Tuesday, 7 February 2012

Football Banning Orders

I was at a Magistrates' Court this morning.  As it happened, one of the courts was dealing with a Football Banning Order.  Not, I hasten to add, to ban me.  As far as I am aware, nobody has yet been banned for merely watching televised matches at home and bemoaning the latest controversial "offside" decision which I readily confess to doing from time to time - offside rule !  I then await the Saturday evening appeal court - (usually chosen from Messrs. Lineker, Hansen, Shearer and Lawrenson) - to analyse, with laser-like precision, the decisions of the officials !

The Magistrates had to consider whether to make a Football Banning Order against a young man (the respondent).  The Police had brought a complaint against him.  He was not represented.  What follows is a mere outline.

The legislation:

The basic power to make a banning order
is in Part II of the Football Spectators Act 1989 (FSA).  The original legislation has been extensively amended by subsequent Acts - e.g. Football (Disorder) Act 2000 and the Violent Crime Reduction Act 2006 s.52/Schedule 3.

When reading the legislation, it is essential to understand the terms used.  FSA s.1 and FSA s.14.  

These orders can be made:

(a) where a person is convicted of a "relevant offence" - FSA s.14A - A relevant offence is one to which Schedule 1 of the FSA applies 

or

(b) on complaint to the magistrates (usually by the Police) - s.14B.

Banning Orders made on commission of a relevant offence:

Section 14A applies where a person (the “offender”) is convicted of a relevant offence.  In this case, if the court is satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder at or in connection with any regulated football matches, it must make such an order in respect of the offender.  If the court is not so satisfied, it must in open court state that fact and give its reasons.  A banning order made under section 14A has to be (a) in addition to a sentence imposed in respect of the relevant offence, or (b) in addition to a conditional discharge.

Section 14A did not apply to the young man this morning.

Banning Orders made on complaint:

Under s.14B, an application for a banning order in respect of any person may be made by the chief officer of police for the area in which the person resides or appears to reside, if it appears to the officer that the condition in s.14B(2) is met.  This condition is that the respondent has at any time caused or contributed to any violence or disorder in the United Kingdom or elsewhere.

The application is to be made by complaint to a magistrates’ court.  If (a) it is proved on the application that the condition in s.14B(2) is met, and (b) the court is satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder at or in connection with any regulated football matches, the court must make a banning order in respect of the respondent.

This section applied to the man this morning.

Period of banning orders:

This is set out in FSA s14F - and it depends on whether the banning order is under section 14A or 14B.  However, the minimum is 3 years.   Two-thirds of the way through the period set by the court, the person may apply to the court for termination of the order.

Conditions:

The person subject to a banning order can be subjected to stringent conditions and the court must explain the conditions to the person using ordinary language.  When an order is made, the person must report to a Police Station within 5 days (beginning with the day on which the order is made).  At the Police Station, the individual will be photographed.  The order requires that certain matters be notified to the "enforcing authority" such as change of name or address etc.  The list is in section 14E(2B) and is quite lengthy.  A further condition which has to be included relates to surrender of passport when there is a regulated football match outside the UK.  It is also possible for the court to impose other conditions in relation to any regulated football matches.

The above is only a very brief outline of this complex legislation.  It was not surprising to discover that several decided cases applied including the fact that a challenge had been brought under both European Union Law (freedom of movement) and the European Convention on Human Rights: Gough and another v Chief Constable of Derbyshire [2002] EWCA Civ 351 (on appeal from the Divisional Court).  This appeal was decided by an impressive bench: Lord Phillips MR; Judge and Carnwath LJJ.  Lord Phillips went on to become Lord Chief Justice and is now President of the Supreme Court.  Judge LJ became the present Lord Chief Justice.  Carnwath LJ is Senior President of Tribunals and will become a Justice of the Supreme Court in April 2012.

Consequences of non-compliance:

Non-compliance can result in imprisonment - see FSA 14J.

The nature of complaint proceedings (section 14B) and the standard of Proof:

In Gough, it was argued that proceedings under section 14B were criminal.  However, this was rejected by the Court of Appeal.  Proceedings under section 14B are civil.   However, banning orders were to be regarded as being in the same category as antisocial behaviour orders and sex offenders’ orders. While made in civil proceedings they impose serious restraints on freedoms that the citizen normally enjoys. While technically the civil standard of proof applies, that standard is flexible and must reflect the consequences that will follow if the case for a banning order is made out. This should lead the Magistrates to apply an exacting standard of proof that will, in practice, be hard to distinguish from the criminal standard - see B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 at p.354 and R (McCann) v Manchester Crown Court [2001] 1 WLR 1084 at p.1102.

The young man seemed to just want to get the whole thing over.  He said as little as possible and, when asked, admitted everything!  I would be very surprised if he had any inkling of the law involved here.  From what I heard, the result appeared to be correct but, whilst legal aid can be applied for, it is not always granted.

I would be interested in comments especially from those with experience of these orders.

Further material:

An interesting article on this subject is "Football Banning Orders: Analysing their use in court" by Mark James and Geoff Pearson.   The article was written in 2006.  The changes in the Violent Crime Reduction Act 2006 took effect on 6th April 2007.

The Guardian 17th June 2010 - "Football banning Orders out of control"

Guidance on Policing Football - 2010 - published on behalf of the Association of Chief Police Officers by the National Policing Improvement Agency

An Evaluation of Football Banning Orders in Scotland - 2011 - this also looks at experience in England and Wales

Addendum:

See the Court of Appeal judgment in Doyle and Wise v The Queen [2012] EWCA Crim 995

9 comments:

  1. Interesting blog. I've only ever represented one person where the issue of a football banning order came up. The defendant had been charged with throwing a 'missile' at rival supporters (which he accepted doing and, as a result, duly pleaded guilty to the offence). The Crown's application for a FBO was unsuccessful because they had failed to comply with the statutory provisions regarding notifying the accused of the intention to make the application.

    In relation to the issue posed by your blog, putting aside the means testing, I believe that it is in the interests of justice for individuals to get legal aid in such proceedings. I say this because the imposition of such orders is undoubtedly an interference with the person's human rights. A lawyer is, one might think, best placed to query whether the proposed interference is necessary and proportionate in any given situation. Consideration also has to be given to what can happen if one breaches such an order. It seems to me that the imposition of these orders is not taken particularly seriously by the courts when perhaps it ought to be.

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    1. "I say this because the imposition of such orders is undoubtedly an interference with the person's human rights."

      Whilst not having the legal knowledge required to disagree with your opinion it would be helpful to know upon what do you base this opinion.

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    2. Apologies- my fault for not referencing it. I make this point because the matter was raised before the Divisional Court in the case of Gough v Chief Constable of Derbyshire [2002] QB 459. In that case the court acknowledged that a national citizen's freedom of movement under European Community Law is engaged when a court is considering imposing a Football Banning Order. Providing the relevant considerations are satisfied, the court stated that they are a 'lawful and proportionate restriction'. The point I seek to make is that as the citizen's freedom of movement is engaged (and indeed restricted) where a Football Banning Order is imposed, it seems to me that it is in the interests of justice for a person to be legally aided. Although a completely separate point, one also has to bear in mind that a person can be sent to prison for breach of such an order- at which point the individual's Article 6 rights would of course come into play.

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  2. It is certainly possible to apply for a rep order even for free standing applications. Criminal Legal Aid Manual Schedule 15.

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  3. Yes, a representation order is a possibility for proceedings under the Football Spectators Act 1989 sections 14B, 14D, 14G, 14H, 21B and 21D which are deemed criminal for legal aid purposes.

    Criminal Legal Aid Manual Schedule 15

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  4. If a football match is likely to lead to serious disorder the match should be banned and the peace preserved. It's only 22 men kicking a bit of cow's bottom round a field and the ordinary life of the community is more important.

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  5. Must it be so complicated?

    "Misbehaved: met criteria from list a, admitted, banned". It just strikes me that there was a lot of waffle in that legal basis and very little content.

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  6. In the only case I have seen as a magistrate where a FBO was sought the conditions were made out but we decided that it would be disproportionate in all the circumstances.

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  7. My son was given a banning order, although we did manage to get it overturned on appeal. The reason for his 'crime' was however hardly the actions of a true football hooligan!

    He had been standing at the very bottom of the stand, where a low wall seperated the stand from the pitch. When the away team scored, he took out his frustration by slapping a 3/4 empty small water bottle that was standing on the wall. The bottle must have traveled somewhere between 10-15 feet in total and ended up rolling a couple of feet onto the playing surface. He was arrested and charged with 'throwing a missile' and ended up in court for the only time in his life. He pleaded guilty and was fined, but also amazingly, the magistrate imposed a 3 year banning order, even though he had never been in any trouble with police over anything before! I think this put the whole issue of banning orders into disrepute. The good news was that the appeal court also agreed that it was ridiculous.

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