Following on from the recent publicity about the use of flares and smoke bombs at football matches, and a lot of queries to my blog about the police powers in this area I have put together a question and answer section on the subject.
Be warned that even though fans may not think that having a smoke bomb or flare in their pocket is a serious offence, the police and football club take it very serious and even a fan with no previous convictions faces a real risk of going to prison…Spread the word to your friends and other fans…
Is it an offence to let off a flare or firework in a public place?
There are a few exceptions to this, but the simplest answer is YES, it is an offence and usually results in a fixed penalty notice and a fine. If that public place is a football stadium the stakes are raised considerably as it can then result in a 3 month prison sentence.
It is not an offence just to carry a smoke bomb or flare outside the stadium, is it?
YES – just carrying a smoke bomb, flare or firework in the area of the football stadium can be an offence if the police can show that you were attempting to enter the ground with it on you. I have seen cases where the police have arrested a fan with a flare as they came out of the train station closest to the ground. The police have argued that as the fan had a ticket for the game, was wearing colors and was with other fans, and was walking in the direction of the ground, that this showed that the fan would have attempted to enter the ground had they not been stopped by the police. That’s not to say that in some cases, the police interpretation of ‘attempting to enter’ shouldn’t be challenged in court, as there must be legal argument that a fan who is stopped at London Bridge Station about to get on a train to a football gound in South London is not ‘attempting to enter’, but the closer the fan is to the ground, the more likely the police will be able to argue that the fan was ‘attempting to enter’.
I won’t be committing an offence if I have a smoke bomb in my pocket in the ground but don’t let it off, will I?
YES – the law is very clear on this point, you don’t have to let it off, just having it on you in the ground is enough for you to be charged with an offence.
I won’t go to prison if I am found with a flare on me, but I don’t let it off, will I?
YES – you may be sent to prison. Recent cases have shown that the courts do not take pity on those found in possession of flares, smoke bombs or fireworks. In fact they are giving severe punishments and fans with no previous convictions are being given 3 months in prison, and on appeal the courts are upholding the 3 months prison sentence. The excuses of “I was just carrying it for a mate” or ‘A mate just gave it to me as we left the ground and I didn’t know what it was” are not being given much credit by the courts. If it is in the fan’s pocket, the fan is guilty and probably will go to prison.
Do the police have the power to stop and search me on the way to the ground to see if I have a smoke bomb, flare of firework on me?
YES – they have powers to stop and search you, and arrest you if they find any of these items on you.
But they can’t arrest me after the game when I am walking away from the ground with the flare in my pocket can they?
YES – if they can show that you were in the ground and that you are likely to have had the flare, smoke bomb or firework in your pocket while in the ground, they can arrest you, and you will probably be charged.
If I am convicted of having a smoke bomb, flare or firework will I also get a Football Banning Order?
YES – the police will probably apply for an Football Banning Order, and due to the nature of the offence, it will be highly likely that the court will consider that the offence was football related. If the court does decide to issue a football banning order, it will likely be for between 3 and 6 years (in addition to any other sentence such as prison).
The police can’t apply for a Football Banning Order on me unless they charge me, can they?
YES – if the police can show that they suspect you of having involvement with flares, smoke bombs or fireworks in the ground or outside the ground just before or after the match, they will probably apply for a civil football banning order which can be imposed even if you are not convicted of any offences.
What is a firework?
Even a sparkler falls within the definition of firework, as do bangers and anything else that has a firework logo on it.
What is a smoke bomb?
Anything which emits smoke or visible gas, even something which is home made.
How will the police know that I have the flare or smoke bomb on me?
In addition to the general powers of stop and search, the police will be checking the fan forums and any known fan groups which discuss the use of flares, smoke bombs or fireworks will be targeted by the police, and will likely be stopped and searched. In addition, the stewards in the ground have the powers to search and if they find a flare, smoke bomb or firework, they will tell the police, and due to the information sharing agreements between police forces and clubs, the police will automatically tell the club if a fan is arrested for possession or use of pyro. I have dealt with cases where football clubs have banned for life the pyro user and their friends, even though there was no evidence that the friends even knew about the pyro before it was used.
In general, if there is one thing that the police and courts are very hot on at the moment it is flares and smoke bombs. Carry one and you are very likely going to face time in a police cell…and worse…time in a prison cell! Add to this the fact that Clubs are facing fines from the FA and UEFA when pyro is used in their stadium, Clubs are also issuing very long bans for fans found in possession of any pyro.
“I didn’t ask for a lawyer as I have not done anything wrong”
“The police said that it would take a while for the duty lawyer to arrive and I just wanted to get the interview over and done with and get out of the police station”
“I took the caution as I wanted to get out of the police station”
If I had £1 for every time I have heard these comments from a client, I would be sitting on a beach somewhere hot and sunny now rather than writing this!
The Police and Criminal Evidence Act provides the right to a lawyer, either one that you request or a duty lawyer. The reason for this is not just to advise on the criminal law it is to protect your interests in the police station. Sadly the TV only ever portrays the work of a lawyer in the police station as sitting in on the interview, but in reality your interests are much more than just making sure you are dealt with fairly in interview.
The way police interviews are portrayed on TV, is very similar to what happens in real life. The interviews are all audio recorded and many are video recorded as well, and you can request copies of the tapes from the police. Hence, although I would recommend that anyone who attends an interview has a lawyer present, it can often be more important to have a lawyer representing you outside of the interview room.
The interview is only one aspect of a person’s time in the police station. The length of time spent in the cells, the bail conditions, whether a caution or fixed penalty notice is offered (and whether the offer should be accepted), are all matters that a lawyer can help with. In general, people who have a lawyer spend less time in custody in the cells, have less strict bail conditions, or are more likely to be released and bailed to attend court instead of being held in custody to attend court.
While it is possible to challenge police bail in court, it can take a few days for the court to list the matter and in the meantime the bail conditions may be so strict that a person effectively cannot go outside their front door for risk of breaching their bail conditions. Hence, it is better if a lawyer makes representations to the police at the time. Conditions such as ‘not to enter a town X’ or ‘not to travel on public transport’ are commonly imposed on those who are unrepresented, and are so easily breached especially if a person has to enter the town or use the train or bus to get to work or to visit family.
The person who accepts the police bail conditions just because they want to get out of the police station will often not realise the consequences of such restrictions, and that if they breach the bail conditions, not only can they be arrested, but they can end up in front of the court. On a breach of bail, in certain situations, it is open to the court to decide that the detainee should be remanded in custody…they are sent to prison on remand until the case is dealt with by the court.
This sounds extreme and for most who are given police bail, this never happens, but in general it is more likely to happen to those who did not have a lawyer at the police station, and who didn’t think it could happen to them.
Likewise, the quickest way to get out of the cells is to ask for a lawyer. Once booked into the cells, there is a time limit on the amount of time a person can be held in custody. This is known as ‘the custody clock’. It is worth remembering that the custody clock starts ticking from the time a person enters the custody suite at the police station and not from the time the lawyer arrives, so in general, the police will make the call to the lawyer straight away, and will chase if the lawyer has not arrived within a reasonable period of time. Waiting for a lawyer is highly unlikely to extend the amount of time a person is held in the cells.
Although a caution or fixed penalty notice will seem like ‘no big deal’ when it is being offered, in reality it can be a huge deal. A caution can affect employment, will show up on a Criminal records Bureau check, and can be used against a person in the future. I see many cases where someone has taken a caution or fixed penalty notice merely due to their haste to be released from the cells, they are then arrested for another matter a few years later and this caution or fixed penalty notice is used against them to show their anti-social nature. These cautions and fixed penalty notices show up on a police national computer and can be used in court as evidence of previous criminal history.
Alternatively it may be that an offence has been committed, but that it is quite minor, and the lawyer can make a request for a caution in circumstances where the police would not readily offer one. This means a person avoids being placed under bail conditions and avoids going to court.
For those of you wondering if this is just a promotional post from a lawyer trying to get more work, it is actually the opposite. I am not a police station representative, and the work I undertake in court is often in response to people not having representation in the police station.
But if you are ever unfortunate enough to be arrested, please think of me in my ‘you have the right to a lawyer…so use it‘ T-shirt!