GEOFF PEARSONw

HYBRID LAW AND HUMAN RIGHTS – BANNING

AND BEHAVIOUR ORDERS IN THE APPEAL COURTS

ABSTRACT. The desire of the New Labour Government to be seen as responsiveto popular concerns and moral panics over hooliganism and anti-social behaviour is

resulting in the increased use of legislative responses that bridge criminal and civillaw. Anti-Social Behaviour Orders and Football Banning Orders are two keyexamples of this ‘Hybrid Law’, imposed as a response to criminal conduct, supported

by criminal law sanctions, but operating under a civil law procedure providing fewerprotections for defendants. These hybrid orders have the power to severely restrictthe freedom of individuals who have not been found guilty of any criminal offence,and have been challenged in two important cases under Article 6 of the European

Convention of Human Rights. The decisions of the Appeal Courts that the purposeof the orders is merely preventative rather than punitive, and can therefore bejustifiably imposed under a civil law procedure, is controversial and indicates an

unwillingness to use the powers of the Human Rights Act to challenge such legis-lation and protect the fundamental human rights of defendants.

KEY WORDS: Anti Social Behaviour Orders, Appeal Courts, ECHR Article 6

Hybrid Law, Football Banning Orders

HYBRID LAW: A WOLF IN SHEEP’S CLOTHING?

The use of supposedly civil court orders supported by criminal lawsanctions has been heralded as a way of borrowing the most usefulparts from each system to deal with low-level disorder and ‘anti-social’ conduct. Recent statutory powers provide for the impositionof ‘hybrid’1 orders to regulate the behaviour or movement of indi-viduals accused of anti-social behaviour or football-related disorder.However, the development of this kind of hybrid law has attractedcontroversy, due to the use of civil procedure in response to criminal-law problems. This controversy is particularly striking due to the fact

w Dr Geoff Pearson is Lecturer in Law, Management School, University ofLiverpool.

1 See Gardner, J et al. ‘Clause I – The Hybrid Law from Hell?’ Criminal JusticeMatters No. 31 (1998), pp. 25–27, especially p. 25 and Wright, H and Sagar, T, ‘Out

of Sight, Out of Mind’ New Law Journal, 1st Dec (2000), 1792.

Liverpool Law Review (2006) 27: 125–145 � Springer 2006DOI 10.1007/s10991-006-9000-3

that the Government enacted the measures in the same term in of-fice that saw the introduction of the Human Rights Act (HRA),which imposes on the courts a duty to interpret legislation inline with the European Convention of Human Rights (ECHR).One of these essential protections is the right to due process incourt proceedings, including in criminal cases a presumption ofinnocence until proven guilty by the normal standards of law2

and the right to examine and obtain the attendance of prosecu-tion witnesses.3

This paper evaluates whether the provisions for hybrid courtorders are compliant with the protections supposedly provided bythe application of Article 6 of the ECHR under the HRA (theRight to a Fair Trial). It will focus specifically on Anti-SocialBehaviour Orders (ASBOs) introduced by the Crime and DisorderAct 1998, and Football Banning Orders ‘on Complaint’ (FBOs),introduced by the Football Disorder Act 2000,4 two regimes thatcan lead to the imposition of severe restrictions on individuals notconvicted of any criminal offence.5 Specifically, this article willutilise two appeal cases in which the status of these orders wasassessed. The author does not claim that hybrid law is a newphenomenon,6 nor that an overlap between civil and criminal lawwill always be problematic in terms of human rights. However, it iscontended that where court orders have a serious punitive effect,

2Article 6(2). Starmer et al. note that although the ECHR does not specifically set

out what the standard of proof should be, ECtHR jurisprudence suggests that astandard of proof beyond reasonable doubt flows from the presumption of inno-cence. (Starmer, K et al. ‘Criminal Justice, Police Powers and Human Rights’

(Oxford University Press, 2001), p. 171)3 Article 6(3)(d).4 Schedule 1 amends the Football Spectators Act 1989.5 These key features differentiate ASBOs and FBOs from civil injunctions backed

by criminal sanctions (which do not allow the same level of restrictions on freedom)and Sexual Offender Orders under Section 2 of the 1998 Act (which can only beimposed after conviction of a criminal offence). It should be noted, however, that

similar problems regarding evidence arise with the imposition of Sexual OffenderOrders where the question that arises before a court is whether a convicted sexoffender is still behaving in such a way as to give reasonable cause to believe that anorder is necessary to protect the public from harm (e.g. B v Chief Constable of Avon

and Somerset [2001] 1 All E.R. 562).6 In the field of public law there has been widespread use of apparently civil

measures as a response to criminal law and public order issues; see for example theCamping and Rave provisions of the Criminal Justice and Public Order Act 1994(sections 61–66) and the use of civil law relating to industrial action immunity to

prevent and break up mass and secondary picketing during the Miners’ Strike.

126 GEOFF PEARSON

they should adhere to criminal procedures, particularly regardingthe admissibility of evidence and the standard of proof. Further-more, the claim made in the two appeal cases that the punitiveeffect of the orders is outweighed by the preventative purpose iscontested as this would allow the state itself to determine what pro-tections should be available to individuals against its own power, instark contrast to the anti-subversion doctrine of the ECHR.7

Although there has already been considerable academic analysison ASBOs, and their legitimacy under the HRA,8 little has beenpublished regarding FBOs beyond case comment.9 It is the author’scontention that rather than examining one area exclusively, ananalysis combining the current issues and legal debates surroundingboth ASBOs and FBOs provides a full understanding of the devel-opment and potential dangers of this type of hybrid law. Further-more, with proposals for new kinds of hybrid orders, and therecent debates over Anti-Terrorism Control Orders, it is importantto consider the broader civil libertarian issues arising from the

7See Ashworth, A, ‘Social Control and ‘Anti-Social Behaviour’: The Subversion

of Human Rights’ 120 Law Quarterly Review 263 (2004) at p. 268.8 For example: Ashworth (ibid), Burke, R and Morrill, R, ‘Anti-Social Behaviour

Orders: An Infringement of the Human Rights Act 1998?’ Nottingham Law Journal11/2 (2002), pp. 1–16; Cracknell, S, ‘Anti-Social Behaviour Orders’ Journal of Social

Welfare and Family Law 22/1 (2000), pp. 108–115; Gardner, J et al. ‘Clause I – TheHybrid Law from Hell?’ Criminal Justice Matters No. 31 (1998), pp. 25–27; Grier, Aand Thomas, T, ‘A War for Civilisation as we know it’’, Youth and Policy: The

Journal of Critical Analysis No. 82 (2003/4); Heels, S and Anesh, P, ‘Anti-SocialBehaviour Orders: Law and Practice’ (London: Jordans, 2003); Leng, R, Taylor, Rand Wasik, M ‘Crime and Disorder Act 1998’, (London: Blackstone Press, 1998);

Plowden, P, ‘Love Thy Neighbour’ 149 New Law Journal 520 (1999); Tain, P, ‘Anti-Social Behaviour Orders’ Solicitor’s Journal 145/2 (2000), p. 36; Wright, H andSagar, T, ‘Out of Sight, Out of Mind’ New Law Journal 1st Dec. (2000), p. 1792 and

Von Hirsch et al. ‘Overtaking on the Right’, New Law Journal 13th October (1998),p. 1501.

9 ‘Football Banning Orders’ Current Survey, Public Law Autumn 2002, pp. 576–

577, Pearson, G, ‘A Cure Worse Than the Disease? Reflections on Gough and Smithv Chief Constable of Derbyshire’, Entertainment Law, Vol. 1/2 (2002), pp. 92–102and ‘Contextualising the Football Disorder Act: Proportionality under the Ham-

mer’, in Greenfield, S and Osborn, G (eds.), Contemporary Issues in Law and Sport(Frank Cass, Forthcoming 2006), Taylor, N, ‘Football Banning Orders do notviolate Community or Convention Law’ Journal of Criminal Law 66/4 (2002),

pp. 309–311.

127HYBRID LAW AND HUMAN RIGHTS

imposition of quasi-criminal restrictions by civil procedure. Thenumber of orders currently in force under both pieces of legisla-tion,10 combined with the recent case law means that it is now pos-sible to analyse how this type of ‘hybrid’ sanction has been usedand, whether in the light of this, the civil libertarian concernsregarding its legitimacy under the HRA were well founded.

The hybrid nature of ASBOs and FBOs results from the factthat the apparently civil measures11 (described in court as beingmore akin to a civil injunction than a criminal punishment) areaimed primarily at what is considered low-level criminality. Fur-thermore, they attempt to achieve this aim by imposing restrictionsthat have a punitive effect, are supervised by the police and sup-ported by criminal sanction. As has been noted elsewhere, the inten-tion of ASBOs was to tighten perceived loopholes in the law, withcriminal law protections often preventing conviction and civil lawprocedures proving expensive and time consuming, their remediesoften ineffectual.12 The police and local authority can apply to aMagistrates Court for an ABSO where, ‘the person has acted...in ananti-social manner, that is to say, in a manner that caused or waslikely to cause harassment, alarm or distress...‘ and where ‘...such anorder is necessary to protect relevant persons from further anti-socialacts by him.’13 An order can then be imposed to prevent further anti-social behaviour by, for example, ordering the person not to commit

106,497 ASBOs were reported by the Home Office by the end of June 2005

(www.homeoffice.gov.uk) and by September 2005, 3,139 FBOs were in force (Home

Office: ‘Football (Disorder) Act 2000 Report to Parliament’, November 2005, al-though this number includes FBOs made on conviction).

11 The Home Office has presented both ASBOs and FBOs as non-criminal legal

measures, ‘in the sense that they proactively seek to prevent offending rather thanreacting to it’ (Fionda, J, ‘New Labour, Old Hat: Youth Justice and the Crime andDisorder Act’, Criminal Law Review, Jan. 1999: 36, at p. 44).

12 In the case of ASBOs, the perceived gap in the law was between criminal lawpunishments and the civil law injunctive remedies for the likes of Nuisance and

Breach of Tenancy Agreement (Burke, op cit n. 8, p. 8). It was felt that FBOs wererequired because ‘known hooligans’ were avoiding conviction for football-relatedoffences that could lead to the imposition of a Restriction Order under the FootballSpectators Act 1989 (See Kate Hoey’s comments, House of Commons, Standing

Committee D, 5/5/99) and UK authorities were therefore, unable to prevent themleaving the country when English teams played abroad (although in practice immi-gration officials in the country hosting the event were provided with the names of

suspected ‘hooligans’ and often deported them upon arrival).13 Introduced by Section 1 of the Crime and Disorder Act 1998 as amended by the

Section 61 of the Police Reform Act 2002 and the Anti-Social Behaviour Act 2003.

128 GEOFF PEARSON

certain acts, meet with named individuals, or enter a specific area.14

FBOs function in a similar way, imposing restrictions upon thosewho are been identified as ‘risk supporters’15 in order to preventthe individuals from committing further offences. Previous legisla-tion existed to impose banning orders16 upon those already con-victed of ‘football-related’17 offences, but the Football (Disorder)Act 2000 extended this power to those who had not been con-victed but were merely identified by the police as being ‘knownhooligans’ (also known as ‘prominents’ or ‘risk supporters’).18

Breach of the conditions of either an FBO or an ASBO is a crim-inal offence, punishable by a maximum 5-year custodial sentence.

Prima facie, the types of behaviour tackled by these policies aredifferent; ASBOs are aimed at controlling the anti-social behaviour‘on your doorstep’ (i.e. the nuisance caused by your own neigh-bours) whereas FBOs ‘on complaint’ were introduced primarily toprevent disorder occurring in foreign countries by UK nationalswho are essentially on vacation.19 However, once the geographical

14Examples of the use of ASBOs include those imposed upon members of the

‘Bromley Farm Estate Gang’ in Congleton, Cheshire, who had ‘waged a campaign of

intimidation against the local community’ (The Congleton Chronicle, 3/10/03). The3-year orders included bans on gang members entering certain parts of the estate,entering shops without the permission of owners, and restricted them to a night-time

curfew. Another example of the wide-ranging type of conditions that can be attachedto ASBOs comes from a high profile case in Manchester, where the defendants werebanned from riding bikes anywhere in the city (The Guardian, 30/1/04).

15 This appears to be the current terminology of choice for the police and HomeOffice, replacing ‘prominent’ and ‘hooligan’ (Observational research, ManchesterCrown Court and Trafford Magistrates Court, January–February 2006).

16 The Public Order Act 1986 s.30 provided for ‘Exclusion Orders’ to preventconvicted hooligans attending matches, and the Football Spectators Act 1989 s.14

provided for ‘Restriction Orders’ to stop them following English teams abroad.17 As defined in the Public Order Act 1986 s.31, amended by the Football (Of-

fences and Disorder) Act 1999 s.7.18 The chief officer of police to apply for a Banning Order by way of complaint if

s/he believes the respondent has at any time, ‘...caused or contributed to any violence

or disorder in the United Kingdom or elsewhere’ (Football (Disorder) Act 2000, Sch1, s.14B, amending the Football Spectators Act 1989). If it is ‘...satisfied that thereare reasonable grounds to believe that making a banning order would help to preventviolence or disorder at or in connection with any regulated football match-

es’(s.14(4)(b)) the Magistrates Court must impose an order demanding the individualsurrender their passport whenever an English team are playing abroad, along withany necessary additional conditions, for example an exclusion zone around a ground

or town centre (s.14(G)).19 Although FBOs generally have also provided the police with extensive powers

against football crowd disorder domestically.

129HYBRID LAW AND HUMAN RIGHTS

differences are disregarded, the measures have much in common.First, both target anti-social and disorderly behaviour that is onthe very limits of criminal law. This includes the behaviour com-monly referred to by the media as ‘loutish’ or ‘yobbish’; conductby gangs that causes harassment, alarm or distress to those nearby,be it on the local housing estate or in a town square in a foreigncountry. Second, as we have seen, this type of conduct has beenidentified by the authorities as difficult to prevent through utilisa-tion of the normal criminal law process, usually because the indi-vidual misdemeanours themselves are too minor to result insignificant punitive action.

‘TOUGH ON CRIME AND ITS CAUSES’: NEW LABOUR AND MORAL PANIC

Although ASBOs and FBOs have their origins in Conservative doc-trine,20 their emergence onto the statute book arose from the shiftof the New Labour Government away from more traditional socia-list approaches on crime based upon interactionist theory combinedwith Marxist politics to a new Left Realism.21 This manifesteditself in the desire to appear ‘tough’ on the issue of law and orderand the pursuit of populist policies aimed at dealing with criminaland quasi-criminal behaviour in a direct and practical way. Gar-land also notes the recent shift in emphasis:

‘Criminal justice is now more vulnerable to shifts of public mood and politicalreaction. New laws and policies are rapidly instituted without prior consultation.(...) The populist current in contemporary crime policy is, to some extent, a politi-

cal posture or tactic, adopted for short-term electoral advantage.’22

20The Protection from Harassment Act 1997 introduced Restraining Orders

(Section 5) for those convicted of harassment. The imposition of FBOs ‘on com-plaint’ rather than conviction was initially put forward by a Private Members Bill in1999 by Conservative MP Simon Burns and both Exclusion and Restriction Orders

were the result of Conservative legislation.21 See Brownlee, I, ‘New Labour – New Penology? Punitive Rhetoric and the

Limits of Managerialism in Criminal Justice Policy’ Journal of Law and Society, 25/3

(1998), pp. 313–335 at p. 319. However, the author argues that New Labour merelyselectively borrowed from this ideology, with the ‘tough crime control measures’being imposed ‘in isolation from effective action on crime’s social causes.’ (ibid,

p. 333, see also p. 330).22 Garland, D, ‘The Culture of Control: Crime and Social Order in Contemporary

Society’ (Oxford: Oxford University Press, 2001), p. 172.

130 GEOFF PEARSON

This desire for security, control and the management of risk hastherefore, become an increasingly dominant theme, with controlbeing ‘re-emphasised’ after a long-term process of expanding per-sonal freedom.23 It is contended that FBOs and ASBOs arose fromthis populist response to moral panic,24 and that New Labour’sincreasing focus on Law and Order in the build up to the 1997election,25 and shift towards the punitive aspects of Left Realismprovided a political and then legislative outlet for moral panic overanti-social behaviour and hooliganism.

Brownlee contends, ‘...by increasing the public’s sense of insecu-rity, this discourse of the predatory other serves to increase theintensity of social reaction to law-breaking. When combined, thesefactors have the potential to extend the reach of social control andincrease the demand for punishment.’26 This is not to discount thevery real social problems arising from either phenomenon, nor thedifficulties identified in dealing with such behaviour, but to identifyhow populist concerns over anti-social behaviour and footballhooliganism have influenced law-making. As Cohen notes, labellingsomething a moral panic does not imply that the phenomenondoesn’t exist but that its significance has been exaggerated or is outof proportion to other more serious problems.27

‘The issue indeed is proportionality. It is surely not possible to calibrate exactly the

human cost of crimes, deviance or human rights violations. The shades of inten-tionally inflicted suffering, harm, cruelty, damage, loss and insecurity are too com-plex to be listed in an exact, rational or universally accepted rank order ofseriousness. But some disparities are so gross, some claims so exaggerated, some

political agendas so tendentious that they can only be called something like, well,‘‘social injustice’’.’28

It is contended that this ‘disproportionality element’ of a moralpanic29 may demonstrate: (1) How such controversial legislationwas successfully introduced to the statute book, and (2) Why legal

23Ibid pp. 194–195.

24 See Cohen, S, ‘Folk Devils and Moral Panics’ (London: Routledge, 2002) andHall, S et al. ‘Policing the Crisis’ (London: Macmillan, 1978), especially chapter 1.

25 See Brownlee (op cit n. 19), pp. 313–318.26 Ibid, p. 326.27 Cohen (op cit n. 22), Introduction to the 3rd Edition, viii. Cohen also notes

some of the criticisms of identifying whether a response is proportionate, see pp.xxviii–xxix.

28 Ibid, p. xxxiv.29 Ibid, p. xxii.

131HYBRID LAW AND HUMAN RIGHTS

challenges on civil libertarian grounds have been so unsuccessful,even in the highest courts of appeal.

The extent to which media construction of so-called ‘footballhooliganism’ has influenced the response of successive governmentsto football-related disorder is clear and well documented.30 Reac-tionary statutes have been introduced, sometimes within months ofwidely reported and condemned disorder31 and judges have fre-quently re-activated media constructions of the ‘shame and menace’of football hooliganism when sentencing ‘football hooligans’.32

Even in the High Court hearing of Gough and another v. Chief Con-stable of Derbyshire [2001] 3 CMLR 29, which considered whetherFBOs were a proportionate response to the problem of footballcrowd disorder abroad, the sensationalist media construction of thephenomenon was applied, with Laws LJ describing football hooli-ganism as ‘evil’,33 a ‘rising spectre’,34 a ‘shame and a menace’,35

and referring to ‘the various sickening ills of football violence’.36

30E.g. Armstrong, G and Hobbs, D, ‘Tackled From Behind’ in Giulianotti, R,

Bonney, N and Hepworth, M (eds.) Football, Violence and Social Identity (London:Routledge, 1994), Hall, S, ‘The Treatment of ‘‘Football Hooligans’’ in the Press’, in

Ingham, R et al. (eds.) Football Hooliganism: The Wider Context (London: Inter-Action Inprint, 1978) and Pearson, G, ‘Legitimate Targets? The Civil Liberties ofFootball Fans’ Journal of Civil Liberties 4/1 (1999), pp. 28–47. Garland notes gen-

erally the influence of the mass media in tapping into, dramatising and reinforcingpopular emotion about crime, arguing that, ‘Public knowledge and opinion aboutcriminal justice are based upon collective representations rather than accurate

information; upon a culturally given experience of crime, rather than the thing itself’(op cit n. 22, p. 158).

31 E.g. The Sporting Events (Control of Alcohol etc.) Act 1985, the Football

Spectators Act 1989. The Football (Disorder) Act itself was a direct response to thebehaviour of English fans at the 2000 European Championships tournament, fol-lowing an earlier attempt to introduce Banning Orders ‘on complaint’ by way of a

Private Members Bill after more serious disorder at the 1998 World Cup in France(The Football (Offences and Disorder) Act 1999 is the ‘watered-down’ version of thisBill).

32 Most directly through their appropriation of the metaphor ‘the English Dis-ease’ See Pearson G, ‘The English Disease? The Socio-Legal Construction ofFootball Hooliganism’ Youth and Policy – The Journal of Critical Analysis No. 60

(1998), pp. 1–15.33 Gough and Another v. Chief Constable of The Derbyshire Constabulary, Regina

(Miller) v. Leeds Magistrates’ Court, Lilley v. Director of Public Prosecutions [2001]3 CMLR 29: Para 42.

34 Ibid, Heading 3.35 Ibid Para 1.36 Ibid Para 81.

132 GEOFF PEARSON

ASBOs too have their origins in moral panic and a populistgovernment wishing to be seen to be responsive and as with legisla-tive responses to football crowd disorder, the result has been, ‘...theenactment of a plethora of complex and overlapping legal powersdirected at various, ill-defined forms of anti-social behaviour.’37

Cracknell notes that,

‘Around the time of the [1997] election, and almost on a daily basis since then, there has

been extensive media interest in ‘‘neighbours from hell’’, with a series of television pro-grammes of that name, radio and newspaper coverage. A new ‘‘folk devil’’ has beenidentified, and there has been a moral panic about the threat they pose to local commu-

nities and civil society, and the inadequacy of the law to deal with the problem.’38

Certainly the Hansard debates during the passage of the Crime andDisorder Bill through Parliament illustrate a moral panic in fullflow, with anti-social behaviour described in terms such as ‘mind-less behaviour’, and an ‘unacceptable menace’.39 Frank Field MPuses the type of exaggerated language typical of such panics whenclaiming that the authorities have been fighting ‘nothing less than awar for civilisation as we know it’ in their attempts to control anti-social behaviour.40 Furthermore, it seems that this moral panicabout anti-social behaviour was capable of influencing the judiciaryin the House of Lords, with Lord Steyn in McCann making thepopular yet unsubstantiated claim that, ‘In recent years this phe-nomenon became a serious social problem’.41

CHALLENGES TO HYBRID ORDERS IN THE COURTS

The central civil libertarian criticism of hybrid orders has been thatby imposing quasi-criminal sanctions on the basis of civil proce-dures, ECHR protections granted to citizens under the HRA arebeing infringed. Criticism of the orders has been made on the

37Cracknell (op cit n. 8), pp. 110–111.

38 Cracknell (op cit n. 8), p. 110.39 For example, Hansard 2nd December 1997 Col.148 (Henry McLeish, Minister

for Home Affairs and Devolution, Scottish Office).40 Field, F, ‘Neighbours from Hell: the Politics of Behaviour’, (London: Polit-

ico’s, 2003), p. 18. However, although surveys have indicated a belief that this type ofbehaviour has worsened in recent years, there is little statistical evidence to cor-

roborate this (see Warburton, F, ‘Nobody Likes Us: We Don’t Care’, CriminalJustice Matters, No. 31 (1998), p. 8).

41 R v Crown Court of Manchester ex parte McCann [2003] 1 A.C. 787, para 16.

133HYBRID LAW AND HUMAN RIGHTS

grounds of Articles 5,42 843 and especially Article 6, which providesfor the right to a fair trial and grants additional protections tothose under a ‘criminal charge’.44 Of particular relevance is Article6(2), which provides that ‘Everyone charged with a criminal offenceshall be presumed innocent until proved guilty according to law,’and 6(3)(d) which grants a defendant facing a criminal charge theright ‘to examine or have examined witnesses against him and toobtain the attendance and examination of witnesses on his behalfunder the same conditions as witnesses against him’. The majorissue here, therefore, is the question of whether the procedure toimpose a behaviour or banning order takes the form of a criminalcharge. This in turn has an important impact upon, (1) the stan-dard of proof necessary for the imposition of such an order, and,(2) the type of evidence admissible in a hearing. The fact that theimposition of hybrid orders follows a stated civil procedure doesnot mean that the debate over these issues is closed, with the anti-subversion doctrine45 of the ECHR requiring courts to ‘lookbehind’ the state’s own labelling of the procedure in order to estab-lish whether the restrictions are actually criminal according to theConvention.46

The status of hybrid orders has been debated in two key cases,which provide the focus for this paper. In the first of these, R vCrown Court of Manchester ex parte McCann [2003] 1 A.C. 787,the decision of the Magistrates Court to impose ASBOs upon thedefendants (which included conditions restricting freedom of move-ment) was challenged in the House of Lords under Article 6. In thesecond case, Gough and Smith v Chief Constable of Derbyshire[2002] Q.B. 1213, two FBOs imposed ‘on complaint’ were chal-lenged at the Court of Appeal under the EC Treaty47 and againunder Article 6.

42The Right to Liberty and Security.

43 In Gough and Smith v Chief Constable of Derbyshire [2002] Q.B. 1213, it wasargued that in compiling files of evidence against suspects in order to impose FBOs,

the police were breaching the Right to Respect for Private and Family Life (Para100).

44 In addition to setting out lesser rights and protections in civil courts and tri-bunals.

45 See Ashworth (op cit n. 7).46 E.g. Engel v The Netherlands (No 1) (1976) 1 EHRR 647.47 It was claimed that preventing an individual from leaving the UK was in breach

of Articles 1 and 2 of the 1973 EC Directive, which provides that Member Statesshall grant their nationals ‘...the right to leave their territory.’ (Council Directive 73/

148/EEC, Article 2(1)).

134 GEOFF PEARSON

THE STANDARD OF PROOF

The first procedural issue the courts in McCann and Gough neededto address was which standard of proof to follow when determin-ing whether the defendants had committed the alleged acts of anti-social behaviour or hooliganism. The lead given by the courts inboth cases is confused and at odds with many of the claims madeelsewhere in the judgements asserting the purely civil nature of theproceedings. In McCann, Home Office representation argued thatthere should be a single fixed standard of proof on the balance ofprobabilities, to reflect the apparently purely civil nature of theproceedings and at the Divisional Court in Gough,48 Laws LJ tooagreed that a balance of probabilities was a sufficient standard.However, in each case, the appeal courts followed a different line,noting the seriousness of the potential restrictions and ruling thatthe standard of proof should be akin to the criminal standardwhen investigating allegations. In McCann, Lord Hope noted that,

‘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 conductwhich, if proved, would have serious consequences for the person against whomthey are made.’49

In Gough, Lord Phillips took a similar view, identifying the, ‘seri-ous restraints of freedom that the citizen normally enjoys’, beforedetermining that in future magistrates should, ‘apply an exactingstandard of proof that will, in practice, be hard to distinguish fromthe criminal standard’.50 Although this appears to be an important

48Gough and Smith v. Chief Constable of Derbyshire [2001] 3 C.M.L.R. 29.

49 Para 82.50 Para 90. With the appeal courts establishing FBOs should only be imposed

after proof of the committal of criminal or quasi-criminal acts is established beyondreasonable doubt, there is a very real danger that the authorities will ‘take their eyeoff the ball’ when it comes to suspected ‘football hooligans’. Is the opportunity for

criminal charge and conviction being missed when profiles of defendants are beingcompiled for the purpose of imposing FBOs? If, as was alleged, Gough and Smithreally were members of a highly organised criminal gang who were frequently in-

volved in serious violence with other gangs (all the time under the watchful eye ofFootball Intelligence Officers), why are the police wasting time by merely applyingfor banning orders? Surely convictions under Public Order legislation would have

been more appropriate, especially as these could also lead to conventional banningorders. Similarly, in McCann, an allegation of burglary formed part of the respon-dent’s profile, and yet despite the seriousness of the alleged offence, the police’s

pragmatic stance meant that the defendant in question would not stand trial for it.

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concession to civil libertarian concerns, it raises serious questionsas to the status of hybrid orders. For whilst ‘it is not an invariablerule that the lower standard of proof must be applied in civil pro-ceedings’,51 the rulings do cast doubt as to whether ASBOs andFBOs are purely civil remedies being imposed under a civil lawprocedure in the manner of an injunction. Furthermore, theacknowledgement of the ‘serious restraints of freedom’ arising fromsuch orders sits uncomfortably with the ruling that the orders pos-sess a purely preventative function.

EVIDENTIAL ISSUES

The second major question dealt with by the appeal courts con-cerned the admissibility of evidence. In McCann, it was arguedthat the use of hearsay statements (in this case allegations madeto the police by witnesses wishing to remain anonymous) wouldbe precluded under criminal law procedure,52 but would mostlikely be admissible in civil law.53 The use of such evidence incriminal trials in particular has traditionally been seen as highlycontentious and Starmer et al. note that, ‘The European Court(of Human Rights) has expressed disquiet about cases where allor most of the prosecution case is made up of hearsay evi-dence.’54 The use of hearsay evidence, particularly in the form ofanonymous allegations of criminal behaviour,55 must therefore,be taken seriously, especially where an order may impose restric-tions upon freedom of movement or association on defendantswho have no opportunity to challenge statements leading to itsimposition. However, the House of Lords were of the opinion

51McCann, para 82.

52 Not falling within the exemptions provided by common law or the Criminal

Justice Act 1988.53 Under the Civil Evidence Act 1995 and the Magistrates’ Courts (Hearsay

Evidence in Civil Proceedings) Rules 1999. It should be noted that civil proceduredoes not permit the complete free admission of hearsay evidence, and the defendantsin McCann could also have challenged its admissibility under civil law rules.

54 op cit n. 2, p. 192. See Ashworth (op cit n. 7) for a useful summary of why thoseunder a criminal charge should receive greater protections (pp. 273–275).

55 The court in McCann took into account anonymous hearsay statementsaccusing the defendants of burglary, criminal damage and abuse, along with otherevidence from police and members of the public apparently too afraid to give evi-

dence in open court.

136 GEOFF PEARSON

that since ASBOs were imposed following civil procedure, thehearsay evidence in question could be allowed, Lord Huttonclaiming that it was necessary to enable, ‘the striking of a fairbalance between the demands of the general interests of thecommunity... and the requirement of the protection of the defen-dants’ rights...‘56

The issue of hearsay also played a significant role in Gough.Offender profiles57 contained a substantial amount of hearsaywhich the defendants argued they had not been given the opportu-nity to cross-examine.58 Moreover, the nature and reliability ofmuch of the evidence from these profiles raises more importantquestions as to the type of behaviour that can lead to the imposi-tion of an FBO. Although the Court of Appeal determined thatthe standard of proof should be one akin to the criminal standard,the type of evidence that had been relied upon by the MagistratesCourt demonstrates that in practice, this may be difficult toachieve. The evidence presented to the court in Gough was basedon profiles of each defendant compiled by the Derbyshire Con-stabulary alleging that Gough and Smith were prominents in a‘firm’ of football hooligans.59 Of the profiles to which the courtdrew attention, there were a number that suggested the defendantswere merely the victims of guilt by association, or simply being inthe wrong place at the wrong time. The court attached the mostweight to evidence from profiles compiled by Football Intelligenceofficers identifying the defendants as associating with the ‘DerbyLunatic Fringe’. This group, the police claimed, was an organisedfootball hooligan gang that often became involved in disorder with

56Para 113. Since the outcome of the McCann case, there has been considerable

reform of the hearsay rules, narrowing of the gap between civil and criminal rules ofadmissibility (the use of hearsay evidence in criminal proceedings has been extendedby the Criminal Justice Act 2003, Ch. 2).

57 The increased use of intelligence-led policing to control football-relateddisorder has seen police forces compiling files of documented incidents of‘hooliganism’ (usually composing police witness statements and video footage)

on those suspected of involvement. Police officers known as ‘spotters’ typicallyuse general surveillance to document the movement and actions of ‘risk sup-porters’.

58 The respondants claimed that cross-examination was open to the appellants,although Lord Phillips doubted it would have been a useful exercise as those whocompiled the profiles may not be able to recall many of the individual incidents (Para

102).59 Both defendants had one previous violent conviction but neither were ‘football-

related’ and the court attached more significance to the police profiles (Para 28).

137HYBRID LAW AND HUMAN RIGHTS

rival firms.60 Gough and Smith’s association within this firm, orwith some of its members, was then presented to the court as pri-ma facie evidence that the defendants were themselves involved inthe type of violent disorder the police had witnessed between thefirms.

Typical profiles upon which the court based their decision in-cluded –

‘Derby v Middlesbrough, 70 of the Derby prominent group were involved in dis-turbances with Middlesbrough prominents both before and after this game. Mr

Gough was part of the Derby group.’61

‘Gough attended London on this day on a rogue coach with 40 other Derbyprominents. This coach was stopped and searched and was found to contain DLFcalling cards, drugs and tickets for the game, all had been secreted on the

coach’.62

‘Smith was seen in the square in Charleroi after the disorder had occurred cor-ralled by the Belgium police with around 15 other Derby prominents and 1,500

other England supporters’.63

However, no evidence highlighted in the Gough judgement pointedto either defendant committing any specific criminal offence in rela-tion to football. Instead, it was ‘the cumulative effect of the indi-vidual observations’ that ‘pointed unequivocally to the appellantbeing one of the Derby County football ‘‘prominents’’‘.64 Essen-tially, this ‘cumulative effect’ was an establishment of guilt by asso-ciation with other prominents, something that would not beconsidered admissible in either civil or criminal trials.65 The mereappearance of the individuals within groups that were known onoccasion to become involved in disorder, or with other people

60Paras 30–31.

61 Para 30.62 Para 31.63 Para 34.64 Per Lord Phillips, Para 101.65 See for example the summing up of Scruton v Bone (Striking out) (2001) WL

1612640.

138 GEOFF PEARSON

identified by officers as prominents was therefore, sufficient to leadto banning orders being imposed.66

It must, therefore, be asked whether a quasi-criminal standardof proof was being imposed, as was claimed. In practice, the courtsin McCann and Gough both demonstrated their willingness to ad-mit weak and unsubstantiated evidence that a defendant had com-mitted anti-social acts and should therefore, be served with ahybrid order. The danger is that if the appeal courts are unable torecognise the gap between their own rhetoric regarding the stan-dard of proof necessary for the imposition of such orders and theactual evidence that is being relied upon, then statements that thestandard of proof should be akin to the criminal standard mayprove to be irrelevant when Magistrates are faced with alleged‘hooligans’ or ‘neighbours from hell’ and the only evidence avail-able is from police profiles or anonymous hearsay statements.67

CIVIL INJUNCTION OR CRIMINAL CHARGE?

The failure of the defendants in McCann and Gough depended ulti-mately on the ruling that the orders were civil, effectively strippingaway protections that defendants in criminal trials might otherwisehave enjoyed. The courts focused in a somewhat circular nature on

66The Football (Disorder) Act also expressly allows courts to take into ac-

count two forms of evidence that are notorious for seeing the wrongful punish-

ment of football fans. s.14(4)(b) allows the court to take into accountdeportation, despite the fact that past experience has demonstrated that nationshosting matches have been willing to deport on flimsy grounds such as having no

official match ticket or, in one case, to fill up seats on a jet chartered to bring‘English hooligans’ back to the UK (Armstrong and Hobbs, op cit n. 28.,pp. 221–222). s.14(4)(c) also allows a court to take into account ejection from a

football ground, essentially a civil law breach of contract action performed bymatch-day stewards rather than police for misdemeanours such as persistentlystanding in seated grandstands, smoking in non-smoking areas, and buying a

ticket for the wrong section of the stadium. Concern has also been expressed bylawyers that the legislation is being used to impose banning orders upon thosewho have a ‘football-related’ conviction, but one that does not relate to disorderlybehaviour (for example Ticket Touting under the Criminal Justice and Public

Order Act 1994, s.166, as resulting in an FBO in R (on the application of Brown)v Inner London Crown Court [2003] EWHC 3194), or suggest an individual islikely to commit acts of disorder abroad (The Times, 18/2/04).

67 The Home Office is of the opinion that the decision in Gough will not lead to arestriction on the type of evidence accepted by Magistrates when determining whe-

ther a Banning Order should be imposed (Correspondence with author, 23/2/05).

139HYBRID LAW AND HUMAN RIGHTS

the legal procedure itself, drawing an artificial and overly simplisticline between measures whose purpose was deemed punitive andthose whose primary purpose was to prevent further offences. Thepreventative intention of the legislation and the practical effect ofthe orders upon the ‘community’68 was therefore, highlighted andin this way, hybrid orders were established as merely preventativeof further disorder or anti-social behaviour rather than aimed atpunishing defendants for past behaviour. However, whilst thisshowed sympathy with the legislative aims of the government, itpaid insufficient attention to the serious punitive impact of theorders upon the defendants. This is not to suggest that the ordersdo not also possess a preventative purpose. However, it should notbe for the legislature itself to determine the function (and thereforethe classification) of a legislative provision for the purposes ofapplying Article 6 and a court applying the ECHR should there-fore look further than the stated aims of the legislature itself.

The courts were obliged to consider European Court of HumanRights jurisprudence on the definition of ‘criminal charge’, namelythe application of the anti-subversion doctrine. ECtHR jurispru-dence on this matter emanated from Engel v The Netherlands(No.1) (1976) 1 EHRR 647. Engel established that when determin-ing whether proceedings were criminal in nature, a court should gofurther than merely accepting the domestic classification of the pro-ceedings, looking at the substance rather than the form and takinginto account ‘the severity of the potential penalty which the defen-dant risks incurring’.69 In the subsequent ECtHR cases of Garyfal-lou AEBE v Greece (1997) 28 EHRR 344 and Lauko v Slovakia(1998) 33 EHRR 439 it was held that the court should take intoaccount not only the nature and degree of severity of the penaltybut also the nature of the offence itself. These cases followed thelead in Engels and established that where the outcome of purport-edly civil procedures could be a large fine or imprisonment, thecourts should follow criminal law procedure. However, the judge-ment in McCann was that, ‘...the making of an anti-social behav-iour order is not a conviction or condemnation that the person isguilty of an offence. It results in no penalty whatsoever’.70 Simi-larly, Laws LJ noted in the High Court judgement in Gough, that,

68Which, as Ashworth notes, the defendant is conveniently excluded from (op cit

n. 7, pp. 290–291).69 pp. 678–679, at para 82.70 per Lord Steyn, at para 22.

140 GEOFF PEARSON

‘In my judgment it is no part at all of the purpose of any such order to inflictpunishment. The fact that it imposes a detriment on its recipient no more demon-

strates that it possesses a punitive element than in the case of a Mareva injunc-tion. The purpose is to protect the public, here and abroad, from the evil offootball violence and the threat of it’.71

The real problem here is in the courts accepting the legitimatingaim of the legislation as the main way of differentiating betweenwhat is preventative and what is punitive.72 Stating that uninten-tional punitive ‘side-effects’ of legislation aimed at preventingfuture anti-social behaviour should be disregarded when determin-ing which procedure should be followed is unacceptable when theHRA places a clear obligation upon the judiciary to interpret legis-lation in line with Convention rights. The entire rationale of theHRA was to provide the judiciary with interpretative authority tolimit the extremes of state power, and yet the courts in McCannand Gough were unwilling to ‘look behind’ the domestic classifica-tion of the orders despite ECtHR authority giving it the power todo so. Instead, the appeal courts in effect permitted the legislatureto determine the categorisation for its own legislation, enabling itto sidestep ECHR safeguards and subvert Article 6.

It is contended that the courts in McCann and Gough needed toconsider first, the nature of the offences, which for both ‘footballhooliganism’ and ‘anti-social behaviour’ tends to be low-level crimi-nal behaviour.73 Second, the courts should have assessed the effectof the orders before it made a determination whether civil or crimi-nal procedure was appropriate. Had the court done this in light ofits ruling over the standard of proof, it would surely have come tothe conclusion that the nature of the legislation was in fact criminalrather than civil (despite its obvious preventative function). Fromthe defendant’s point of view, the orders have a very serious puni-tive effect. Preventing an individual from leaving the country,socialising with their friends, entering a certain local area or forcingthem to abide by a night-time curfew has an impact in alllikelihood more severe than a criminal conviction resulting in, for

71Para 42.

72 The judicial approaches in both McCann and Gough mirror the ‘traditional,formalist reasoning coupled with marked executive-friendly tendencies’ noted in

Fenwick and Phillipson’s study on direct action and human rights. (‘Direct Action,Convention Values and the Human Rights Act’, Legal Studies 21/4 (2001), p. 537).

73 See Grier and Thomas (op cit n. 8, p. 8).

141HYBRID LAW AND HUMAN RIGHTS

example, a suspended sentence or small fine. Additionally, researchat recent FBO hearings74 indicated that where banning orders oncomplaint were contested, the defendant would be required to paycosts of over £1,300. Although all these punitive effects may not bethe stated intention of the legislation, it is nevertheless imperativenot to overlook them.

Furthermore, media coverage frequently identifies individualsserved with ASBOs75 with reports detailing ‘offences’ along with‘mug shots’ of those served with the orders, all of which give theimpression that the order is a punishment. Unsurprisingly thisincreases public confusion as to the purpose of the orders, as dem-onstrated by the outrage caused by a variation of orders in a recentASBO case to allow the defendants to go on vacation. In one casea community spokesperson stated that ASBO defendants, ‘...shouldfeel the full force of the order and its restrictions, then maybe theymight appreciate their freedom once they get it back’, comparingthe orders with prison sentences and arguing that a certain elementof ‘inconvenience’ and ‘discomfort’ was necessary in order to deterfuture crime.76 If the objective of the ASBOs in this case was mere-ly to prevent further anti-social behaviour on the estate in question,then there should have been no debate as to whether the ordersshould be varied to allow the defendants in question to go on vaca-tion to the other end of the country.77

The courts attempted to counter these arguments by likeninghybrid orders to civil injunctions, which can also have a serious im-pact upon the defendants. In the Court of Appeal hearing of McC-ann, Lord Phillips noted that, ‘Many injunctions in civilproceedings operate severely against whom they are ordered’, pro-viding examples of injunctions against violent husbands and AntonPiller Orders.78 However, this type of argument is misleading.Injunctions are aimed solely at preventing specific wrongs beingcommitted, whereas ASBOs and FBOs go much further in restrict-ing freedom and movement on a far wider scale. In McCann, theorders not only prohibited the defendants from committing further

74Manchester Crown Court and Trafford Magistrates Court, February 2006.

75 Ibid: 1.76 ‘Holiday Camp Week-End for Girls Under Court Orders’, The Congleton

Chronicle, 31/10/03, p.1.77 The issue was further confused by the report that the Magistrates Court had

only allowed the variation because the vacation had been booked before the ordershad been put in place.

78 [2001] 1 WLR 1084 para 39.

142 GEOFF PEARSON

specific acts of anti-social behaviour, but also prevented thementering an entire area of Manchester. A hypothetical civil injunc-tion against an alleged football hooligan would presumably pro-hibit the committal of acts of specified disorder or violence, orfrom attending a match at which it was feared such acts would becommitted. However, FBOs typically prevent an individual attend-ing football matches, leaving the shores of the UK whenever anominated football team are playing abroad and even enteringtheir home town centre on designated match-days.79 Moreover,whereas a breach of a civil injunction may lead to a finding of con-tempt of court, breach of a hybrid order is a criminal offence thatcan lead to a 5 year custodial sentence.

As we have seen, judicial statements in McCann and Goughregarding the standard of proof also contrast starkly with the claimthat there is a clear punitive/preventative distinction that leads tothe finding that the proceedings are civil. Whether or not the typeof evidence consequently used in both cases is in line with thisquasi-criminal standard, the rhetoric of the courts here identified asignificant punitive effect upon the defendants80 that required, atleast in part, protections beyond that of a normal civil trial. There-fore, when the nature and the effect of the orders are taken intoaccount, it becomes clear that these hybrid orders are more thanmere civil injunctions. Furthermore, with the courts in bothMcCann and Gough noting the seriousness of, (1) the nature of thesocial problem in question, (2) the type of conditions imposed inthe hybrid orders and, (3) the penalties for breach (i.e. a possiblecustodial sentence), it is difficult to see how they were able todeduce that a civil procedure would be sufficient for the impositionof either ASBOs or FBOs and still claim to be adhering to therequirements of the HRA.

CONCLUSIONS

‘Hybrid’ laws such as those resulting in ASBOs and FBOs havebeen described as, ‘a marriage of civil and criminal proceedings inan attempt to get round the difficulties of both by combining alittle of each,’81 but this union is not easily achieved. Whilst the

79Standard FBOs for the Manchester area prohibit individuals from entering

Manchester City Centre until midnight on match-days.80 McCann, para 82, Gough, para 90.81 Gardner (op cit n. 8, p. 25).

143HYBRID LAW AND HUMAN RIGHTS

courts are imposing such orders at an increasing rate,82 the legalityunder the HRA of quasi-criminal restrictions imposed under civilprocedures has not been adequately resolved, even by two casesthat reached the highest appeal courts in the land. The problem forthe courts has been that whilst Home Office pressure has been toimpose such orders on a purely civil procedure, the seriousness ofthe impact of ASBOs and FBOs upon defendants takes on theappearance of a criminal penalty. The orders are only imposedupon proof of committal of anti-social behaviour or disorder (usu-ally comprising criminal offences), their restrictions infringe the lib-erty of individuals in the manner of a criminal penalty and abreach can lead to a severe custodial sentence.

The arguments of the defendants in McCann and Gough haveforced the appeal courts to concede the serious impact upon defen-dants of hybrid orders and as a result, the courts have suggestedthat a criminal standard of proof is the most appropriate for deter-mining whether an individual has committed the activities leadingto the request for the order. However, whilst indulging in suchrhetoric, the appeal courts were ruling admissible anonymous hear-say statements and evidence suggesting that defendants may be cul-pable of no more than guilt by association. The implication of thisis that the courts need to impose stricter standards when looking atwhat evidence is sufficient to justify an order, but using such crimi-nal standards and protections would defeat the objectives of thelegislation, which aims to provide a remedy where evidence is insuf-ficient for criminal conviction.

The shift by New Labour to incorporate the more reactionaryaspects of Left Realism have opened the door for public concernover crime and anti-social behaviour to feed directly into legisla-tion. The moral panics over anti-social behaviour and football-crowd disorder have played an important part in the ability of theGovernment to introduce such controversial legislation with rela-tively little opposition. It has also been reactivated in the courts,enabling them, under the guise of communitarian protectionalism,83

to deem hybrid orders that have an indisputable punitive effect tofall within the remit of civil court procedure without breaching

82266 FBOs ‘on complaint’ were issued in 2004, compared to just 168 in the

previous 4 years (Figures obtained from the Home Office 23/2/05). The total number

of FBOs served ‘on complaint’ reached 550 by the end of 2005 (Home Office, op citn. 10).

83 See Burke and Morrill (op cit n. 8, p. 1).

144 GEOFF PEARSON

Article 6 of the ECHR. The way in which the problems of anti-so-cial behaviour or disorder from a minority of English football fanshave been constructed has allowed the balance of civil liberties andpublic interest to swing too far towards the requirements of com-munities and the state at the expense of the liberty of the individ-ual. The media-driven interest in ‘neighbours from hell’ and‘football hooligans’ has been reflected in debates in Parliament andcourt judgements and it can be argued that moral panic is in dan-ger of displacing both the requirement of courts to construe pri-mary legislation in accordance with the HRA and justice in theindividual case.

As a result of this, thousands of hybrid orders currently infringe,in the manner of a criminal sanction, the liberty and freedom ofmovement of individuals without adhering to the procedural pro-tections of the criminal law. The amended Crime and Disorder Act1998 and the Football (Disorder) Act 2000 both provide for restric-tions on freedom and liberty that can be imposed without anycriminal offence being committed. Under the presumption of inno-cence, which it is claimed remains ‘the golden thread’ of Englishcriminal law,84 these individuals are not guilty of an offence, andyet face restrictions which, while dressed up as merely a measure toprevent further anti-social behaviour or disorder, have a severepunitive aspect. The Government that finally introduced the ECHRinto domestic law has attempted to circumvent some of its key val-ues in order to try and control ‘headline-grabbing’ social problems.Moreover, in the cases of McCann and Gough, the highest appealcourts in the land, with whom the responsibility rests to ensurelegislation is interpreted in line with ECHR rights, have shownthemselves incapable of protecting human rights from moral panicand dubious hybrid laws.

Management SchoolUniversity of LiverpoolChatham Street,Liverpool, L69 7ZH, UKE-mail: pearsong@liv.ac.uk

84Per Viscount Sankley L.C. in Woolmington v Director of Public Prosecutions

[1935] A.C. 462, p. 481, affirmed in Attorney-General of Hong Kong v Lee Kwong-Kut

[1993] 3 W.L.R. 329, pp. 339–40.

145HYBRID LAW AND HUMAN RIGHTS