night (with or without intermissions); and
               (b) “music" includes sounds wholly or predominantly characterised by the emission of a
               succession of repetitive beats.
        -      If, as respects any land
               I
               a police officer of at least the rank of superintendent reasonably believes that—
               (a) two or more persons are making preparations for the holding there of a gathering to which
                   this section applies,
               (b) ten or more persons are waiting for such a gathering to begin there, or
               (c) ten or more persons are attending such a gathering which is in progress,
               he may give a direction that those persons and any other persons who come to prepare or wait
               for or to attend the gathering are to leave the land and remove any vehicles or other property
               which they have with them on the land.
               (3) A direction under subsection (2) above, if not communicated to the persons referred to in
                   subsection (2) by the police officer giving the direction, may be communicated to them
                   by any constable at the scene.
               (4) Persons shall be treated as having had a direction under subsection (2) above
                   communicated to them if reasonable steps have been taken to bring it to their attention,
               (5) A direction under subsection (2) above does not apply to an exempt person.
               (6) if a person knowing that a direction has been given which applies to him—
               (a) fails to leave the land as soon as reasonably practicable, or


                                                                                              Page 40 of 139]]></page><page Index="43"><![CDATA[(b) having left again enters the land within the period of 7 days beginning with the day on
                   which the direction was given,
               he commits an offence and is liable on summary conviction to imprisonment for a term not
               exceeding three months or a fine not exceeding level 4 on the standard scale, or both.
               (7) In proceedings for an offence under this section it is a defence for the accused to show
                   that he had a reasonable excuse for failing to leave the land as soon as reasonably
                   practicable or, as the case may be, for again entering the land.
               www.WestLaw.uk
               83,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Simon Cordell Skeleton Argument (2).pdf
               Pages
               (8) A constable in uniform who reasonably suspects that a person is committing an offence
                   under this section may arrest him without a warrant.
               (9) This section does not apply—
               (a) in England and Wales, to a gathering in relation to a licensable activity within section
               1(1fc) of the Licensing Act 2003 (provision of certain forms of entertainment) carried on
               under and in accordance with an authorisation within the meaning of section 136 of that Act.
               (b) in Scotland, to a gathering in premises which, by virtue of section 41 of the Civic
               Government (Scotland^ Act 1982. are licensed to be used as a place of public entertainment.
               (10) In this section—
               2
               "exempt person", in relation to land (or any gathering on land), means the occupier, any
               member of his family and any employee or agent of his and any person whose home is
               situated on the land.
               “land in the open air includes a place partly open to the air.
               3
               "occupier"
               "trespasser"
               and “vehicle' have the same meaning as in section 61.
               4
               [Back to Top]
               Notes
               Words repealed by Anti-social Behaviour Act 2003 c. 38 Sc.h.3 oara.1 (January 20, 2004 as
               Si 2003/3300)
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               Paged
               Substituted by Licensing Act 2003 c. 17 Sch.6 oara.111 (November 24. 2005)
               (a) Definition repealed by Licensing Act 2003 c. 1. Sch.7 oara.1 (November 24, 2005 as SI
                   2005/3056)
               (4) Repealed by Licensing Act 2003 c, 17 Sch.7 para.1 (November 24, 2005 as SI 2005/3056)
               (5) Amended by Anti-social Behaviour Act 2003 c. 38 PI 7 s.58 (January 20, 2004)
               (6) Repealed subject to transitory provisions specified in SI 2005/3495 art.2(2) by Serious
               Organised Crime and Police Act 2005 c. 15 Sch.17f2t para.1 (January 1,2006: repeal has
               effect subject to transitory provisions specified in SI 2005/3495 art.2(2))
               (7) Note not available
               Crown Copyright material is reproduced with the permission of the Controller of HMSO and
               the Queen's Printer for Scotland


                                                                                              Page 41 of 139]]></page><page Index="44"><![CDATA[Subject: Criminal law Other related subjects: Penology and criminology
               www.WestLaw.uk
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                                                                                              Page 42 of 139]]></page><page Index="45"><![CDATA[86,
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               Simon Cordell Skeleton Argument (2).pdf
               Contents
               Ministerial foreword  4
               Introduction  6
               (11) Anti-social behaviour orders: the basics  8
               What are anti-social behaviour orders?      8
               What sort of behaviour can be tackled by ASROs?  8
               Legal definition of anti-social behaviour for the purpose of obtaining an order   9
               Standard of proof     9
               Against whom can an order be made?          10
               Who can apply for an order?  10
               Which courts can make ASBOs?        11
               Length of orders      11
               Anti-social behaviour response courts       11
               Orders made in county court proceedings (section IB of the Crime and Disorder Act 1998)13
               (12) Taking a strategic approach    14
               Orders made on conviction in criminal proceedings  14
               Where is an ASBO valid?      14
               Can interim orders be made?  15
               Interim orders made in the county courts    16
               Orders against children and young people    16
               Breach of an order    16
               Expert prosecutors    16
               Standard ASBO form 17
               Disposals      17
               (13) Managing the application process       19
               Partnership working  19
               Taking ownership      20
               Other considerations  21
               Collection of evidence       22
               Together campaign fact sheet  23
               (14) Time limits      24
               Magistrates’ courts (acting in their civil capacity)  24
               (15) Use of hearsay and professional witness evidence     25
               Hearsay evidence      25
               Professional witnesses       25
               Vulnerable and intimidated witnesses        25
               Witness development and support     26
               Improving protection of witnesses in court  27
               (16) Information sharing     28
               Information sharing and registered social landlords  28
               Information sharing protocols       28
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               Contents
               (17) The terms of the order (the prohibitions)     29
               The role of the agencies     29
               The courts     29


                                                                                              Page 43 of 139]]></page><page Index="46"><![CDATA[Effective prohibitions  30
               Length of prohibitions 31
               Targeting specific behaviour  31
               Duration of an order  32
               (18) Applying to the courts  33
               Summons procedure  33
               Disclosure     33
               Court procedures      33
               Orders made on conviction in criminal proceedings  33
               Interim orders on conviction  36
               Step-by-step guide    37
               Public funding for defendants  37
               (19) Children and young people      38
               Who can apply for an order?  38
               Individual support orders    41
               (20) Immediate post-order procedure (adults and young people)    44
               Good practice - managing procedures and timescales        44
               Enforcing the order  45
               One-year review of juveniles’ ASBOs         45
               Police National Computer (PNC)      45
               (21) Appeals  46
               Magistrates’ court (acting in its civil capacity) and orders on conviction in criminal
               proceedings 46
               County court  46
               Appeals to the High Court by case stated    46
               Appeals before the Crown Court      47
               Rectification of mistakes    47
               Application for judicial review     47
               (22) Breaches  48
               Breaches by adults    48
               Breaches by children and young people       48
               (23) Variation and discharge of an order    50
               (24) Monitoring and recording       51
               (25) Promoting awareness of orders  52
               Suggested aims of the strategy      52
               Publicity      52
               Principles     52
               Benefits of publicity  53
               The decision to publish      53
               The decision-making process  53
               What publicity should look like: are the contents proportionate?   54
               Type of information to include in publicity  54
               Age consideration     54
               Photographs  55
               Distribution of publicity    55
               Consideration of human rights       56
               Consideration of data protection    56
               Type of publicity     56
               Working with the media       56
               2


                                                                                              Page 44 of 139]]></page><page Index="47"><![CDATA[88,
               Simon Cordell’s Skeleton Argument (2) Pdf

                                      IN THE WOOD GREEN CROWN COURT
                                                  Case No A2Q150064
                  IN THE MATTER OF AN APPEAL AGAINST AN ANTI-SOCIAL BEHAVIOUR
                                                        ORDER
                                                    B E T W E E N :
                                               SIMON CORDELL -and-
                                                       Appellant
                            THE COMMISSIONER OF POLICE OF THE METROPOLIS
                                                      Respondent
                                SKELETON ARGUMENT FOR THE RESPONDENT

               References to page numbers are in [square brackets], [AX] being the Appellant’s bundle and
               [RX] being
               the Respondent’s bundle
               45
               Listing; For appeal hearing, 22-24.02,16 for 3 days
               Issues: (I) whether the Appellant has acted in an anti-social manner
               (ii) whether an ASBO necessary Recommended
               pre-reading: For an Application for the ASBO [Rl-3]
               The ASBO made on 04.08.15 [R13]
               The statements of DC Elsmore, the OIC [R14-35]
               Statements of R’s witnesses [R36-66]
               A’s statements [A1-X5]
               Statements of A’s witnesses [A16-30, A258-272]
               INTRODUCTION
               (1) The Appellant is appealing against a decision made by the district judge at Highbury
               Corner Magistrates’ Court on 4 August 2015 pursuant to S.1 of the Crime and Disorder Act
               1998 (“the 1998 Act”) to make him subject to an anti-social behaviour order (ASBO) to last
               for 5 years.
               (2) The facts relied upon by the Respondent are set out in the bundle of evidence placed
               before the court and, in particular, the witness statements of the Respondent’s officers [R.14-
               35]. The Appellant has also provided a bundle for this appeal hearing [A],
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               Simon Cordell Skeleton Argument.pdf
               (3) The Respondent’s case is that the Appellant has been integrally involved in the
               organisation of raves in London, particularly Enfield, and/or the supply of sound equipment
               to those raves. The Respondent relies on each incident set out in the application notice to
               support his case [Rl-3]. 'The Respondent submits that it is necessary for an ASBO to be in
               place to protect the public from further anti-social acts, specifically the organisation of raves,
               done by the Appellant.
               (4) A chronology of events is appended to this Skeleton Argument.
               (5) LEGAL FRAMEWORK
               (6) Whilst the relevant provisions of the 1998 Act were repealed by the Anti-social
               Behaviour, Crime and Policing Act 2014, s.21 of that Act provides that these proceedings are
               unaffected except that, on 23 March 2020, the Appellant’s ASBO will automatically become
               an Injunction under as if made under S.1 of that Act.


                                                                                              Page 45 of 139]]></page><page Index="48"><![CDATA[(7) Section 4 of the 1998 Act provides that an appeal against the making of an ASBO lies to
               the Crown Court.
               (8) Section 79(3) of the Senior Courts Act 1981 provides that an appeal to the Crown Court is
               by way of a re-hearing. The relevant test, therefore, is that set out in S.1 of the Act.
               (1)  Pursuant to S.1 (4) of the 1998 Act, the court may exercise it discretion and make an
                   ASBO if the two-part test set: out in S.1(l) is satisfied. Section 1(1) states:
               a.  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 ID or over, namely—that the person has acted,
                   since the commencement date, in an and-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 relevant persons from further antisocial
                   acts by him.
               46
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               (9) It is for the Respondent to satisfy the court to the criminal standard that the Appellant has
                   acted 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. However, the second limb of the
                   test “does not involve a standard of proof: it is an exercise of judgment or evaluation” (R
                   (McCann) v Manchester Crown Court [2003] l A.C. 787 at
               [371).
               (10) In R v Dean lioness [2006] 1 Cr. App. II. (S.) 120, the Court of Appeal provided general
                   guidance as to the creation of prohibitions forming an ASBO. the court held that:
               3. prohibitions should be individually tailored to the individual and that each individual
               prohibition must be necessary [28].
               (ti) an ASBO can include prohibitions not to undertake minor criminal activity that may be
               covered under separate legislation [30-1]. However, an ASBO should seek to prevent a
               person from being able to commit that offence, rather than further penalise him when he does
               commit it [35]; and
               (iii) the terms of the ASBO must be proportionate so as to be commensurate with the risk
               identified [37],
               SUBMISSIONS
               The first limb of the test under S. 1 (l)(a) of the 1998 Act
               (11) The organisation of large-scale raves, whether or not they fall within the parameters of
                   s.63 of the Criminal justice and Public Order Act 1994 and whether on private property or
                   common land, fall within the definition of anti-social behaviour. 1 he Home Office
                   Guidance: ‘A Guide to antisocial beamer orders’ specifies noise nuisance, particularly
                   when late at night, as an example of anti-social behaviour.
               24.11.1 It is submitted that, a person who helps organise or supplies equipment for a rave,
               where there is loud music late at night (except where there is a licence to do so and/or the
               music is played on licensed premises), has prana jade done an act in contravention of
               S.1(l)(a) of the 1998 Act.
               46
               91,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Simon Cordell Skeleton Argument.pdf
               (12) The Respondent relies on the evidence provided in die witness statements provided by
                   various officers as well as supporting intelligence reports, the page references for this


                                                                                              Page 46 of 139]]></page><page Index="49"><![CDATA[evidence are set out in the appended chronology. The court is invited to take particular
                   note of the evidence supporting the conclusion that the Appellant was integrally involved
                   in the organization of raves and/or the supply of equipment:
               4. The Appellant was identified by gate security as the organizer of a rave of about 300
               people on 7/8 June 2014 (see evidence of Insp. Hamill JR38] and supporting evidence of PS
               Miles [R36]).
               5. The Appellant admitted to Insp. Skinner that he was the organiser of the rave on 7/8 June
               2014 [R41].
               6. The Appellant admitted to Insp. Skinner that he was the organiser of the rave organised
               and prevented on 19 July 2014 [R39, R41].
               7. The Appellant admitted to PC Edgoose that he lent his sound equipment for use at raves
               and that he could get a significant number of people to turn out for a rave [R48, R88]; and
               8. The Appellant was the organiser of the rave on 9 August 2014 and provided the sound
               equipment as well as laughing gas [R42, R44-5, R47]. When a crowd turned up and tried to
               force entry, the Appellant encouraged them to break the police line [R43, R45-6].
               (13) The Respondent further relies on the information set out in the intelligence reports and
                   the documents provided to the court in the Respondent’s bundle. The evidences show the
                   Appellant has witnessed by many different police officers supplying equipment for or
                   helping to organise a rave.
               (14) The court will be invited to reject the Appellant’s account as t:o his activities on the
                   relevant, days as not credible.
               The second limb of the test under section 1 of the Act
               (15) It is first submitted that an ASBO is, in general terms, necessary.
               47
               92,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Simon Cordell Skeleton Argument.pdf
               (16) There is a significant body of evidence showing the impact of raves on people who live
                   near where they occur [R51-66, R155-298]. The level of distress that these individuals
                   suffered as a result of the raves organised by the Appellant was high. 'There is a need to
                   prevent these events occurring in the future.
               (17) The ASBO (and interim ASBO beforehand) have been effective. The only time where
                   the. Appellant’s behaviour has improved is when these proceedings were commenced,
                   and it was made clear to the Appellant that his actions could not be tolerated.
               (18) "The Appellant has denied the acts alleged by the Respondent. He has shown no
                   acknowledgment or desire to change his ways that might make an ASBO unnecessary.
               (19) As to the particular prohibitions on the ASBO, significant effort was made by the
                   Respondent and by the court to ensure that any legitimate business activities that the
                   Appellant wished to undertake would in no way be inhibited by this order. Tor the
                   Appellant to provide recorded music to a gathering of people he would either need to
                   have a licence for that event or to provide the music on a licensed premises for fewer than
                   500 people with, a general licence to play recorded music (see s. 1 and Sch.l of the
                   Licensing Act 2003). This order specifically does not preclude him from providing
                   regulated entertainment under the auspices of a valid licence.
               (20) The only amendment that the Respondent would seek is that the words “or s.63(l. A)” be
                   added after the words “s.63(l)” in prohibitions a, b, and c of the ASBO.
               (21) It is submitted that the terms of the ASBO as drafted are necessary and proportionate in
                   that they should have minimal impact on the Appellant’s life and legitimate business
                   activities.
               ROBERT TALALAY


                                                                                              Page 47 of 139]]></page><page Index="50"><![CDATA[Chambers of 1 'torus Barton OC 5    Essex Court "I’rnrpk
               January 2016
               48
               93,
               Simon Cordell’s Skeleton Argument (2) Pdf
               6
               Case No A20150064
                                      IN THE WOOD GREEN CROWN COURT
                  IN THE MATTER OF AN APPEAL AGAINST AN ANTI-SOCIAL BEHAVIOUR
                                                        ORDER
                                                      BETWEEN:
                                                  SIMON CORDELL
                                                       Appellant
                                                          -and-
                            THE COMMISSIONER OF POLICE OF THE METROPOLIS
                                                      Respondent
                                SKELETON ARGUMENT FOR THE RESPONDENT
               1C Essex Court
               Hugh Giles (Director)
               Metropolitan Police Service
               Directorate of Legal Services
               New Scotland Yard
               Broadway
               London
               SW1H OBG
               94,
               Simon Cordell’s Skeleton Argument (2) Pdf
                         IN THE WOOD GREEN CROWN COURT                     Case No A2Q15P064
                          IN THE MATTER OF AN APPEAL AGAINST AN ANTI-SOCIAL
                                                 BEHAVIOUR ORDER
                                                    B E T W E E N :
                                                  SIMON CORDELL
                                                       Appellant
                                                          -and-
                            THE COMMISSIONER OF POLICE OF THE METROPOLIS
                                                      Respondent
               CHRONOLOGY
               12/01/13
               Information pertaining to this date entered by PC Purcell that a vehicle
               belonging to the Appellant (Ford hocus Silver MA57LDY) was supplying equipment for a
               rave in Canary Wharf [R152-4]. Appellant accepts attendance but. denies any
               organisational/supply role for a rave [A3]
               24/05/13
               Information pertaining to this date entered by PC- Jackson that the
               Appellant was seen with another individual who told PC- Jackson that they were looking for
               a place to set. up a rave over the ban holiday [R118- 120]. Appellant’s account at [A4]
               25/05/14
               Information pertaining to this date entered by PC Hoodless concerning a






                                                                                              Page 48 of 139]]></page><page Index="51"><![CDATA[report that there were trespassers on private premises. The Appellant was spoken to and had a
               set of large speakers in his van (White Ford I transit CX52JPZ) [R112-4]. Appellant accepts
               attendance but denies any organisational/supply role for a rave [A4]
               6-8/06/14
               Police attended and broke up a rave at Progress Way, Enfield. Evidence of the Appellant’s
               alleged organisational involvement [R36-41, 110]; impact statements [R51-66]; CAD reports
               [R155-298]. Appellant denies attendance on 6 or 8 June 2014 and admits attendance on 7
               June 2014 but denies any organisational/supply role for a rave [A5]
               95,
               Simon Cordell’s Skeleton Argument (2) Pdf
               20/06/14
               Rave in Neasden closed down. White Fold Transit CX52JRZ removed from the site [R102].
               Appellant’s account is that he provided sound equipment for a gentleman’s birthday party
               and was informed the following day that his equipment had been seized [A5, A253-6]
               19/07/14
               Police attended and closed down a putative rave on Great Cambridge
               Road, Enfield. Evidence of the Appellant’s alleged organisational involvement [R39-41,
               R91]. Appellant’s account is that stopped his car to help a homeless person from being
               arrested when he was arrested for a breach of the peace; he denies any organisational/supply
               role for a rave
               [A6]
               24/07/14
               Conversation reported by PC Edgoose in which the Appellant is alleged
               to have bragged about organising raves [R48, R88]. I he Appellants account is at [A6-7]
               27/07/14
               Information pertaining to this date entered by PC Chandler that the Appellant driving a White
               herd transit CX52JRZ was present at powering speakers at a rave on Millmarsh Lane, Enfield
               [R83-6J. Appellant, accepts attendance at a birthday party but denies any
               organisational/supply role for a rave [A7]
               09-10/08/14
               Police attended and broke up a rave on Millmarsh Lane, Pm field.
               Evidence of the Appellant’s alleged organisational involvement [R42-7, R80-1]. Appellant
               accepts attendance at a birthday dinner but denies any organisational/supply role for a rave
               96,
               Simon Cordell’s Skeleton Argument (2) Pdf
               49
               [R (McCann) v Manchester Crown Ct (HL(E))
               House of Lords
                              Regina (McCann and others) v Crown Court at Manchester
                                                      and another
                        Clingham v Kensington and Chelsea Royal London Borough fi Council
               [2002.] UKHL 39
               2002 May 27,28; Lord Steyn, Lord Hope of Craighead, Lord Hutton,
               Oct 17 Lord Hobhouse of Woodborough and
               Lord Scott of Foscote
               Crime — Crime and disorder — Antisocial behaviour order — Applications for antisocial
               behaviour orders relying on hearsay evidence — Whether proceedings civil or criminal —
               Whether hearsay evidence admissible — Whether criminal standard of proof to be satisfied
               — Crime and Disorder Act 1998 (c 37J, s r — Human Rights Act 1998 (042), Sch 1, Ft 1, act




                                                                                              Page 49 of 139]]></page><page Index="52"><![CDATA[In the first case the Chief Constable applied to the magistrates’ court for anti- social
               behaviour orders to be made against each of the defendants, three brothers aged 16, 15 and
               13, pursuant to section 1 of the Crime and Disorder Act 1998'. The stipendiary magistrate
               made the orders, which, inter alia, prohibited the defendants from entering a particular area of
               the city in which they lived. On the defendants’ appeal to the Crown Court, the judge held
               chat the proceedings for the making of an order were civil rather than criminal and that,
               therefore, they were not subject to the rules of evidence which applied in criminal
               prosecutions or to the protection of article 6(2) of the Convention for the Protection of
               Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1.998c
               However, the court applied the standard of proof of being “satisfied so that it was sure” that
               the orders should be made and, having done so, dismissed the appeals.
               The defendants brought judicial review proceedings seeking an order of certiorari to quash
               the judge’s decision.
               The Divisional Court dismissed the application and the Court of Appeal upheld that decision.
               The defendants appealed.
               In the second case the local authority applied to the magistrates’ court for an antisocial
               behaviour order to be made against the defendant. The application was based primarily on
               hearsay evidence including evidence from anonymous complainants and evidence from
               complainants whose identities were not disclosed. A hearsay notice under the Magistrates’
               Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 was served on the defendant,
               who challenged its validity. Following a pre-trial review, the district judge stated a case for
               the Divisional Court raising questions about the admissibility of hearsay evidence in the
               proceedings. The Divisional Court, in reliance on the decision of the Divisional Court in the
               first case, ruled that the proceedings were civil and that the hearsay evidence could be
               admitted. The defendant appealed pursuant to a certificate granted under section 1 of the
               Administration of Justice Act 1960.
               On the appeals—
               Held, dismissing the appeal in the first case and declaring that the house had no jurisdiction
               to hear the appeal in the second case, that since applications for antisocial behaviour orders
               under section 1 of the Crime and Disorder Act 1 998 were initiated by the civil process of
               complaint and did not charge the defendant with any
               Crime and Disorder Act 1998, s r: see post, para 6.
               Human Rights Act 1998, Sell 1, Pt., art 6: see post, para 7.
               97,
               Simon Cordell’s Skeleton Argument (2) Pdf
               50
               R (McCann) v Manchester Crown Ct (HL(E)
               (2003] 1 AC
               crime or involve the Crown Prosecution Service, and since the making of such an order, the
               purpose of which was preventive not punitive, was not a conviction, did not appear on the
               defendant’s criminal record and resulted in no penalty, the proceedings were civil under
               domestic law; that, since the proceedings did not involve the determination of a criminal
               charge and could not result in the imposition of an immediate penalty on the defendant, they
               therefore could not be classified as criminal for the purposes of article 6 of the Convention;
               that, in so far as the proceedings involved a determination of the defendants’ civil rights and
               thereby engaged the right to a fair trial under article 6(r),
               the use of hearsay evidence admissible under the Civil Evidence Act 1995 in such
               proceedings was not unfair and involved no violation of that right; that hearsay evidence
               under the 1995 Act and the 1999 Rules was therefore admissible on an application for an
               anti-social behaviour order under section 1 of the 1998 Act; but that, given the seriousness of


                                                                                              Page 50 of 139]]></page><page Index="53"><![CDATA[the matter involved, the court should be satisfied to the criminal standard of proof that a
               defendant had acted in an anti-social manner before making such an order; and that,
               accordingly, in rile first case the appropriate standard of proof had been applied, and since the
               second case was not a “criminal cause or matter” the House had no jurisdiction to hear the
               appeal under section 1 of the 1960 Act (post, paras 22, 2627, 30, 33-35, 36, 37, 39-40, 5H 55-
               5h, 64, 67, 68, 74, 76-77, 81-84, 94-98, 102103, 105-106, 108, 111, 112, 11 3-117).
               (22) Dicta of Lord Atkin in Proprietary Articles Trade Association v Attorney General for
                   Canada [1.931] AC 310, 324,
               (23) PC, of Lord Bingham of Cornhili CJ in Customs and Excise Comrs v City of London
                   Magistrates' Court [2000] 1 WLR 2020, 2025,
               (24) DC, B 1 > Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340,
                   DC, S v Miller 2001 SC 977 and
               (25) Gough v Chief Constable of Derbyshire Constabulary [2002] QB 1213, CA applied.
               Decision of the Court of Appeal [2001] EWCA Civ 281; [2001] 1. WLR 1084; [2001] 4 All
               ER 264 affirmed.
               The following cases are referred to in the opinions of their Lordships.
               Adolf v Austria (1982) 4 EHRR 313
               Albert and Le Compte v Belgium (1983)5 EHRR 533           ^
               Amand v Home Secretary 1943 | AC 147; [1942] 2 All ER 381, HL(E)
               B v Chief Constable of Avon and Somerset Constabulary [200 t] I WLR 340; [2001] 1 All
               ER 562, DC
               B endenoun v France (19 9 4) 18 EHRR 5 4
               Bcnham v United Kingdom (1996) 22 EHRR 293
               Brown v Stott (2003] t AC 68 r; [1001] 2 WLR 817; [2001] 2 All ER 97,
               PC Cons tanda v M 19 9 7 S C 217
               Customs and Excise Comrs v City of London Magistrates’ Court [2000] 1 WLR Z020;
               120001 4 All ER 763,
               DC Deweer u Belgium (1980) 2 EHRR 439
               Dumbo Beheer BV v The Netherlands (1993) 18 EHRR 213
               Doorson v The Netherlands (1996)22 EHRR 3 30 Engel t/
               The Netherlands (No 1) (1976) > EHRR 647
               Garyfallou AEBE v Greece (1997) 28 EHRR 344
               Gough v Chief Constable of the Derbyshire Constabulary [2001 j EWITC Admin 554;
               [2002] QB 459; [2001] 3 WLR T392; [2001] 4 All ER 289, DC; [2002] EWCA Civ 351;
               12002] QB tzr 3; (2002] 3 WLR 289; [2002] 2 All ER 985,
               CA Guzzardi v Italy (1980) 3 EHRR 3 3 3
               H (Minors) (Sexual Abuse: Standard of Proof), hi re [ 1996] AC 563; (1996] 2 WLR 8; [
               1996] 1 All ER 1, HI. (E)
               Han v Customs and Excise Comrs {200:] EWCA Civ 1040; [2001] 1 WLR 2253; [2001] 4
               All ER 687, CA
               Kostovskt v The Netherlands (5989) 12 EHRR 434
               Lauko v Slovakia (1998) 33 EHRR 994
               98,
               Simon Cordell’s Skeleton Argument (2) Pdf
               [2003] I AC
               51
               R (McCann) v Manchester Crown Ct (HL(E)
               Lutz v Germany (1987) Ro EHRR 181
               M v Italy (1991) 70 DR 59
               McFeeley v United Kingdom (1980) 3 EHRR 161


                                                                                              Page 51 of 139]]></page><page Index="54"><![CDATA[M'Gregor v D 1977 SC 3 30
               Official Receiver v Stern \2.000] 1 WLR 22.30; [2001] 1 All ER633, CA Qztiirk v
               Germany (1984) 6 EHRR 409           ^
               Percy v Director of Public Prosecutions [r995l 1 WLR 1381; l.t.995] 3 All ER 124, DC
               Proprietary Articles Trade Association v Attorney General for Canada [1931] AC 310,
               PC
               R v Kansa! (No z) [2001] UKHL 62; [2002] 2 AC 69; [2001] 3 WLR 1.562; [2002]
               All ER 257, HL{E)
               R v Secretary of State for Trade and Industry, Ex p McCormick [1998] BCC 379
               Raimondo v Italy (1994) 18 EJHRR 137 Ravnsborg v Sweden (1994) r 8 EHRR 3 8
               S (Minors) (Care Order: Implementation of Care Plan), In re [2001] UKHL 10.
               12002] 2 AC 291; [2002] zWLR 720; [2002] 2 All ER 5:92, HL(E)
               S v Miller 200 s SC 977
               Saidi v France {1993} 17 EHRR 251
               Sporrong and Ldnnrotb v Sweden (1981) j EHRR 35
               Steel v United Kingdom (1998) 28 EHRR 603
               Unterpertinger v Austria (1986) 13 EHRR 175
               Woodball (Alice), Ex p (1888) 20 QBD 83 2, CA
               The following additional cases were cited in argument:
               Bonalmm v Secretary of State for the Home Department [1985] QB 675; [1985]
               WLR 712; 11.985] 1. AUER797, CA             ^
               Botross v Hammersmith and Fulham London Borough Council (1994} 93 LGR 268,
               DC      ,      .
               Carr v Atkins [1987] QB 963; [1987] 3 WLR 529; [1987] 3 All LR 684, CA Ihhotson
               v United Kingdom (1998) 27 EHRR CD 332
               Krone-Verilog GmbH v Austria (Application No 28977/95) (unreported) 21 May 1997,
               E Com HR
               Nottingham City Council v Zain (A Manor) I2001j EWCA Civ 1248; [2002] 1 WLR
               607, CA
               Pelle v France (1986) 50 DR 263
               R v Board of Visitors of Hull Prison, Ex p St Germain [1.979] QB 42S; 119791 1 WLR
               42; [1979] 1 AUER 701, CA
               R (McCann) v Crown Court at Manchester APPEAL from the Court of Appeal
               This was an appeal, with leave of the House (Lord Slynn of Hadley, Lord Steyn and Lord
               Rodger of Earls ferry) granted on 25 April 2002, by the defendants, Sean McCann, Michael
               McCann and Joseph McCann, against a decision of the Court of Appeal (Lord Phillips of
               Worth Matravers MR, Kennedy and Dyson LJj) dated 1 March 2001 dismissing their appeals
               from a decision of the Divisional Court of the Queen’s Bench Division (Lord Woolf CJ and
               Rafferty j) on 22 November 2000 to refuse the defendants’ application, by their mother and
               litigation friend Margaret McCann, for judicial review by way of an order of certiorari to
               quash the decision of Judge Rhys Davies QC, the Recorder of Manchester, and justices sitting
               in the Crown Court at Manchester on 16 May 2000 to uphold a decision of a stipendiary
               magistrate to make anti-social behaviour orders against the defendants on the application of
               the Chief Constable of Greater Manchester.
               99,
               Simon Cordell’s Skeleton Argument (2) Pdf
               52
               R (McCann) v Manchester Crown Ct (HL(E)
               [2003] 1 AC
               The facts are stated in the opinion of Lord Hope of Craighead.


                                                                                              Page 52 of 139]]></page><page Index="55"><![CDATA[Clingham v Kensington and Chelsea Royal London Borough Council
               APPEAL from the Divisional Court of the Queen’s Bench Division
               This was an appeal, with leave of the House granted on 23 October 2001, by the defendant,
               Andrew George Clingham, against a decision of the Divisional Court (Schiemann LJ and
               Poole J) dated 11 January 2001 dismissing his appeal by way of case stated against a decision
               on the admissibility of evidence by District Judge David Kennett Brown, sitting as a
               magistrate at Marylebone Magistrates’ Court on 14 September 2000 at a pre-trial review of
               an application by Kensington and Chelsea Royal London I3orough Council for an anti-social
               behaviour order against the defendant.
               In refusing leave to appeal the Divisional Court certified, under section 1(2) c of the
               Administration of justice Act i960, that the following point of law of general public
               importance was involved in its decision: “Whether hearsay evidence is admissible in
               proceedings to secure the making of an anti-social behaviour order under the Crime and
               Disorder Act 1998?”
               The facts are stated in the opinion of Lord Steyn.
               Stephen Salley QC and Alan Fraser for Clingham. Seen as a whole, the scheme provided for
               by the Crime and Disorder Act 1998 for the making of and enforcement of anti-social
               behaviour orders is punitive, rather than preventative, and therefore truly criminal. The
               sanctions for breach of such an order, which include imprisonment for a maximum of five
               years, are clearly penal in nature. The proper application of the relevant criteria leads to the
               conclusion that it is properly categorised as criminal even in respect of ^ the initial imposition
               of the order looked at alone. Consequently, the usual, criminal procedures apply and the Civil
               Evidence Act 1995 and the Magistrates’ Courts (Hearsay Evidence in Civil Proceedings)
               Rules 1999 (SI 1999/681) do not.
               The absence of any real restriction on the possible ambit of anti-social behaviour orders also
               presents the risk of ad hoc, novel and ill-defined “criminal offences” (founded on the terms of
               any such order), that is a matter of concern and possible injustice in that it is effectively
               creating “offences” attracting substantial penalties without the direct involvement of
               Parliament and in circumstances lacking the sort of certainty that should characterise any
               prohibition carrying such penal sanctions. The fact that the conduct originally complained of
               is inevitably reflected in the formulation of the “offence”, it is an integral and inextricable
               part of a single process with punitive sanction.
               Geographical exclusion from a particular area is also properly regarded as punitive. It
               encroaches on freedom of movement and may in some circumstances amount to an
               infringement of the right to respect for private and family life (contrary to article 8 of the
               Convention) and/or freedom of association (contrary to article 11). Although each of these
               rights is subject to restriction for reasons including the “prevention of crime and disorder”
               and the “protection of rights of others” that reinforces the argument that such, a sanction is a
               punitive order.
               Even if it is held that the proceedings are properly characterised as “civil”, defendants are
               entitled to a “fair” hearing in accordance with article 6 (R) “in
               100,
               Simon Cordell’s Skeleton Argument (2) Pdf
               53
               [2003] 1 AC  R (McCann) v Manchester Crown Ct (HL(E)
               A determination of his civil] rights and obligations”. In determining what is “fair” in this
               context an almost (or “quasi”) criminal approach should be adopted not only in relation to the
               standard of proof but in interpretation of wider procedural issues. In the circumstances that
               would include having particular regard to the minimum requirements that would attach to
               criminal proceedings under article 6(3), even if those did not directly apply g by virtue of


                                                                                              Page 53 of 139]]></page><page Index="56"><![CDATA[criminal status. In particular this should include the right to examine witnesses pursuant to
               article <5(3){d).
               The application of the criminal standard of proof as being “likely to be appropriate” in the
               majority of applications for an anti-social behaviour order was accepted by the Court of
               Appeal in McCann. That is an unsatisfactory approach in relation to the appropriate standard
               of proof. It would lead to a lack of clarity and certainty, which in turn is likely to cause C
               injustice, actual or perceived. The proper interpretation is that the appropriate standard of
               proof to be applied in relation to the making of any anti-social behaviour order is the criminal
               standard. It is unrealistic to suggest some sort of sliding scale between the criminal and civil
               standard of proof. Application of the criminal standard of proof would go a long way to
               achieving a fair trial.
               In Clingham the allegations involve serious criminal conduct including burglary, dealing in
               drugs and assaults. One of the consequences of this is that a person may find himself having
               to attempt to answer an allegation founded on multiple hearsay to resist an application for an
               order, only to later have to answer a formal criminal charge founded on the same “facts”
               which were only proved to the civil standard. Anything said in the course of the first
               proceedings could be used against hint in respect of the later criminal charge. This also has
               the potential of effectively depriving the person of his right to silence under article 6(2) in
               any such subsequent proceedings. If he is to seek to preserve this right by not exposing
               himself to such risk, by not seeking to challenge the basis on which the anti-social behaviour
               order is sought, he would be compelled to constrain himself in the initial proceedings such
               that his general right to a “fair” hearing under article 6(1) in determination of his “civil rights
               and obligations” regardless of any minimum guaranteed rights afforded in respect of a
               “criminal charge” under article 6(3}, would be compromised. Anonymity of witnesses
               probably will not be achievable in these circumstances. The problem of fearful witnesses can
               be dealt with improving the role of the CPS and police rather than reducing the threshold
               required for an order to be made.
               The jurisdiction to accept Clingham is properly exercised. The definition ^ of “criminal
               cause or matter in section r(I)(a) of the Administration of Justice Act 1.960, for the purpose
               of appeal to the higher courts, is wider than the phrase “criminal proceedings”: see Exp Alice
               Woodhall (1888} 20 QBD 832; Amand v Home Secretary [1943] AC 1:47; Bonalwni v
               Secretary of State for the Home Department [1985] QB 675; Carr v Atkins f 1 987] r. QB
               963; Customs and Excise Comrs v City of London Magistrates’ Court H [2000] 1 WLR
               2020. Applying that approach the making of an anti-social behaviour order would clearly be a
               criminal cause or matter, as is everything that flows from it.
               Adrian Eulford QC and fames Stark for the Mc Cans. Anti-social behaviour orders require
               proof of conduct that is criminal in nature, closely
               101,
               Simon Cordell’s Skeleton Argument (2) Pdf
               R (McCann) v Manchester Crown Ct (HL(E)
               [2003] 1 AC
               akin to offences under sections 4A and 5 of the Public Order Act 1986 and section 1 of the
               Protection from Harassment Act 1997 and may lead to restrictions on liberty that constitute a
               punishment. Although the wording of sections 4A and 5 Public of the 1986' Act is not
               identical to section 1 of the Crime and Disorder Act .1998, the conduct involved all falls
               within section 1. Furthermore, there is no limitation placed on the definition of harassment in
               section 7(2) of the Protection from Harassment Act 1997.
               English law contains a number of strict liability offences. The lack of a requirement of intent
               cannot render the proceedings civil. Furthermore, men’s rea in both section 5 of the Public
               Order Act 1986 and section 2. of the Protection from Harassment Act 1997 offences is


                                                                                              Page 54 of 139]]></page><page Index="57"><![CDATA[knowledge based i.e. knew or ought to have known. Most tellingly of all section 1(10) of the
               Crime and Disorder Act 1998 itself creates an offence without the requirement of intent- It is
               subject only to a reasonable excuse defence.
               Whether a prohibited act leads to criminal proceedings depends upon the consequences
               arising from the act not the form of the statute within which it is described or the procedure
               by which proceedings are commenced. The procedure must be looked at in its totality from
               the beginning to the end. Although proceedings are started by complaint that is not
               conclusive. An anti-social behaviour order makes those against whom they are made subject
               to the risk of criminal sanctions in respect of conduct that would not otherwise be criminal.
               Conduct which is criminal in character may well take place only at the stage of breach of an
               order. Prohibitions against committing criminal offences or defined types of anti-social
               behaviour can be made, breach of which may expose the individual to far more serious
               penalties than the offence itself. Although it may have been Parliament’s intention to create
               civil rather than criminal proceedings, one has to look at what has been created not what it
               was intended to create. The fact that there are different stages to the proceedings does not
               prevent both stages being criminal causes or matters: see Amand v Home Secretary [r 943]
               AC 147; R v Board of Visitors of Hull Prison, Ex p St Germain [1979] QB 425-
               Consequently, applications for anti-social behaviour orders are the initial step in a criminal
               cause or matter.
               The second limb of section 1(1) of the Crime and Disorder Act 1998, the requirement of it
               being “necessary” to make an order is not at odds with the character of the proceedings being
               criminal Those elements come into play in other criminal proceedings. The first limb
               constitutes the “offence’ the second limb the need for a “penalty”.
               The fact that a penalty, which may have severe consequences, is described as being imposed
               to protect the public in the future, and not as a punishment for a crime already committed
               does not prevent the proceedings being criminal proceedings when the correct test is applied:
               see Proprietary Articles Trade Association v Attorney General for Canada [1.931! AC 310;
               Customs and Excise Comrs v City of London Magistrates’ Courts [2000] 1: WLR 2020.
               The object of a penalty by way of sentence is that it seeks to “protect” as well as to “punish”
               e.g. removing an offender from society by custody to prevent further offending.  In
               sentencing protective
               considerations, rather than society’s need to punish the individual, often play the major role
               in deciding what penalty to impose. Thus, to define an anti-social behaviour order as
               protective does not in any way diminish its punitive effect.
               102,
               Simon Cordell’s Skeleton Argument (2) Pdf
               [2003] AC
               55
               R (McCann) v Manchester Crown Ct (HL(E)
               The conditions that may be attached to an anti-social behaviour order are unlimited. Curfews
               and orders banning people from certain areas are now expressly recognised as criminal
               penalties under sections 37 and 40A of the Powers of the Criminal Court (Sentencing) Act
               2000. Restrictions upon liberty have also included a limit upon the number of visitors a
               person can have to their home or the number of persons with whom they may congregate.
               The injunction analogy is a false one. Injunctions seek to prevent the interference by one
               person with another’s civil rights whether in contract, tort, or equity or to ensure that civil
               obligations are carried out as in the case of a mandatory injunction. They are not aimed at
               preserving public order or containing anti-social behaviour. Committal is in consequence of
               disobedience to the court not as a punishment or penalty for the actual conduct involved.
               Furthermore, a contempt can be purged but an anti-social behaviour order last for two years.


                                                                                              Page 55 of 139]]></page><page Index="58"><![CDATA[There are fundamental differences between an anti-social behaviour order and a sex offender
               order under section 2 of the Crime and Disorder Act 1998. Section 1 requires proof. Section 2
               only requires “reasonable cause to believe”. Thus, the court does not, under section 2, apply a
               simple objective test of whether acts took place as in section 1 but has a further subjective
               element to apply that is not consistent with a criminal offence. Furthermore, the sex offender
               has already had his fair trial to the criminal standard of proof on the conduct which gave rise
               to the jurisdiction to make an order. The sex offender order is a mechanism to control the
               further conduct of those already convicted of criminal offences. The essential prerequisite for
               the order does not need to be proved in proceedings for making the order. In the context of
               European jurisprudence a sex offender order is made against a very limited class of persons,
               those already convicted of sex offences while the anti-social behaviour order is of general
               application. That is a significant factor: see Benbam v United Kingdom (1996) 22 EHRR 293
               The relevant criteria for the consideration of whether proceedings are criminal for the
               purpose of article 6 of the Convention rights are: (a) the domestic classification; (b) The
               nature of the proceedings; (c) The nature and severity of the punishment: see Engel v The
               Netherlands (No 1) (1976) I EHRR 647. Those criteria are not cumulative. Any one of the
               three may render the proceedings as being in respect of criminal charge: see Garyfallou
               AEBE v Greece (1997) 28 EHRR 344; Lauko v Slovakia (1998) 33 EHRR 994. There does
               not have to be tile formal constituent elements of an offence as recognised in domestic law:
               see Deiveer v Belgium (1980) 2 EHRR 439. There is a broad similarity between proceedings
               for anti-social behaviour orders and breach of the peace. In both cases what is effectively
               sought is an order prohibiting a certain kind of behaviour. The intention was almost certainly
               to create a civil procedure, but it did not actually achieve that: see Steel v United Kingdom
               (1998) 28 EHRR 603. A penalty is still a penalty even when it takes a novel form. See also
               Han v Customs and Excise GAMUTS [ 2001 j 1 WFR 2253 for a review of the European
               jurisprudence.
               The original anti-social behaviour is the most significant element of the criminal conduct
               leading to a criminal sanction under section 1(10). Thus the crucial conduct of a criminal
               nature that lies at the heart of the order and to which it is most important for the procedural
               safeguards of article 6(2) and (3) to be applied occurs at the first stage on the application for
               an order. It is
               103,
               Simon Cordell’s Skeleton Argument (2) Pdf
               56
               R (McCann) v Manchester Crown Ct (HL(E)
               [2003] AC
               thus impossible, when applying the autonomous test from the Convention as A to the genera!
               nature of the proceedings, to escape the conclusion that they are in respect of a criminal
               charge. Thus, the orders made in the instant proceedings on the basis that they were civil
               proceedings not subject to such safeguards should be quashed.
               Having a shifting or varying burden of proof may impose on justices an almost impossible
               task and could lead to the wholly undesirable practice of g justices being asked about the
               approach they are going to adopt.
               A professional judge could mould proceedings to meet the particular dictates of the case more
               easily: see Official Receiver v Stern I2000] I WLR 2230, 2257-2258. Other issues also arise:
               the protections under the Police and Criminal Evidence Act 1984 would not apply and there
               could be profound problems regarding the weight to be given to identification evidence.
               Brodie Thompson QC for Liberty. There are fundamental implications in the development of
               criminal law involved in the use of anti-social behaviour orders. It is important that all the
               full protections of criminal procedure are maintained when people are in effect accused of


                                                                                              Page 56 of 139]]></page><page Index="59"><![CDATA[criminal conduct. Under section I(I){a) of the Crime and Disorder Act 1998 a person with no
               previous convictions can be accused of conduct which could equally well have been
               prosecuted under section 5 of the Public Order Act 1986. An individual can thus be brought
               before the court for the first time under section 1 (I)(a). The penalties that can be imposed are
               in reality much more severe than those under section 5 or under the procedure of binding over
               the keep the peace, which is a criminal matter under the convention: see Steel v United
               Kingdom 28 EHRR 603. The protections under criminal law are designed to protect the
               liberties of persons accused of such conduct. It is £ important that such protections exist and
               are changed only by the express will of Parliament. The analogies with sex offenders etc
               concern people who have already been convicted. It is quite different to impose a similar
               regime on someone who has no convictions. There is no objection to simple procedures to
               deal with public order disturbances. There is a long history of such powers see summary in:
               Percy v Director of Public Prosecutions [ 19 9 5 3 1 WLR 1382. The proper approach to
               anti-social behaviour is for principled changes in die criminal law to be made by Parliament.
               The alternative of regarding the matter as civil but reading in criminal protections on an “ad
               hoc” basis is conceivable hut less desirable in that it left to the Courts to define the
               protections traditionally provided by the criminal law.
               Section 3 of the Human Rights Act 1998 imposes on the courts a broad general duty to
               construe primary, as well as secondary, legislation to accord c with Convention rights. In that
               respect the strong interpretive obligation imposed by section 3 necessarily subordinates the
               narrow intention of Parliament in the adoption of particular measures to its broader intention
               to avoid any implied inconsistency with protection of the Convention rights, even in primary
               legislation. Thus, section 3 introduces a degree of circularity into the position under domestic
               law, requiring the position under the Convention to be considered even in respect of the
               proper classification of anti-social behaviour orders in. the Crime and Disorder Act 1998
               under domestic law principles. Such orders should be construed as criminal if a civil
               classification would fail to provide all the protections required by the Convention under a
               criminal classification.
               104,
               Simon Cordell’s Skeleton Argument (2) Pdf
               [2003] AC
               57
               R (McCann) v Manchester Crown Ct (HL(E)
               John Bowers QC and Richard Banwell for Kensington and Chelsea Royal London Borough
               Council. Anti-social behaviour orders were specifically introduced in section x of the Crime
               and Disorder Act 1998, as a novel method for the police and local authorities to deter anti-
               social behaviour and prevent its escalation, without recourse to criminal sanctions. They are a
               reaction to a widely perceived social problem of crime and disorder. They were not intended
               to replace or modify existing criminal offences; rather they are primarily preventative in
               nature.
               A useful contrast may be made between anti-social behaviour orders and:
               curfew orders under sections 12 and 13 of the Criminal Justice Act 1991 which are available
               to the court upon conviction of an offence; and (b) the terms of the Protection from
               Harassment Act 1997 which specifically creates a criminal offence.
               An anti-social behaviour order may be properly characterised in effect as, or by analogy, to a
               quick time injunctive order made in civil proceedings, used to restrain further behaviour
               which may cause harassment, alarm or distress to the relevant persons in the local
               government area concerned. Section 1(4) of the 1998 Act thus provides that an order may
               prohibit the defendant from doing anything described in the order in the future. An order is in
               terms restricted to the prohibition(s) necessary to protect persons in a defined area from anti-


                                                                                              Page 57 of 139]]></page><page Index="60"><![CDATA[social behaviour (section 1(6)) and is manifestly an order designed to protect in the future,
               not to punish past misconduct. An analogy to the anti-social behaviour order is the banning
               order, which may be made by a magistrates’ court under section 14B of the Football
               Spectators Act 1989. Such an order is civil in nature: see Gough u Chief Constable of the
               Derbyshire Constabulary [2002] QB 459. A similar comparison can be made with
               disqualification orders under the Company Directors Disqualification Act 1986 which are
               also not criminal: see R v Secretary of State for Trade and Industry, Ex p McCormick [
               1998] BCC 379.
               The making of an anti-social behaviour order does not involve a trial and punishment of the
               individual concerned. Indeed, section I{r){a) of the 1998 Act does not require that a person
               has caused harassment, alarm, or distress, only that the same may be likely to be caused. The
               contrast between the provisions of an anti-social behaviour orders and section 5 of the Public
               Order Act 1986 is also instructive. Section 5 expressly provides that a person using
               threatening, abusive, or insulting words or behaviour within the hearing of a person likely to
               be caused harassment, alarm and distress is guilty of an offence. There is no attribution of an
               offence to an anti-social behaviour order.
               There is no “overall scheme” to section r. to which the application for an anti-social
               behaviour order can be seen as a “preliminary” (non-criminal proceeding) stage, Instead anti-
               social behaviour orders, like an injunction may be a possible precursor to separate penal
               proceedings to enforce them as a distinct second stage, but they do not constitute penal
               proceedings in themselves. Subsequent enforcement proceedings under the 1998 Act for
               breach are quite separate from the initial application and order. There is no immediate danger
               of an individual losing his liberty merely because an order is made.
               There are other features of the application for an anti-social behaviour order which tend
               towards it being a civil procedure: (a) Under Section 1(3) of the 1998 Act proceedings are
               initiated by complaint, the appropriate
               105,
               Simon Cordell’s Skeleton Argument (2) Pdf
               58
               R (McCann) v Manchester Crown Ct (HL (£)
               [2003] 1 AC
               procedure for commencing civil proceedings in the magistrates’ court.
               The requirement to consult each other “relevant authority” and adjoining authorities where an
               order specifies neighbouring areas, demonstrates that it is not contemplated that penal
               sanctions be imposed.
               Criminal sanctions are found in Part I of the 1998 Act under the heading “Crime and
               Disorder: general” which covers prohibitions on sex offenders (section z) and “Crime and
               disorder strategies” (section 5) thus emphasizing the preventative nature of the provisions; (d)
               Prosecutions are not conducted by the Crown Prosecution Service.
               The categorization for what constitutes a criminal offence formulated in Customs and Excise
               Comrs v City of London Magistrates’ Court. [2000]
               • WLR 2,020 should be adopted. On that basis applications for anti-social behaviour orders
               involve none of the hallmarks of a criminal matter; there is no formal accusation, made on
               behalf of the state or by any private prosecutor, that a defendant has committed a breach of
               the criminal law.
               There is no relevant or viable concept of “quasi-criminal” in respect of hearsay evidence,
               although there may be varying standards of the civil standard of proof. That is a wholly
               different matter to a “quasi-criminal” approach to matters of admissibility of evidence.
               If applications under the 1.998 Act for an anti-social behaviour order are civil in nature, the
               decision of the High Court in Clingham is final and no right of appeal lies to the House of


                                                                                              Page 58 of 139]]></page><page Index="61"><![CDATA[Lords, as section I(I){a) of the Administration of Justice Act i960 only permits an appeal
               from a decision of the High Court “in any criminal cause or matter”.
               Charles Garside QC and Peter Cadwallader for the Chief Constable of Greater Manchester.
               Applications for anti-social behaviour orders are civil proceedings. Any proceedings for the
               breach of an order are criminal proceedings. It was the intention of Parliament that
               applications for antisocial behaviour orders should be civil proceedings. That result was
               affected by section 1 of the 1998 Act,
               Criminal proceedings are begun by arrest, charge, and production at court or by laying an
               information followed by summons or warrant. Applications for anti-social behaviour orders
               are begun by complaint. That is the method for commencing civil proceedings in magistrates’
               courts: see Part 2 and sections 51 and 52 of the Magistrates’ Courts Act 1980. Botross v
               Hammersmith and Fulham London Borough Council (1994) 93 LGR 268 was a case with
               special facts. It concerned section 82(1) of the Environmental Protection Act 1990. The Act
               and that section had a long legislative history going back to 1.875. ^ ^la<^ been decided in
               many cases that the nature of such proceedings was criminal, in part, because the sanctions
               available included a fine. The court concluded that when Parliament enacted the r.990 Act it
               had made a mistake in legislating for such proceedings to be begun by complaint and had
               never intended to change the nature of such proceedings.
               The procedure for applications for anti-social behaviour orders (section 1(2) of the 1.998 Act)
               and sex offender orders (section 2(2) of the Act) are identical. Applications for sex offenders’
               orders are civil proceedings: see B t/ Chief Constable of Avon and Somerset Constabulary
               1200r j r WLR 340.
               106,
               Simon Cordell’s Skeleton Argument (2) Pdf
               [20031 I AC
               59
               R (McCann) v Manchester Crown Ct (HL(E)
               Applying the three criteria laid down in Engel v The Netherlands (No I) I EHRR 647 to
               determine whether the proceedings are “criminal” for the purposes of article 6: first, the
               proceedings for anti-social behaviour orders are classified as civil in domestic law and,
               second, the defendants are not charged with any offence. As to the third criterion, section 1 of
               the Act is directed not to the detection, apprehension, trial and punishment of those who have
               committed crimes, but the restraint of those who have committed anti-social behaviour
               (which may also amount to a crime) and whose conduct is such that a measure of restraint is
               necessary to protect members of the public from further anti-social behaviour. The purpose of
               the proceedings is of importance within the European Jurisprudence: see Raitnondo v Italy
               (1994) 18 EHRR 2.37', Guzzardi v Italy (1980) 3 EHRR 333. The powers available in those
               case was at least as restrictive as chose given to the court under section 1 of the Crime and
               Disorder Act 1998.
               Jonathan Crow for the Secretary of State for the Horne Department. In determining whether,
               as a matter of domestic classification, a particular statutory provision forms part of the
               criminal law, there are two elements: (T) a “prohibited act” and (ii) “penal consequences”:
               see Proprietary Articles Trade Association v Attorney General for Canada [19313! AC 310,
               314. In relation to the first limb, the Act itself does not itself “prohibit” the conduct defined in
               any anti-social behaviour order. In relation to the second limb, it is important to consider the
               nature of an anti-social behaviour order independently from the possible consequences of any
               breach. Given that the only act that can logically be said to have been “prohibited” by section
               1 is the act which triggers the making of the order, it is only permissible to consider the
               immediate consequences of that act—not the possible consequences of some other acts in
               breach of the anti-social behaviour order, that may or may not occur in the future. When


                                                                                              Page 59 of 139]]></page><page Index="62"><![CDATA[properly analysed Amand v Home Secretary [1943] AC 147 and R v Board of Visitors of
               Hull Prison, Ex p St Germain [1979] QB 42,5 support that approach. They decide that a
               cause or matter would be classified as criminal if, carried to its conclusion, it might result in a
               conviction and sentence. That analysis demonstrates that the criminal sanction for a breach of
               an anti-social behaviour order cannot affect the proper classification of the proceedings that
               are brought for the imposition of ail anti-social behaviour order. It is also entirely consistent
               with the analysis adopted in many other areas of the law, for example, interim injunctions,
               sex offenders’ orders and orders under the Company Directors Disqualification Act 1986.
               The question whether any act is “prohibited” by section r. of the 1998 Act is not answered by
               reference to the question whether the preconditions for making an anti-social behaviour order
               are exactly co-extensive with some other substantive criminal offence— e.g. under the Public
               Order Act 1986 or the Prevention from Harassment Act 1997. The correct question is
               whether section 1 itself prohibits any act. It does not. In any event there are substantial
               differences between, on the one hand, section 4A of the Public Order Act 1986 and section 1
               of the Protection from Harassment Act and, on the other, section 1: of the 1:998 Act.
               Tor the purposes of article 6 there are several reasons why the preconditions to making an
               anti-social behaviour order take it outside the criminal realm. The order seeks to deal with
               anti-social behaviour, not with
               107,
               Simon Cordell’s Skeleton Argument (2) Pdf
               60
               R (McCann) v Manchester Crown Ct (HL(E)
               [2003] 1 AC
               crime, and it seeks to do so by preventing future crimes rather than by punishing past ones. If
               a sanction is imposed for the purposes of deterrence or punishment, then it is likely to be
               regarded as a criminal penalty: see Oztiirk v Germany (1984) 6 EHRR 409; Han v Customs
               and Excise Comrs [2.001] 1 WLR 2253. By contrast, a sanction that is imposed for
               preventive reasons is not so regarded (even if it involves a restriction on liberty, and/or an
               interference with property rights, and/or it is imposed in the context of criminal proceedings:
               see Raimondo v Italy (1994) £HRR 237; M v Italy (1990) 70 DR 59. A decision whether to
               impose an anti-social behaviour order does not involve the determination of a criminal charge
               simply because the matters on which reliance is placed might also happen to constitute the
               necessary elements of a criminal offence: see Pelle v France (1986) 50 DR 263; McFeeley v
               United Kingdom (1980) 3 EHRR 161. Finally, the existence of past misconduct cannot of
               itself trigger an antisocial behaviour order: there must also be a need for protection for the
               future under section r(I)(b).
               An anti-social behaviour order is clearly not a criminal penalty. Section 1(4) precludes any
               order being made other than as a prohibition. The court can neither fine nor imprison a
               person. There is a very significant difference in the European jurisprudence between
               imposing a restriction on a person’s liberty (which will not be a criminal penalty) and
               depriving a person of his liberty (which will be a criminal penalty): see Guzzardi v Italy 3
               LEIRR 333; Raimondo v Italy 18 EHRR 237. The court cannot deprive a person of his
               liberty under the cloak of an anti-social behaviour order, and the fact that an order might
               interfere with his freedom of movement (e g by excluding him from designated areas) does
               not convert it into a criminal penalty.
               The fact that a person may be imprisoned for acting in breach of an antisocial behaviour order
               doc not mean that the imposition of the order itself involves any criminal penalty: see by
               analogy Ibhotson v United Kingdom (1998) 27 EHRR CD 332. The reason why a different
               conclusion was reached in Steel u United Kingdom 28 EHRR 603 was that the penalty was
               available to he imposed at the outset by the sentencing court in order to enforce compliance


                                                                                              Page 60 of 139]]></page><page Index="63"><![CDATA[with the order. The difference in Ibbotson was that in that case separate proceedings would
               have to be brought for a breach of the statutory obligation before any criminal sanction could
               be imposed. The same is true under section 1 of the 1998 Act.    ^
               Steel v United Kingdom 28 EHRR 603, Garyfallou AEBE v Greece 28 EHRR 344 and
               Lauko v Slovakia 33 EHRR 994 merely illustrate the application in very different factual
               situations of the three criteria in Engel v The Netherlands (No 1) 1 EHRR 647 without
               adding any points of principle.     ___
               Applying the criminal standard of proof is wrong in three respects. First, it undermines one of
               the purposes of section 1 of the 1998 Act, namely, to render it easier to obtain an anti-social
               behaviour order than it would be to obtain a conviction for a comparable offence. Second, it
               conflates the two elements in section 1 of the 1998 Act. There is no reason why the criminal
               standard should be applied in relation to the question whether section I.(1 )(b) is satisfied:
               that is a matter of evaluation as to future risk, and simply does not lend itself to being tested
               by reference to the criminal standard of proof. Third, in relation to the issues generally under
               section 1, the Court of
               108,
               Simon Cordell’s Skeleton Argument (2) Pdf
               [2003] AC
               61
               R (McCann) v Manchester Crown Ct (HL(E)
               Lord Steyn
               Appeal’s approach subverts the proper classification of an anti- social behaviour order as
               involving civil proceedings.
               The civil standard of proof should be regarded as a single fixed standard. However, the more
               serious the allegation the more cogent the evidence will need to be see in re H (Minors)
               (Sexual Abuse: Standard of Proof) [1996] AC 563.
               Solley QC in reply. Kostovski v Netherlands (1989) 12 EHRR. 434 and Saidi v France
               (1993) 17 EHRR 251 involved a lack opportunity to examine witnesses.
               The criminal standard of proof would not lie comfortably with the hearing of hearsay
               evidence under the Civil Evidence Act 1995. There should be a declaration of incompatibility
               under section 4 of the Human Rights Act 1998.
               Fulford QC in reply. Raimondo v Italy 18 EHRR 237 and Guzzardi v Italy 3 EHRR 333
               involved very different proceedings from an anti-social behaviour order. See also Krone-
               Verlog GmbH v Austria (Application No 28977/95) (unreported) 21 May 1997 and
               Nottingham City Council v Zain (A Minor) [2002] 1 WLR 607.
               Their Lordships took time for consideration.
               17 October. LORD STEYN
               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 ten 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 Clingbam no
               order has been made. In the case of the McCann breathers antisocial behaviour orders have
               been made against all three. The appeals are therefore concerned only with the first stage of


                                                                                              Page 61 of 139]]></page><page Index="64"><![CDATA[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.
               Clingham the district judge gave a preliminary ruling on 14 September 2000. In the McCann
               case the recorder gave judgment on an appeal from a stipendiary magistrate on 16 May 2000.
               E11 both cases the Human Rights Act 1998 is not directly applicable: R v Kansal (No 2)
               I2002] 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.
               109,
               Simon Cordell’s Skeleton Argument (2) Pdf
               62
               R (McCann) v Manchester Crown Ct (HL (£)
               Lord Steyn
               [2003] AC
               The principal issues  ^
               It is common ground that proceedings taken for breach of an antisocial 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.
               24.11.2 what the standard of proof is in such proceedings. The evidential c question arises
               primarily in the Clingham case and the question as to standard of proof arises mainly in the
               McCann case. On the other hand, counsel for the defendants to a considerable extent adopted
               each other’s submissions.
               Jurisdiction
               If under domestic law an application for an anti-social behaviour order under section r of the
               Act properly fails 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 case. All parties wish the House to deal with the genera! 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.
               HI 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 I 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 c relevant authority if it
               appears to the authority that the following conditions are fulfilled with respect to any person
               aged ten 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


                                                                                              Page 62 of 139]]></page><page Index="65"><![CDATA[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 antisocial
               acts by him; and in this section ‘relevant authority’ means the council for the local
               government area or any chief office: of police any part of whose police area lies within that
               area.
               110,
               Simon Cordell’s Skeleton Argument (2) Pdf
               [2003] AC
               SO)
               R (McCann) v Manchester Crown Ct (HL(E)
               Lord Steyn
               A relevant authority shall not make such an application without
               consulting each other relevant authority.
               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 g 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 (I)(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 antisocial 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 (to) above, it shall not be
               open to the court by or before which he is so convicted to make an order under subsection
               (t)(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 (r) deals with the making of the
               application, the requirements for the making of an order, C the making of an order, and
               consequential matters. Subsections (10) and (T 1) deal with the consequences of a breach of
               the order.
               Article 6 of the European Convention provides as follows:
               “(12) 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


                                                                                              Page 63 of 139]]></page><page Index="66"><![CDATA[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
               111,
               Simon Cordell’s Skeleton Argument (2) Pdf
               [2003] 1 AC
               64
               R (McCann) v Manchester Crown Ct (HL(E)
               Lord Steyn
               of the court in special circumstances where publicity would prejudice the interests of justice.
               Everyone charged with a criminal offence shall be presumed innocent until proved guilty
               according to law.
               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 civil rights and obligations than they have when dealing with
               criminal cases”: Dombo Beheer B v The Netherlands (1993) 18 EHRR 213, 2.2.9, Para
               32
               IV The C Mangham case
               In late February 2000, the Kensington and Chelsea Royal London Borough Council received
               a report by a housing trust about the behaviour of the defendant, then aged 16, who lived on
               an estate within the borough. After detailed investigations the borough resolved to apply to
               the magistrates’ court for an anti-social behaviour order. The complaint was supported by
               witness statements containing some first-hand evidence of the defendant’s behaviour. The
               application was, however, primarily based on hearsay evidence contained in records of
               complaints received by the trust and in crime reports compiled by the police. The latter
               contained information relating to a wide range of behaviour, from allegations of verbal abuse
               to serious criminal activities including assault, burglary, criminal damage, and drug dealing
               dating from April 1998 to December 2000. The allegations revealed a high level of serious
               and persistent anti-social behaviour. The material from the records of the trust and the police
               fell into three categories: (I) anonymous complaints where the source was never known; (ii)
               complaints where the source was known but was not disclosed; (iii) computerised reports
               made by police officers in the course of their duties, where the source of the complaint was
               either unknown or not disclosed. The borough served its supporting material on the
               defendant. In substance the material in its cumulative effect was, subject to any answer by the
               defendant, logically probative of the statutory requirements under section r, The statements
               and exhibits were not, however, accompanied by a hearsay notice under the Magistrates’
               Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 (SI 1999/681).




                                                                                              Page 64 of 139]]></page><page Index="67"><![CDATA[Pursuant to an order by the judge a hearsay notice was served on the defendant. The
               defendant challenged the validity of the hearsay notice on
               112,
               Simon Cordell’s Skeleton Argument (2) Pdf
               [2003] 1 AC
               65
               R (McCann) v Manchester Crown Ct (HL(E)
               Lord Steyn
               the ground that it did not identify the makers of the hearsay statements. At a pre-trial review
               the district judge ruled that on reflection, the 1999 Rules did not apply as the borough’s
               supporting material involved no hearsay. The judge stated a case for the decision of the
               Divisional Court which raised questions about the admissibility of hearsay evidence in the
               proceedings under section 1(1) of the Act.
               In the Divisional Court [2001] EWHC Admin 582 the view of the district judge as to what
               amounted to hearsay evidence was rejected. In an unreported judgment Schiemann. I., J
               observed that “If the policeman could only say that he had been told by such persons [who
               had seen the behaviour in question] that Mr Clingham had behaved in an anti-social manner
               that would be hearsay evidence of the behaviour”: para 15. Relying on the then unreported
               decisions of the Divisional Court in R (McCann) v Crown Court at Manchester [2001] 1
               WI. R 358 and B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340
               the Divisional Court ruled that the proceedings were not criminal proceedings under domestic
               law and did not involve a criminal charge under article 6. In these circumstances Schiemann
               LJ concluded, in paras 19-20:
               “The |hearsay] evidence can be admitted. If its weight is slight or it is not probative the judge
               can say so. If he comes to an unlawful conclusion his decision can be appealed ... In the light
               of this judgment, it is unnecessary for us to make any order. The matter will remain to be
               dealt with by the magistrates’ court. That court will consider the evidence on the basis that it
               is hearsay evidence and therefore subject to the criticisms which can be made of hearsay
               evidence. The court will have to consider what weight to give to the evidence in the light of
               those criticisms. I do not consider it appropriate for this court to express any views as to
               weight.”
               Poole [ took the same view, at paras 21 and 22.
               The McCann cases
               I gratefully refer to the account given by my noble and learned friend Lord Hope of
               Craighead of the background to these cases. I can therefore deal with the matter briefly.
               Between May and September 1999 die Chief Constable of Greater Manchester collected
               evidence with a view to seeking anti-social behaviour orders against the three McCann
               brothers who were then respectively aged 13, 15 and 16. They had been accused by various
               members of the public of criminal activity and other anti-social behaviour including burglary,
               theft, threatening and abusive behaviour, and criminal damage in the Beswick area of
               Manchester. Complaints were duly lodged by the Chief Constable against them. The
               applications sought various prohibitions against them including orders excluding them from
               Beswick. The seriousness and persistence of their alleged anti-social behaviour is dearly
               described by Lord Hope of Craighead, (he evidences against them consisted of oral evidence
               of eye witnesses, as well as hearsay evidence consisting of a number of witness statements,
               and police evidence of what had been reported to them by complainants.
               A stipendiary magistrate found the requirements of section 1(1) satisfied and made anti-social
               behaviour orders against all three McCann brothers on 15 December 1999. Each order
               provided as follows:
               113,


                                                                                              Page 65 of 139]]></page><page Index="68"><![CDATA[Simon Cordell’s Skeleton Argument (2) Pdf
               [2003] 1 AC
               66
               R (McCann) v Manchester Crown Ct (HL(E)
               Lord Steyn
               “[The defendant] is prohibited from entering the Beswick area as defined, edged in red, on
               the map attached- [The defendant] is prohibited from using or engaging in any abusive,
               insulting, offensive, threatening or intimidating language or behaviour in any public place in
               the City of Manchester. [The defendant] is prohibited from threatening or engaging in
               violence or damage against any person or property within the City of Manchester. [The
               defendant] is prohibited from encouraging any other person to engage in any of the acts
               described in paragraphs a and 3 within the City of Manchester.”
               The defendants appealed to the Crown Court.
               Sir Rhys Davies QC, the Recorder of Manchester, sat with two magistrates. After a review of
               the domestic and European case law he concluded that the proceedings under section 1(1) are
               correctly to be classified as civil under domestic law and for the purposes of article 6. The
               recorder then turned to the argument that, despite this classification, the criminal standard
               should apply under section 1(1). He cited an observation in B v Chief Constable of Avon and
               Somerset Constabulary [2.00:1) 1 WLR 340, 354, para 31, where Lord Bingham of Cornhill
               CJ described, in the context of section z of the Act, which deals with orders against sex
               offenders, the heightened civil standard of proof as “for all practical purposes . . .
               indistinguishable from the criminal standard”. I the recorder stated:
               “Having considered this authority and the arguments, we are satisfied that the standard to be
               applied is the civil standard, but how are we to give effect to the guidance of the Lord Chief
               Justice, that is to apply the civil standard with the strictness appropriate to the seriousness of
               the matters to be proved and the implications of proving them. This is not an easy task and
               we have brought to bear the judicial experience of all three of us which, it is has to be said, is
               considerable, and we have concluded that in reality it is difficult to establish reliable
               gradations between a heightened civil standard commensurate with [the] seriousness and
               implications of proving the requirements, and the criminal standard. And we have concluded
               chat for the purposes of this particular case, and we do not intend to lay down any form of
               precedent, so I emphasise that for the purposes of this particular case, we will apply the
               standard of being satisfied so that we are sure that the conditions are fulfilled before we
               would consider the making of an order in the case of each [defendant] severally, because, of
               course, each case must be considered separately.”
               This is an important observation, by a highly experienced judge, to which I must in due
               course return.
               The defendants appealed to the Divisional Court. Lord Woolf CJ (with the agreement of
               Rafferty J) ruled that the proceedings under section 1(1) were properly to be classified under
               domestic law and under article 6 of the European Convention as civil proceedings and not
               criminal proceedings. The court dismissed the appeal: R (McCann) v Croum Court at
               Manchester [2.001] 1 WLR 3 58,
                The defendants then appealed to the Court of Appeal (Civil Division). The leading judgment
               was given by Lord Phillips of Worth Matravers MR; Kennedy and Dyson IJJ agreed: R
               (McCann) 1/ Crown
               114,
               Simon Cordell’s Skeleton Argument (2) Pdf
               66
               [2003] I AC
               R (McCann) v Manchester Crown Ct (HL(E)


                                                                                              Page 66 of 139]]></page><page Index="69"><![CDATA[Lord Steyn
               A Court at Manchester [2001] t WLR 1084. In a detailed judgment Lord Phillips MR
               concluded that both under domestic law and under article 6 the correct categorisation of
               proceedings under section 1 of the Act is civil. He then turned to the issue whether the
               standard of proof should nevertheless be the criminal one. He referred to the observation of
               Lord Bingham of Cornhill CJ in B v Chief Constable of Avon and Somerset Constabulary
               that the heightened civil standard is for all practical purposes indistinguishable from the
               criminal standard: p 1101, para 65. He quoted the passage from the judgment of the recorder
               about the difficulty of establishing “reliable gradations between a heightened civil standard
               commensurate with the seriousness and implications of proving the requirements, and the
               criminal standard” and pointed out that the Crown Court decided to apply the criminal
               standard. Lord Phillips MR observed, at p 1102, para 67:
               “I believe that the course followed by the Crown Court in this case is
               likely to be appropriate in the majority of cases where an anti-social behaviour order is
               sought, and I would commend it.”
               At present therefore the position is that in proceedings under section I.(T) magistrates have to
               decide, on a case-by-case basis, what standard of proof to 0 apply. The Secretary of State has
               challenged this ruling of the Court of Appeal. Counsel submitted on his behalf that it is
               preferable to apply a single fixed standard of a balance of probabilities.
               V! The social problem
               Before the issues can be directly addressed it is necessary to sketch the social problem which
               led to the enactment of section T{I) and the
               E technique which underlies the first part of section 1. It is well known that in some urban
               areas, notably urban housing estates and deprived inner-city areas, young persons, and groups
               of young persons, cause fear, distress, and misery to law-abiding and innocent people by
               outrageous anti-social behaviour. It takes many forms. It includes behaviour which is
               criminal such as assaults and threats, particularly against old people and children, F criminal
               damage to individual property and amenities of the community, burglary, theft, and so forth.
               Sometimes the conduct falls short of cognisable criminal offences. The culprits are mostly,
               but not exclusively, male. Usually they are relatively young, ranging particularly from about
               1.0 to T,8 years of age. Often people in the neighbourhood are in fear of such young culprits.
               In many cases, and probably in most, people will only report _ matters to the police
               anonymously or on the strict understanding that they will not directly or indirectly be
               identified. In recent years this phenomenon became a serious social problem. There appeared
               to be a gap in the law. The criminal law offered insufficient protection to communities.
               Public confidence in the rule of law was undermined by a not unreasonable view in some
               communities that the law failed them. Ibis was the social problem which section 1 was
               designed to address.
               • The legislative technique
               The aim of the criminal law is not punishment for its own sake but to permit everyone to go
               about their daily lives without fear of harm to person or property. Unfortunately, by
               intimidating people the culprits, usually
               115,
               Simon Cordell’s Skeleton Argument (2) Pdf
               [2003] 1 AC
               67
               R (McCann) v Manchester Crown Ct (HL(E)
               Lord Steyn






                                                                                              Page 67 of 139]]></page><page Index="70"><![CDATA[small in number, sometimes effectively silenced communities, bear of the consequences of
               complaining to the police dominated the thoughts of people: reporting incidents to the police
               entailed a serious risk of reprisals.
               The criminal law by itself offered inadequate protection to them. There was a model available
               for remedial legislation. Before 1998 Parliament had, on a number of occasions, already used
               the technique of prohibiting by statutory injunction conduct deemed to be unacceptable and
               making a breach of the g injunction punishable by penalties. It may be that the Company
               Directors Disqualification Act 1986 was the precedent for subsequent use of the technique.
               The civil remedy of disqualification enabled the court to prohibit a person from acting as a
               director: section 1(1) of the 1986 Act: R v Secretary of State for Trade and Industry, Ex p
               McCormick [1998] BCC 379,         395C-F; Official Receiver v Stern [2.000] 1 WLR 2.2.30.
               Breach of the order made available criminal penalties: sections 13 and 14 of the 1986 Act. In
               1994 c Parliament created the power to prohibit trespassory assemblies which could result in
               serious disruption affecting communities, movements, and so forth: see section 70 of the
               Criminal Justice and Public Order Act 1994 which amended Part II of the Public Order Act
               1986 by inserting section 14A. Section 14B which was introduced by the 1994 Act, created
               criminal offences in respect of breaches. In the field of family law, statute created the power
               to make residence orders, requiring a defendant to leave a dwelling house; or non-molestation
               orders, requiring a defendant to abstain from threatening an associated person: sections 3 3
               (3)(4) and 42 of the Family Law Act 1996. The penalty for breach is punishment for
               contempt of court. The Housing Act 1996 created the power to grant injunctions against
               anti-social behaviour: section 152; section 153 (breach). This was, however, a power ^
               severely restricted in respect of locality. A broadly similar technique was adopted in the
               Protection from Harassment Act 1997: section 3; section 3(6) (breach). Post-dating the Crime
               and Disorder Act 1998, which is the subject matter of the present appeals, Parliament adopted
               a similar model in sections 14A and 14J (breach) of the Football Spectators Act T989,
               inserted by section 1(1) of and Schedule 1 to the Football (Disorder) Act 2000: Gough v
               Chief Constable of the Derbyshire Constabulary [2002J QB 459. In all these cases the
               requirements for the granting of the statutory injunction depend on the criteria specified in the
               particular statute. The unifying clement is, however, the use of the civil remedy of an
               injunction to prohibit conduct considered to be utterly unacceptable, with a remedy of
               criminal penalties in the event of disobedience.
               There is no doubt that Parliament intended to adopt the model of a civil remedy of an
               injunction, hacked up by criminal penalties, when its enacted section 1 of the Crime and
               Disorder Act 1998. The view was taken that the proceedings for an anti-social behaviour
               order would be civil and would not attract the rigour of the inflexible and sometimes absurdly
               technical hearsay rule which applies in criminal cases. If this supposition was wrong, in the
               sense that Parliament did not objectively achieve its aim, it would inevitably follow that the
               procedure for obtaining anti-social behaviour orders is completely or virtually unworkable
               and useless. If that is what the law decrees, so be it. My starting point is, however, an initial
               scepticism of an outcome which would deprive communities of their fundamental rights: sec
               Brown v Stott I2003] 1: AC 681, per Lord
               116,
               Simon Cordell’s Skeleton Argument (2) Pdf
               68
               [2003] 1 AC
               R (McCann) v Manchester Crown Ct (HL(E)
               Lord Steyn
               Bingham of Cornhill, at p 704E-F; per Lord Hope of Craighead, at pp 718G, 719B-C; my
               judgment, at p 707G-H.


                                                                                              Page 68 of 139]]></page><page Index="71"><![CDATA[The classification under domestic law
               • It is necessary to consider whether under domestic law proceedings under the first part of
               section 1 should be classified as criminal or civil fi proceedings. In law it is always essential
               to ask for what purpose a classification is to be made or a definition is to be attempted. It is
               necessary in order to decide whether the provisions of the Civil Evidence Act 1995, which
               permits the admission of hearsay evidence in civil proceedings, and the Magistrates’ Courts
               (Hearsay Evidence in Civil Proceedings) Rules 1999, are available to establish the
               requirements of section 1(1). It is also relevant to the appropriate standard of proof to be
               adopted.
               2.0 In a classic passage in Proprietary Articles Trade Association v
               Attorney General for Canada [1:931] AC 310, 314 Lord Atkin observed:
               “Criminal law connotes only the quality of such acts or omissions as are prohibited under
               appropriate penal provisions by authority of the state. The criminal quality of an act cannot be
               discerned by intuition; nor can it be discovered by reference to any standard but one: Is the
               act ^ prohibited with penal consequences?”
               In Customs and Excise Conns v City of London Magistrates' Court [2000]
               1 WLR 2,02,0, 2025 Lord Bingham of Cornhill C.1, expressed himself in similar vein:
               “It is in my judgment the general understanding that criminal proceedings involve a formal
               accusation made on behalf of the state or by a private prosecutor that a defendant has
               committed a breach of the criminal law, and the state or the private prosecutor has instituted
               proceedings which may culminate in the conviction and condemnation of the defendant.”
               24.11.3 Absent any special statutory definition, in the relevant contexts, this general
               understanding must be controlling. Counsel for Gingham invited the House CO approach the
               question from the point of view of the meaning given in decided cases to the words “criminal
               cause or matter” which appear in section I(r)(a) of the Administration of justice Act 1.960
               and section 1 8(I)(a) of the Supreme Court Act 198 1. The decided cases on both sides of the
               line are helpfully summarised in Taylor On Appeals (2000), pp 51:6—518, paras 14-020-14-
               021. The cases were decided in the context of regulating and determining the appropriate
               appeal route. Often pragmatic considerations played a role. These cases do not help the true
               inquiry before the House and distract attention from the ordinary meaning of civil
               proceedings which must prevail Similarly, the fact that proceedings under the first part of
               section r of the Act are classified as criminal in order to ensure the availability to defendants
               of legal assistance is in my view entirely W neutral: see section 12(2) of the Access to Justice
               Act 1.999 and paragraph T(I) of the Access to justice Act 1999 (Commencement No 3,
               Transitional Provisions and Savings) Order 2000 (SI 2000/774). I would approach rite matter
               by applying the tests enunciated by Lord Atkin and Lord Bingham of Cornhill CJ.
               117,
               Simon Cordell’s Skeleton Argument (2) Pdf
               80S
               R (McCann) v Manchester Crown Ct (HL(E)
               [2003] 1 AC
               Lord Steyn
               Counsel for the defendants accepted that the purpose of Parliament A was to cast proceedings
               under the first part of section I, as opposed to proceedings for breach, in a civil mould.
               However, counsel submitted that objectively considered the objective was not achieved. They
               argued that in reality and in substance such proceedings are criminal in character. This is
               an important argument which must be carefully examined. The starting point is that in
               proceedings under the first part of section I the Crown Prosecution Service is not involved at
               all. At that stage there is no formal accusation of a breach of criminal law. The proceedings
               are initiated by the civil process of a complaint. Under section x(I}(a) all that has to be


                                                                                              Page 69 of 139]]></page><page Index="72"><![CDATA[established is that the person has acted “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’. This is an objective inquiry: men’s rea as an ingredient of
               particular offences need is not proved. It is unnecessary to establish criminal liability. The
               true purpose of the proceedings is preventative. This appears from the heading of Part I. It is
               also clearly brought out by the requirement of section I(I)(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. It follows that the making of an anti-social behaviour order is not a conviction or
               condemnation that the person is guilty of an offence. It results in no penalty whatever. It
               cannot be entered on a defendant’s record as a conviction. It is also not a recordable offence
               for the purpose of taking fingerprints: see section 27 of the Police and Criminal Evidence Act
               1:984.
               Counsel for the defendants sought to avoid the consequences of this analysis by various
               arguments. First, they argued that the procedure leading to the making of an order under
               section 1(4) must be considered together with the proceedings for breach under section
               1(1.0), the latter being undoubtedly criminal in character. I do not agree. These are separate
               and independent procedures. The making of the order will presumably sometimes serve its
               purpose and there will be no proceedings for breach. It is
               in principle necessary to consider the two stages separately.
               Counsel next made a comparison between the requirements of section 1 and the ingredients
               of an offence under section 4A of the Public Order Act 1986. They submitted that there was a
               striking similarity. This proposition was not made good. It is sufficient to point out that
               section 4A of the 1986 Act requires proof of men’s rea whereas section 1(1) does not. In any
               event, this is a barren exercise. It elides the critical point that section 1 itself does not prohibit
               any act. An anti-social behaviour order under C section 1(4) does prohibit conduct specified
               in the order but by itself does not amount to a condemnation of guilt, ft results in no penal
               sanction.
               Counsel for the defendants also emphasised the consequences which an anti-social behaviour
               order may have for a defendant. This is an important factor. Section 1 is not meant to be used
               in cases of minor unacceptable behaviour but in cases which satisfy the threshold of
               persistent and serious anti-social behaviour. Given the threshold requirements of section 1 (1)
               it can readily be accepted that the making of such an order against a person inevitably reflects
               seriously on his character. In response to this argument Lord Phillips of Worth Matravers MR
               observed 1200 t] 1: W I R 1084,1094-1095, para 39:
               118,
               Simon Cordell’s Skeleton Argument (2) Pdf
               12003] I AC
               70
               R (McCann) v Manchester Crown Ct (HL(E))
               Lord Steyn
               “Many injunctions in civil proceedings operate severely upon those against whom they are
               ordered. In matrimonial proceedings a husband may be ordered to leave his home and not to
               have contact with his children. Such an order may be made as a consequence of violence
               which amounted to criminal conduct. But such an order is imposed not for the purpose of
               punishment but for protection of the family. This demonstrates that, when considering
               whether an order imposes a penalty or punishment, it is necessary to look beyond its
               consequence and to consider its purpose.”
               Similarly, Mareva injunctions, which are notified to a defendant’s bank, may have serious
               consequences. An Anton Filler order operates in some ways like a civil search warrant and


                                                                                              Page 70 of 139]]></page><page Index="73"><![CDATA[may be particularly intrusive in its operation. Breach of such orders may result in penalties.
               Nevertheless, the injunctions are unquestionably civil.
               The view that proceedings for an anti-social behaviour order under section 1 are civil in
               character is further supported by two important decisions. In B v Chief Constable of Avon
               and Somerset Constabulary [2001] 1 WLR 340 the question arose whether proceedings for a
               sex offender order under section 2 of the Act are civil. Section 2 is different in conception
               from section 1 in as much as an order can only be made in respect of a person who has
               already been convicted as a sex offender. On the other hand, its purpose is preventative “to
               protect the public from serious harm from him”. Lord Bingham of Cornhill CJ held, at p 3 52,
               para 25:
               “The rationale of section 2 was, by means of an injunctive order, to seek to avoid the
               contingency of any further suffering by any further victim. It would also of course be to the
               advantage of a defendant if he were to be saved from further offending. As in the case of a
               civil injunction, a breach of the court’s order may attract a sanction. But, also as in the case of
               a civil injunction, the order, although restraining the defendant from doing that which is
               prohibited, imposes no penalty or disability upon him. I am accordingly satisfied that, as a
               matter of English domestic law, the application is a civil proceeding, as Parliament
               undoubtedly intended it to be.”
               To the same effect was the detailed reasoning in Gough v Chief Constable of the Derbyshire
               Constabulary [2002] QB 459; an^ 0,1 appeal [2002] QB 121.3. h was held that a football
               banning order under sections 14A and 1.4B of the Football Spectators Act 1989 do not
               involve criminal penalties and are therefore civil character.
               conclude that proceedings to obtain an anti-social behaviour order are civil proceedings under
               domestic law.
               • The classification under article 6
               The question now arises whether, despite its domestic classification, an anti-social behaviour
               order nevertheless has a criminal character in accordance with the autonomous concepts of
               article 6. The fair trial guarantee under article 6(1) applies to both “the determination of a
               (person’s) civil rights” and “the determination of any criminal charge”. On the other hand,
               only the latter attract the additional protections under article 6(2} and 6(3). In so far as the
               latter provisions apply to “everyone charged with a criminal offence” it is well established in
               the jurisprudence of
               119,
               Simon Cordell’s Skeleton Argument (2) Pdf
               [2003] AC
               71
               R (McCann) v Manchester Crown Ct (HL (E)
               Lord Steyn
               the European Court of Human Rights that this concept is co-extensive with A the concept of
               the determination of any criminal charge: Lutz v Germany {1987) 10 EHRR i8z. Germane to
               the present case is the minimum right under article 6'( 3 )(d) of everyone charged with a
               criminal, offence to examine or have examined witnesses against him or to obtain the
               attendance and examination of witnesses on his behalf under the same conditions as
               witnesses against him. If the proceedings under section 1 of the Act are fi criminal within the
               meaning of article 6, this provision is applicable. If it is civil, article 6(3){d) is inapplicable.
               Before I examine directly in the light of European jurisprudence the question whether
               proceedings involve a criminal charge, it is necessary to make clear that this is not one of
               those cases where the proceedings may fall outside article 6 altogether. Examples of such
               cases are given by Emmerson




                                                                                              Page 71 of 139]]></page><page Index="74"><![CDATA[& Ashworth, Human Rights and Criminal Justice (2001), pp 152—166. In C the cases
               before the House the two principal respondents accept that the proceedings are civil in
               character and that they attract the fair trial guarantee under article 6(1). Counsel for the
               Secretary of State in the McCann case reserved his position. For my part, in the light of the
               particular use of the civil remedy of an injunction, as well as the defendant’s right under
               article 8 to respect for his private and family life, it is dear that a defendant Q has the benefit
               of the guarantee applicable to civil proceedings under article 6(1). Moreover, under domestic
               English law they undoubtedly have a constitutional right to a fair hearing in respect of such
               proceedings.
               In Engel v The Netherlands (No 1) (1976) 1 EHRR 647, 678-679, para 82, the European
               Court established three criteria for determining whether proceedings are “criminal” within the
               meaning of the Convention, namely (a) the domestic classification, (b) the nature of the
               offence, and (c) the severity of the potential penalty which the defendant risks incurring.
               The character and attributes of the proceedings for an anti-social behaviour order have been
               outlined. Domestically, they are properly classified as civil.
               That is, however, only a starting point. Turning to factor (b), the position is that the order
               under the first part of section 1 does not constitute a finding that an offence has been
               committed: contrast the community charge decision
               in Benhatn v United Kingdom (1996) 22 EHRR 293. It is right, however, to observe that the
               third factor is the most important. Here the position is that the order itself involves no
               penalty. The established criteria suggest that the proceedings were not in respect of a criminal
               charge.
               The House has been taken on a tour d’horizon of the leading decisions of the European Court:
               see the judgment of Potter LJ in Han v Customs and Excise Comrs [2001] 1 WLR 2253,
               2269-2273, paras 55-64 C for a recent review of the European case law. It will serve no
               purpose to review again decisions far removed from the present case. What does emerge,
               however, is that there is, as Lord Bingham of Cornhill CJ pointed out in B v Chief Constable
               of Avon and Somerset Constabulary [2001]
               1 WLR 340, no case in which the European Court has held proceedings to be criminal even
               though an adverse outcome for the defendant cannot result in ^ any penalty. It could be said,
               of course, that there is scope for the law to be developed in this direction. On the other hand,
               an extensive interpretation of what is a criminal charge under article 6(r) would, by rendering
               the injunctive process ineffectual, prejudice the freedom of liberal democracies to maintain
               the rule of law by the use of civil injunctions.
               120,
               Simon Cordell’s Skeleton Argument (2) Pdf
               81 1
               [2003] 1 AC  R (McCann) v Manchester Crown Ct (HL (£)
               Lord Steyn
               A 32 The closest case in support of the defendants' submission is Steel v United Kingdom
               (1998) 28 EHRR 603, 635-636, paras 48-49, which is authority for the proposition that
               proceedings whereby in England and Wales a person may be bound over to keep the peace
               involve the determination of a criminal charge for the purposes of article 6. This power goes
               back many centuries: see Percy v Director of Public Prosecutions [1995] 1 WLR 1382,
               138911-139011. It is in a very real sense a judicial power sui generis. The European Court
               found a punitive element in the fact that the magistrates may commit to prison any person
               who refuses to be bound over not to breach the peace where there is evidence beyond
               reasonable doubt that his or her conduct caused or was likely to cause a breach of the peace
               and that he would otherwise cause a breach of the peace: para 48. There was an immediate




                                                                                              Page 72 of 139]]></page><page Index="75"><![CDATA[and obvious penal consequence. Properly analysed this case does not assist the defendant’s
               argument.
               The conclusion I have reached is reinforced by a cogently reasoned judgment on the
               interpretation of article 6 by the Lord President (Lord Rodger of Earls ferry) in S v Miller
               2001 SC 977. Section 52(2) of the Children (Scotland) Act 1995 provides that a child may
               have to be subjected to compulsory measures of supervision when he “has committed an
               offence”. The question arose whether in such proceedings article 6 is applicable. The Lord
               President observed, at pp 989-990: at the stage when S was arrested and charged by the
               police on 31 October, he was indeed ‘charged with a criminal offence’ in terms of article 6,
               since he was liable to be brought before a criminal court in proceedings which could have
               resulted in the imposition of a penalty. He remained ‘charged with a criminal offence’ in
               terms of article 6 until the procurator fiscal decided the following day—in the language of
               section 43(5) of the Criminal Procedure Act— ‘not to proceed with the charge’. At that point
               the criminal proceedings came to an end and the reporter initiated the procedures under the
               1995 Act by arranging a hearing in terms of section 63(1), In my view, once the procurator
               fiscal has decided not to proceed with the charge against a child and so there is no longer any
               possibility of proceedings resulting in a penalty, any subsequent proceedings under the 1995
               Act are not criminal for the purposes of article 6. Although the reporter does indeed intend to
               show that the child concerned committed an offence, this is not for the purpose of punishing
               him but in order to establish a basis for taking appropriate measures for his welfare. That
               being so, the child who is notified of grounds for referral setting out the offence in question is
               not thereby ‘charged with a criminal offence’ in terms of article 6.
               “24, It is not now disputed, of course, that the children’s hearing proceedings involve the
               determination of civil rights and obligations. Article 6 therefore applies. But, since the
               proceedings are not criminal, the specific guarantees in article 6(2) and (3) do not apply.”
               I am in complete agreement with this reasoning as correctly reflecting the purpose of article
               6. And it applies a fortiori to proceedings under section 1. After all, section 1(1) does not
               require proof of a criminal offence.
               In my view an application for an anti-social behaviour order does not involve the
               determination of a criminal charge.
               121,
               Simon Cordell’s Skeleton Argument (2) Pdf
               73
               R (McCann) v Manchester Crown Ct (HL(E)
               Lord Steyn
               [2003] 1 AC
               The admission of hearsay evidence
               • Having concluded that the proceedings in question are civil under domestic law and article
               6, it follows that the machinery of the Civil Evidence Act 1995 and the Magistrates’ Courts
               (Hearsay Evidence in Civil Proceedings) Rules 1999 allow the introduction of such evidence
               under the first part of section 1. The weight of such evidence might be limited. On the other
               hand, in its cumulative effect it could be cogent. It all depends on the particular facts. In my
               view the ruling of the Divisional Court, set out in paragraph Ro above, was correct.
               • It is submitted that, even if the relevant proceedings are civil, words must be implied into the
               Civil Evidence Act 1995 which give the court a wider power to exclude hearsay evidence. As
               the Divisional Court judgment makes clear this is unnecessary and unwarranted. Counsel in
               the Clingham case then argued that, even if the proceedings are civil, nevertheless the
               introduction of hearsay evidence infringes a defendant’s right to a fair trial under article 6(1)
               “in the determination of his civil rights and obligations”. This is a misconceived argument.
               The case has not been heard. Such a challenge is premature. Upon a due consideration of the


                                                                                              Page 73 of 139]]></page><page Index="76"><![CDATA[evidence, direct or hearsay it may turn out that the defendant has no answer to the case under
               section 1 (1). For the sake of completeness, I need only add that the use of the Civil Evidence
               Act 1:995 unless in cases under the first part of section 1 are not in any way incompatible
               with the Human Rights Act 1998.
               The standard of proof
               • Having concluded that the relevant proceedings arc civil, in principle it follows that the
               standard of proof ordinarily applicable in civil £ proceedings, namely the balance of
               probabilities, should apply. However,
               I agree that, given the seriousness of matters involved, at least some reference to the
               heightened civil standard would usually be necessary: In re H (Minors) (Sexual Abuse:
               Standard of Proof) [ 1996] AC 563, 586D-H, per Lord Nicholls of Birkenhead. For
               essentially practical reasons, the Recorder of Manchester decided to apply the criminal
               standard. The Court of Appeal said that would usually be the right course to adopt. Lord
               Bingham of Cornhill has observed that the heightened civil standard and the criminal
               standard are virtually indistinguishable. I do not disagree with any of these views. But in my
               view pragmatism dictates that the task of magistrates should be made more straightforward
               by ruling that they must in all cases under section 1 apply the criminal standard. If the House
               takes this view it will be sufficient for the magistrates, when applying section T (I){a) to be
               sure c that the defendant has acted 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. The inquiry under section I(I)(b), namely that such an order is
               necessary to protect Persians from further anti-social acts by him, does not involve a standard
               of proof: it is an exercise of judgment or evaluation. Ibis approach should facilitate correct
               decision-making and should ensure consistency and predictability in this corner of the law. In
               coming to this conclusion, I bear in mind that the use of hearsay evidence will often be of
               crucial importance.
               For my part, hearsay evidence depending on its logical proactiveness is quite capable of
               satisfying the requirements of section 1.
               122,
               Simon Cordell’s Skeleton Argument (2) Pdf
               [2003] AC
               74
               R (McCann) v Manchester Crown Ct (HL(E)
               Lord Steyn
               A XII The submissions of Liberty
               The House gave permission to Liberty to intervene in the McCann case in writing and orally.
               The contribution of Liberty has helped to sharpen the focus of the debate on issues under the
               Human Rights Act 1998. It is, however, unnecessary to deal separately with the submissions
               of Liberty. The reasons I have given are also dispositive of the issues and arguments
               g raised by Liberty.
               • Jurisdiction
               Section x(x)(a) of the Administration of Justice Act i960 only permits an appeal from a
               decision of the High Court “in any criminal cause or matter”. In my view the proceedings
               under the first part of section 1 do not satisfy this criterion. It follows that in the Clingman
               case the House did not have jurisdiction to entertain the appeal.
               • Disposal
               For these reasons as well as the reasons given by Lord Hope of Craighead I would dismiss
               the appeals in the McCann case and formally declare that there was no jurisdiction to hear
               the Clingham case.
               LORD HOPE OF CRAIGHEAD


                                                                                              Page 74 of 139]]></page><page Index="77"><![CDATA[My Lords, in a democratic society the protection of public order lies at the heart of good
               government. This fundamental principle has a prominent place in the European Convention
               for the Protection of Human Rights and Fundamental Freedoms. Among the grounds on
               which a public
               authority may interfere with the rights described in articles 8 to T 1: of the Convention, are
               public safety, the protection of public order and the protection of the rights and freedoms of
               others. It is only in article 10(1) that one finds an express declaration that the exercise of
               freedoms carries with its duties and responsibilities. But it is a theme which runs right
               through the Convention. Respect for the rights of others is the price that we must all pay for
               the rights and freedoms that it guarantees.
               On the whole we live in a law-abiding community. Most people respect the rights of others,
               most of the time. People usually refrain from acts which are likely to cause injury to others or
               to their property. On the occasions when they do not, the sanctions provided by the criminal
               law are available. But it is a sad fact that there are some individuals for whom respect for the
               law and for the rights of others has no meaning. Taken one by one, their criminal or sub-
               criminal acts may seem to be, and indeed often are, relatively trivial. But, taken together, the
               frequency and scale of their destructive and offensive conduct presents a quite different
               picture. So does the aggression and intimidation with which their acts are perpetrated. 1 he
               social disruption which their behaviour creates is unacceptable. So too is the apparent
               inability of the criminal law to restrain their activities. This provides the background to the
               enactment of section 1 of the Crime and Disorder Act 1998 with which your Lordships are
               concerned in these appeals.
               The main question which they raise is the familiar one of classification. If proceedings under
               section 1 of the Crime and Disorder Act 1998 are to be classified as criminal proceedings for
               the purposes of
               123,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Simon Cordell Skeleton Argument.pdf
               [2003] AC
               75
               R (McCann) v Manchester Crown Ct (HL (£)
               Lord Hope of Craighead
               article 6 of the Convention, all the normal rules of evidence which apply to a criminal
               prosecution in domestic law must be applied to them. This is of crucial importance to the use
               which may be made in these proceedings of hearsay evidence. In domestic terms, hearsay
               evidence under the Civil Evidence Act 1995 would be inadmissible in these proceedings if
               they are too, he classified as criminal. In Convention terms, the persons against whom anti-
               social behaviour orders were sought would be entitled to the protection g of article 6(3){d) if
               it applies to them. Under that paragraph every person charged with a criminal offence has the
               right to examine or have examined the witnesses against him. But much of the benefit which
               the legislation was designed to achieve would be lost if this is how these proceedings have to
               be classified. It would greatly disturb the balance which section 1 of the Crime and Disorder
               Act 1998 seeks to strike between the interests of the individual and those of society.
               The reason for this is not hard to find. So often those who are directly affected by this
               conduct lack both the inclination and the resources to do anything about it. Above all, they
               have been intimidated and they are afraid. They know that they risk becoming targets for
               further anti-social behaviour if they turn to the law for their protection. It is unrealistic to
               expect them to seek the protection of an injunction under the civil law. Reports to the police
               about criminal conduct are likely to result in their having to give evidence. In this situation




                                                                                              Page 75 of 139]]></page><page Index="78"><![CDATA[the opportunity which civil proceedings provide for the use of hearsay evidence is a valuable
               safeguard.
               It greatly increases the prospect of persuading those who are likely to be exposed to further
               anti-social behaviour to co-operate with the authorities in protecting them from such conduct.
               The facts
               The facts of the Clingham case have been described by my noble and learned friend Lord
               Steyn, and I gracefully adopt his account. As he has pointed out, it is a striking feature of that
               case that two of the statements relied on were anonymous and two of them were by persons
               who were in fear of reprisals if they were to be called on to give evidence. I should like to ^
               deal in my speech with the facts in the case of McCann, which has similar characteristics.
               The defendants in the case of McCann are three brothers who all live
               in the Ardwick area of Manchester. They were aged 16, 15 and 1.3 011 1:7 May 2000 when
               anti-social behaviour orders were made against them by Judge Rhys Davies QC, the Recorder
               of Manchester, sitting in the Crown Court with lay magistrates.
               The Chief Constable of Greater Manchester had been collecting evidence against the
               defendants for a period of about five months between May and September 1999. They had
               been accused by various members of the public in the Beswick area of Manchester of
               threatening and abusive behaviour, causing criminal damage, theft, and burglary. On 28
               September 1999 the Chief Constable consulted with Manchester City Council, the council for
               the relevant local government area, as required by section 1 of
               the Crime and Disorder Act 1998. I hey agreed that an application for antisocial behaviour
               orders should be made. 1 the Chief Constable laid complaints against the defendants at
               Manchester Magistrates’ Court on 22 October 1999, and summonses were served on them on
               1 November
               124,
               Simon Cordell’s Skeleton Argument (2) Pdf
               [2003] I AC  R (McCann) v Manchester Crown Ct (HL(E))
               Lord Hope of Craighead
               19951. On 15 December 1999 Mr Alan Berg, a stipendiary magistrate, made anti-social
               behaviour orders against each of them, which they then appealed. Their appeal was heard in
               the form of a rehearing by the Crown Court.
               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: (x) 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.
        -      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


                                                                                              Page 76 of 139]]></page><page Index="79"><![CDATA[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.  _
               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.
               125,
               Simon Cordell’s Skeleton Argument (2) Pdf
               [2003] 1 AC
               77
               R (McCann) v Manchester Crown Ct (HL(E)
               Lord Hope of Craighead
               Classification in domestic law
               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 r of the Crime and Disorder Act
               199^ are civil proceedings in domestic law. I should like to add only a few observations to
               what he has
               said.  .
               Section 19 of the Crime and Disorder Act 1998 provides tor the g 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 antisocial 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 antisocial behaviour order in Scotland carries with it
               the same penalties under section 22(1) as those prescribed for England and Wales by section
               r(io)- 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.
               3 The question whether a summary application to a sheriff 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-


                                                                                              Page 77 of 139]]></page><page Index="80"><![CDATA[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 too he 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, cither direct or
               from the sheriff principal, under sections 27 and 28 of the 1907 Act. The fact that appeals do
               not He 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.
               It is worth noting that in S v Miller 2001 SC 977, 988, para 19 Lord President Rodger
               said that children’s hearings under section 52 of the Children (Scotland) Act 1995, a«<J- the
               related proceedings before the sheriff, have always been regarded as being civil in character,
               even where they
               126,
               Simon Cordell’s Skeleton Argument (2) Pdf
               31 7
               [2003] I AC  R (McCann) v Manchester Crown Ct (HL(E)
               Lord Hope of Craighead
               contain a ground for referral under section 5i(I){I) which is chat 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 T.995, that in no sense
               were these proceedings criminal proceedings. As he put it, they are on the contrary civil
               proceeding’s 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 chat 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 said in S v Miller 2001 SC 977, 988, 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, r6T 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.
               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


                                                                                              Page 78 of 139]]></page><page Index="81"><![CDATA[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 them. 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 1:9(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 (Ro) for England and Wales and section 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.
               127,
               Simon Cordell’s Skeleton Argument (2) Pdf
               79
               R (McCann) v Manchester Crown Ct (HL(E)
               [2003] AC
               Lord Hope of Craighead
               The second point is that it would not be inconsistent with a finding that the proceedings under
               section I(I) 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 r 997 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 3
               2. (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) ^) on the ground that he had committed an offence.
               Classification under the Convention
               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) 1 EHRR 647, 678, para 82.
               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 chat everyone “charged with
               a criminal offence” is to have the minimum rights which are set out in that article.
               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. Rut


                                                                                              Page 79 of 139]]></page><page Index="82"><![CDATA[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) r8 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 51, para 34. In
               128,
               Simon Cordell’s Skeleton Argument (2) Pdf
               [2003] I AC
               80
               R (McCann) v Manchester Crown Ct (HL(E)
               Lord Hope of Craighead
               A 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.
               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
               g 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 has 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 considered. 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 u The Netherlands (No 1) 1 EHRR 647,
               678-679, paras 82-83; Benham v United Kingdom 22 EHRR 293, 323, para 56.
               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(r), as
               Lord President Rodger pointed out in S v Miller z001 SC 977, 988, para 21. It states that the
               matter which is to be determined must be either a dispute “sur ses droits et obligations de £
               caractere civil” or an “accusation en matiere penale”. The words “en matiere penale” 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), at 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.
               In Oztiirk 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 observed in S v Miller 2001 SC 977,
               988-989, para 21:


                                                                                              Page 80 of 139]]></page><page Index="83"><![CDATA[“the very titles of such codes of criminal law will often reveal that they are indeed concerned
               essentially with ‘matiere penale’. For instance, in France there is a ‘code penaie’, in Italy a
               codice penale1, in Spain a codigo penal’ and in Germany a ‘Strafgesetzbuch’. It follows that
               when, in such cases as Ozturk, 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.”=
               129,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Contents
               Appendices     58
               Appendix A Early intervention and tackling offending behaviour by under-10s     58
               Appendix B County Court Practice Direction according to the Civil Procedure Rules      60
               Appendix C Order form        62
               Appendix D Summons form  64
               Appendix E Step-by-step process for anti-social behaviour orders and orders on conviction 65
               Appendix F Public funding for defendants  68
               Further reading       69
               81
               130,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Simon Cordell Skeleton Argument (3).pdf
               Ministerial foreword
               It is now seven years since anti-social behaviour orders (ASBOs) were introduced following
               the Crime and Disorder Act 1998. Since then, over 7,300 ASBOs have been issued. We often
               hear from residents up and down the country about how useful they are in bringing respite to
               communities suffering anti-social behaviour, the drive to tackle anti-social behaviour has
               been pioneered by anti-social behaviour practitioners and other interested parties all over
               England and Wales.
               During this time much has happened:
               For our part we have adjusted policy and response to changing demands prompted by
               practitioners to ensure that the tool continues to be effective.
               The Together Action Line, website and Academy events have provided an excellent source of
               advice and ensured spread of good practice.
               Practitioners have developed protocols and helpful leaflets to improve communication
               between themselves.
               A number of organisations have also organised seminars and conferences to bring
               practitioners together, debate problem areas and resolve issues between them.
               The courts have responded and played their part and we particularly welcome Lord Justice
               Thomas’s guidance, which has been referred to substantially for the revision of this guidance,
               and which provides the latest case law for practitioners in a very clear and methodical
               manner.
               The fundamental ethos of ASBOs remains that they combine the twin-track approach of
               enforcement and support.
               However, there have also been some developments and policy adjustments as the courts have
               interpreted ASBO legislation as more and more cases come before them.
               After ASBOs were first introduced, orders on conviction were introduced to improve access
               and timing; and interim orders for extreme cases where communities needed protecting
               urgently. Since May 2004 courts have been able to issue individual support orders to
               juveniles issued with ASBOs on application. This is a positive measure, attaching positive




                                                                                              Page 81 of 139]]></page><page Index="84"><![CDATA[conditions to ensure that young people get all the support they need to change their
               behaviour. I urge agencies to make the greatest possible use of them.
               We are also extending the power to apply for orders to the Environment Agency and
               Transport for London.
               We continue to listen to the views of practitioners and stakeholders and to adjust policy and
               legislation accordingly. One illustration of this has been the development of the one-year
               review of ASBOs issued to young people, which is explained in this guidance. Although it is
               not yet enshrined in legislation, we feel that this formalises existing good practice to ensure
               that young people are provided with the right support throughout the duration of their ASBO.
               We also hope to introduce later this year measures to empower the courts to apply rigorous
               case management in ASBO proceedings.
               This guidance is also issued in the context of the Respect programme which builds on the
               Government’s anti-social behaviour strategy. Under the Respect drive, we will maintain and
               build on the strong enforcement action that has helped us make so much progress, but extend
               this further through a comprehensive strategy to deliver:
               a new approach to tackling problem families.
               a wide-ranging programme to address poor parenting.
               measures to improve behaviour and attendance in schools.
               82.
               131,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Simon Cordell Skeleton Argument (3).pdf
               A! ii I is tennl foreword
               initiatives to provide constructive activities for young people; and
               a drive to strengthen communities through more responsive public services.
               I am delighted to introduce this new guidance which I am sure everyone working in the field
               of anti-social behaviour will find to be a source of reference that is both useful and
               informative.
               TONY Mc NULTY
               August 2006
               82
               132,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Introduction
               This guidance on ASBOs draws on the experience of the police service, local authorities,
               youth offending teams, the courts and other organisations, it is intended for use by
               practitioners - people with a professional responsibility for tackling anti-social behaviour,
               whether they represent local authorities, the police, youth offending teams, registered social
               landlords, prosecutors, the courts, or any other agency which seeks to tackle the problem of
               anti-social behaviour.
               The crime and disorder reduction partnership lies at the heart of the Government’s approach
               to the reduction of both crime and anti-social behaviour (much of which is of course criminal
               in nature). All crime and disorder reduction partnerships have an antisocial behaviour co-
               ordinator and access to them is published on the Together website (www.together.gov.uk).All
               partnerships, too, are required to draw up strategies for the reduction of anti-social behaviour
               in their areas, and the anti-social behaviour co-ordinators are in the best position to ensure
               that those strategies genuinely reflect the needs of the community served by the partnerships.
               Anti-social behaviour is given a wide meaning by the legislation - to paraphrase the (Time
               and Disorder Act 1998, it is behaviour that causes or is likely to cause harassment, alarm or




                                                                                              Page 82 of 139]]></page><page Index="85"><![CDATA[distress to one or more people who are not in the same household as the perpetrator. Among
               the forms it can take are.
               graffiti - which can on its own make even the tidiest urban spaces look squalid and can act as
               a magnet for further anti-social behaviour and crime.
               abusive and intimidating language too often directed at minority groups.
               excessive noise, particularly late at night.
               fouling the street with litter.
               drunken behaviour in the streets, and the mess it can result in; and
               dealing drugs, with all the problems to which it gives rise.
               There has been considerable criticism of the current wording being too wide. However, the
               House of Commons Select Committee looked at this in its report on anti-social behaviour and
               concluded that it would be a mistake to make it more specific because:
               the definitions work well from an enforcement point of view and no significant practical
               problems appear to have been encountered.
               exhaustive lists of the kind of behaviour considered anti-social by central government would
               be unworkable and anomalous; and
               anti-social behaviour is inherently a local problem and may be of a different nature in
               different localities.
               This flexibility is therefore a major strength of the current statutory description of antisocial
               behaviour.
               Anti-social behaviour is an issue that concerns everyone in the community. Incidents that
               cause harassment, alarm and distress cannot be written off as generational issues - they
               impact on the quality of life of young and old alike. And they require a response that puts
               partnership into action.
               Just as the problems of anti-social behaviour are wide-ranging, the solutions too must operate
               equally effectively on many levels. While an energetic and constructive police response is
               essential, it must be supplemented by engagement from a wide variety of partners. To take
               only the most obvious, schools need to have effective policies in place against truancy and
               bullying, and the police need to work closely with licensing authorities in order to tackle
               alcohol-related problems. Local authorities and registered social landlords need to take
               responsibility for acting against anti-social behaviour by them
               83
               1 House or Commons Select Committee, Anti-Social Behaviour: 5th Report of Session 2004
               -05, recommendation 7.
               133,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Introduction
               tenants and against their tenants. Social services need to ensure that they are taking the
               welfare of the whole community fully into account when making decisions, as well as taking
               care of the perpetrators. And, just as important, all of these bodies need to be sharing
               information with each other to the fullest possible extent in order to act fairly and decisively
               against the problems of antisocial behaviour.
               83
               134,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Simon Cordell Skeleton Argument (3).pdf
               Anti-social behaviour orders: the basics
               What are anti-social behaviour orders?
               Anti-social behaviour orders (ASBOs) were introduced by section 1 of the Crime and
               Disorder Act 1998 in England and Wales and have been available since April 1999.The


                                                                                              Page 83 of 139]]></page><page Index="86"><![CDATA[powers to deal with anti-social behaviour were strengthened and extended by the Police
               Reform Act 2002, which introduced the power to make similar orders on conviction in
               criminal proceedings, and in county court proceedings, and the power to make interim orders.
               Orders can now also extend across any defined part of England and Wales. The provisions
               relating to orders on conviction under section 1C and interim orders under section ID in the
               magistrates’ courts were inserted in the 1998 Act by the Police Reform Act 2002 and came
               into force on 2 December 2002.
               The provisions relating to orders in county court proceedings (section 1B) were also inserted
               in the 1998 Act by the Police Reform Act 2002 and came into force on 1 April 2003.
               ASBOs are civil orders to protect the public from behaviour that causes or is likely to cause
               harassment, alarm or distress. An order contains conditions prohibiting the offender from
               carrying out specific anti-social acts or from entering defined areas and is effective for a
               minimum of two years. The orders are not criminal sanctions and are not intended to punish
               the offender.
               Applications for ASBOs are made to the magistrates’ court by ‘relevant authorities’ which
               include local authorities, chief officers of police, registered social landlords, housing action
               trusts or any other person or body specified by the order of the Secretary of State (as
               previously mentioned, it is intended that the Environment Agency and Transport for London
               be specified for this purpose).
               A similar order can be applied for during
               related proceedings in the county court and can be requested on conviction of certain offences
               in the criminal courts. It remains a civil order irrespective of the issuing court.
               ASBOs are community-based orders that involve local people not only in the collection of
               evidence to support an application but also for the purpose of helping to enforce breaches. By
               their nature they encourage local communities to become actively involved in reporting crime
               and disorder and to contribute actively to building and protecting the community. The civil
               status of ASBOs has implications for the nature of the proceedings at which applications are
               heard. For example, hearsay and professional witness evidence can be heard. This is an
               extremely important feature of ASBOs that can help protect victims and witnesses of anti-
               social behaviour.
               What sort of behaviour can be tackled by ASBOs?
               Anti-social behaviour that can be tackled by ASBOs includes:
               1. harassment of residents or passers-by.
               2. verbal abuse.
               3. criminal damage.
               4. vandalism.
               5. noise nuisance.
               6. writing graffiti.
               7. engaging in threatening behaviour in large groups.
               8. racial abuse.
               9. smoking or drinking alcohol while underage.
               10. substance misuse.
               11. joyriding.
               12. begging.
               13. prostitution.
               14. kerb-crawling.
               15. throwing missiles.
               16. assault; and
               17. vehicle vandalism.
               135,


                                                                                              Page 84 of 139]]></page><page Index="87"><![CDATA[Simon Cordell’s Skeleton Argument (2) Pdf
               Simon Cordell Skeleton Argument (3).pdf
               Anti-soda! behaviour orders' the basics
               The terms of each order should be tailored to the circumstances of the individual case.
               Tackling prostitution and drug-related anti-social behaviour at Kings Cross
               Issue
               Kings Cross was one of the most infamous drug and vice hotspots in the country. For years
               the authorities had struggled to improve the area.
               Approach
               'flic anti-social behaviour partners meet to discuss individual cases and offer appropriate help,
               including housing and rehabilitation services. If the perpetrators of the anti-social behaviour
               fail either to engage or to change their behaviour, acceptable behaviour agreements (ABAs)
               are often used to bring to the offenders’ attention the impact of their behaviour on the
               community.
               Outcomes
               This worked very well with only 4 out of 32 ABAs progressing to ASBO applications. But
               where the ASBO was deemed necessary by the partners, Camden police officers put together
               bundles of evidence, with Camden Council’s legal team making the ASBO application.
               Impact statements were taken from local community activists and councillors to prove the
               need for the orders. Since then, having issued 45 ASBOs with prohibitions within the area,
               Kings Cross is completely unrecognisable from its previous image. The partners have also
               been successful in working with perpetrators to facilitate a significant sustainable change in
               behaviour. One crack cocaine addict recently wrote to the local paper apologising to the
               people of Kings Cross for his behaviour. Another went on to be a drugs worker in Brixton
               while a third is now working in the Home Counties and has had her ASBO discharged with
               the consent of the authorities.
               Contact
               Ian Walker
               Email: ian.waiker@camden.gov.uk
               Legal definition of anti-social behaviour for the purpose of obtaining an order
               Under section 1 of the Crime and Disorder Act 1998, the agency applying for an ASBO must
               show that:
               the defendant behaved in an anti-social manner; and an order is necessary for the protection
               of people from further anti-social behaviour by the defendant.
               This is sometimes referred to as the ‘two-stage test’.
               Section 1(1) of the Act describes acting in an ‘anti-social manner’ as acting in ‘a manner
               which causes or is likely to cause harassment, alarm or distress to one or more persons not of
               the same household as the perpetrator.
               The wording is intentionally wide-ranging to allow for the orders to be used in a variety of
               circumstances.
               The expression likely to cause’ has the effect that someone other than a victim of the anti-
               social behaviour can give evidence of the likelihood of its occurring. This is intended
               specifically to enable the use of professionals as witnesses where those targeted by the
               behaviour feel unable to come forward, for example for fear of reprisals or intimidation.
               Standard of proof
               In the case of McCann (R v Crown Court at Manchester ex parte McCann (FC) and Others
               (FC)), the House of Lords, while confirming that ASBOs were civil orders, set out the law on
               the standard of proof as follows:
               ‘they [magistrates] must in all cases under section 1 apply the criminal standard... it will be
               sufficient for the magistrates, when applying section 1(1 )(a) to be sure that the defendant has


                                                                                              Page 85 of 139]]></page><page Index="88"><![CDATA[acted in an anti-social manner, that is to say 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 himself.’
               (Lord Steyn, paragraph 37)
               86
               136,
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               Antisocial behaviour orders; the basics
               This means that the criminal standard of proof applies to acts of anti-social behaviour alleged
               against the defendant.
               However, Lord Steyn went on to explain:
               ‘The inquiry under section 1(1)(b), namely that such an order is necessary to protect persons
               from further anti-social acts by him, does not involve a standard of proof: it is an exercise of
               judgement or evaluation.’
               It should be noted that it is the effect or likely effect of the behaviour on other people that
               determines whether the behaviour is antisocial. The agency applying for the order does not
               have to prove an intention on the part of the defendant to cause harassment, alarm or distress.
               Under section 1(5) of the 1998 Act, the Court will, however, disregard any behaviour shown
               to be reasonable in the circumstances.
               The most common behaviour tackled by ASBOs is general loutish and unruly conduct such
               as verbal abuse, harassment, assault, graffiti and excessive noise. ASBOs have also been used
               to combat racial harassment, drunk and disorderly behaviour, throwing fireworks, vehicle
               vandalism and prostitution. Many other problems, for instance the misuse of air guns, could
               also lend themselves to this approach.
               The wide range of anti-social behaviour that can be tackled by ASBOs and the ability to tailor
               the terms of the order to each specific case illustrates their flexibility. There have been cases
               where the chief executive of a company has been issued with an ASBO for anti-social
               behaviour committed by the company. This is because ASBOs must be issued against
               individuals and not against organisations. ASBOs may also be used, for example in the
               misuse of mini motors, where warnings and other measures have failed.
               Against whom can an order be made?
               An order can be made against anyone aged 10 years or over who has acted in an anti-social
               manner, or is likely so to act, and where an order is needed to protect people and the wider
               community from further anti-social acts. A list of interventions available for children under
               10 is at Appendix A. the orders are tenure-neutral and can be used against perpetrators living
               in any type of housing (not just social housing). Because the order is specific to the person, if
               someone moves to a new house, it still remains in force, ASBOs can be used to combat anti-
               social behaviour in a wide range of situations and settings.
               They are highly relevant to misconduct in public spaces such as parks, shopping centres and
               transport hubs, but they are by no means confined to such areas.
               Where groups of people are engaged in anti-social behaviour, a case needs to be made against
               each individual against whom an order is sought. However, the cases can be heard together
               by the court. Agencies have found that targeting ringleaders with orders is an effective
               deterrent to other members of the group.
               When investigating complaints about antisocial behaviour, it is vital that agencies satisfy
               themselves that complaints are well founded. In particular, they should consider the
               possibility that complaints may have been motivated by discrimination, perhaps on racist
               grounds, or to further a pre-existing grudge. However, failing to act against instances of anti-
               social behaviour can lead to an escalation of the problem by increasing fear of crime or
               leading those subjected to the anti-social behaviour to retaliate. Nipping unacceptable
               behaviour in the bud is therefore the best option.


                                                                                              Page 86 of 139]]></page><page Index="89"><![CDATA[Who can apply for an order?
               Agencies able to apply for orders are referred to as ‘relevant authorities’ in the legislation
               (section 1(1 A) of the Crime and Disorder Act 1998). These are:
               local authorities - by virtue of sections 1(A) and 1(12) of the 1998 Act, a local authority is, in
               England, the council of a county, district or London Borough, the Isle of Wight or the Isles of
               Scilly, or, in Wales, the council of a county or county borough; police forces, including the
               British Transport Police (BTP);
               registered social landlords (RSLs), that is a body registered as a social landlord under section
               1 of the Housing Act 1996; and Housing Action Trusts (I-IATs).
               1.0
               137,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Anti-social behaviour orders: the basics
               The Environment Agency and Transport for London are to be designated as relevant
               authorities in due course.
               Local authorities and the police may apply for an order where they consider it necessary to
               protect persons in their area (‘relevant persons’) from further anti-social behaviour
               irrespective of where the original anti-social behaviour took place. An order can be sought
               which provides protection not just to the relevant persons but also, where necessary, to any
               persons in England and Wales.
               The BTP, RSLs and HATs are empowered to apply for orders by virtue of changes
               introduced under the Police Reform Act 2002, which enable these agencies to deal with their
               particular problems of anti-social behaviour in a more effective and timely manner. RSLs and
               HATs may apply for orders against non-residents as well as residents and should consider
               doing so where the antisocial behaviour of non-residents is affecting the quality of life for
               residents.
               Applications from the BTP, RSLs or HATs must concern anti-social behaviour related to the
               premises for which they are responsible by persons who are on or in the vicinity of such
               premises or likely to be either on or in the vicinity of such premises.
               The BTP, RSLs and HATs are required to consult both the local authority and local police
               force when applying for an order. The agencies are not compelled to use the power. The
               police or local authority may still apply for ASBOs on their behalf.
               Under section 17 of the 1998 Act, the police and local authorities have a joint responsibility
               to develop and implement strategies for tackling anti-social behaviour and disorder in the
               local area. This responsibility is not changed in any way by allowing the BTP, RSLs and
               HATs to apply for orders.
               Which courts can make ASBOs?
               ASBOs can be made by:
               * magistrates’ courts (acting in their civil capacity).
               county courts (where the relevant authority or the person against whom the
               order is sought is a party to the proceedings and the non-party is joined to these proceedings);
               magistrates’ courts (on conviction in criminal proceedings).
               the Crown Court (on conviction in criminal proceedings).
               youth courts (on conviction in criminal proceedings); and
               at the time this guidance was being revised, 11 county courts, which were trialling hearings
               for ASBO cases for children and young people. These are as follows:
               ➢  Bristol
               ➢  Central London
               ➢  Clerkenwell
               ➢  Dewsbury


                                                                                              Page 87 of 139]]></page><page Index="90"><![CDATA[➢  Huddersfield
               ➢  Leicester
               ➢  Manchester
               ➢  Oxford
               ➢  Tameside
               ➢  Wigan
               ➢  Wrexham
               The pilot will be evaluated in autumn 2006.
               The table overleaf sets out what each type of court can do.
               Length of orders
               Orders are issued for a minimum of two years and can be issued for an indefinite period
               pending a further order. They can also be varied or discharged on application by either party,
               although they cannot be discharged in the first two years without the consent of both parties.
               In the ease of young people, ASBOs should be reviewed each year as explained on page 45.
               Anti-social behaviour response courts
               Within Her Majesty’s Courts Service there is now a network of specialist anti-social
               behaviour response courts across the country - existing courts that are better able to respond
               to the issue of Anti-social behaviour. They ensure that magistrates and court staff are
               specially trained and follow a framework - including specialist sessions, witness care, local
               community engagement and appropriate media strategies. This ensures courts are able to
               respond properly to anti-social behaviour cases in a visible and consistent way.
               88
               138,
               Simon Cordell’s Skeleton Argument (2) Pdf
                 Magistrates' court - acting in their…


                   …Civil      ...Criminal   County court                   Youth court
                   capacity     capacity
                    Which          No           Only on      Pilots taking place  Only on conviction in
                   ASBO?       restrictions   conviction in   for children and  criminal proceedings as it
                                                criminal     young people until  has no civil jurisdiction
                                              proceedings     September 2006
                  Disposals        n/a             n/a              n/a        Sections 90 and 91 cases -
                  available if                                                    Powers of Criminal
                    ASBO                                                        Courts (Sentencing) Act
                  breached -                                                      2000, detention and
                  under-18s                                                    training order, action plan
                                                                                  order, referral order,
                                                                                attendance centre order,
                                                                                   supervision order,
                                                                                    reparation order,
                                                                                  parenting order, fine,
                                                                                community punishment
                                                                                and rehabilitation order
                                                                                   (16-17-year olds),
                                                                                   absolute discharge
                                                                                  All sentences to the
                                                                                 community are open to
                                                                                  the following orders:
                                                                                curfew order, parenting


                                                                                              Page 88 of 139]]></page><page Index="91"><![CDATA[order, drug testing and
                                                                                    treatment order











                  Disposals    Maximum       Maximum five      Maximum five               n/a
                  available if   five years’     years’            years’
                    ASBO     imprisonment.  imprisonment;      imprisonment;
                  breached -   community      community      community order,
                     adult        order,     order, absolute      absolute
                                absolute     discharge, fine   discharge, fine,
                                discharge,   compensation      compensation
                                  fine,      order, deferred   order, deferred
                              compensation      sentence          sentence
                                  order,
                                deferred
                                sentence
               Untouchable gang’s reign of terror on a anti-social behaviour response courts Issue
               A gang of 10 youths who believed they were beyond the reach of the law were regularly
               terrorising vulnerable residents on a street in Thornton, Merseyside. The youths had been
               smashing windows, breaking into and throwing missiles at vehicles, and verbally abusing
               people, Victims included the young, elderly and vulnerable and the gang’s behaviour created
               such fear locally that residents would not go out after dark or leave their properties
               unattended. Many of them installed CCTV Only the most serious incidents were repented at
               the time they occurred but victims would not press charges for fear of being singled out and
               targeted by the gang.
               Merseyside street ends in the Approach
               The neighbourhood police officer carried out a detailed investigation of the problem to bring
               a case for arresting the perpetrators and bringing them before the courts.
               Previous police logs and reports were scrutinised, and impact statements taken from the
               majority of witnesses in anonymity to use as hearsay evidence. One family, which had been
               singled out by the perpetrators, was given support by the police with daily contact and visits.
               The victims installed CCTV and kept a diary of all the incidents which was exhibited as
               evidence.
               The police and Crown Prosecution Service (CPS) worked closely together to prepare the case
               and the police gathered strong evidence. Interviews with perpetrators were carefully planned
               so that when faced with
               139,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Antisocial behaviour orders: The busies
               the evidence against them all 10 perpetrators admitted their responsibility.
               In advance of the case, the CPS specialist prosecutor for the area worked to set up a special
               anti-social behaviour response court. Advance disclosure of evidence to the judge and other
               parties prior to the court hearing meant that the case was dealt with quickly once in court.






                                                                                              Page 89 of 139]]></page><page Index="92"><![CDATA[At the hearing, nine perpetrators were charged on criminal offences ranging from disorderly
               behaviour to attempted arson. Three of the gang were given ASBOs and six of the gang
               signed acceptable behaviour agreements.
               Conditions attached to the ASBOs were designed to protect the community from any
               recurrence of the behaviour. The perpetrators were restricted to sleeping at their nominated
               address and were not allowed out between 6.00pm and 6.00am unless accompanied by a
               parent or appropriate adult. They were clearly instructed not to approach or interfere with any
               prosecution witnesses. They were also prohibited from being verbally abusive and from
               throwing missiles at any residential property or from
               carrying anything which they could use to launch a missile.
               The CPS advised the local media of the antisocial behaviour response court and the press
               reported this operation on the front pages of the local papers. This is part of a strategy to
               publicise successful action of the police, CPS and judiciary working in partnership to tackle
               anti-social behaviour. Its aim is to encourage the community to report anti-social behaviour,
               knowing that it will be dealt with effectively.
               Outcome
               The operation provided much needed relief for the residents in the area. A parent of one of
               the gang members has since become proactive in a local community action group which is
               working to increase diversionary activities for young people in the area.
               For the professionals involved in the case, the operation has underlined the importance of
               taking impact statements as a matter of course when victims fail to press charges due to fear
               of reprisals. The multiagency partnership approach works best if one officer who is aware of
               all the facts of the case co-ordinates the case.
               Orders made in county court proceedings (section IB of the Crime and Disorder Act 1998)
               For an application to be made in the county court, both the applicant and the person against
               whom the application is made must be parties to the ‘principal proceedings’
               (such as an eviction). Where the relevant authority is not a party to the principal proceedings,
               an application to be had a party and the application for an order should be made as soon as
               possible after the authority becomes aware of the principal proceedings. Where the person
               alleged to have committed the anti-social behaviour is not a party but the relevant authority
               thinks that his anti-social acts are material to the principal proceedings, the authority can
               apply to have him joined in the proceedings and apply for an order. The county court will be
               able to grant orders where the principal proceedings involve evidence of anti-social
               behaviour.
               Enabling the county courts to make orders may remove the need for a separate legal process
               in the magistrates’ court and make it possible for the public to be protected from anti-social
               behaviour more quickly and more efficiently.
               An order made in county court proceedings might, for example, be useful to prevent an
               individual, evicted from his accommodation for harassing his neighbours and/or others in the
               area, from returning to the same area to continue the abusive behaviour.
               90
               140,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Taking a strategic approach
               Orders can only work properly when they are based on partnership in action. They are
               powerful instruments, and they will be at their most effective when all the agencies
               confronted by an individual’s anti-social behaviour collaborate to make the best possible use
               of them.
               Orders made on conviction in criminal proceedings




                                                                                              Page 90 of 139]]></page><page Index="93"><![CDATA[Criminal courts - the magistrates’ court, the Crown Court and the youth court - can make-
               orders against an individual who has been convicted of a criminal offence, and this is known
               as an 'order on conviction’ (sometimes also called a ‘CRASBO’). Some county courts are
               currently trialling stand-alone ASBO cases for children and young people until the end of
               September 2006.These are not proceedings on conviction.
               The order on conviction is considered at a civil hearing after the verdict. It is not part of the
               sentence the offender receives for the criminal offence.
               The order will be granted on the basis of the evidence presented to the court during the
               criminal proceedings and any additional evidence provided to the court after the verdict,
               although it is possible for the order to be granted on the basis of the criminal proceedings
               alone. There is a statutory requirement for a conviction to be for an offence committed after
               the date on which the insertion of the relevant provisions by the Police Reform Act took
               effect.
               The court may make an order on conviction either on its own initiative or following an
               application by the prosecutor (see section 1 C (3) of the Crime and Disorder Act 1998).
               Alternatively, the order can be requested by the police or local authority, who may make
               representations to the court in support of the request. Orders on
               conviction cannot be made if there is a deferred sentence for the relevant offence.
               The court may adjourn the proceedings following conviction to allow an application for an
               order on conviction to be made.
               By virtue of section l D (l)(b) of the 1998 Act (inserted by the Serious Organised Crime and
               Police Act 2005), the court may also make an interim order.
               The order on conviction is a civil order and has the same effect as an ASBO made on
               application - ft contains prohibitions rather than penalties and is made in civil proceedings. It
               is similar to the football banning order on conviction in that it is a civil order made following
               a criminal procedure,2 3
               If the offender is detained in custody, the court may make provision for requirements of the
               order on conviction to become effective on their release. For this period the order takes effect
               immediately, but its terms are suspended until release.
               Where is an ASBO valid?
               Before the changes introduced by the Police Reform Act 2002, the conditions an order could
               impose extended only to the applicant’s area and adjoining areas. An order can now extend
               across any defined area within England and Wales. '
               The power to make an order over a wide area is for use where there is reason to believe that
               the person concerned may move or has already moved. It goes some way to addressing the
               problem of offenders moving to other areas and continuing the behaviour.
               An order covering a wider area could address problems such as ticket touting at different
               train stations or anti-social behaviour on trains, and could help deal with the minority
               Section 10(21 of the Crime and Disorder Act 1998 states that the court may make an order
               which prohibits the offender from doing anything described in the order. Section 14A of the
               Football Spectators Act 1989 places a duty on the court to impose a football banning order if
               a person is convicted of a relevant offence or to state in open court why such an order has not
               been made.
               The geographical area which an order may cover is indicated by section 1(6) for ASBOs and
               orders made in county court proceedings; and by section l C (2)(b) for orders made on
               conviction in criminal proceedings.
               91..
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                                                                                              Page 91 of 139]]></page><page Index="94"><![CDATA[of the travelling community who persistently engage in anti-social behaviour around the
               country, Careful thought needs to be given to the consequences of extending the exclusion
               area so that it does not simply result in displacing the behaviour into a neighbouring area.
               Any evidence of the itinerant nature of the defendant’s lifestyle, of the likelihood of the
               individual moving to another area, or of wide geographical spread of offending behaviour
               should be submitted with the application file, The applicant does not have to prove that anti-
               social behaviour will occur elsewhere, just show that it is likely to.
               The more serious the behaviour, the greater the likelihood that the court will grant a
               geographically wide order. Orders that seek to operate in the whole of England and Wales
               will not be granted without evidence that that is the actual or potential geographical extent of
               the problem. Further detail about effective prohibitions is given in Chapter 7.
               Can interim orders be made?
               Interim orders are available under section ID of the Crime and Disorder Act 1998 (as
               amended by section 65 of the Police Reform Act 2002 and the Serious Organised Crime and
               Police Act (SOCPA) 2005) in both the magistrates’ court and the county court. This is an
               order made at an initial court hearing held in advance of the full hearing. This temporary
               order can impose the same prohibitions and has the same penalties for breach as a full order.
               The interim order can, with leave of the justices’ clerk, be made without notice of
               proceedings being given to the defendant.
               A without notice interim order has no effect until it has been served on the defendant. If it is
               not served within seven days, it will cease and will not have effect. The benefit of the interim
               order is that it enables the courts to order an immediate stop to anti-social behaviour and
               thereby to protect the public more quickly. It reduces the scope for witness intimidation by
               making it unlawful for the offender to continue the behaviour while the ASBO application is
               being processed. It also removes any delay in the proceedings.
               Section 139 of SOCPA 2005 gives the court the power to grant an interim order pending an
               adjourned hearing for an order on conviction.
               The interim order will send a clear message to the community that swift action against anti-
               social behaviour is possible.
               The order can be made at the outset of proceedings for an ASBO application if the court
               considers that it is just to make such an order. The applicant authority should, if possible,
               request an interim order at the same time as submitting an application for a full order.
               When considering whether to make an interim order, the court will be aware that it may not
               be possible at the time of the interim order application to compile all the evidence which
               would prove that a full ASBO is necessary. Rather the court will determine the application
               for the interim order on the question of whether the application for the full order has been
               properly made and where there is sufficient evidence of an urgent need to protect the
               community
               Applications for interim orders will be appropriate, for example, in cases where the applicant
               feels that persons need to be protected from the threat of further antisocial acts which might
               occur before the main application can be determined. Where an interim order is granted
               without notice of proceedings to the defendant, it is expected that the court will usually
               arrange an early return date.
               An individual who is subject to an interim order will have the opportunity to respond to the
               case at the hearing for the full order. The defendant is also able to apply to the court for the
               interim order to be varied or discharged. In this instance the matter will be dealt with at a
               hearing dealing specifically with the interim order.
               The interim order:
               will be for a fixed period.
               can be varied or discharged on application by the defendant.


                                                                                              Page 92 of 139]]></page><page Index="95"><![CDATA[will cease to have effect if the application for the ASBO or county court order is withdrawn
               or refused.
               93
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               Taking a strategic approach
               may extend over any defined area of England and Wales; and
               18. has the same breach penalties as for a full order.
               The court procedures and forms to be used when applying for or making an interim order are
               set out in the Magistrates’ Courts (Anti-Social Behaviour Orders) Rules 2002 (available at
               www.opsi.gov.uk/si/si2002/ 20022784.htm).
               Interim orders made in the county courts
               A relevant authority may apply for an interim order in the county court once it is party to the
               ‘principal proceedings. The application for an interim order should be made early in the
               proceedings.
               The procedure for making applications for orders in the county court is set out in the Practice
               Direction of the updated Cavil Procedure Rules 65.24 to 26 (Appendix B).
               Orders against children and young people
               Under the Crime and Disorder Act 1998, applications for ASBOs against young people aged
               10 to 17, and in certain circumstances 18-year-olds, can be heard in the magistrates’ court. As
               a result of the recent practice direction (the Magistrates’ Courts (Anti-Social Behaviour
               Orders) Composition of Benches practice direction, February 2006), the justices constituting
               the court should normally be qualified to sit in the youth court unless to do so would result in
               a delayed hearing. Applications for orders are not heard in the youth court as a matter of
               course because of the civil status of the orders, although youth courts may make orders where
               appropriate on conviction.
               Practitioners familiar with dealing with young people’s cases will be aware of the restrictions
               on reporting that apply under the Children and Young Persons Act 1933- However, automatic
               reporting restrictions do not apply to stand-alone ASBOs as they are civil orders.
               In orders on conviction cases, the court does have discretion under section 39 of the Children
               and Young Persons Act 1933 to impose reporting restrictions. Reporting
               restrictions will always apply to the criminal proceedings on which the order on conviction is
               based but in till other cases, the presumption is that publicity will be allowed. See page 52 for
               detailed guidance on promoting awareness of orders.
               A court making an ASBO does have the power to impose restrictions to protect the identity of
               a person under 18. But the imposition of reporting restrictions may restrict the effectiveness
               of the order if the effectiveness of the ASBO will largely depend on the wider community
               knowing the details. Please see the separate sections on publicity and on children and young
               people.
               Breach of an order
               Breach of an order is a criminal offence; criminal procedures and penalties apply.
               The standard of proof required is the criminal standard. Guilt must be established beyond
               reasonable doubt. Breach proceedings are heard in the magistrates' court and may be
               committed to the Crown Court. Such proceedings are the same irrespective of whether the
               order is a full or interim order made on application to the magistrates’ court or the county
               court, or an order on conviction in criminal proceedings.
               Expert prosecutors
               A team of 14 anti-social behaviour expert prosecutors has been set up with funding from the
               Together campaign to support all Crown Prosecution Service (CPS) prosecutors dealing with




                                                                                              Page 93 of 139]]></page><page Index="96"><![CDATA[anti-social behaviour-related cases. The team drives improvements in performance across the
               country.
               The team:
               19. promotes better partnership working between local prosecutors, the police, focal
               authorities, registered social landlords and others involved in taking action against anti-social
               behaviour.
               20. delivers training to prosecutors on the new powers to obtain orders on conviction
               provides advice to prosecutors on the full range of enforcement measures and key issues such
               as prosecution of ASBO breach; and
               94
               143,
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               Hiking v stnitegic cipjrraacb
               • works with court clerks and magistrates in improving their response to anti-social
               behaviour.
               In addition to the 14 specialist prosecutors, anti-social behaviour co-ordinators have now
               been appointed CPS-wide to ensure that there is a focus on anti-social behaviour issues in
               every CPS area. Their role is to drive this work forward. Further information can be obtained
               from Sarah Johnston at sarah.johnston@cps.gsi.gov.uk.
               Standard ASBO form
               A copy of the order form used by the magistrates’ courts can be found at Appendix C.
               Disposals
               The maximum penalty for breach of an order is five years’ imprisonment tor an adult
               offender. A conditional discharge is not available for breach of an ASBO.
               The full range of disposals of the youth court is available, and custody should only be
               considered as a last resort in cases of serious and persistent breach (if appropriate, breach
               may be dealt with by way of a final warning). Where custody is deemed by the court to be
               necessary, the maximum sentence for breach by children and young people is a detention and
               training order (DTO), which has a maximum term of 24 months - 12 months of which is
               custodial and 12 months is in the community. The DTO is available for 12 to 17-year-olds
               (although 12 to 14-year-olds must be persistent (criminal) offenders to be given a DTO). A
               10 to 11 -year-old can be given a community order for breach of an ASBO. The sentence
               given should be proportionate and reflect the impact of the anti-social behaviour. It must
               relate to all the relevant circumstances, such as the number of breaches and how the breach
               relates to the finding of anti-social behaviour. Proceedings should be swift and not fractured
               by unnecessary adjournments either during the proceedings or before sentencing. Information
               on how to handle breaches of ASBOs by young people is contained in page 26 of the anti-
               social behaviour guidance issued by the Youth Justice Board, Home Office and Association
               of Chief Police Officers.
               The leading precedent for the approach on sentencing on this point is R v Lamb \ 20051
               EWCA Crim 2487. In this judgment the court drew the distinction between a breach that
               represents further anti-social behaviour and those that are merely breaches of the terms of an
               order, for instance, as in that case, not to enter a particular metro system. Differing from
               earlier decisions - in particular from the case of R v Morrison [2005] EWCA Crim 2237 - the
               court held that the orders are properly designed to protect the public from frequent and
               distressing repeated misbehaviour.
               In the case of Morrison, it was determined that if the breach amounted to a specific criminal
               offence that carried a particular penalty, the sentence for breach of the ASBO could not be
               greater than that.




                                                                                              Page 94 of 139]]></page><page Index="97"><![CDATA[As the court in Lamb pointed out, this would merely encourage people to commit criminal
               offences rather than breach their ASBOs in other ways. The court has therefore laid down a
               series of steps for consideration prior to the imposition of a sentence.
               Where a breach does not involve harassment, alarm or distress, a community order may be
               considered to assist the defendant to learn to live with the terms of the ASBO. This is entirely
               consistent with the guideline on breach proceedings issued by the Sentencing Guidelines
               Council, where it is pointed out that custody should be used as a last resort, and the primary
               purpose of breach proceedings should be to ensure that the order itself is observed.
               However, Lamb confirmed that where there is a persistent breach without harassment, alarm
               or distress, it may become necessary to impose custody to preserve the authority of the court.
               In those circumstances, the sentence should be as short as possible, and in Lamb the
               individual sentences were reduced to two months in custody. However, where the new breach
               amounts to further harassment, alarm or distress, then the court thought orders of eight
               months, on a guilty plea, were appropriate, applying R v Braxton [2005] 1 CRAPP R (S)
               36,7? v Tripp [20051
               Youth Justice Board, Home Office and Association of Chief Police Officers (2006) Anti-
               social Behaviour: A guide to the role of Youth Offending Teams in dealing with antisocial
               behaviour. This can be downloaded at www.youth-justice-
               board.gov.uk/Putilications/Scr!pts/prodView.asp?id[)roduct=212&ep-
               95
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               Hiking a strategic approach
               EWCA Grim 2253 and R v Dickinson
               [2005] 2 CR APP R (S) 488.
               When the offender has been found guilty of breaching an order, and before sentencing, the
               court may take reports from the local authority or police and any applicant agency. The court
               should also consider the original reasons for the making of the order.
               A copy of the court order (ASRO) as granted (including any maps and details of any
               prohibitions) can be put before the court during breach proceedings as evidence that an order
               has been made without the need for a statement formally proving that an order was made.
               This provision was introduced by SO CPA 2005 on 1 July 2005.
               95
               145,
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               Simon Cordell Skeleton Argument (3).pdf
               Managing the application process
               This section focuses on the main issues involved in applying for an order. For an ASBO to be
               effective, the process of evidence gathering and applying to the courts should be as swift as
               possible.
               Groups of organisations and partnerships such as crime and disorder reduction partnerships
               (CDRPs) may wish to consider buying specialist legal advice in blocks or pooling expertise
               and experience. This is likely to be more cost effective than buying in legal advice on a case-
               by-case basis.
               Partnership working
               A fully co-ordinated approach is essential if anti-social behaviour is to be tackled. Effective
               defence of communities depends on all agencies - including housing organisations, social
               services, education authorities and youth services - accepting that the promotion of safe anti
               orderly neighbourhoods is a priority and working together to agree a response to




                                                                                              Page 95 of 139]]></page><page Index="98"><![CDATA[unacceptable behaviour. The consultation arrangements are important but should be
               organised so that they do not cause delays in dealing with cases.
               Agencies and communities join to tackle anti-social behaviour in Slade Green
               Issue
               Slade Green in Bexley was once described as 'a cluster of low-rise estates centred on a
               precinct of shops and Slade Green railway station, where vandalism, burglary and drugs
               blight the lives of residents’. Slade Green has experienced high levels of crime and social
               deprivation and features among the top 1.6% of the most deprived wards in England. Bexley
               Police identified Slade Green as a hot spot for residential and non-residential burglary, auto
               crime, disorder, domestic violence and race crime. Residents, local housing providers and the
               leader of the Slade Green Community Safety Forum were alarmed at the escalation of anti-
               social behaviour in the area. Residents regularly experienced threats and actual violence,
               making them afraid of giving evidence to the police.
               Approach
               A meeting between resklents and the local partnership team produced an outline action plan.
               Community meetings, local press coverage and ‘Have A Say’ days led to key witnesses being
               willing to give evidence.
               The partnership team applied for ASBOs against the six men identified as the most prolific
               perpetrators. In total, 30 witnesses gave evidence, most in the form of hearsay, with nine
               giving evidence in person at the court hearing. The policing team involved in the case
               supported witnesses by being at court to provide additional reassurance. Victim Support’s
               witness support service also helped. Strong witness evidence and a compelling case prepared
               by the police and the council legal department convinced the court to agree to all six
               applications.
               Outcome
               The impact of these ASBOs on crime and fear of crime in the area was significant. For the
               period 2003/04, robbery incidents fell by 53%, burglary by 21%) and auto crime by 40%. Of
               the original six to receive an ASBO, one person has been prosecuted for breach of the ASBO
               condition relating to criminal damage to a car, for which he received a custodial sentence.
               A community safety action zone (CSAZ) was established in Slade Green with the aim of
               reducing crime and disorder in the area.
               A multi-agency operations group was formed
               146,
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               Managing the application process
               to find the grass roots issues leading to these problems. The addition of environmental and
               security improvements has enhanced the appearance of the area and have made it a safer and
               more secure place to live. These improvements have included improved street lighting,
               removal of graffiti, removal of fly-tipping, removal of abandoned and unlicensed cars and
               improvements to play areas.
               A survey was carried out before the start of the CSAZ which found that 22% of residents in
               Slade Green who responded felt safe at night in their area. After the CSAZ had been set up,
               93% of residents surveyed in Slade Green felt safe at night in their area.
               Contact
               Charlotte Shrimpton Telephone: 020 8284 5503
               Taking ownership
               It is vital that a specified individual within the lead agency takes on a lead role with
               responsibility for the ownership, director, and management of the case. 1'his will help ensure




                                                                                              Page 96 of 139]]></page><page Index="99"><![CDATA[that there is no confusion about who is expected to make sure that the necessary actions are
               taken on the right timescale.
               The lead individual should manage and co-ordinate the involvement of other agencies so that
               they add value by contributing their own specialist knowledge and expertise.
               A multi-agency approach should be adopted so that all agencies that could hold information
               on the individual in question are involved in the process at an early stage.
               Such agencies include the Probation Service, social services, health services, the youth
               offending team (YOT) and voluntary organisations, all of which may have come into contact
               with the individual or members of their family.
               GDRPs should consider adopting the antisocial behaviour action group (ASBAG) approach
               developed by Watford Borough Council.
               Watford’s partnership approach involves all relevant statutory and voluntary agencies and
               engages the local community in taking a stand against the perpetrators of anti-social
               behaviour.
               They have developed a problem-solving approach to issues and apply the SARA model:
               Sean for all available intelligence in relation to the anti-social behaviour issue.
               Analyse the intelligence, looking for the root cause of the problem.
               Respond with a clear action plan designed to address the behaviour.
               Assess the progress/success of the action plan on a monthly basis.
               Delivery is through the monthly multi-agency ASBAG, which includes cross-boundary
               working as required.
               Watford’s anti-social behaviour strategy allows for a range of diversionary activities and
               intervention as alternatives to enforcement, if the ASBAG agrees they are appropriate to
               effectively tackle an individual and their anti-social behaviour, such as:
               verbal warnings
               written warnings.
               acceptable behaviour contracts (ABGs);
               mentoring programmes.
               intervention programmes.
               educational programmes.
               supporting youths and their parents; and
               restorative justice (when and where appropriate for victims and localities).
               Information is exchanged between stakeholders and members of the CDRP at each monthly
               ASBAG meeting.
               This strategy works in parallel with the prolific and priority offender strategy and a
               representative from the prolific offender unit is represented on the ASBAG to avoid
               duplication of work.
               If the level of anti-social behaviour is such that the risk of further behaviour or escalation of
               behaviour is imminent, the Watford anti-social behaviour co-ordinator may convene an
               immediate action plan meeting with the police anti-social behaviour officer and a legal
               representative from Watford Borough Council acting on the ASBAG’s
               147,
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               MuiUtkins’ the application process
               behalf in the interests of managing the risk to public safety without delay.
               Watford CDRP works to the principles of the National Intelligence Model for tasking and co-
               ordination.
               Each action plan is performance-managed by the ASBAG and is subject to monitoring and
               scrutiny by quarterly feedback to the Watford responsible authority group by the Watford




                                                                                              Page 97 of 139]]></page><page Index="100"><![CDATA[Borough Council anti-social behaviour co-ordinator. The ASBAG performs a full self-
               evaluation and review every 12 months.
               Contact
               Matt Leng
               Anti-social Behaviour Coordinator Watford Borough Council Matt.Leng@watford.gov.uk
               Other considerations
               Local authorities have a duty under the NHS and Community Care Act 1990 to assess any
               person who may be in need of community care services. If there is any evidence to suggest
               that the person against whom the order is being sought may be suffering from drug, alcohol
               or mental health problems or an autistic spectrum disorder, the necessary support should be
               provided by social services or other support agencies. Such support should run parallel with
               the collection of evidence and application for an order, where an application for an order is
               deemed necessary. This ensures that the court can balance the needs of the community with
               the needs of any alleged perpetrator.
               From December 2006, provisions in the Disability Discrimination Act 2005 will come into
               force which make unlawful discrimination by a public authority in the exercise of public
               functions. There are some exemptions for listed persons and certain acts including (in broad
               terms) legislation, prosecution and judicial acts. However, the new prohibition of
               discrimination covers functions carried out, for example, by local authorities and the police.
               The definition of discrimination includes, in some circumstances, not making a reasonable-
               adjustment to the way a function is carried out. Chapter 11 of the guidance, which the
               Disability Rights Commission will issue shortly (entitled Code of Practice - Rights of
               Access: services to the public, public authority functions, private clubs and premises)
               includes advice on how the Act now impacts on those carrying out public authority functions.
               It will be available on the Commission’s website (www.drc.org.uk).
               Statutory consultation requirements
               Section IE of the Crime and Disorder Act 1998 (as amended by section 66 of the Police
               Reform Act 2002) sets out the consultation requirements for agencies applying for orders.
               These are that:
               the police and local authorities must consult each other; and
               the British Transport Police (BTP), registered social landlords, housing action trusts and any
               other person or body designated by the Secretary of State as a relevant authority must consult
               both the local authority and the police force for the area.
               Consultation takes place with the authority or force whose area includes the address where
               the subject of the order resides or appears to reside. Each district or borough council and
               police division/basic command unit should have a nominated contact. Care should be taken
               (where the local authority is the applicant) that if the subject is under local authority care
               there is no conflict of interest. They must ensure that the social worker involved in the ease is
               consulted. Where a young person is the alleged perpetrator, the YOT should be consulted.
               Consultation is required to inform the appropriate agency or agencies of the intended
               application for the order and to check whether they have any relevant information. The
               agencies must take into consideration at the earliest possible opportunity the relevant
               information necessary to apply for an individual support order or a parenting order.
               Information on these is contained in a separate section on children and young people.
               Where the partnership working arrangements recommended in earlier paragraphs are in force,
               they will normally satisfy (and exceed) the statutory requirement for consultation,
               The statutory requirement for consultation does not mean that the agencies must agree
               98
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                                                                                              Page 98 of 139]]></page><page Index="101"><![CDATA[Simon Cordell Skeleton Argument (3).pdf
               Managing the application process
               to an application being made but rather that they should be told of the intended application
               and given the opportunity to comment. This should ensure at the very minimum that actions
               taken by each agency regarding the same individual do not conflict.
               While no agency has a veto over another agency’s application for an order, the expectation is
               that any reservations or alternative proposals should be discussed carefully against the
               background of the overriding need to bring the anti-social behaviour to a speedy end. Again,
               the case conference procedure is designed to ensure that this happens.
               A signed document of consultation is all that is required by the court. This should not indicate
               whether the party consulted was or was not in agreement. This is not required by the
               legislation. Supporting statements or reports from partner agencies should be provided
               separately.
               The changes introduced by the Police Reform Act 2002 reduce bureaucracy by removing the
               need for applying agencies to consult with every local authority and police service whose
               areas are included in the order.
               In addition to the consultation requirements set out above, it may be helpful for police forces
               to contact the BTP, which may hold information on the anti-social behaviour of the subject.
               The availability of this information may assist the evidence-gathering process for an order.
               The BTP holds a national database of offenders committing summary offences (these include
               railway-specific summary offences as well as those included in Home Office counting rules).
               Police forces can request a search on a particular offender, in writing, from the Force Crime
               Registrar, British Transport Police, Force Headquarters, 15 Tavistock Place, London WC1H
               9SJ.
               Collection of evidence
               When applying for an order, the lead agency will be required to gather evidence to prove its
               ease beyond reasonable doubt. This evidence can include hearsay evidence. Further advice on
               hearsay evidence is provided later in the guidance.
               The evidence in support of an application for an order should prove:
               that the defendant acted in a specific way on specific dates and at specific places; and
               that these acts caused or were likely to cause harassment, alarm, or distress to one or more
               persons not in the same household as the defendant.
               The court then needs to evaluate whether an order is necessary to protect persons from further
               anti-social acts by the defendant. This is not a test to which a standard of proof will be
               applied. Instead, it is an assessment of future risk. The applicant can present evidence or
               argument to assist the court in making this evaluation. Witness evidence need not prove that
               they were alarmed or distressed themselves, but only that the behaviour they witnessed was
               likely to produce such an effect on others. As hearsay evidence is allowed, it may be given by
               ‘professional witnesses’ - officers of public agencies whose job it is to prevent anti-social
               behaviour. Since civil rules apply to these orders, it is unnecessary to disclose the names of
               the witnesses,
               Experience has shown that elaborate court files are not normally required or advantageous.
               Where the anti-social behaviour has been persistent, agencies should for us on a few well-
               documented cases. A large volume of evidence and/or a large number of witnesses creates its
               own problems. There is more material for the defence to contest and timetabling issues may
               increase delays in the process.
               Agencies applying for orders should strike a balance and focus on what is most relevant and
               necessary to provide sufficient evidence for the court to arrive at a clear understanding of the
               matter.
               Evidence may include:


                                                                                              Page 99 of 139]]></page><page Index="102"><![CDATA[breach of an A B C;
               witness statements of officers who attended incidents.
               witness statements of people affected by the behaviour.
               evidence of complaints recorded by the police, housing providers or other agencies.
               149,
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               Managing the application process
               statements from professional witnesses, for example council officials, health visitors or
               truancy officers.
               video or CCTV evidence (effective where resolution is high and high-quality still images can
               be used);
               supporting statements or reports from other agencies, for example probation reports.
               previous successful civil proceedings that are relevant, such as an eviction order lor similar
               behaviour.
               previous relevant convictions.
               copies of custody records of previous arrests relevant to the application; and
               information from witness diaries.
               Together campaign fact sheet
               The Together campaign has produced a fact sheet giving step-by-step guidance on evidence
               collection which is available on the website www. together.gov.uk
               Southampton shopping area blighted by anti-social behaviour
               Issue
               Lordshill centre was suffering from a large amount of anti-social behaviour, especially
               around the local supermarket. There was a substantial amount of shoplifting, criminal damage
               and harassment of visitors and shoppers. At the other end of the centre was a large bingo hall
               frequented by older patrons who were becoming increasingly afraid to go after 6pm.The
               supermarket was also shutting earlier in response to these incidents.
               Approach
               The local anti-social behaviour team’s senior investigator met with the manager of the
               supermarket, together with the local police, and discussed possible ways of working more
               closely to deal with the issues, they were provided with a log book to record all incidents and
               this was checked weekly by the anti-social behaviour investigator and the police. This
               information was then put into a schedule to identify times and dates of the issues and also the
               perpetrators. Logbooks were provided to the local library and the bingo hall, as well as the
               supermarket, in an attempt to collate a large amount of evidence. It’s Your Call’ posters were
               put up in all shops in the area and premises were visited regularly by a member of the multi-
               agency team.
               Outcome
               Because of the joint working and shared support, the stores felt able to tackle those causing
               the problem. As a result of information provided by the shops, an ASBO was obtained
               against the main perpetrator, with an exclusion from the whole shopping area.
               There was also a Crime Reduction and Environment Week in the area, and a youth project
               has been funded by the supermarket, which has also provided paint to repaint the subway.
               This has prevented graffiti reappearing. There is also a dispersal order in place now to
               complement the ASBO and the perpetrator has not returned to the area. Residents and visitors
               can now shop in peace and the supermarket is looking to invest more money in the area.
               Contact
               Jane Mieinicezek Anti-social Behaviour Manager Telephone: 023 8083 3988
               23


                                                                                             Page 100 of 139]]></page><page Index="103"><![CDATA[150,
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               ' mon Cordell Skeleton Argument (3).pdf
               Time limits
               Magistrates' courts (acting in their civil capacity)
               Under section 127 of the Magistrates Court Act 1980, a complaint must be made within six
               months of the time when the matter of the complaint (the behaviour) arose. One incidence of
               serious anti-social behaviour may be sufficient for an order to be made. Earlier incidents may
               be used as background information to support a case and show a pattern of behaviour. As
               long as the complaint is made within the six-month timeframe, a summons may be served
               outside this time period, although delay is not encouraged.
               101
               151,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Use of hearsay and professional witness evidence
               Hearsay and professional witness evidence allow for the identities of those too fearful to give
               evidence to be protected. This is especially vita! as cases often involve anti-social behaviour
               in residential areas by local people and those targeted by the behaviour feel unable to come
               forward for fear of reprisals. Hearsay evidence cannot be excluded (at the request of defence
               lawyers) simply on the grounds that it is hearsay.
               Hearsay evidence
               Evidence of anti-social behaviour which occurs at any time after the commencement of
               section H may be considered when the court considers whether or not to grant an order on
               conviction under section 1C.
               The House of Lords judgment in the McCann case confirmed that hearsay evidence is
               admissible. Lord Steyn stated that:'1
               ‘Having concluded that the proceedings in question are civil under domestic law and article
               6, it follows that the machinery of the Civil Evidence Act 1995 and the Magistrates’ Courts
               (Hearsay Evidence in Cavil Proceedings) Rules 1999 allow the introduction of such evidence
               under the first part of section 1.
               '... use of the Civil Evidence Act 1995 and the Rules in eases under the first part of section 1
               are not in any way incompatible with the Human Rights Act 1998,
               ‘... hearsay evidence will often be of crucial importance. For my part, hearsay evidence
               depending on its logical proactiveness is quite capable of satisfying the requirements of
               section 1(1).’
               It is a matter for the judge or magistrate to decide what weight they attach to hearsay
               evidence. 5 6
               Hearsay allows a police officer to provide a statement on behalf of a witness or witnesses
               who remain anonymous. Hearsay evidence must be relevant to the matters to be proved. It
               could include details such as dates, places, times, specific descriptions of actions, who was
               present and who said what.
               Hearsay can include evidence from the person taking the statement. The person giving the
               hearsay evidence may attest to the observable conditions of the witness, for example that the
               witness appeared upset, and may give evidence based on their own judgement of the
               situation.
               Where an applicant intends to rely on hearsay evidence in the county court, they must act in
               accordance with part 33 of the Civil Procedure Rules. Written notice must be given at least
               21 days before the hearing to the other party and to the court.
               Professional witnesses




                                                                                             Page 101 of 139]]></page><page Index="104"><![CDATA[Professional witnesses can be called to give their opinions as to matters within their expertise
               and can give evidence about their assessments of the respondent or his/her behaviour.
               Examples of witnesses who may be called as professional witnesses include council officials,
               health visitors, railway staff, teachers, doctors and police officers.
               Care should be taken to ensure that a professional witness does not inadvertently enable
               vulnerable or intimidated witnesses to be identified, for example from their home address.
               Vulnerable and intimidated witnesses
               Witnesses who are willing to testify in court provide the best form of evidence and, where
               possible, should be encouraged to come forward. The new provisions introduced in Section 1
               of the Crime and Disorder Act 1998 came into force on 1 April 1999, Taken from paragraphs
               35. 36 and 37 of Clingham (formerly C (a minor)) v Royal Borough of Kensington and
               Chelsea (on Appeal from a Divisional Court of the Queen's Bench Division); R v Crown
               Court at Manchester ex parte McCann (FC) and Others (FC),
               102
               152,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Simon Cordell Skeleton Argument (3).pdf
               Use of hearsay and professional witness evidence
               the Serious Organised Crime and Police Act 2005 make it easier for victims of anti-social
               behaviour to attend court and give evidence in person. The Act permits the ‘special measures’
               that were formerly reserved for criminal hearings to be used in anti-social behaviour cases.
               This will enable witnesses who wish to give direct evidence to do so in private, from behind a
               screen or by video link.
               Vulnerable witnesses are all witnesses aged under 17 years or whose quality of evidence is
               likely to be diminished because they have a mental disorder or learning disability or have a
               physical disability or physical disorder.
               Intimidated witnesses are witnessing whose quality of evidence is likely to be diminished
               because they are in fear or distress about testifying. It is for the court to decide whether the
               quality of a witness’s evidence is likely to be diminished.
               Witness development and support
               The principal purpose of an order is to protect those who directly experience antisocial
               behaviour. The protection provided should include, where necessary, those who are
               personally targeted by perpetrators, other witnesses who see this happen and the wider local
               community. It follows that engaging, developing, and supporting these individuals and
               groups of people must be a primary concern for any agency managing a case and seeking to
               use these orders. Without the initial complaint of the witness, the agency will have no
               detailed knowledge of the problem. Without their continuing engagement, there will be no
               evidence on which to build a case.
               Local strategies to promote the use of orders should have the interests of the witnesses and
               the community at their centre. The welfare and safety of residents whose complaints form the
               basis of any action must at every stage of the process be the first consideration. The use of
               hearsay evidence and professional witnesses is one way of achieving this (see section on
               hearsay evidence above).
               While professional witnesses may have a duty to engage, lay witnesses can only be expected
               to do so if they can see a point in doing it; if the agency is credible and authoritative;
               if the case work is visibly focused on the interests of the witnesses; if the order protects them
               and stops the anti-social behaviour quickly and effectively; and if the case manager offers
               them well-informed, practical personal support throughout the period of evidence collection,
               court proceedings and afterwards, as necessary.




                                                                                             Page 102 of 139]]></page><page Index="105"><![CDATA[The experience of witnesses must be given value and significance by case managers. The
               status and importance of witnesses in case development must be made clear. They should be
               provided, as appropriate, with:
               a simple method of capturing information - diaries, video/audio recording facilities and
               translation services.
               information on services and procedures - about the way witness support services work,
               service access points, telephone numbers and the name of the case manager working on the
               case.
               an active and respected role in developing the case - the case strategy should reflect their
               needs, particularly for reassurance about their safety, and they should have control over any
               information they provide, including agreeing the form in which it will be provided to the
               defence;
               protection for themselves and their family - security for door and window access, emergency
               contact equipment, panic alarms and mobile phones may all be appropriate in particularly
               serious cases.
               regular contact from the case manager, including telephone contact as agreed with the witness
               (daily, weekly, etc).
               support for any court appearance - a briefing on court procedures and what they should
               expect, the presence with them in court of the case manager, transport to and from court (if
               necessary) and a secure space separate from perpetrators in which they can wait to be called;
               and
               support after a court appearance - speedy delivery of information, copies of any orders which
               have been made and an explanation of the implications of the court decision.
               Each key witness should also be engaged in a face-to-face meeting with the agencies,
               including those who do not wish to give a statement or attend court.
               153,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Simon Cordell Skeleton Argument (3).pdf
               Use of hearsay anti professional v Unless evidence
               Agencies should publicise positive results - one way this can be done is through leaflet drops
               (these can be cost effective when targeted appropriately).
               Witness support is an area where the benefits of partnership working can be clearly seen local
               authorities and the police have different skills and resources and can combine them to give
               well-rounded support.
               Methods of supporting witnesses currently being used by agencies also include:
               enclosing a letter with the summons advising the respondent to stay away from witnesses.
               a higher police presence in the vicinity.
               giving witnesses the personal mobile telephone number of a named police officer who can be
               called if they are threatened.
               visits from neighbourhood wardens at pre-arranged times (sometimes daily); and
               phone calls from the local authority at pre-arranged times.
               The interim order enables witnesses to be protected from the outset of the court process.
               Sections 48 and 49 of the Criminal Justice and Police Act 2001 make it an offence to
               intimidate witnesses in civil proceedings such as those for ASBOs.
               Improving protection of witnesses in court
               Manchester City Council protects witnesses
               Issue
               Witnesses felt anxious about giving evidence. Their concerns included the prospect of
               appearing in court, coming face to face with defendants and being threatened by defendants
               at the court building, as well as uncertainties about waiting room and refreshment facilities.


                                                                                             Page 103 of 139]]></page><page Index="106"><![CDATA[Approach
               Manchester City Council negotiated the following arrangements with local courts for anti-
               social behaviour cases:
               access to a quiet room for witnesses.
               a video link for perpetrators in prison where it would be expensive to bring them back for an
               ASBO or injunction hearing (this also has the benefit of being less stressful for the
               witnesses).
               a video link for children and young people; and
               police presence, where appropriate.
               In addition, the council provides practical information and support to witnesses.
               They are made aware of what to expect, including the court layout, where they and the
               defendant(s) will be sitting and how people will be dressed. Practical support also includes
               transport to and from the court, being met by a council officer on arrival and information
               about refreshment and bathroom facilities.
               Outcome
               The result has been reassurance and physical security for witnesses. This has led to a
               reduction in the anxiety about the prospect of appearing in court or accidentally meeting a
               defendant. Witnesses are better able to focus on the ease. The ease manager is also able to
               keep witnesses informed of progress and to manage the case more effectively.
               Contact
               Nuisance Strategy Group Telephone: 0161 234 46l 1
               154,
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               Simon Cordell Skeleton Argument (3).pdf
               Information sharing
               Section 115 of the Crime and Disorder Act 1998 empowers any person to disclose
               information, where necessary or expedient for the purposes of the Act, to a ‘relevant
               authority’, namely a chief officer of police, police force, local authority, probation service or
               health authority, or to a person acting on their behalf. Where the agency requesting the
               information clearly needs it for the purposes of reducing anti-social behaviour, the
               presumption should normally be that it will be supplied.
               As a result of the findings of the Crime and Disorder Act review, the Police and Justice Bill
               before Parliament seeks to strengthen section 115 of the Crime and Disorder Act further.
               For example, the power to disclose personal information has not changed but it places a duty
               on relevant authorities to share depersonalised data which is relevant lor community safety
               purposes and already held in a depersonalised format.
               Information sharing and registered social landlords
               A ‘relevant authority’ (as defined by section 115 of the Crime and Disorder Act 1998) may
               disclose information to a registered social landlord where the landlord is acting on behalf of
               the relevant authority for the purposes of the provisions of the Act.
               In order to be ‘acting on behalf of the relevant authority, the person or body so acting must
               have authority and must have consented to do so. Such authority may be given in writing or
               orally. Authority may also be implied from the conduct of the parties or from the nature of
               employment. Authority may be confined to a particular act or be general in its character. If
               authority is general, then it will that be confined to acts that the relevant authority itself has
               power to do.
               Information sharing protocols
               It may be useful for partners to negotiate information sharing protocols, examples of which
               can be obtained from the Home Office Information Sharing Team at
               informationsharing@homeoffice.gsi.gov.uk


                                                                                             Page 104 of 139]]></page><page Index="107"><![CDATA[www.crimereduction.gov.uk/ information sharing
               If possible, the protocol should be published, so that the public can see that information is
               being shared in an appropriate way.
               The model protocol can be accessed at www.crimereduction.gov.uk/infosharing.htm
               Information sharing issues can also be discussed with the Information Commissioner’s
               Office, whose website (www.ico.gov.uk) gives further details.
               105
               155,
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               Simon Cordell Skeleton Argument (3).pdf
               The terms of the order (the prohibitions)
               The role of the agencies
               Although it is for the court to decide what prohibitions are to be imposed by the order, the
               applicant agency should propose conditions (including duration) to the court.
               A full order should be drawn up using the form in the court rules. The courts find it helpful if
               applicants can ensure that they are equipped to amend and print off the final version of the
               order at the end of the hearing. This improves efficiency and helps ensure that the defendant
               leaves the court with a clear understanding of the prohibitions.
               In the county court, the proposed order should accompany the application. The process for
               the county court is set out in the Practice Direction at Appendix B.
               Where the order is made on conviction in criminal proceedings, an agency concerned in the
               case, such as the police, may propose prohibitions or the court may draw them up of its own
               volition. It should be noted that the order may not impose positive requirements, only
               prohibitions.
               Careful thought needs to be given to the formulation of the conditions so they cannot be
               easily circumvented and can be easily understood by the perpetrator.
               The prohibitions
               The prohibitions:
               should cover the range of anti-social acts committed by the defendant.
               should be necessary for protecting person(s) within a defined area from the anti-social acts of
               the defendant (but, as a result of the recent changes, that defined area may be as wide as
               necessary and could in appropriate cases include the whole of England and Wales);
               should be reasonable and proportionate.
               should be realistic and practical.
               should be clear, concise, and easy to understand.
               should be specific when referring to matters of time if, for example, prohibiting the offender
               from being outside or in particular areas at certain times.
               should be specific when referring to exclusion from an area, including street names and clear
               boundaries such as the side of the street included in the order (a map with identifiable street
               names should also be provided).
               should be in terms that make it easy to determine and prosecute a breach.
               should contain a prohibition against
               inciting/encouraging others to engage in anti-social behaviour.
               should protect all people who are in the area covered by the order from the behaviour (as well
               as protecting specific individuals).
               may cover acts that are anti-social in themselves and those that are precursors to a criminal
               act, for example a prohibition on entering a shopping centre rather than on shoplifting.
               may include a general condition prohibiting behaviour which is likely to cause harassment,
               alarm and distress, but where this is done there must be further clarification of what type of
               behaviour is prohibited; and


                                                                                             Page 105 of 139]]></page><page Index="108"><![CDATA[may include a prohibition from approaching or harassing any witnesses named in the court
               proceedings.
               Examples of AS BO prohibitions can be found on the Crime Reduction website at
               www.crimereduction.gov.uk
               The courts
               The absence of a precise definition of antisocial behaviour within the legislation means that
               orders can be used to tackle a wide range of behaviour. In recent years, courts have imposed
               orders to prevent behaviour such as joyriding, verbal abuse, vandalism, begging,
               156,
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               Simon Cordell Skeleton Argument (3).pdf
               The terms of the order (the prohibitions)
               drinking underage and assault. While the proceedings and the making of the order itself can
               curb behaviour, the extent to which the order succeeds also depends on the prohibitions
               imposed, which in turn require effective wording.
               ft is good practice for the applicant to provide a draft of the prohibitions sought, but the final
               wording of the order will be a matter for the court. Problems have arisen when prohibitions
               have been drafted too widely or in such ways that enforcement is made difficult, if not
               impossible. Guidance and genera! principles on drafting prohibitions have come from
               legislation, case law and shared best practice. The following section draws together these
               principles and provides suggestions and comments for consideration.
               There is now a requirement for the court to set out its findings of fact in relation to antisocial
               behaviour on the face of the order, following the cases of Wadmore and Foreman.
               Effective prohibitions
               If the conditions for making an order are met, the court may make an order which prohibits
               the defendant from doing anything described in the order (section 1(4) Crime and Disorder
               Act 1998 (CDA)). The facts leading to the order should be recorded and the court should
               provide its reasons for making the order (C v Sunderland Youth Court [ 2003 J EWHC
               2385).
               The effect of the order should be explained to the defendant and the exact terms pronounced
               in open court. Most courts now have a practice of serving the defendant with a copy of the
               court order before he or she leaves court and may also require his or her acknowledgement.
               The order should set out in full the anti-social behaviour in relation to which the order was
               made (7? v Shane Tony P
               EWCA Grim 287).
               Once the court has decided that the order is necessary to protect persons from further anti-
               social acts by the defendant, the court must then consider what prohibitions arc appropriate to
               include. Each order and therefore prohibition will need to be targeted to the individual and
               the type of anti-social behaviour it is to prevent.
               The prohibitions that may be imposed are those necessary to protect persons from further
               anti-social behaviour by the defendant (section 1 (6) CDA) and must not impose positive
               obligations. Therefore, each prohibition must be:
               negative in nature.
               precise and target the specific behaviour that has been committed by the defendant.
               proportionate to the legitimate aim pursued and commensurate with the risk to be guarded
               against, which is particularly important where an order may interfere with an ECHR right (7?
               v lioness [2005] EWCA 2395); and expressed in simple terms and easily understood.
               Identification of some of the best practice used within the courts suggests that the following
               issues should be borne in mint! when formulating prohibitions:




                                                                                             Page 106 of 139]]></page><page Index="109"><![CDATA[A court should ask itself before making an order are the terms of this order clear so that the
               offender will know precisely what it is, he or she is prohibited from doing?’ (R v lioness
               |2005| EWCA 2395).
               Less common phrases such as ‘curtilage’, ‘paraphernalia’ or ‘environs’ should be avoided as
               they may cause confusion.
               Can it be enforced? Those who will enforce the order must be able to identify and prove a
               breach.
               Are any excluded areas clearly delineated? Most courts require a map to be included and it
               may be necessary to delineate which side of the road forms the boundary. If a line is drawn
               down the middle of a road, there may be arguments as to which side of the road the defendant
               was standing.
               Does the prohibition clearly identify those whom the defendant must not contact or associate
               with?
               Where the defendant is a foreign national, some courts consider it good practice for the order
               to be translated into the native tongue.
               testing the prohibition by considering ways in which it could be breached may highlight its
               limitations (7? v McGrath EWCA Crim 353).
               There is no requirement that the acts prohibited by an order should by themselves give rise to
               harassment, alarm, or distress (7? v McGrath [20051 EWCA Crim 353).
               157,
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               Simon Cordell Skeleton Argument (3).pdf
               * Curfews are substantially prohibitive and, while also a sentence of the court, there is
               nothing legally objectionable to a curlew as a prohibition if the necessary protection of the
               public justifies its inclusion (7? (Lonergan) v Lewes Crown Court [2005] EWHC 457
               (Admin)).
               A prohibition can prohibit behaviour that is in any event unlawful, although previously the
               courts have encouraged inclusion of comparatively minor offences only (R v Shane Tony P
               [2004] EWCA Crim 287). However, recently the Court of Appeal has indicated that
               prohibiting behaviour that is in any event a crime does not necessarily address the aim of an
               order, which is to prevent anti-social behaviour. Prohibitions should enable agencies to act
               before the anti-social behaviour takes place rather than waiting for a crime to be committed
               (R v Bones [2005] EWCA 2395). Therefore, bail conditions provide a useful analogy when
               considering what prohibitions to impose.
               The Court of Appeal provided some hypothetical examples by way of guidance.
               If faced with a defendant who causes criminal damage by spraying graffiti, then the order
               should be aimed at facilitating action to be taken to prevent graffiti spraying by him before it
               takes place. For example, the prohibition could prevent the offender from being in possession
               of a can of spray paint in a public place, giving an opportunity to take action in advance of
               the actual spraying. This makes it clear to the defendant that he has lost the right to carry such
               a can for the duration of the order.
               If a court wished to make an order prohibiting a group of youngsters from racing cars or
               motor bikes on an estate or driving at excessive speed (anti-social behaviour for those living
               on the estate), then the order should not (normally) prohibit driving while disqualified. It
               should prohibit, for example, the offender while on the estate from taking part in, or
               encouraging, racing, or driving at excessive speed. It might also prevent the group from
               congregating with named others in a particular area of the estate. Such an order gives those
               responsible for enforcing the order on the estate the opportunity to take action to prevent the
               anti-social conduct before it takes place. Neighbours can alert the police, who will not have to
               wait for the commission of a particular criminal offence.


                                                                                             Page 107 of 139]]></page><page Index="110"><![CDATA[The order will be breached not just by the offender driving but by his giving encouragement
               by being a passenger or a spectator.
               The court also seemed to leave open the door for the continued use of a prohibition to prevent
               conduct that also amounts to an existing offence which carries only a monetary penalty, for
               example loitering for the purpose of prostitution. The court should not impose such a
               prohibition merely to increase the sentence for the offence but must go through all the steps
               to make sure that an order is necessary.
               Further details can be found on the Together website at www.together.gov.uk
               Length of prohibitions
               In R (lonergan) v Lewes Crown Court [2005] EWHC 457 (Admin), Maurice Kay LJ referred
               to the duration of prohibitions, saying:
               A curfew for two years in the life of a teenager is a very considerable restriction of freedom.
               It may be necessary, but in many cases I consider it likely that either the period of curfew
               could properly be set at less than the full life of the order or that, in the light of behavioural
               progress, an application to vary the curfew under section 1(8) might well succeed.’
               Consequently, just because an order must run for a minimum of two years, it does not follow
               that each and every prohibition within the order must endure for the life of the order. This
               approach was endorsed by the Court of Appeal in R v Bones [2005] EWCA 2395 which
               considered that it might be necessary to amend or remove a prohibition after a period of time,
               for example if the defendant started work.
               ASBOs on juveniles should be reviewed yearly, and further details are given on page 45.
               Targeting specific behaviour
               As noted above, prohibitions must target the defendant’s specific anti-social behaviour.
               But assuming the prohibitions are negative, specific and enforceable, the appropriateness of
               108
               158,
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               Simon Cordell Skeleton Argument (3).pdf
               The ter nix of the order (the prohibitions)
               the prohibitions imposed can be judged only on the facts of each case. Therefore, a number of
               common scenarios are included below for consideration, these are based on orders made by
               the courts, although facts and prohibitions have been altered to highlight specific issues.
               While these types of behaviour have been made the subject of orders, this should not imply
               that such behaviour will automatically be held to be subject to orders in the future.
               Further examples of prohibitions can be found on the Crime Reduction website at
               www.crimereduction.gov.uk
               The following are examples of prohibitions that were drawn up but were found to be too wide
               or poorly drafted:
               Not to be a passenger in or on any vehicle, while any other person is jsic] committing a
               criminal offence in England or Wales.
               (A breach could be occasioned by travelling in a bus, the driver of which, unknown to the
               subject of the order, was driving without a licence (R (W) v Acton Magistrates’ Court [2005]
               EWHC 954 (Admin)).
               Not to associate with any person or persons while such a person or persons is engaged in
               attempting or conspiring to commit any criminal offence in England or Wales. (A similar
               result to the above, in that he could be associating with someone who, unknown to him, was
               conspiring to commit an offence.)
               Entering any other car park, whether on payment or otherwise, within the counties of |...].
               (This was considered to be too draconian as it would prevent the defendant from entering,
               even as a passenger, any car park in a supermarket (R v McGrath [2005] EWCA Crim 353).)


                                                                                             Page 108 of 139]]></page><page Index="111"><![CDATA[Trespassing on any land belonging to any person, whether legal or natural, within those
               counties. (As above, in that any wrong turn onto someone else’s property would risk
               custody.)
               Having in his possession in any public place any window hammer, screwdriver, torch or any
               tool or implement that could be used for the purpose of breaking into motor vehicles.
               (Unacceptably wide, as the meaning of any tool or implement’ is impossible to ascertain.)
               ° Entering any land or building on the land that forms a part of educational premises, except
               as an enrolled pupil with the
               agreement of the head of the establishment or in the course of lawful employment.
               (It was held that the term ‘educational premises’ lacked clarity, for example it could have
               included teaching hospitals or premises where night classes were held. Also, there was a
               danger that the defendant might unwittingly breach the order if he played on playing fields
               associated with educational premises (R v lioness [2005] EWCA 2395).)
               In any public place, wearing, or having with you, anything that covers, or could be used to
               cover, the face or part of the face this will include hooded clothing, balaclavas, masks or
               anything else that could be used to hide identity. (This was found to be too wide and a breach
               could occur by wearing a scarf or carrying a newspaper.)
               Doing anything that may cause damage.
               (Far too wide, as it may include the defendant scuffing his shoes.)
               Committing any criminal offence. (Taken with other prohibitions, the divisional court
               commented that this was very plainly too wide (R (on application of W) v DPP [2005]
               EWHC 1333 (Admin).)
               Further examples and consideration of prohibitions made for football-related violence may be
               found in the ease of (R v lioness [2005] EWCA 2395).
               Duration of an order
               The minimum duration of an order is two years, which was set in order to give respite to
               communities from anti-social behaviour. There is no maximum period and an order may be
               made for an indefinite period. It is for the court to decide the duration of an order, but the
               applicant agency should propose a time period as part of its application.
               The duration applied for should take into account the age of the recipient, any special
               conditions that might affect their behaviour, the severity of his or her anti-social behaviour,
               the length of time it has gone on for and the recipient’s response to any previous measures to
               deal with the behaviour. A longer order will generally be appropriate in the case of more
               serious or persistent anti-social behaviour. Orders issued to children and young people should
               be reviewed annually and careful consideration must be given to the case for applying for
               such orders to last beyond two years.
               159,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Applying to the courts
               Summons’s procedure
               Magistrates’ court (acting in its civil capacity)
               The lead individual in charge of the case should arrange for an application form and three
               copies of the summons form to be completed and served upon the court. Once these
               proceedings have been issued, the applicant should serve the defendant with the following:
               1. the summons.
               2. a copy of the completed application form.
               3. documentary evidence of statutory consultation.
               4. guidance on how the defendant can obtain legal advice and representation.
               5. notice of any hearsay evidence.




                                                                                             Page 109 of 139]]></page><page Index="112"><![CDATA[6. details of evidence in support of the application as agreed with the applicant agency’s
               solicitor; and
               7. a warning to the defendant that it is an offence to pervert the course of justice, and that
               witness intimidation is liable to lead to prosecution.
               Wherever possible, the lead officer in charge will ensure that service of the summons is made
               on the defendant in person. If personal service is not possible, the summons should be served
               by post as soon as possible to the last known address.
               Where a child or a young person is concerned, a person with parental responsibility must also
               receive a copy of the summons. This could be a local authority social worker in the case of a
               looked-after child as well as, or instead of, the parent. (’Parent’ has the same meaning as
               under section 1 of the Family Law Reform Act 1987, and ‘guardian’ is defined in section 107
               of the Children and Young Persons Act 1933.)
               The summons forms are set out within the Magistrates’ Courts (Anti-Social Behaviour
               Orders) Rules 2002. See Appendix D.
               County court
               The process for the county court is set out in the Practice Direction of the updated Civil
               Procedure Rules at 65.21 -65.26.
               Disclosure
               Before evidence is disclosed, the applicant should consult the police and other agencies to
               ensure that all reasonable steps have been taken to support witnesses and minimise any
               potential for witness intimidation. Evidence should not be disclosed without the express
               permission of the witness. However, evidence that is not disclosed cannot be relied on.
               The applicant should seek to maintain witness anonymity and ensure that it does not identify
               them by default (for example through details of location, race, personal characteristics or
               age).
               Court procedures
               It is important that those hearing the case are fully briefed on the purpose of an order. There
               should be no confusion as to the purpose of the order, which is to protect the community.
               Where the case concerns a child, the welfare of the child is, of course, to be considered, and
               indeed the making of the order should contribute to this by setting standards of expected
               behaviour. But the welfare of the child is not the principal purpose of the order hearing.
               Whether or not the subject of the application is present, the court should be asked to make the
               order. Adjournments should be avoided unless absolutely necessary.
               Magistrates’ court (acting in its civil capacity)
               An application for an order in the magistrates’ court is made by complaint. This means that
               the court will act in its civil capacity. The provisions governing civil applications for
               110
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               Applying to the courts
               orders in magistrates’ courts are set out in the Magistrates' Courts Act 1980.
               The application, under section 1(3) of the Crime and Disorder Act 1998, should be made to
               the magistrates’ court whose area includes the local government area or police area where
               people need to be protected from the anti-social behaviour.
               The lead officer in charge of the case should ensure that all the evidence and witnesses are
               available at the hearing, including evidence in support of any need for the court to make an
               immediate order.
               Under section 98 of the Magistrates’ Courts Act 1980, evidence will be given on oath. Any
               magistrate or judge may hear the case.




                                                                                             Page 110 of 139]]></page><page Index="113"><![CDATA[Where a defendant fails to attend a hearing, the applicant may, after substantiating the
               complaint on oath, apply to the court to issue a warrant for the defendant’s arrest. Various
               provisions for adjournment, non-attendance at court and the issue of a warrant for arrest are
               contained in sections 54 to 57 of the Magistrates’ Courts Act 1980.
               County court
               An application for an order in the county court must be made in accordance with the
               procedure set out in the Practice Direction at Appendix B.
               Where the applicant is the claimant in the principal proceedings, the application for the order
               should be included in the claim form. Where the applicant is the defendant in the principal
               proceedings, the application should be made by way of an application notice,
               How to prepare a court tile for an application
               A file to support the application for an order should be prepared by the lead agency or the
               solicitor acting on their behalf.
               A minimum of eight identical court bundles will be required as follows.
               three for the magistrates.
               one for the legal adviser.
               one for the applicant’s solicitor.
               one for the defence solicitor.
               one for the defendant; and
               one for the witness box.
               The files are in loose-leaf format (in an A4 ring binder) and should be indexed and paginated.
               The index and contents should include, as appropriate:
               the summons for the order, together with proof of service.
               the application for the order (in the format provided by the Magistrates’ Court (Anti-Social
               Behaviour Orders) Rules 2002);
               the defendant’s details.
               the defendant’s previous convictions.
               the defendant’s acceptable behaviour contract (ABC) agreements.
               a summary of the incidents being relied upon by the applicant.
               1. a map and description of the exclusion area.
               2. an association chart (showing relationships and connections where the alleged anti-social
               behaviour is by a group of people).
               3. documentation of statutory consultations.
               4. supporting statements from any multiagency consultation.
               5. a statement from the officer in the case.
               6. any other statements obtained.
               7. hearsay notices.
               8. a draft order for approval by the court; and
               9. a home circumstances report where the subject of the order is a child or young person (if
               necessary and completed).
               The bundle should be prepared and served on the solicitor for the defendant as soon as the
               summons is served. The applicant’s solicitor should attempt to have the contents of the
               bundle agreed prior to any pre-trial review. Disclosure should be transparent and complete.
               Contact
               Niamh No one, Lancashire Constabulary
               Email: niamh.noone@lancashire.police.uk
               Telephone: 01772 412919
               161,
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               Applying to the courts


                                                                                             Page 111 of 139]]></page><page Index="114"><![CDATA[which should accompany the defence. If the applicant is not a party to the principal
               proceedings, an application to be had a party and for the order must be made to the court in
               the same application notice.
               Orders made on conviction in criminal proceedings
               After a defendant has been convicted of an offence, the prosecutor may make an application
               for an order. Alternatively, the court may make an order of its own volition.
               Orders on conviction can be made by the magistrates’ court, the youth court or the Crown
               court. The form of these orders is set out in the Magistrates’ Court Rules and the Crown
               Court Rules. An order may be made only if the court sentences or conditionally discharges
               the offender for a relevant offence.
               The Crown Prosecution Service usually requests the court to make an order on conviction, as
               there is no formal application process for this order. The court has to consider that:
               • the offender has acted in an anti-social manner, that is 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
               the offender; and
               • an order is necessary to protect any persons in any place in England and Wales from further
               anti-social acts by him.
               • Evidence
               • Evidence should explain to the court the context of the anti-social behaviour and its effect
               on other people. It can include:
               • direct witness statements.
               The head of a noisy household gets an ASBO for ignoring repeated official warnings and
               threatening complaining neighbours and council officers
               Issue
               In March 2004, neighbours of a house in Lowestoft were subjected to frequent and persistent
               loud music, resulting in 17 complaints over the course of a month. The perpetrator, who was
               a housing association tenant, had intimidated, threatened, and verbally abused her
               neighbours, council officers and visitors.
               Approach
               A noise abatement notice was served on the perpetrator by environmental health officers
               under section 80 of the Environmental Protection Act 1990. Audio equipment was
               confiscated following breach of the noise abatement notice. During the confiscation, the
               perpetrator verbally abused the council officers.
               After seven warning letters, two abatement notices and the confiscation of more than £1,000
               of musical equipment, the council was still receiving complaints.
               Failure to comply with an abatement notice without reasonable excuse is an offence, and the
               noisy neighbour was taken to court. The council consulted Suffolk Police and the
               housing association and proposed terms for an order on conviction that achieved much more
               than the original abatement notice was capable of.
               The magistrates granted the council’s application for an order on conviction with the
               following prohibitions:
               • not to play loud music that could be heard outside her dwelling; and
               • not to verbally (or otherwise) abuse: employees or agents of the council; neighbours; or
               visitors to the neighbourhood.
               Outcome
               The order on conviction had several advantages over the noise abatement notice as an
               enforcement tool. It was easier to enforce as the evidence of experts such as environmental
               health officers to prove statutory noise nuisance would not be required. The order on
               conviction reduced the test of compliance to a simple (nonexpert) factual observation of




                                                                                             Page 112 of 139]]></page><page Index="115"><![CDATA[audibility’ beyond the confines of the defendant’s dwelling - a simple matter of observable
               fact that, say, a police officer could witness.
               113
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               Applying to the courts
               The second prohibition to deal with the tenant’s threatening and abusive behaviour was
               beyond the scope of the original abatement notice. It was granted as the council was able to
               produce evidence of the tenant’s behaviour to justify the restriction gained from early
               consultations with Suffolk Police and the housing association, which proved it was a
               reasonable restriction to impose on the defendant.
               The resulting order on conviction did not cost any more than the noise prosecution would
               have cost on its own. Obtaining these restrictions in this way avoided the need for a stand-
               alone ASBO application in respect of the other aspects of the defendant’s behaviour, saving
               money, avoiding several weeks' delay, and achieving faster and more readily enforceable
               relief for the wider community.
               Valuable lessons were learnt by environmental health and other enforcement authorities in
               this action.
               In particular, early consultation with relevant agencies in the process of investigation and
               enforcement are important to an ASBO’s success. And if the applicant for an order offers the
               other relevant agencies the opportunity to assist in drafting appropriate prohibitions, a
               successful outcome, which offers relief for the community ‘on all fronts’, is more likely.
               Contact
               Andrew Reynolds, Principal Environmental Health Officer, Waveney District Council
               Telephone: 01502 562111
               professional witness statements.
               hearsay evidence.
               CCTV footage.
               letters of complaint (including anonymous complaints) to the police, the council or a
               landlord.
               articles in the local press.
               the number and nature of the charges against the defendant.
               the defendant’s character and conduct as revealed by the evidence.
               the content of the victim’s personal statement.
               other offences that have been taken into consideration (TICs);
               details of final warnings or previous convictions.
               the risk assessment in any pre-sentence report.
               records of any non-compliance with other interventions, e.g., ABCs or warnings; and
               the community impact statement (CIS).
               A CIS can be written by a caseworker (such as a housing officer or community safety officer)
               and/or by the local police. The purpose of a CIS is to outline the effect the anti-social
               behaviour is having on the wider community in a way that is clear and concise for the judge’s
               consideration. In certain circumstances, some elements of evidence, such as hearsay, CCTV
               footage and letters of complaint, can be put in a (Vis.
               Adjournments
               Section 1.0(3) of the Magistrates’ Courts Act 1980 permits adjournments to be made after
               conviction and before sentence to enable enquiries to be made or, in this context, to
               determine the most suitable way of dealing with an application for an order under section 1C
               of the Crime and Disorder Act 1998.Where the court adjourns and delays sentencing to
               consider the order, it can impose bail conditions in the normal manner.


                                                                                             Page 113 of 139]]></page><page Index="116"><![CDATA[Section 139 of (he Serious Organised Crime and Police Act 2005 has amended section 1C of
               the Crime and Disorder Act 1998 to allow lor adjournments after sentencing the offender for
               the purpose of considering an order. Powers are also available to compel a defendant to return
               to court after sentencing to attend the adjourned hearing.
               interim orders on conviction
               An interim order on conviction can be sought to protect vulnerable witnesses and
               communities from threats of violence, intimidation and further anti-social behaviour by the
               defendant pending the hearing of an application for a full order. This change to the Crime and
               Disorder Act 1998 was also introduced by section 139 of the Serious Organised Crime and
               Police Act 2005. For more information on interim orders, see the
               163,
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               Applying to the courts
               article ‘What are interim anti-social behaviour orders?’ on the Together website at www.
               together, gov.uk
               Step-by-step guide
               A step-by-step guide to the process can be found at Appendix E.
               Public funding for defendants
               A guide to public funding for defendants can be found at Appendix F.
               164,
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               Simon Cordell Skeleton Argument (3).pdf
               •  Children and young people
               The Home Office, Youth Justice Board and Association of Chief Police Officers have issued
               separate guidance on the role of the youth offending team (YOT) in dealing with anti-social
               behaviour.7 There is also separate guidance on the interventions available for children under
               10 at Appendix B.
               This section sets out the procedures for applying for ASBOs and similar orders in respect of
               children and young people, and the procedures for managing the case afterwards.
               Who can apply for an order?
               Agencies able to apply for orders are the same as those for adults, and the consultation
               requirements are the same.
               The role of the YOT needs to be clearly set out in terms of what it can offer in the prevention
               of anti-social behaviour, and in the ASBO process. All other agencies should involve the
               YOT in any consideration of an order at an early stage as it is likely to have much
               information to share about that young person. The YOT has a responsibility to prevent crime
               and anti-social behaviour by young people, and should help partners to obtain an order to stop
               the behaviour continuing where it is deemed appropriate.
               If there are any doubts about the option of obtaining an order, these should be explored at an
               early stage with the YOT and other partners, rather than in court. The YOT can also have a
               role in explaining the conditions of an order to the young person and their parents, explaining
               the impact of that person’s behaviour on the community, and making it dear that the order is
               the consequence of that behaviour. In addition, the YOT and other partners should offer
               support in order to aid compliance.
               In cases of a breach of an order, the pre-sentence report (PSR) provided to the court by the
               YOT should outline the impact title behaviour has had on the community.
               The YOT can also use the PSR in criminal proceedings to recommend an order on conviction
               where that course of action has been agreed and deemed appropriate.
               The PSR should also address the issue of parenting and further support to the young person.
               Courts can make a parenting order with an ASBO or similar order, if a voluntary approach


                                                                                             Page 114 of 139]]></page><page Index="117"><![CDATA[has failed and it will help improve behaviour, together with an individual support order
               (ISO). The YOT has a key role in both of these interventions. Details on these are set out
               below,
               Applications to the magistrates’ court acting in its civil capacity
               Since the youth court has no civil jurisdiction, applications for orders against under-18s will
               be heard by the magistrates’ court (except where the youth court is asked to impose an order
               on conviction). A pilot to allow children and young people to be joined to proceedings in the
               county court, for the purpose of obtaining an ASBO where the anti-social behaviour is
               material to the principal proceedings, is currently under way in 11 county courts and is due to
               run until September 2006.
               The officer in charge of the application should contact the justices’ clerk in advance of the
               hearing to ensure that it will be conducted in a way that is suitable for the child or young
               person.
               Where there is an application to a magistrates’ court lor an ASBO under section 1 of the
               Crime and Disorder Act 1998, or an application to a magistrates’ court for an ASBO to be
               varied or discharged under section 1(8) of the Act, and the person against whom the order is
               sought is under 18, the justices constituting the court should normally be qualified to sit in the
               youth court.
               Unlike a youth court, which is closed to the general public, the magistrates’ court is Youth
               Justice Board, Home Office and Association of Chief Police Officers (2006), Antisocial
               Behaviour: A guide to the role of Youth Offending Teams in dealing with antisocial
               behaviour. This can be downloaded at
               www.youthjuslice board.gov.uk/Publication’s/Scnpts/pro(IView.asp?icfproduct=212&ep =
               165,
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               Children and young people
               Dealing effectively with persistent young perpetrators in Norfolk
               Issue
               Improved partnership working between the police and the YOT was key to effectively
               tackling anti-social behaviour by young people.
               Approach
               Regular liaison meetings of YOT and youth inclusion and support panel (YISP) staff were
               held at the Safer Communities Unit. Community reparation projects were planned which
               impacted on sensitive communities or resonated with vulnerable members of the community.
               Police officers forged contact with youth groups and educational centres. Part of the action
               plan required YISP workers to attend a police tasking and co-ordination meeting.
               Outcomes
               The YOT discussed, and was helpful to and supportive of, community reparation
               projects that added to increased public reassurance. Work commissioned included graffiti
               clearance in priority areas, and the cleaning of home Watch’ street signs that were covered in
               algae, and where householders were elderly and not able to carry out that work. Two
               respected local officers maintained their links with a local community youth project through a
               weekly radio broadcast. On the Beat1, on the first community radio station in Norfolk. The
               Safer Communities inspector became a member of the steering group of that project.
               Community team officers enjoyed good relations with the Excellence Centre, a unit for
               excluded or disengaged children of school age, as evidenced by the support of the centre
               manager for the Constabulary’s recent ‘Chartermark’ award.
               Contact
               Inspector Peter Walsh
               Email: walshp@norfolk.pnn.police.uk


                                                                                             Page 115 of 139]]></page><page Index="118"><![CDATA[open to the general public and has no automatic restrictions to prevent public and press
               access or to prevent reporting of the proceedings or to protect the identity of a child or young
               person (or adult) who is the subject of an application.
               The court should have a good reason, aside from age alone, to impose a discretionary order
               under section 39 of the Children and Young Persons Act 1933 to prevent the identification of
               a child or young person concerned in the proceedings.
               The applicant may resist a call from the defendant’s representatives for such restrictions if the
               effectiveness of the ASBO will largely depend on the wider community knowing the details.
               The applicant should note the following.
               Under section 98 of the Magistrates’ Courts Act 1980, evidence will be given on oath, except
               the evidence of a child under 14 years of age, which is given unsworn.
               Section 34A of the Children and Young Persons Act 1933 requires the attendance of a parent
               or legal guardian at court for any person under 16 years of age. Every effort should be made
               before a hearing to ensure that this takes place to avoid unnecessary adjournments.
               The court will require information about the child’s or young person’s background, home
               surroundings and family circumstances. Such information should be available to avoid the
               need for an adjournment.
               Assessment of needs
               When applying for an order against a young person aged between 10 and 17, the YOT should
               make an assessment of their circumstances and needs. This will enable the local authority to
               ensure that the appropriate services are provided for the young person concerned and for the
               court to have the necessary information about them.
               It is vital that any assessment does not delay the application for an order. The lead agency
               should therefore liaise closely with the local social services department or YOT from the start
               of the process so that, where a new assessment is required, it can be begun quickly. In some
               cases an up-to-date assessment may already be available.
               3
               166,
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               Children and young people
               Councils with social services responsibilities have a duty, arising from section 17 of the
               Children Act 1989, to safeguard and promote the welfare of children within their areas who
               may be in need the assessment of the needs of such children is expected to be carried out in
               accordance with the Framework for the assessment of children in need and their families?
               The guidance sets out the content and timescales of the initial assessment (seven working
               days) and the core assessment (35 working days). A core assessment is required when an
               initial assessment has determined that the child is in need. The assessment will cover the
               child’s needs, the capacities of their parents and wider family, and environmental factors.
               This enables councils to determine whether the child is a ‘child in need’ and what services
               may be necessary in order to address the assessed needs.
               The assessment of the child’s needs should run in parallel with evidence gathering and the
               application process. Statutory agencies, such as social services, the local education authority
               or the health authority, have a statutory obligation to provide services to under-18s.They
               should do so irrespective of whether an ASBO application is to be made and the timing of
               that application. The ASBO application does not prevent such support and can proceed in
               parallel, or indeed prior to, that support.
               Parenting orders
               This section should be read in conjunction with Government guidance on parenting contracts
               and parenting orders. ’There is also information on the Together website
               (www.together.gov.uk).The applicant for parenting orders is the YOT. (Provisions in the


                                                                                             Page 116 of 139]]></page><page Index="119"><![CDATA[Police and Justice Bill currently before Parliament aim to extend to registered social
               landlords and local authorities the power to apply lor parenting orders.)
               Parenting orders are available alongside other court action where:
               an ASBO or a sex offender order has been made in respect of a child or young person; or a
               child or young person has been convicted of a criminal offence.
               Parenting orders can be made for children aged between 10 and 17 provided that the
               conditions in section 8 of the Crime and Disorder Act 1998 are not. This section stipulates
               that a parenting order is desirable only if it is made ‘in the interest of preventing repetition of
               the behaviour which led to the order being made.’
               The court can decide to make the order; it is not necessary to obtain the consent of the parent
               or guardian.
               It is essential that parents and guardians take responsibility for the behaviour of their
               children. If an ASBO or an order on conviction is made against a child or young person, the
               court must also consider making a parenting order in respect of the parents or guardians of
               the child or young person. Where the parent or child has a disability, a practitioner with
               specialist knowledge should be involved in the assessment process to help establish whether
               the behaviour is a result of disability and whether it could or should be addressed.
               Parenting orders are civil orders that help to engage parents8 9 10 11 to address their child’s
               offending or anti-social behaviour, and to establish discipline and build a relationship with
               their child. This may help the conditions of the ASBO to be met and thereby reduce the
               chances of the young person breaching the order.
               The parenting order requires the parent or guardian to comply, for a period of not more than
               12 months, with such requirements as are specified in the order, being those which the court
               considers desirable in the interests of preventing any repetition of the anti-social behaviour
               (for example ensuring that the Department of Health (2000) Framework for the assessment
               of children in need end their families.
               Home Office, Youth Justice Board, Department for Constitutional Affairs. Parenting
               Contracts and Orders Guidance, February 2004.
               Provision for parenting orders is set out in sections 8, 9 and 10 of the Crime and Disorder Act
               1998.The orders can be made in proceedings where a child safety order, an ASBO or sex
               offender order has been made; a child or young person is convicted of an offence: or a person
               is convicted of an offence under sections 443 or 444 of the Education Act 1996.
               1.1. For the purposes of the 1998 Act, the term 'parent' has the same meaning as that contained
               within section 1 of the Family Law Reform Act 1987, that is either of the child’s or young
               person's natural parents whether or not married to each other at the time of their birth.
               'Guardian' is defined in section 117 of the 1998 Act with reference to section 107 of the
               Children and Young Persons Act 1933, and includes any person who, in the opinion of the
               court, has for the time being the care of the child or young person. This may include people
               who may not have parental responsibility for the child or young person as defined in the
               Children Act 1989, such as stepparents.
               117
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               Children and young people
               child attends school regularly, avoids certain places, or is home by a certain time at night).
               The parent or guardian is required to attend a counselling or guidance programme for up to
               three months. This element is compulsory and must be imposed in all cases when an order is
               made (except where the parent or guardian has previously received a parenting order - section
               8(5)). Programmes can cover setting and enforcing consistent standards of behaviour and
               responding more effectively to unreasonable adolescent demands.


                                                                                             Page 117 of 139]]></page><page Index="120"><![CDATA[The court needs to consider an oral or written report before making a parenting order, unless
               the child or young person has reached the age of 16.T0 avoid unnecessary adjournments,
               such a report should be available early in the court process.
               A ‘responsible officer’, who will generally be from the local YOT, social services, probation
               service or local education authority, supervises delivery of the parenting order.
               The officer will have responsibility for, among other things, arranging the provision of
               counselling or guidance sessions and ensuring that the parent complies with any other
               requirements which the court may impose.
               If the parent does not comply with the order, the responsible officer can refer the matter to the
               police for investigation. Such action is generally expected only where noncompliance is
               sufficiently serious to warrant possible prosecution - the responsible officer is expected to
               work with the parent to improve compliance. But if prosecuted and convicted for non-
               compliance, the parent can be fined up to Jo 1,000 (level 3 on the standard scale).
               Individual support orders
               Section 1AA of the Crime and Disorder Act 1998, which was inserted by section 322 of the
               Criminal Justice Act 2003, provides for the making of ISOs, which have been available since
               May 2004.They are civil orders and can be attached to ASBOs made against young people
               aged between 10 and 17 years old. They impose positive requirements on the young person
               and are designed to tackle the underlying causes of their anti-social behaviour.
               ISOs are available for stand-alone ASBOs made in the magistrates’ courts only. Where a
               magistrates’ court makes an ASBO against a young person, it must also make an ISO if it
               considers that an ISO would help to prevent further anti-social behaviour. ISOs are not
               available for orders on conviction, where it is expected that sentencing will address the
               underlying causes of the offence.
               ISOs can last up to six months and require a young person to comply with such requirements
               as may be specified in the order and any directions given by the responsible officer to that
               end. Such requirements must be those which the court considers desirable in the interests of
               preventing repetition of the anti-social behaviour and may include requirements to participate
               in certain activities, to report to a specified person at specified times or to comply with
               educational arrangements, but in no case should they require attendance on more than two
               days a week. An example would be support sessions tailored to the individual’s needs and
               designed to address the causes of the behaviour that led to the ASBO being made, such as
               counselling for substance misuse or an anger management programme. The ISO may name
               specific activities the individual must participate in and can also specify dates and places
               where attendance is required.
               ISO application process
               There is no need for a specific application for an ISO, although it might be helpful to raise the
               issue with the court. Where a magistrates’ court is making an ASBO (stand-alone only)
               against a person under 18 years old, it is obliged to make an ISO at the same time if the
               following conditions are met:
               the ISO would be desirable in the interests of preventing any repetition of the antisocial
               behaviour which led to the ASBO being made.
               the young person is not already subject to an ISO; and
               the Secretary of State has notified the court that arrangements for implementing the ISO are
               available (this was done in April 2004 in Home Office Circular 025/2004).
               The court should ensure the requirements of the ISO and the consequences of breach are
               explained to the defendant. If an ISO is not made, then the court must state why it
               118
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                                                                                             Page 118 of 139]]></page><page Index="121"><![CDATA[Children and young people
               considers that the conditions for making the order arc not met. ISOs are not available for
               orders on conviction.
               Role of the youth offending team
               The YOT advises the magistrates’ court on whether an ISO is necessary and the conditions an
               ISO should contain. This information is based on a need’s assessment of the young person.
               The YOT is responsible for co-ordinating delivery of the ISO and also has a role in ensuring
               that the terms and conditions of both the ASBO and ISO are understood by the defendant.
               The conditions within the ISO are overseen by a responsible officer who is usually a member
               of the YOT, social services or local education authority.
               Variation and discharge
               An application to vary or discharge the ISO may be made by either the young person subject
               to the ISO or the responsible officer. The need to very an ISO may arise where support
               proves to be inappropriate or the individual moves out of the area. Equally if the ASBO
               linked to the ISO is varied by a court, the court may also vary or discharge the ISO at the
               same time.
               If the ASBO comes to an end or is discharged, the ISO also ceases to have effect.
               Breach
               Breach of an ISO is an offence and criminal penalties apply, for ISOs to be credible, breaches
               must be dealt with.
               The responsible officer is responsible for ensuring compliance with an ISO. It will usually be
               appropriate for the responsible officer to encourage compliance using warning tetters before
               instigating proceedings for a criminal prosecution.
               The breach is taken forward by the Crown Prosecution Service and breach proceedings are
               heard in the youth court. If a court finds that the subject of the order has failed to comply with
               any requirement of the order, they are guilty of an offence. Breach is a summary offence and
               the court can impose a fine of up to:
               £1,000, if defendant aged 14 or over; or
               A.250, if defendant aged under 14.
               Where the defendant is under 16, the parent will usually be responsible for payment of the
               fine. The court also has the discretion to order the parent to pay if the defendant is aged
               between 16 and 18 (as set out in section 137 of the Powers of Criminal Court (Sentencing)
               Act 2000.
               A referral order is not available for breach of an ISO.
               Balcony games for the boys creates corridor of hell for neighbours: ASBOs, ISOs and a
               house move bring relief for all
               Issue
               Sons of two neighbouring families were responsible for persistent noise nuisance which
               caused neighbours great distress for over a year. The children of families X and Y, aged
               between 10 and 15, lived in first- floor council flats where they played rowdy games outside
               their flats. Family X had a secure tenancy while family Y had a short-term tenancy. Residents
               frequently complained to the housing office or to the local police community support officers
               (PCSOs).
               Approach
               Police and the housing office worked closely together on the case and discovered a pattern of
               nuisance. PCSOs and the estate manager mediated between families X and Y and their
               neighbours. When mediation failed, joint visits were made to warn the families of the
               consequences of their continued antisocial behaviour. Formal warnings followed, outlining
               the consequences of the boys’ actions in terms of potential ASBOs and possible loss of their




                                                                                             Page 119 of 139]]></page><page Index="122"><![CDATA[parents’ tenancy. When all warnings had failed, a multi-agency team obtained an interim
               ASBO on the five boys to put an immediate stop to the nuisance.
               Evidence provided by PCSOs and the estate manager was used at the hearing, and interim
               orders were granted.
               Minor breaches over the Christmas period were reported to the police by witnesses between
               the interim and full hearing, and
               120
               169,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Children and young people
               these strengthened the ease for the ASBOs at the full hearing.
               Witnesses who were previously fearful of giving evidence were willing to do so at the full
               hearing where the ASBOs were granted, and an ISO was attached to each ASBO to tackle
               some of the underlying causes of the behaviour.
               The conditions of the ASBOs on the five boys ordered them:
               not to cause nuisance within the vicinity of their dwellings.
               to stop knocking on doors and windows; and
               not to play games on the balcony. Outcome
               The main benefit of the ASBOs was the relief that they brought to the neighbours, who felt
               they had been supported through the process by police and the housing office.
               The ISO, devised and facilitated by Norfolk Youth Offending Team, consisted of four hour-
               long sessions aimed at helping the boys develop an understanding of how their anti-social
               behaviour, their constant shouting and banging, impacted on themselves as a group, on their
               immediate family, and on their neighbours.
               The first session defined the ground rules for the group, including showing respect, listening
               with only one person talking at a time, no shouting, and with each member
               being allowed to voice an opinion. The second session got the boys listening to what people
               were saying around them. The third session introduced elements from a social skills game
               that focused on the boys’ finding different ways of asking each other something without
               resorting to shouting. In the fourth session, a worker from Positive Futures helped the boys
               think about what leisure activities were available as alternatives to playing on the balcony.
               The youth worker kept the boys’ parents up to date on what was happening in the sessions.
               Family X, who were relocated away from family Y, kept their tenancy and no further
               problems were reported. Similarly, family Y succeeded in stopping their anti-social
               behaviour.
               The ISO gave the boys an opportunity to understand the effect of their rowdy behaviour on
               themselves and others. As a result of the order and the interventions of the youth worker, the
               boys took up recreational activities and found constructive ways of spending their time.
               Overall, the intervention package was a great success for the community, and for the families
               themselves.
               Contact
               Karl Hodgins
               Youth Worker, Norfolk YOT Karl.Hodgins@yot.norfolk.gov.uk
               In a debate in the House of Commons on 28 June, Vernon Coaker MP, a Home Office
               Minister, said:
               “ISOs are playing their part in the wider battle to combat anti-social behaviour and promote
               positive behaviour. They have proven potential to help young people to turn around their
               lives and move away from anti-social behaviour and offending.






                                                                                             Page 120 of 139]]></page><page Index="123"><![CDATA[I share the enthusiasm for ISOs of my hon. Friend the Member for Stockport, and 1 hope that
               she and the other hon. Members will encourage local agencies to make more use of such a
               highly effective intervention tool.”
               121
               170,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Simon Cordell Skeleton Argument (3).pdf
               Immediate post-order procedure (adults and young people)
               Where an ASBO or similar order is granted, it is preferable for a copy of the order to be
               served on the defendant in person prior to his or her departure from court. It is essential to
               ascertain that the defendant understands the nature of the prohibitions and the order.
               Good practice - managing procedures and timescales
               Practitioners handling such orders have taken a range of measures to minimise paperwork
               and delays, including:
               breaking down the process into clear, manageable stages that are easy to follow for those
               unfamiliar with the process.
               setting timeframes for each stage of the application to keep the process focused, including a
               commitment to arrange problem-solving meetings at short notice.
               releasing key staff so that they can concentrate on the application process - this should result
               in evidence gathering being conducted quickly and efficiently.
               using other agencies, such as neighbourhood wardens and station staff, to collect additional
               evidence where required (evidence gathering and attending incidents are tasks that local
               authorities, registered social landlords (R l. s) and the police are already involved in and
               therefore involve no additional cost);
               adopting strategies to overcome challenges to witness evidence such as ensuring that witness
               statements corroborate.
               minimising court delays by forewarning the courts of application and using pre-trial reviews.
               sharing costs between partner agencies and utilising the expertise from each agency; and
               not engaging in non-essential problem solving meetings in more serious cases in order to get
               to court more quickly.
               Where an individual has not been personally served with the order at the court, the court
               should be asked to arrange for personal service as soon as possible thereafter.
               In without notice proceedings, proof of service of an ASBO is important, since any criminal
               proceedings for breach may fail if service is challenged by the defence and cannot be proved
               by the prosecution. While all other orders do not need proof of service in order to prove
               breach of an order, lack of knowledge of existence of an order will contribute to a reasonable
               excuse for the defence. In the case of a child or young person, the order should also be served
               on the parent, guardian or an appropriate adult, and such service should be recorded.
               An order comes into effect on the day it is made. But the two-year period during which no
               order shall be discharged except with the consent of both parties starts from the date of
               service.
               The lead agency, if not the police, should ensure that a copy of the order is forwarded
               immediately to the police. The agency should also give copies of the order to the anti-social
               behaviour co-ordinator of the local crime and disorder reduction partnership, the other partner
               agencies and the main targets and witnesses of the anti-social behaviour, so that breaches can
               be reported and acted upon. The Justices’ Clerks’ Society guidance states that it is the
               responsibility of the court to inform the police of the making of an order."
               The police should notify the appropriate- police area command on the same working day so
               that details of the defendant and the conditions of the order can be recorded.




                                                                                             Page 121 of 139]]></page><page Index="124"><![CDATA[A copy of the order should be provided to the lead agency’s legal representative on the same
               day as the court hearing, and in the case of a child or young person, the court will provide a
               further copy for the youth
               Campbell, S. (2002) Implementing Antisocial! Behaviour Orders: messages for
               practitioners. Home Office Findings 160, Sections 1(9), 18(6) and 1C of the Crime and
               Disorder Act 1998, as amended. justices’ Clerks' Society. Good practice guide Anti-Social
               Behaviour Orders. A Guide to Law and Procedure in the Magistrates' Court, 4.5(V).
               122
               171,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Immediate post-order procedure (adults and your people)
               offending team (YOT). The YOT should arrange for action to be taken by an appropriate
               agency (for example social services) to ensure that the young person understands the
               seriousness of the order.
               It should also consider the provision of appropriate support programmes to help avoid a
               breach of the order by diverting the offender from the behaviour that led to it, although such
               programmes cannot, as the law currently stands, be a condition of the order.
               Enforcing the order
               The obtaining of the order is not the end of the process. The order must be monitored and
               enforced properly.
               Partnership working after the order is made should include information exchange to ensure
               early warning of problems and clarification of who should do what to safeguard witnesses, as
               well as what other action should be taken to challenge the perpetrator in such cases.
               Agencies need to be alert to the prospect that this should become a statutory requirement in
               the near future. Adopting this as best practice now will enable them to achieve compliance
               more readily.
               Police National Computer (PNC)
               Recording of orders on the PNC will enable police forces to enforce breaches effectively.
               Local arrangements should be made for orders to be placed on the PNC so that police officers
               are in a position to access usable data to identify those who are subject to an order.
               Conditions of the order should be appended clearly along with the identity of the case officer
               so that the necessary action can be taken in ease of a breach (which is an arrestable offence).
               It is essential that breaches of an order, appeals against the sentence and any other actions
               relating to the management of the case are reported to the agency responsible for the
               management of the case.
               One-year review of juveniles' ASBOs
               Orders issued to young people should be reviewed each year, given young people’s
               continually changing circumstances, to help ensure that they are receiving the support they
               need in order to prevent breach. The review should be administrative rather than judicial and
               should be undertaken by the team that decided upon the initial application. Where
               practicable, the YOT should provide the group with an assessment of the young person.
               Depending upon progress towards improved behaviour, possible outcomes will include an
               application to discharge the order or a strengthening of the prohibitions. Applications to vary
               or discharge the order will have to be made to the court in the usual way. The overriding
               considerations remain the safety and needs of the community, and the review would have to
               incorporate the community’s views on the order’s effectiveness.
               172,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Appeals




                                                                                             Page 122 of 139]]></page><page Index="125"><![CDATA[Magistrates' court (acting in its civil capacity) and orders on conviction in criminal
               proceedings
               Section 4 of the Crime and Disorder Act 1998 provides the offender with the right of appeal
               against the making of a stand-alone ASBO. Section 108 of the Magistrates’ Courts Act 1980
               provides a right of appeal against an on- conviction order. An appeal in both cases is to the
               Crown Court. Rules 74 and 75 of the Magistrates Courts Rules 1981 and 6 to 11 of the
               Crown Court Rules 1982 apply to appeals against orders. Both parties may provide additional
               evidence. By virtue of section 79(3) of the Supreme Court Act 1981, an appeal is by way of a
               re-hearing of the case. In determining an appeal, the Crown Court should have before it a
               copy of the original application lor an order (if applicable), the full order and the notice of
               appeal. The lead agency should ensure that copies are sent to the court.
               Notice of appeal must be given in writing to the designated officer of the court and the
               applicant body within 21 days of the order (Crown Court Rules 1982, rule 7). But the Crown
               Court has the discretion to give leave to appeal out of time (rule 7(5)). The agency that
               brought the initial application should take charge of defending any appeal against the order. It
               should also lead in action to guard against witness intimidation.
               The Crown Court may vary the order or make a new order. Any order made by the Crown
               Court on appeal shall be treated for the purpose of any later application for variation or
               discharge as if it were the original magistrates’ court order, unless it is an order directing that
               the application be re-heard by the magistrates’ court.
               Although on hearing an appeal it is open to the Crown Court to make any incidental
               order, for example to suspend the operation of a prohibition pending the outcome of the
               appeal where this appears to the Crown Court to be just, there is no provision for automatic
               stay of an order pending appeal.
               The order remains in force pending the outcome of the appeal, and breach is a criminal
               offence even if the appeal subsequently succeeds.
               An appeal against the ruling of the Crown Court is to the High Court by way of case stated
               under section 28 of the Supreme Court Act 1981, or by application for judicial review by
               virtue of section 29(3) of that Act. It is also open to the applying authority to seek to
               challenge a magistrates’ decision to refuse to grant an order by way of case stated (judicial
               review of the decision to the divisional court) by virtue of section 111 of the Magistrates’
               Courts Act 1980.
               County court
               Any appeal against an order made in the county court must be made in accordance with part
               52 of the Civil Procedure Rules. Appeals against orders made by district judges will be to a
               circuit judge and against orders made by circuit judges to the High Court.
               Appeals to the High Court by case stated
               Any person who was party to any proceedings or is aggrieved by the conviction, order,
               determination, or other proceedings of the court may question the proceedings on the grounds
               that it is wrong in law or in excess of jurisdiction.
               The court can then be asked to state a case for the opinion of the High Court.
               The case stated is heard by at least two High Court judges, and more often three judges sit,
               including the Lord Chief Justice. No evidence
               173,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Appeals
               is considered, so the hearing consists entirely of legal argument by counsel.
               Having heard and determined the question(s) of law, the High Court may reverse, affirm or
               amend the original determination in respect of which the case has been stated, or remit the




                                                                                             Page 123 of 139]]></page><page Index="126"><![CDATA[matter to the justices with the opinion of the court, or make such an order in relation to the
               matter as the court may see fit.
               Appeals before the Crown Court
               The hearing at the Crown Court is an entirely fresh one and, by virtue of section 79(3) of the
               Supreme Court Act 1981, is a full re-hearing of the case. The judgment in the ease of R v
               Lamb [2005] EWCA Crim 2487 recommended that circuit judges and above should be
               dealing with these cases.
               Rectification of mistakes
               Section 142 of the Magistrates’ Courts Act 1980 gives the court power to vary or rescind a
               sentence or other order imposed or made by it when dealing with an offender, if it appears to
               the court to be in the interests of justice to do so. However, this section is intended to rectify
               mistakes and applies only to orders made when dealing with an offender in criminal
               proceedings. Therefore, this power would only be applicable to orders made on conviction,
               rather than on a stand-alone application.
               Application for judicial review
               judicial review looks at the lawfulness of actions and decisions. An application can be made
               for the High Court to consider whether the magistrates’ court has failed to exercise its
               jurisdiction properly or whether it has made an error of law, which appears on the face of the
               record.
               The High Court has the power to quash the order or make a mandatory prohibiting order.
               An application must be made promptly, and in any event within three months of the date on
               which the grounds for the application arose.
               174,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Breaches
               Breaches by adults
               Breach of an order is a criminal offence, which is arrestable and recordable. Prosecutions for
               breaches of orders can be brought by the Crown Prosecution Service (CPS), although a local
               authority may also do so by virtue of section 1(1 OA) of the Crime and Disorder Act 1998 (as
               inserted by section 85(4) of the Anti-social Behaviour Act 2003), which states that
               prosecutions can also be brought by:
               1. a council which is a relevant authority.
               2. the council for the local government area in which a person in respect of whom an order
               has been made resides or appears to reside.
               The lead officer managing the case should keep the other partner agencies informed of the
               progress and outcome of any breach investigation. A particular consideration will be the need
               to protect witnesses. The standard of proof for prosecution of a breach of an order is the
               criminal standard - ‘beyond reasonable doubt’. Provision is made in section 1(10) of the
               Crime and Disorder Act 1998 for a defence of reasonable excuse.
               The maximum penalty on conviction in the magistrates’ court is six months in prison or a fine
               not exceeding £5,000 or both; at the Crown Court the maximum penalty is five years in
               prison or a fine or both. Community penalties are available, but a conditional discharge is not.
               Agencies and courts should not treat the breach of an order as just another minor offence. (It
               should be remembered that the order itself would normally have been the culmination of a
               course of persistent antisocial behaviour.) An order will only be seen to be effective if
               breaches are taken seriously.
               Information on breaches can be received from any source, including the local authority
               housing department and other local authority officers, neighbours and other members of the
               public. Any information received by a partner agency should be passed immediately to the
               police and lead officer, who should inform the other agencies involved. Breach penalties are


                                                                                             Page 124 of 139]]></page><page Index="127"><![CDATA[the same for all orders, including the interim order. Court proceedings should be swift and
               not fractured by unnecessary adjournments either during the proceedings or before
               sentencing.
               Where the offender is found guilty of the breach, the court may take reports from the local
               authority or police and any applicant agency before sentencing. The court should also
               consider the original reasons for making the order. A copy of the original order as granted
               (including any maps and details of any prohibitions) can be put before the court as evidence
               that an order has been made without the need for a statement formally proving that an order
               was made (section 139 of the Serious Organised Crime and Police Act 2005).
               The sentence given should be proportionate and reflect the impact of the behaviour
               complained of.
               Breaches by children and young people
               Breach proceedings for children and young people will be dealt with in the youth court.
               Breach proceedings in the youth court are not subject to automatic reporting restrictions. The
               Serious Organised Crime and Police Act 2005 removed automatic reporting restrictions for
               children and young people convicted of a breach of an ASBO (section 341), and thus details
               about the perpetrator can be made public. The court may still impose reporting restrictions,
               particularly if they were put in place when the order was initially imposed in a civil court.
               125
               175,
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               Hreacbes
               Under section 98 of the Magistrates’ Courts Act 1980, evidence will be given on oath, except
               the evidence of a child under 14, which is given unsworn. Section 34 of the Children and
               Young Persons Act 1933 requires the attendance of a parent or legal guardian at court for any
               person under 16 years of age. The court will require information about the young person’s
               background, home surroundings and family circumstances prior to sentence. This should be
               provided by the youth offending team or social services.
               As with adults, community penalties are available, but a conditional discharge is not. In
               addition, the youth court should consider whether to make a parenting order, or whether the
               individual support order should be amended.
               125
               176,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Simon Cordell Skeleton Argument (3).pdf
               •  Variation and discharge of an order
               Variation or discharge of an order, including an interim order, may be made on application to
               the court that originally made it. An application to vary or discharge an order made on
               conviction in criminal proceedings may be made to any magistrates’ court within the same
               petty sessions areas as the court that made the order. The application can be made either by
               the original applicant in the case or the defendant. An order cannot be discharged within two
               years of its service without the consent of both parties. An order made on conviction cannot
               be discharged before the end of two years. Prohibitions, however, can be varied, removed or
               added within that initial two-year period.
               The procedure for variation or discharge is set out in the Magistrates’ Courts (Anti-Social
               behaviour Orders) Rules 2002, the Crown Court (Amendment) Rules 2002 and the Civil
               Procedure Rules. These are published separately from this guidance and are available on the
               crime reduction website at www.crimereduetion.gov.uk
               If the individual who is subject to the order asks for its variation or discharge, the agency that
               obtained the order needs to ensure that a considered response is given to the court. If it is


                                                                                             Page 125 of 139]]></page><page Index="128"><![CDATA[decided that the lead agency should contest the application for variation or discharge, it
               should give the court its reasons, supported as appropriate by evidence gathered in the course
               of monitoring the effectiveness of the order. The magistrates’ legal adviser will send details
               of the variation or discharge of any order to the local police force and local authority. The
               police should record any discharge or variation of the order on their computer system and
               arrange for any changes to be reflected in the Police National Computer record.
               126
               177,
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               •  Monitoring and recording
               Local agencies should agree common procedures for recording and monitoring both their
               successful and unsuccessful applications. Details of orders granted should be sent to the local
               crime and disorder reduction partnership (CDRP) anti-social behaviour co-ordinator and the
               local authority or police as appropriate, as well as to other agencies involved with the
               offender (including the local youth offending team if the offender is under 3 8 years old).
               As a minimum there should be a record of:
               the original application (or details of the prosecution and hearing of any request for the order
               in the case of an order on conviction), including the name, address, date of birth, gender and
               ethnicity of the defendant.
               the order itself, including, where applicable, the map showing any exclusion area.
               the date and details of any variation or discharge of the order; and
               the action taken for any breach.
               The following information could also be recorded:
               name, address, age, gender and ethnicity of any victim - or a statement that the case involved
               no identified victim.
               details of any person or persons who complained of the behaviour.
               details of any contributory issues, for example drugs, alcohol and substance misuse and/or
               mental health problems.
               details of any aggravating factors, for example racial motivation; and
               assessment of outcome in terms of whether or not the anti-social behaviour ceased,
               satisfy themselves and the public that their anti-social behaviour policies do not discriminate.
               The Act also imposes a duty to promote race equality. As part of this duty, local authorities
               and the police should therefore ensure that they monitor the impact of their anti-social
               behaviour policy on the promotion of race equality. Systems to monitor the ethnicity of both
               defendants and victims will therefore need to be in place.
               This information should, where possible, be collected on the basis of self-definition by the
               defendant.
               From December 2006, the new general duty under the Disability Discrimination Act requires
               a public authority to pay due regard when carrying out its functions to: the need to eliminate
               unlawful discrimination against disabled people; the need to eliminate disability-related
               harassment of disabled people; the need to promote equality of opportunity for disabled
               people; anti the need to take account of disabled persons’ disabilities even where that
               involves more favourable treatment. Advice on the general duty can also be obtained from
               the leaflet issued by the Office for Disability Issues (ODI) entitled Disability equality: a
               priority for all. The Disability Rights Commission website at www.dre.org.uk contains
               information under the section on publications entitled. Do the Duty’.
               Consistency of information will help to assess the effectiveness of orders and inform future
               local audits and crime reduction strategies.
               Local authorities and other agencies, including the police, have a duty under the Race
               Relations (Amendment) Act 2000 to


                                                                                             Page 126 of 139]]></page><page Index="129"><![CDATA[178,
               Simon Cordell’s Skeleton Argument (2) Pdf
               •  Promoting awareness of orders
               The purpose of the orders is to protect local communities from the harassment, alarm or
               distress that can be caused by anti-social behaviour. An effective media strategy by the
               CDRP is therefore essential if local residents and businesses are to be aware of orders and
               their implications. Using the local press to ensure the community knows the subject and
               conditions of the order is often a cost-effective strategy. At the same time, the staff of the
               partner agencies need to understand how and when orders can be used, and how they relate to
               the other tools to combat anti-social behaviour available to the partnership.
               Local agencies and CDRPs should, within the context of their overall strategies for
               combating anti-social behaviour, devise a strategy for promoting awareness of orders. A
               designated officer should have responsibility for its delivery. This might most naturally be the
               CDRP anti-social behaviour co-ordinator. Disclosure of information should be necessary and
               proportionate to the objective it seeks to achieve.
               Suggested aims of the strategy
               The aims of an effective local publicity strategy are to:
               increase community confidence in reporting anti-social behaviour and expectations that it can
               be reduced. deter potential offenders from anti-social behaviour.
               ensure that the local population is aware of orders; the powers of the local authority,
               registered social landlords, Housing Action Trusts, the Environment Agency and the police
               (including the British Transport Police) to apply for them; and whom to approach if they
               believe that an order may be appropriate;
               ensure that agency staff have confidence in using orders where they are deemed appropriate;
               and ensure that potential witnesses are aware of the support available to them.
               Publicity
               This part of the guidance reflects the judgment of Lord justice Kennedy, presiding judge in
               the case of R (on application of Stanley, Marshall and Kelly) v Commissioner of Police for
               the Metropolis and Chief Executive of London Borough of Brent 12004] EWHC 2229
               (Admin), commonly referred to as Stanley v Brent.
               Principles
               1. There is no ‘naming and shaming1 - ASBOs are not intended to punish or embarrass
               individuals but to protect communities.
               2. Publicity is essential if local communities are to support agencies in tackling antisocial
               behaviour. There is an implied power in the Crime and Disorder Act 1998 and tire Local
               Government Act 2000 to publicise an order so that it can be effectively enforced.
               3. Orders protect local communities.
               4. Obtaining the order is only part of the process; its effectiveness will normally depend on
               people knowing about the order.
               5. Information about orders obtained should be publicised to let the community know that
               action has been taken in their area.
               6. A case-by-case approach should be adopted, and each individual case should be judged on
               its merits as to whether or not to publicise the details of an individual who is subject to an
               order. Publicity should be expected in most cases.
               7. It is necessary to balance the human rights of individuals who are subject to orders against
               those of the community as a whole when considering publicising orders.
               8. Publicity should be the norm, not the exception. An individual who is subject to an order
               should understand that the community is likely to learn about it.
               179,



                                                                                             Page 127 of 139]]></page><page Index="130"><![CDATA[Simon Cordell’s Skeleton Argument (2) Pdf
               Promoting contourites of orders
               Benefits of publicity
               The benefits of publicity include the following:
               Enforcement –
               Local people have the information they need to identify and report breaches.
               Public reassurance about safety –
               Victims and witnesses know that action has been taken to protect them and their human rights
               in relation to safety and/or quiet enjoyment of their property. Making local people aware of
               an order that is made for their own protection can make a real difference to the way in which
               they live their lives, especially when they have suffered from anti-social behaviour
               themselves or lived in fear of it.
               Public confidence in local services –
               Local people are reassured that if they report anti-social behaviour, action will be taken by
               local authorities, the police
               or other agencies.
               Deterrent to the subject of the order –
               The perpetrator is aware that breaches are more likely to be reported because details of the
               order are in the public domain.
               Deterrent to other perpetrators –
               Publicity spreads the message that orders are being used and is a warning to others who are
               causing a nuisance in the community.
               The decision to publish
               Each individual case should be judged on its merits as to whether or not to publicise the
               details of an individual who is subject to an order. There should be a correlation between the
               purpose of publicity and the necessity test: that is, what is the least possible interference with
               privacy in order to promote the purpose identified.
               Decision-makers should ensure that the decisions to publicise orders are recorded. However,
               this should not be seen as an onerous, lengthy task, but merely a way of recording the process
               they go through to arrive at publication. To ensure it is achieved, it is good practice to
               identify an individual, such as the anti-social behaviour co-ordinator, to be in charge of the
               process.
               The decision-making process should aim to consider and record several key factors:
               the need for publicity.
               a consideration of the human rights of the public.
               a consideration of the human rights of those against whom orders are made; and
               what the publicity should look like and whether it is proportionate to the aims of the
               publicity.
               The decision-making process should be carried out early on so as to avoid any delay in
               publicity following the granting of the order.
               The decision-making process
               Publicity must be necessary to achieve an identified aim - this will involve a necessity test.
               The identified aim for publicising could be (1) to notify the public that an order has been
               obtained, to reassure the public that action has been taken; (2) to notify the public of a
               specific order so that they can help in its enforcement; or (3) to act as a deterrent to others
               involved in anti-social behaviour, hi some cases two or even all three aims will be relevant.





                                                                                             Page 128 of 139]]></page><page Index="131"><![CDATA[Disclosure of information should always be necessary and proportionate to achieving the
               desired aim(s). When identifying the aim(s), decision-makers should acknowledge, in those
               cases where it is relevant, the ‘social pressing need’ for effective enforcement of an order that
               prohibits anti-social behaviour to protect the community. In effect, this is a consideration of
               the human rights of the wider community, including past and potential victims. The decision-
               maker should recognise and acknowledge that for publicity to achieve its aim, it might
               engage the human rights of the individual who is subject to the order and potentially those of
               his or her family. Publicity should be proportionate to ensure that any interference is kept to a
               minimum. For example, if the legitimate aim is enforcement of the order then personal
               information, such as the terms of the order, the identity of the individual (including a
               photograph) and how to report any breach of the terms should normally be included. Usually
               the consideration of the effect of publicity on family members should not deter decision-
               makers from the stated aim of publicising the order. However, consideration of the impact of
               publicity on vulnerable family members should be made and recorded. The defendant and his
               or her
               180,
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               Promoting a wariness of orders
               family should be warned of the intention to publish details.
               What publicity should look like; are the contents proportionate?
               The contents of the publicity should also be considered and decisions about them recorded.
               Disclosure of information should always be proportionate to achieving the desired aim. The
               contents of publicity should include factual and accurate material.
               The content and tone of the publicity should be considered carefully. Information must be
               based on facts, and appropriate language used: for example, the order itself does not mean
               that an individual has been found guilty of a criminal offence, Words such as ‘criminal’ and
               ‘crime’ to describe the individual and their behaviour must be used with care and only when
               appropriate. If the anti-social behaviour was, as a matter of fact, also criminal, then it is
               permissible to describe it as criminal. Breach of an order is an offence and should be
               described as such. Publicity should be consistent with the character of the order itself: that is,
               a civil prohibition (rather than a criminal order) restricting anti-social behaviour (which may
               be criminal but need not be).
               It would be prudent to rehearse the facts of the case and agree on appropriate language to use.
               Some consideration should be given to the personal circumstances of individuals named on
               the order when deciding whether to include them in any publicity leaflet, particularly if they
               are under 18. However, any arguments for not including their names must be balanced with
               the need to enable those who receive the leaflet to be able to identify a breach.
               Details of conditions of non-association named on the order, particularly where those named
               are also subject to orders or have a recent history of anti-social behaviour, can be included in
               publicity. Even in cases where the named individuals with whom association is prohibited are
               not subject to an ASBO it will usually be appropriate to name them once some consideration
               has been given to their personal circumstances.
               Type of information to include in publicity
               The type of personal information that might be included in any publicity would be:
               the name of the individual; and/or
               a description; and/or
               the age; and/or
               a photograph; and/or
               his/her address.


                                                                                             Page 129 of 139]]></page><page Index="132"><![CDATA[a summary of the individual's anti-social behaviour; and/or
               a summary of, or extracts from, the findings of the judge when making the ASBO; and/or
               a summary of, or extracts from, the terms of the ASBO.
               the identification of any relevant exclusion zone (as illustrated on a map).
               details of conditions of non-associations named on the order, particularly where those named
               are also subject to ASBOs or have a recent history of anti-social behaviour.
               the expiry date of the order.
               the manner in which the public can report breaches (for example names, telephone numbers,
               addresses, possibility of anonymous reporting, etc); and/or
               the names of local agencies responsible for obtaining the ASBO.
               local contact numbers, such as those for Victim Support, local police and housing services,
               with reassurance that reports will be treated in confidence.
               date of publication.
               the identity of the group to be targeted by the publicity (for example businesses or residents
               in the vicinity); and/or
               those who are suspected to have been subject to anti-social behaviour by the individual;
               and/or
               those individuals or businesses within and immediately adjacent to an area identified in the
               ASBO; and
               details of the publication area, for example within the area of any exclusion zone and the area
               immediately adjacent to the exclusion zone, within the borough.
               Age consideration
               The age of the person against whom the order was obtained should be a consideration when
               deciding whether or how to inform people about the order. Factual information should be
               obtained about whether an individual is particularly vulnerable. 'Phis should be done as early
               as possible, to avoid
               :130 ,
               181,
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               Promoting awareness of orders
               delays in informing the public once an order has been obtained. The fact that someone is
               under the age of 18 does not mean that their anti-social behaviour is any less distressing or
               frightening than that of an adult.
               An order made against a child or young person under 18 is usually made in open court and is
               not usually subject to reporting restrictions. The information is in the public domain and
               newspapers are entitled to publish details. But if reporting restrictions have been imposed,
               they must be scrupulously adhered to. In applications involving children and young people
               where evidence has consisted of details of their past convictions, and reporting restrictions
               were not lifted for the proceedings leading to those convictions, the publicity should not refer
               to those convictions. Similarly, where an order on conviction has been imposed on a child or
               young person in the youth court, unless reporting restrictions are lifted, details of the offences
               or behaviour alluded to in that hearing cannot be reported. However, details of the behaviour
               outlined in the order on conviction hearing can be used, unless the court orders otherwise.
               Where the court making the order does impose reporting restrictions under section 39 of the
               Children and Young Persons Act 1933, the press must scrupulously observe these.
               A court must have a good reason to make a section 39 order. Age alone is insufficient to
               justify reporting restrictions being imposed. Section 141 of the Serious Organised Crime and
               Police Act 2005 reverses the presumption in relation to reporting restrictions in the youth



                                                                                             Page 130 of 139]]></page><page Index="133"><![CDATA[court in cases for breach of ASBOs. Automatic reporting restrictions will not apply but the
               court retains the discretion to impose them. The prosecutor can make an application to the
               court for this. While it is the case that from 1 July 2005 no automatic reporting restrictions
               have applied in cases for breach of ASBOs relating to children and young people, when
               dealing with the case the court will consider whether reporting restrictions were imposed
               when the original order was granted. As ASBOs are civil orders, reporting restrictions will
               not have applied (unless imposed by the court).
               If reporting restrictions were imposed at the original ASBO hearing, then unless there has
               been a significant change in the intervening period, it is likely that the court will impose
               reporting restrictions at the hearing for the breach. If no reporting restrictions were imposed
               at the original ASBO hearing, it is still open to the court to impose reporting restrictions at
               the hearing of the breach case. If reporting restrictions are not imposed, publicity can be
               considered, considering all the matters that are relevant when considering publicising the
               ASBO itself.
               Photographs
               A photograph of the subject of the ASBO will usually be required so that they can be
               identified. This is particularly necessary for older people or housebound witnesses who may
               not know the names of those causing a nuisance in the area. The photograph should be as
               recent as possible.
               Distribution of publicity
               This should be primarily within the area(s) that suffered from the anti-social behaviour and
               that are covered by the terms of the order, including exclusion zones. People who have
               suffered from anti-social behaviour, for example residents, local businesses, shop staff, staff
               of local public services, particular groups or households should be the intended audience.
               All orders should be recorded on the Police National Computer to assist enforcement.
               This is particularly relevant where the order extends across England and Wales. It may be
               appropriate to extend publicity beyond the area where the anti-social behaviour was focused
               if there is a general term prohibiting harassment, alarm or distress in a wider area.
               It may also be appropriate if there is a danger of displacement of the anti-social behaviour to
               distribute it just beyond the area covered by the order.
               The timescale over which publicity is anticipated to occur should also be given due
               consideration and decisions recorded. It is important that publicity does not become out of
               date or irrelevant. Special attention needs to be paid to posters that are distributed to other
               organisations, as posters should not be left up when the need for them has expired.
               It will usually be appropriate to issue publicity when a full order is made, rather than an
               interim order. However, exceptions can be made, for example where the antisocial behaviour
               is severe, where there has been extreme intimidation or where there is
               131
               182,
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               Promoting awareness of orders
               a delay between the making of the interim order and the outcome of the final hearing.
               In the case of Keating v Knowsley Metropolitan Borough Council [2004] EWHC 1933
               (Admin), the judge held that publicity could be used for interim orders. In these
               circumstances it should be stated in the publicity that the order is temporary and that a
               hearing for a ‘full’ order will follow, and distribution should be extremely localised.
               Consideration of human rights
               Consideration of the human rights of the individual who is subject to the order and of the
               human rights of the public, including the victim(s) and potential victims, should be carried
               out. Appropriate and proportionate publicity is compliant with the human rights of the


                                                                                             Page 131 of 139]]></page><page Index="134"><![CDATA[individual who is subject to the order. The Stanley v Brent case accepted that publicity was
               needed for effective enforcement of the order. Individuals do not welcome publicity and may
               view the effect of publicity as a punishment. However, a subjective assessment by the
               individual of the effect of publicity is irrelevant in determining the purpose of the publicity.
               Consideration of the human rights implications of publicity should be recorded.
               Consideration of data protection
               Publicity is not contrary to the Data Protection Act 1998 as long as authorities are operating
               in accordance with the Act. There is an exemption in section 29 of the Act let the processing
               of personal data for the purposes of prevention or detection of crime. This means that
               personal data can be processed with a view to compliance with a statutory function, where the
               data has been obtained from a person who possessed it for the purposes of the prevention or
               detection of crime. This will be the case when considering publicising an ASBO.
               Type of publicity
               No one directly involved in the case (witnesses and victims) should wait unnecessarily for
               information about an order. They should be informed immediately when an order is made.
               This is in addition to keeping them informed of progress throughout the court process and can
               be done by visits, letters and community meetings or by phone. Victims and witnesses may
               also be given a copy of the order. It is
               recommended that publicity be distributed to targeted households immediately after the order
               has been granted and by at least a week after the court date. Local people should be informed
               when variation or discharge of an order relevant to them is made.
               The method of publicity can include the following:
               •  local print and television media.
               •  local leaflet drop; and
               •  local newsletter.
               Practitioners need to apply the proportionality test when deciding which method is
               appropriate.
               Leaflets and other printed materials, such as posters or residents’ newsletters, allow local
               agencies to target particular neighbourhoods, streets or households with information.
               The public can be informed about an ASBO at any time - publicity can be issued and re-
               issued according to the circumstances. However, publicity needs to be timely to ensure that
               people are able to enforce the order as soon as it has been granted and to reassure the public
               that something is being done.
               Working with the media
               It is usual for local statutory agencies to have working relationships with local and regional
               media, including press, television and radio. This is particularly relevant to issues such as
               anti-social behaviour and where the media are keen to report how local agencies are tackling
               these issues through the deployment of dispersal orders, ASBOs crack house’ closures, etc.
               It is important to work with local media and to make them understand that it is not the
               purpose of any publicity to punish the individual. Media coverage has the potential to go to a
               wider audience than leaflets or posters. It is good practice to identify newspapers that report
               on city, borough and neighbourhood issues, free local press and local radio and television and
               to develop working relationships with them. This could include being aware of their
               publication deadlines, giving them exclusives and making sure that the complainant’s
               (victim’s) point of view is put across. However, it is important to
               132
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               Promoting a wariness of orders




                                                                                             Page 132 of 139]]></page><page Index="135"><![CDATA[keep close control of the material. Witnesses should not be put at risk by disclosing dates of
               hearings, and your relationships with the courts should not be jeopardised. Those subject to
               an ASBO who are considered vulnerable should also not be put at risk.
               Issuing a press release is a way of retaining control of the material. There should be an agreed
               process for authorisation of the press releases. The press release should contain information
               that meets the identified aim of the publicity. For example, if the aim is to help enforce the
               order, the information in the press release will be more detailed than the information needed
               for publicity whose aim is to reassure the community that something is being done. It is good
               practice to identify a spokesperson to liaise with the press.
               133
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               Simon Cordell’s Skeleton Argument (2) Pdf
               Appendix A
               Early intervention and tackling offending behaviour by under-10s
               Interventions available
               Acceptable behaviour contract (ABC)
               An ABC (also known as an acceptable behaviour agreement) is an intervention designed to
               engage an individual in acknowledging his or her anti-social behaviour and its effect on
               others, with the aim of stopping that behaviour. An ABC is a written agreement made
               between a person who has been involved in anti-social behaviour and their local authority,
               youth inclusion support panel (YISP), landlord or the police. ABCs are not set out in law,
               which is why they are sometimes called agreements. Any agency is able to use and adapt the
               model. An ABC or acceptable behaviour agreement is completely flexible and can be adapted
               for the particular local need. It can include conditions that the parties agree to keep. It may
               also contain the agreed consequences of a breach of the agreement.
               Parenting contracts (section 25 of the Anti-Social Behaviour Act 2003)
               Parenting contracts are voluntary written agreements between youth offending teams (YOF’s)
               and the parent/guardian of a child/young person involved, or likely to be involved, in anti-
               social behaviour or criminal conduct. They are a two-sided arrangement where both the
               parents and the agency will play a part in improving the young person’s behaviour. The
               contract contains a statement by the parent(s) agreeing to comply with the requirements for
               the period specified and a statement by the YOT agreeing to provide support to the parent(s)
               for the purpose of complying with those requirements. It is important that there is a clear
               agreement about the consequences if the terms of the parenting contract are not adhered to. If
               the contract is broken, the YOT may apply to the court for a parenting order (see below),
               which would include compulsory requirements.
               Child safety order (sections 11-13 of the Crime and Disorder Act 1998 as amended by section
               60 of the Children Act 2004)
               A child safety order (CSO) allows compulsory intervention with a child under 10 years of
               age who has committed an act which, had they been aged 10 or over, would have constituted
               an offence. It is designed to prevent anti-social behaviour when it is not possible to engage on
               a voluntary basis with a child under 10. A CSO is made in family proceedings in the
               magistrates’ court on application by a local authority. The order places the child under the
               supervision of a responsible officer, who may be a local authority social worker or a member
               of a youth offending team and can include requirements designed to improve the child’s
               behaviour and address underlying problems.
               If the order is not complied with, the parent can be made the subject of a parenting order if
               that would be in the interests of preventing repetition of the behaviour that led to the CSO
               being made.
               Parenting order


                                                                                             Page 133 of 139]]></page><page Index="136"><![CDATA[A parenting order can be made in respect of a parent of a child under 10 years of age. It can
               require parents to attend a parenting programme (lasting up to three months) and specify
               requirements for the parent regarding supervision of the child (lasting up to 12 months).
               Failure to comply with a parenting order is a criminal offence punishable by a fine of up to
               £1,000 and/or a community sentence.
               Under section 8 of the Crime and Disorder Act 1998 as amended by the Children Act 2004, a
               parenting order can be imposed on a parent of a child who is subject to a CSO or when a CSO
               has been breached.
               Section 26 of the Anti-social Behaviour Act 2003 enables YOTs to apply to the magistrates’
               court for a ‘free-standing’ parenting order. The court must be satisfied that the child or young
               person has engaged
               134
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               Simon Cordell’s Skeleton Argument (2) Pdf
               clearly intervention and Stickling offending behaviour by under
               in anti-social behaviour or criminal conduct and that the order would be desirable in
               preventing further occurrences of such behaviour.
               There is provision in the current Police and Justice Bill to extend the power to apply for
               parenting orders to local authorities and registered social landlords.
               For further information on parenting orders, refer to the guidance on parenting contracts and
               orders at www.homeoffice.gov.uk/documents/ parenting-orders- guidance
               Local child curfew schemes (section 14 of the Crime and Disorder Act 1998 as amended by
               Criminal Justice and Police Act 2001)
               These are designed for children and young people 15 years old and below, to help local
               authorities to deal with the problem of unsupervised children or young people involved in
               late-night, anti-social behaviour on the streets. Under a local child curlew scheme, a local
               authority or local police force can ban children under 16 from being in a public place during
               specified hours (between 9pm and 6am), unless they are under the control of a responsible
               adult. With children under 10, contravening a ban imposed by a curfew notice (for instance
               being found outside their homes after the curfew) is one of the conditions under which a
               family court could make the child subject to a CSO. A local child curfew can last for up to 90
               days.
               Junior youth inclusion projects
               Junior youth inclusion projects are based on high-crime, high-deprivation neighbourhoods
               across England and Wales and work with the 8-13 age range. Projects aim to prevent youth
               crime in those neighbourhoods by targeting the 50 most at-risk children and young people in
               the area, assessing their needs and providing meaningful interventions aimed at addressing
               those risk factors. Young people typically are either on the cusp of offending or are already
               involved in low-level offending. Ill order to engage with the 50 most at-risk young people,
               projects work with around another 100 peers and siblings of core group members.
               Youth inclusion support panels
               Youth inclusion support panels (YISPs) are multi-agency planning groups that serve to
               identify those young people in the 8-13 age range who are most at risk of offending and
               engaging in anti-social behaviour. They offer an early intervention based on assessed risk and
               need. Parenting support in the form of contracts and programmes is offered as part of a range
               of tailored interventions.
               The suggested criteria for a young person referred to the YISP is as follows:
               The child is aged between 8 and 13 years inclusive (up to 17 in some areas).





                                                                                             Page 134 of 139]]></page><page Index="137"><![CDATA[The behaviour of the child is of concern to two or more of the partner agencies and/or their
               parents/carers, and they consider that it requires a multi-agency response.
               The parent/carer and child are willing to take part, give consent to the referral and the child is
               willing to co-operate with an integrated support plan.
               The child is exposed to four or more risk factors.
               There is known offending behaviour up to and including a police reprimand or ASBO, or
               there is concern over potential involvement in criminal or anti-social behaviour.
               The panel is made up of representatives from a variety of agencies which can include YOTs;
               police; social services; housing, probation, and education services; Connexions; voluntary
               sector organisations; anti-social behaviour units; and the fire service. (This list is not
               exhaustive and can be tailored to local circumstances.) The panel will meet on a regular basis
               and consider referrals made to it in order to devise an integrated support plan. The YISP must
               ensure that a mechanism is in place for the sharing of information. The method, criteria and
               considerations for this can be found by referring to the Association of Chief Police
               Officers/Youth Justice Board guidance.
               16 Association of Chief Police Officers/Youth Justice Boat’s (2005) Sharing Personal and
               Sensitive information in Respect of Children and Young People a! Risk of Offending.
               London: Youth Justice Board,
               135
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               Appendix B
               County court Practice Direction according to the Civil Procedure Rules
               Anti-social behaviour orders under the Crime and Disorder Act 1998
               Scope of this Section and interpretation
               65.21    (1)  This Section applies to applications in proceedings in a county court under
                              sub-sections (2), (3) or (3B) of section IB of the Crime and Disorder Act
                              1998 by a relevant authority, and to applications for interim orders under
                              section ID of that Act.
                        (2}  In this Section -
                              (a)  ‘the 1998 Act’ means the Crime and Disorder Act 1998:

                                   'relevant authority' has the same meaning as in section 1(1A) of the
                              (b)  1998 Act: and
                              (0   'the principal proceedings' means any proceedings in a county court.
               Application where the relevant authority is a party in principal proceedings
               65.22    (1)   Subject to paragraph (2) -
                        (a) where the relevant authority is the claimant in the principal proceedings, an
                        application under section 1B (2) of the 1998 Act for an order under section 1B
                        (4) of the 1998 Act must be made in the claim form; and
                        (b) where the relevant authority is a defendant in the principal proceedings, an
                        application for an order must be made by application notice which must be filed
                        with the defence.
                        (2)   Where the relevant authority becomes aware of the circumstances that led
                              it to apply for an order after its claim is issued or its defence fiied, the
                              application must be made by application notice as soon as possible
                              thereafter.
                        (3)   Where the application is made by application notice, it should normally be
                              made on notice to the person against whom the order is sought,


                                                                                             Page 135 of 139]]></page><page Index="138"><![CDATA[Application by a relevant authority to join a person to the principal proceedings
               65.23    (1)  An application under section 1B(3S) of the 1998 Act by a relevant
                              authority which is a party to the principal proceedings to join a person to
                              the principal proceedings must be made -
                              (a)  in accordance with Section 1 of Part 19;
                              (b)  in the same application notice as the application for an order under
                                   section 1B (4) of the 1998 Act against the person; and
                                   as soon as possible after the relevant authority considers that the
                              (c)
                                   criteria in section 1B(3A) of the 1998 Act are met.
                        (2)  The application notice must contain -
                                   the relevant authority's reasons for claiming that the person's anti-
                              (a)
                                   social acts are material in relation to the principal proceedings; and
                              (b)  details of the anti-social acts alleged.
                        (3)  The application should normally be made on notice to the person against
                              whom the order is sought.
               136
               187,
               Simon Cordell’s Skeleton Argument (2) Pdf
               County court Practice Direction according to the Civil Procedure Rules
               Application where the relevant authority is not party in principal proceedings
               65.24    (1)  Where the relevant authority is not a party to the principal proceedings -
                             (a)   an application under section 18(3} of the 1998 Act to be made a
                                   party must be made in accordance with Section I of Part 19; and
                             (b)   the application to be made a party and the application for an order
                                   under section 16(4} of the 1998 Act must be made in the same
                                   application notice.
                        (2)  The applications -
                             (a)   must be made as soon as possible after the authority becomes aware
                                   of the principal proceedings; and
                                   should normally be made on notice to the person against whom the
                             <b)  order Is sought.
               Evidence
               65.25
               An application for an order under section 1B (4) of the 1998 Act must be accompanied by
               written evidence, which must include evidence that section IE of the 1998 Act has been
               complied with.
               Application for an interim order
               65.26    (1)  An application for an interim order under section ID of the 1998 Act must
                              be made in accordance with Part 25.
                        (2)  The application should normally be made
                        (a) in the claim form or application notice seeking the order; and
                        (b) on notice to the person against whom the order is sought.

               136
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               Appendix C
               Order form


                                                                                             Page 136 of 139]]></page><page Index="139"><![CDATA[FORM
               Anti-social behaviour order (Crime and Disorder Act 1998, si)
               Magistrates' Court (Code)
               Date:
               Defendant:
               Address:
               On the complaint of Complainant:
               Applicant Authority:
               Address of Applicant Authority:
               189,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Order form
               The court found that:
               the defendant acted in the following anti-social manner, which caused or was likely to cause
               harassment, alarm, or distress to one or more persons not of the same household as himself:
               And
               this order is necessary to protect persons from further anti-social acts by him. And it is
               ordered that the defendant
               [NAME]
               is prohibited from
               Until [further order]
               Justice of the Peace
               [By order of the clerk of the court]
               NOTE: If, without reasonable excuse, the defendant does anything which he is prohibited
               from doing by this order, he shall be liable on conviction to a term of imprisonment not
               exceeding five years or to a fine or to both.
               190,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Simon Cordell Skeleton Argument (3).pdf
               Appendix D
               Summons’s form
               Rule 4(2)
               SCHEDULE 2 FORM
               Summons on application for anti-social behaviour order (Crime and Disorder Act 1998, si)
               Magistrates’ Court (Code)
               Date:
               To the defendant: [name]
               Address:
               You are hereby summoned to appear on [date] at before the magistrates’ court at
               to answer an application for an anti-social behaviour order, which application is attached to
               this summons.
               By or Justice of the Peace
               order of the clerk of the court)
               NOTE: Where the court is satisfied that this summons was served on you within what
               appears to the court to be a reasonable time before the hearing or adjourned hearing, it may
               issue a warrant for your arrest or proceed in your absence.
               If an anti-social behaviour order is made against you and if, without reasonable excuse, you
               do anything you are prohibited from doing by such an order, you shall be liable on conviction
               to imprisonment for a term not exceeding five years or to a fine, or to both.
               191,


                                                                                             Page 137 of 139]]></page><page Index="140"><![CDATA[Simon Cordell’s Skeleton Argument (2) Pdf
               Appendix E
               Step-by-step process for anti-social behaviour orders and orders on conviction
               Process for anti-social behaviour orders
               192,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Step-by-step process fur anti-social behaviour orders and orders on conviction
               Process for an order made on conviction in criminal proceedings (in the magistrates’ court or
               the Crown Court)
               193,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Step-by-step process for anti-social behaviour orders (nut orders on conviction
               138
               194,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Appendix F
               Public funding for defendants
               Criminal public funding is available for any proceedings under sections 1 and 4 of the Crime
               and Disorder Act (CDA) 1998 relating to ASBOs, including interim orders, where they are
               made in the magistrates’ court or where an appeal is made in the Crown Court,
               Advocacy assistance is available for an ASBO, an interim order under section ID of the
               CDA, variation or discharge of an ASBO, or an appeal against the making of an ASBO under
               section 4 of the CDA, in accordance with the Criminal Defence Service General Criminal
               Contract, Solicitors can self-grant advocacy assistance for these matters, There are no
               financial criteria for the grant of advocacy assistance. Advocacy assistance may not be
               provided where it appears unreasonable that approval should be granted in the particular
               circumstances of the case, or where the interests of justice test, set out in Schedule 3 of the
               Access to Justice Act 1999, is not met.
               In applying this test, there is an additional factor of whether there is a real risk of
               imprisonment if an ASBO is made and subsequently breached.
               A representation order may be sought on application to the Legal Services Commission in
               respect of these proceedings. Provision for representation is made under Regulation 3(2)
               (criminal proceedings for the purposes of section 12(2)(g) of the Access to Justice Act 1999)
               of the Criminal Defence Service (General)(No.2) Regulations 2001, and Regulation 6(3) of
               the same regulations.
               An application to the Commission must be made on form CDS3.An application will be
               determined in accordance with the interests of justice criteria. The availability of advocacy
               assistance will be a relevant factor which the Legal Services Commission will take into
               account when considering the grant of rep rese n ration.
               Where an application for a representation order is refused, the Legal Services Commission
               shall provide written reasons for the refusal and details of the appeal process. The applicant
               may make a renewed application in writing to the Funding Review Committee, which may
               grant or refuse the application.
               Advocacy assistance is available for proceedings in the Crown Court, where an appeal is
               made under section 4 of the CDA. The merits test is slightly different from that on
               application for an interim or a full ASBO.
               It is based only on the general reasonableness test. Advocacy assistance may not be granted if
               it appears unreasonable that approval should be granted in the particular circumstances of the
               case. The prospects and merits of an appeal should be taken into account as well as whether
               the individual has reasonable grounds for taking the proceedings. Representation is also


                                                                                             Page 138 of 139]]></page><page Index="141"><![CDATA[available for an appeal against an order under section 4 of the CDA. An application should be
               made to the Legal Services Commission which will consider grant against the availability of
               advocacy assistance.
               Any challenge against the ruling of the Crown Court to the High Court by way of case stated
               or by application for judicial review falls outside the scope of criminal funding. Legal
               representation would have to be applied for in accordance with the Funding Code procedures
               to the Legal Services Commission. This work is funded through the Community Legal
               Service although it falls within the scope of the General Criminal Contract.
               Advocacy assistance is available for a breach of an interim order or full ASBO.
               Representation is also available for breach proceedings on application to the Commission as
               above.
               195,
               Simon Cordell’s Skeleton Argument (2) Pdf
               Further reading
               Anti-social Behaviour: A guide to the role of Youth Offending Teams in dealing with anti-
               social behaviour published by the Youth Justice Board, the Home Office and the Association
               of Chief Police Officers, which can be downloaded at
               www.youth-justiceboard.gov.uk/Publications/Scripts/prodView.asp?idproduct= 212&eP-
               The Guidance for the Courts by Lord Justice Thomas can be found at:
               www.youth-justice-board.gov.uk/NR/ rdonlyres/398987C5-E79A-491E-B912-
               DF3D4D762293/0/ASBOGuidanceforjudiciaryHMCS.june052.pdf
               Websites
               www.together.gov.uk
               www.respect.gov.uk
               www.crimereduction.gov.uk
               www.youth-justice-board.gov.uk











































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