An Application for a Football Banning Order is not a Done Deal for the Police or CPS
‘When I walked into the pub and spoke to Football Fan 1 and tried to engage in discussion about today’s game he ignored me. I then saw him in a crowd chanting football songs as he walked to the ground. When in the ground he sat in his seat initially but then moved to another seat..showing complete disrespect to the stewards. he was wearing a black Northface jacket which is the attire worn by many risk football fans at football matches…After the game he was seen to be giving hostile looks at some opposing team supporters as he stood outside the kebab shop, I then saw him go inside the off license and slam the door. All of this leads me to believe that he is a risk supporter with no regard to the police or other fans. His lack of engagement with the police show that he is anti-police, and his chanting in the street was in a residential area where women and children who were not attending the football match could have been present and could have been frightened and offended by the chanting and group mentality.‘
THIS IS AN ACCUMULATION OF COMMENTS MADE BY FOOTBALL INTELLIGENCE OFFICERS IN THEIR STATEMENTS TO THE COURT. IT IS NOT AN ACTUAL STATEMENT, BUT IT GIVES A GOOD FLAVOUR OF THE TYPES OF ‘INTELLIGENCE’ AND COMMENTS MADE BY OFFICERS IN FOOTBALL BANNING APPLICATIONS.
With the football season well underway, now is the time that many police Football Intelligence Officers start to collate the ‘intelligence’ collected during the past few months on football fans. For some fans, the result is that they face an application made by the police or Crown Prosecution Service for a Football Banning Order. The recent Home Office statistics show that in comparison with the number of arrests which are made at football matches, the number of successful football banning applications is quite high. However, from speaking to fans who are or have been served with a football banning order application, the reason for this seems to be that in the main, fans will accept the banning order as they believe that if they have been arrested before or after a football match that means they can be banned from attending football matches in the future. Although the Football Spectators Act 1989 seems to indicate this, there is a wealth of case law which has narrowed this quite considerably, I have included some of the case law in this blog for those who have an interest in reading more.
When considering the imposition of a FBO the court should consider both the factual evidence – whether there is sufficient evidence to satisfy the requirements of Section 14 Spectators Supporters Act 1989, but also the persuasive evidence, in effect this is where the court is being asked to make a decision on what is likely to happen in the future. The persuasive evidence which can be taken into account by the court includes:-
- evidence that the defendant has not previously been warned about their behaviour at football matches;
- evidence that the defendant has not been convicted in any court of any football related disorder or violence previously;
- evidence that there have been no previous applications (criminal or civil) for FBO in respect of the defendant;
- evidence that there have been no previous attempts to control this defendant or that any control efforts have failed;
- no evidence that the behavior of the defendant had a detrimental effect on other football fans, or caused other football fans to become involved in disorder or violence;
So what is the meaning of ‘football related’?
The Court of Appeal has made it clear (R v Arbery & Mobley , and R v Mabee (Craig) [2007). There should be a distinction drawn between violence arising directly from the football, and violence or disorder carried out by those who follow football. Hence a football fan who decides to fight another football fan due to their colours, whether inside or outside of the football match, may fall into the category of disorder or violence arising directly in connection with a football match. However, two fans who have a fight in a pub over a spilt drink, and who both just happen to be wearing football colours or intending to attend a local football match will not fall into this category. The relationship between the violence and the football must be explored in the facts of each particular case.
In Gough v Chief Constable of Derbyshire  the Court of appeal made it clear that a FBO cannot be made purely due to a defendant’s history of violence. The circumstances of the individual case under consideration should be taken along with the past conduct of the defendant, and whether these indicate that there is a likelihood that they will be involved in future violence or disorder. The issue for the court is very specific with regard to preventing future football related disorder, not just a general deterrence relating to any violent disorder.
In Doyle and others the Court of Appeal addressed the definition of football related and determined “because the Act requires the judgment of the Court whether the particular offence was ‘related to football matches’ it is clear that the mere fact that the defendant was on a journey to or from a match is not enough. There must be another connection…We offer the observation that it will not by itself be enough to make an offence ‘related to football matches’ that it would not have occurred “but for” the fact that [the defendant] was en route to or from a football match. If that by itself were enough, then every offence of the listed kind which was committed on a journey to or from a match would automatically qualify and the additional test of relation to football matches would be unnecessary and meaningless”.
Hence in the consideration of whether to impose a FBO in this case on either or both of these defendants, the Court should only impose an order if is it satisfied so that it is sure, that the FBO is required for the court to prevent further acts of violence or disorder at a football match, or in connection with a football match. In doing so, the Court should consider
- whether the offences on which the defendant was convicted were actually football related; and
- even if it was deemed to be considered football related, the Court must be satisfied that there is a likelihood that the defendant is going to be involved in acts of disorder or violence in the future; and
- that such acts will be football related;
- that a FBO will prevent such disorder or violence.
The Court must be satisfied that there are reasonable grounds
to believe the FBO would prevent future disorder or violence
It is clear that FBO must not be made merely as a matter of course following the conviction of a football fan for a disorder or violence related offence (RVBoggild et al), consideration must be made of the facts of the individual case in front of the court. It has been accepted by the European Court of Human Rights that in cases where such orders are imposed, that to restrict the actions of a defendant in the future, on the basis of a belief in how the defendant is going to behave in the future ‘the court must determine whether a fair balance [is] struck between the demands of the general interest and the requirements of the protection of the individual’s fundamental rights’ (Sporrong5).
In Doyle and others v R  the Court of Appeal addressed this issue directly and stated “..what is important to remember is …that there must be a risk of repetition of violence or disorder at a match before it is met…….it is clear that it is not automatically satisfied because the current offence was football related.”
Hence, even if the offence is football related, it is clear that does not automatically justify the imposition of the FBO, in other words the court must ask itself is it necessary to impose a FBO to stop/prevent likely future disorder or violence at a football match?
So going back to the sample statement at the beginning of this blog, it is very unlikely that the list of complaints included in it would be taken by the court to show that a person has been involved in football related disorder nor that they are likely to be involved in disorder in the future. However, in my experience many fans will accept the ban rather than challenge the statement, but without appreciating the consequences of a banning order, which in addition to a ban from attending any football games, can include exclusion from the town on match days, a ban from using the railway network on match days, a ban on traveling overseas when any team match or England match is played overseas. And these bans can run to 5 years..that’s a very extreme restriction based on the weak comments in the sample statement.
Challenging a football banning order is not the right thing for every fan, but if the application is served on a fan, they should give careful consideration to whether it actually shows that they are a risk of committing football related disorder in the future.
Pro Bono Work – it doesn’t just benefit the client
Since advertising for pro bono legal researchers last week, I have been inundated with great applications from all types of students, lawyers, and other persons interested in the law. It never ceases to amaze me how many people are prepared to give up their time to help others, and much of it goes unrecognized.
Last week I met with a group of students at Sheffield University who have been working tirelessly on cases through the Innocence Project. Their knowledge of the cases was very impressive and was not obtained by spending only a few hours a week on the cases, they have clearly immersed themselves in these cases, and are very dedicated to the cases they have taken on. It is fair to say that if these students were not working pro bono, it is highly unlikely they would be involved in these types of cases, firstly because there is not the public funding to cover the hours of research and tracking down of documents which these students have undertaken, but also as they have no track record of this type of work and so are not going to be selected by a lawyer who knows there is probably only one shot at an appeal.
The fact that they can put this work on their CV means that these students are going to be attractive in the future to lawyers who require some assistance with criminal appeals. But it has also introduced them to the real world of the criminal practitioner, and made them realise that the law is one thing but practice is quite another. For example, the fact a lawyer has not used material at trial which they feel should have been used, does not mean that this unused material is new evidence which justifies a reopening of the case by the Criminal Cases Review Commission. Or that finding an expert who will criticize a forensic method is one thing, but finding one who is prepared to criticize a forensic scientist in court is entirely another. Hence, for these students, the pro bono work has provided them with valuable experience which will assist them with their future careers, will look good on their cv and create a talking point at any interviews, and likely put them ahead of the game of the students who have the same academic background but have none of the practical experience. In those terms it is impossible to put a monetary value on the work they are doing now, both for the clients and themselves.
Not everyone can get involved with an Innocence Project, however, there are so many other worthy causes which those with an interest in law can become involved in, for example volunteering with victim or witness support will provide invaluable access to victims when they are at their most vulnerable. A volunteer may think that they have done nothing more than sat with the victim or witness for a couple of hours, outside court, talking about the X-Factor. But for some victims and witnesses, that is the difference between them remaining at court to give their evidence or deciding that they cannot go through with it and walking out of the court building. While the benefit for that individual victim or witness is clearly important, the experience of working with them is also invaluable for anyone who is going to be involved in cases in the future where there is victim or witness involvement, whether that be criminal, personal injury, etc. In my experience you cannot be a good lawyer without an understanding of the clients and the victims, and you don’t get this understanding by holding clients and victims at a distance and not finding out what it is like for them .
For anyone interested in employment law or HR, becoming a trustee of a small local organisation is a way of seeing employment through the eyes of a small firm, where the HR manager is possibly also the office manager, receptionist and general all-rounder. This gives a flavor of how difficult it can sometimes be for a small employer to stay on top of the employment laws and regulations, and how sometimes although the employer has not fully compiled with the law, there are ways of resolving the matter without resorting to an employment tribunal. What may appear black and white in terms of compliance in an employment law assignment may be decidedly more grey in real life, and it is the real life examples that the pupillage or training contract interviewer wants to hear.
In reality, pro bono work that makes a difference takes real commitment, and interviewers are very aware of the students who involved themselves in pro bono work just before applying for a job, pupillage or a training contract. Having a piece of pro bono work on your cv is one thing, being able to talk about it with enthusiasm and knowledge during an interview is another. Those people who are looking to just add it to their cv are doing both themselves and those they have signed up to assist a disservice. I am a member of an organisation which trains students to assist complainants in bringing cases in front of a tribunal. For those who then go on to take cases in the tribunal, they are providing something back to the organization and also those complainants which the organisation tries to help. But for many, they undertake the training and take on one case so that they can add it to their cv. Employers are well aware of this practice and will question about it during interview, and if a student has indicated on their cv that they have undertaken cases when in reality they have done nothing more than the training or perhaps one case which was settled by negotiation, the future employer will see through this very quickly. In effect it is misrepresentation on a cv, and is not something a future employer takes lightly.
The message is..if you want to get ahead of the game in law, pro bono work is a great way to do so, but only those with commitment need apply.