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 [2008], 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 [2002]  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 [2012] 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.