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 responsive to popular concerns and moral panics over hooliganism and anti-social behaviour is resulting in the increased use of legislative responses that bridge criminal and civil law. Anti-Social Behaviour Orders and Football Banning Orders are two key examples of this ‘Hybrid Law’, imposed as a response to criminal conduct, supported by criminal law sanctions, but operating under a civil law procedure providing fewer protections for defendants. These hybrid orders have the power to severely restrict the 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 purpose of the orders is merely preventative rather than punitive, and can therefore be justifiably imposed under a civil law procedure, is controversial and indicates an unwillingness to use the powers of the Human Rights Act to challenge such legislation and protect the fundamental human rights of defendants.