Q: Is an application for an antisocial behaviour order under section 1 of the Crime and Disorder Act 1998 classified as a criminal or civil proceeding for the purposes of article 6 of the Convention?A: The Court of Appeal recently considered this question in McCann v Manchester Crown Court (The Times, 9 March 2001).

Having decided that in domestic law such applications are classified as civil, the court went on to consider Strasbourg jurisprudence.

It noted the three-fold test to determine whether a proceeding was a 'criminal charge', as set out in Engel v Netherlands ((1976) 1 EHRR 647): its domestic law classification (which is not conclusive), the nature of the offence, and the character of the penalty to which proceedings may give rise.

Intervening in the case, Liberty argued that the section 1 procedure was indistinguishable from proceedings in which an individual is bound over to keep the peace, which were held by the European Court of Human Rights to be proceedings in relation to a criminal offence in Steel v UK ((1998) 28 EHRR 603).

The Court of Appeal disagreed, noting that there is no power to arrest for the purpose of section 1 proceedings, and that the proceedings can not themselves attract any penalty, unlike a refusal to be bound over.

Thus courts, in assessing whether to make an order, will apply the civil standard of proof.

The Court of Appeal did commend as appropriate the Crown Court's view that the civil standard should be applied with a strictness appropriate to the seriousness of the matters to be proved.

That the standard is a flexible one was endorsed by Lord Bingham in B v Chief Constable of Avon and Somerset Constabulary (Divisional Court, 5 April 2000) in the context of proof of conduct leading to the imposition of a sexual offender order.

The admission of hearsay evidence, such as police officers repeating in court the complaint of an anonymous witness to establish the grounds for making an antisocial behaviour order, is also allowed.

Indeed it would seem that this is perhaps the principle underlying rationale for classifying the proceedings as civil.

Lord Woolf, in the Divisional Court decision in McCann, noted that 'understandably I those who are subject to antisocial behaviour are chary about giving evidence in criminal proceedings I The object of making the proof of conduct which is antisocial more easy to prove would be defeated if in fact the proceedings were criminal.

Then, the normal rules of evidence which apply to criminal proceedings would have to be complied with; and, furthermore, the proceedings would be subject to the additional protection provided by article 6 of the European Convention in relation to criminal proceedings.' See also R v Marylebone Magistrates Court, ex parte Clingham (The Times, 20 February 2001) regarding hearsay evidence and antisocial behaviour orders.

It is understood that leave to appeal to the House of Lords is being sought in the McCann case.Q: I currently have conduct of a judicial review matter on behalf of the claimant.

The application for permission was determined by way of oral hearing, and the defendant tried to get my client to withdraw his claim by threatening to apply for a wasted costs order.

However, I thought this was just bluff, and in any case, the judge granted permission.

The defendant has now conceded that the decision under challenge was wrong, but does not want to include any provision to pay my client's costs in the final consent order.

What sort of costs order can the court make after the case is settled, and who pays my client's costs?A: If you say that the threat of wasted costs was bluff because the court has no power to make such an order, you are most definitely wrong.

The power is contained in section 51 of the Supreme Court Act 1981.

The order has been made where a claimant has failed to issue a letter before action or where judicial review was a wholly inappropriate procedure Q for instance, see R v Horsham DC, ex parte Wenman (1993) Times Law Reports, 21 October.

So be warned.

So far as the position now is concerned Q where it appears that the matter has now been settled Q the court is generally reluctant to consider costs applications unless:-- It is clear from the papers that the claimant was likely to succeed in his claim (see R v Calderdale MBC ex parte Houghton (2000) 3 CCLR 228);-- High costs are involved;-- The defendant has unreasonably delayed in changing his decision, (see R v Waltham Forest BC, ex parte Boxall, unreported, 21 December 2001, Scott-Baker J).

The court considers the reasons giving rise to the discontinuance of proceedings and the following general rules can be drawn from the case law (see R v Liverpool City Council, ex parte Newman (1992) 5 Admin LR 669, 671D; R v ITC, ex parte Scientology [1996] COD 443): where, without conceding that he has acted unlawfully, the defendant reconsiders or changes his decision either to avoid the costs of uncertain and expensive litigation, or where new matters have arisen which justify a change in his decision, the general rule is that each side bears their own costs; on the other hand, where the defendant pre-empts his likely failure in the proceedings by d oing that which the challenge was designed to achieve (ex parte Newman), then the general rule is that the defendant will be ordered to pay your client's costs.

This would appear to be the position that you describe.

Similarly, if it was your client who had withdrawn in circumstances which can be equated with defeat or likely defeat, the general rule would be that it is he that he should pay the defendant's costs.

Finally, the fact that the claimant may be legally aided does not affect these principles (see ex p.

Boxall above), and the Legal Services Commission urges publicly funded practitioners to apply them and to pursue the matter of costs where appropriate.