Challenge to anti social behaviour orders could have human rights implications

Are anti-social behaviour orders part of civil or criminal

Once upon a time, there was a city called Manchester and it
wanted to ensure its citizens could live in peace, so it used the
Crime and Disorder Act 1998 to obtain anti-social behaviour orders
(ASBOs) from the courts on a family who did not want to join in
this game. The police liked the game and wanted to join in, so the
chief constable of Greater Manchester asked the court to make an
order stopping three young men from going to a particular area.

Sean, Joseph and Michael McCann, (through their mother) applied
to quash anti-social behaviour orders made by Manchester crown
court, and the complaint of the Chief Constable of Greater
Manchester, prohibiting the applicants from entering a specified
area of Manchester. The issue at stake was – are anti-social
behaviour orders part of the civil regime or the criminal justice
system? If the latter, then in human rights terms, they attract a
higher level of protection under Article 6 of the European
Convention on Human Rights.

The case came before the court of appeal on 1 March, before
three of the most senior and experienced judges, Lord Phillips of
Worth Matravers (who is the Master of the Rolls), Lord Justice
Kennedy and Lord Justice Dyson. They came to the very clear
conclusion that it had been the intention of parliament that an
application for a anti-social behaviour order should be a civil

In human rights terms, how did this square? How does this accord
with the caselaw from the European Court of Human Rights at
Strasbourg? The court of appeal said that in deciding whether there
was a criminal charge under Article 6, the European court had
looked at three things: the classification of proceedings in
domestic law, the nature of the offence and the severity of the
penalty which might be imposed.

In these ASBO proceedings, they are classified as civil in
domestic law, in that no offence is charged and no penalty is
imposed. If the ASBO is breached, then further (clearly criminal
proceedings) are commenced, but the court of appeal was clear that
ASBOs are civil not criminal proceedings.

The government wants to make it easier for people taking action
against neighbours who display anti-social behaviour to get
protection through the courts, so the home office has announced
that it is to review and streamline the legal process surrounding
anti-social behaviour orders. Perhaps the “families from hell”, the
families and individuals who make their neighbours’ lives a misery,
will learn to behave.

Bernadette Livesey

Walker Morris Solicitors 



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