Tag Archive | criminal

Hold the Gate 3… A visit to Death Row.

As I walk out of my apartment at 03:30 in order to make the 6 hour drive up to a prison half way across the State to see a client, I pass nighttime revellers making their way into the take away joints, and wonder why I choose to drive a 12 hour round trip to spend 2 hours with a client when I could have spent the night in a bar and now be going home to bed. The answer is that my client is facing the death penalty and has not had a single visitor other than me for the past 4 years. His parents have died and his sister and her children decided to move out of State due to the death threats they received. He has been granted a resentencing hearing, this is his one chance of not having to go back to Death Row.

I’ve seen the tv documentaries and series depicting Death Row, and I have to say that’s not the Death Row that I see. When I arrive at the prison, which is in the middle of nowhere, I am searched and then searched again as though it is expected that I will have contraband on me and the corrections officers are so disappointed that they haven’t found it, that they search me again, just to prove a point. The reality is that I’ve been going into prisons for over 20 years, I will never have anything in my pockets, nothing round my neck or wrists, I will be wearing jeans and a long sleeve top, showing as little flesh as possible, and will carry a pad and pen. In high security prisons anything is a commodity, even a paper clip or an elastic band, or sneaker laces. The only commodity I have is me, and I hope that my client believes that I am a more valuable commodity working on his case that being held as a hostage!

When a Death Row inmate is moved, the whole prison is placed on lockdown, hence the other prisoners do not like the Death Row inmates. The corrections officer tells me that they are taking me over to Death Row as the conference room is busy. It’s the first time I have been to this prison and I assume that they are saying this to scare me. The reality is that, as I haven’t been to this death row before, I am desperate to see inside it and see what it’s like, and if it’s as bad as I’ve heard.

We walk through the prison wings, through one locked door after another, I am aware how empty the prison seems. Usually when I walk through prisons I come across inmates everywhere, polishing floors, pushing laundry carts, carrying boxes for staff. But today, as I’m being taken to Death Row, there is noone around, it seems eerie. It really is a lock down. No wonder the rest of the prison inmates don’t like the Death Row inmates.

We arrive at Death Row and I’m struck by the fact there are more corrections officers in this wing than anywhere else, but no inmates. They are all locked away behind cell doors. There is a table in the middle of the room and I’m told to sit there.  It’s a very hot day outside and there is no aircon in this wing, Infact there is very little air in this wing. There are a couple of electric fans on the wall and the corrections officers have angled them down towards their chairs.  To say it’s stifling in the wing is an understatement.

I notice that every other cell is empty, so that the inmates can’t even talk to the person next to them. I know from conversations with previous clients who have spent time on Death Row, that they are not allowed a colour TV,  they can buy an overpriced black and white one which only shows the State run channels….that is the Government channel and a religious preaching channel. The inmates are locked up on their own for 24 hours a day, they usually get one hour of yard time a week, and that is usually in the yard on their own. They can have a couple of phone calls a month, but very few have anyone to call. There are no cats, or birds, wide screen TVs, communal areas, basketball matches.. These seem to exist only in tv documentaries. My client hasn’t had a hot meal since he arrived at Death Row as his food is driven over from the main wings, by the time it’s pushed though his door it is always cold. A few weeks ago his cell was searched and his mattress, sheet and pillow taken, he still doesn’t have them back. He is given postage stamps by the State, but isn’t allowed a pen or paper. His only book permitted is the Bible. Effectively Death Row sends my clients mad.

My client is brought out to the table, shackled at hands and feet, and round his waste. The hard cuffs on his wrists don’t even give him the flexibility to use a pen to sign the forms I have brought with me. I start to ask that my client is unshackled, but he gets very nervous and asks me not to make a scene. As I sit with him I am conscious of corrections officers walking past, much too close, as if to antagonise him, and they then start coughing and muttering things under their breath. So now I’m antagonised! I stand up and say “seems a lot of you in here have a cough, next one who disrespects me while I’m sitting with my client gets to walk the Green Mile to the Warden’s office, now get these cuffs off and move out of our personal space.”

The client looks stunned, the corrections officers stand rooted to the spot and then one comes over and says “he’s a killer, if he kills you, don’t come complaining to us.” The irony seems lost on him.

My client is unshackled and all the corrections officers move to the end of the room, obviously hoping that my client is going to come true on their warning. My client smiles and says ‘no one has ever fought for me before.”

We get to the end of the visit, the client hasn’t killed me, and I’ve ascertained that he went to Death Row aged 18 for a domestic killing. He shot someone who was beating on his mom. The problem was that he is black and the guy he shot was white, and the area they lived in still had segregation until the late 1970’s so at the time of his offence race issues were still prominent.

I could petition the Warden to get my client a mattress, sheet and pillow, pen and paper, but I know it will be of little use. Instead I submit the form I’ve just had my client sign.. The transfer form to get him moved to a jail closer to me so that I can work on his case. A jail that isn’t luxurious, but where he will at least be able to talk to other people.

Meanwhile, I have the unenviable task of trying to prepare a sentencing package for a 30 year old case  in which the previous lawyer, who was not a criminal lawyer, didn’t turn up for the sentencing hearing as he was working on a private civil case, but in which the judge didn’t feel the client was sufficiently disadvantaged to postpone….

* I subsequently agreed a sentence of 40 years incarceration (with life probation) with the prosecutor… After all those years on Death Row, my client’s health is so bad I doubt he will make 58, but at least he has some hope, he has a prison job, and the State has been saved the exorbitant amount of money that it costs to keep an inmate on Death Row each year

Why is Middle England avoiding the fact that youths are dying every week at the hands of a youth and a blade?

Many readers won’t like my blunt approach but unless middle class parents in Middle England start to understand the harsh reality of knife crime, their sons and daughters are at risk. Knife crime is a problem and kids across the UK are dying from the blade. The usual comments to the press by a grieving parent is ‘They were a good child, with a great future ahead of them which has been cruelly taken away’. These are the youths who were talented footballers, or aspiring doctors, or just those who went out to a friend’s house for the evening and never came home.

The sad thing is that many of the deaths don’t even make the media anymore, just a common everyday occurrence, and for the majority of the public it is believed to be something which only happens in inner city estates between gangs. Well this is a naïve view. Anyone, anywhere can die or be seriously injured at the hands of someone with a knife.

Part of this naivety comes from the fact that the media doesn’t report it. Schools don’t want to tell the parents about the number of knives being found during knife sweeps in school grounds as they don’t want the parents to question the safety of their children while at school. Many police forces actively discourage any mention of knives being found and knife crime, for fear of the community complaining that the police are not protecting the community and making it safe. Some of the police officers who have the courage to promote their knife findings face criticism (and worse) from their superiors, for speaking out. Fortunately, I can speak out.

And not to overlabour the point, but while this problem is being kept in the shadows, kids are still dying. I know of at least 5 deaths of teenagers around the UK at the hands of the knife in August and September. Put that into perspective, in a class of 30 students, that’s one sixth of the class dead in the space of two months!

I work with kids who are involved in gangs and who carry knives. For them carrying a knife is for status, the gang requires them to carry a weapon, and it is for protection. These knives are usually not just a small blade – machetes, double serrated edge 15 inch blades and flick knives are regularly found by the police during searches of people and cars, at crime scenes and during weapons sweeps in public places. But these are not the only ones carrying knives, and it is the unknown and unsuspected ones who are most at risk.

There is a huge increase in youths carrying knives or blades as they feel the need to do so for their own protection. Youths who have never been in contact with the police before, who are doing well at school and who have a stable home life, but still feel the need to place a knife in their backpack. And these are also the youths who are dying at the end of their own blade, or who are sitting in a police cell for the first time having been found with a knife on them.

It is the parents of these youths who tell me that they had no idea their son or daughter was carrying a knife, and they can’t understand why. And they don’t like my answer which is that ‘it’s what youths do these days, carrying a knife is now commonplace‘. The sad thing is that we are usually having this discussion in a police station or courtroom, by which stage their son or daughter is facing a spell in a young offenders institution.

The question which comes next from most parents is ‘where did they get the knife?’
The answer to that is usually simple, either from the kitchen or from the internet. The first time knife carriers will probably have taken the knife from the kitchen drawer. It may have been noticed missing but the parents never think to question their son or daughter, why would they, they are a good kid. The progression is then to purchasing a knife on the internet, often using a parent’s Paypal account or credit card. A large gutting knife, with a double serrated edge, can be purchased for £9.99 on the internet. Less than £10 can take a life or ruin a life.

The next thing I hear is usually ‘but why didn’t the school warn us?’
Well, firstly it’s not the school’s responsibility to educate the parents, and I usually tell them so. And secondly, knives are not usually taken into the classroom. That would be too easy to detect. Knife sweeps of school grounds, gardens, drainpipes, hedges on the way to the school are all areas where knives are hidden for the day at school and then picked up on the way home, or left there for longer, with the youths safe in the knowledge that if they need to use it at school they know where to find it.

I regularly hear the comment ‘He/she didn’t have it at home because I would have known.’
Again that’s rubbish. Most youths are not even very sophisticated in their hiding places at home as they know that parents will not search their back pack or boxes under their bed. The more sophisticated ones will hide the knife in the places which are harder to spot, back of a Playstation, inside socks in a drawer, strapped underneath an outside window-ledge, or in the hedge in the side alley. But make no mistake, even an unsophisticated knife carrier can easily hide a knife if their parents have no idea that they should look for it.

Staying on the home front, it is also unlikely that many parents would understand their son or daughter was talking about a knife even if they overheard them on the phone or caught a glimpse of their internet chats. Common words for a knife or blade which are more readily known by parents include ‘Shiv’, ‘Shank’, ‘Switch’, ‘Blade’, ‘Sharp’, and ‘Dagger’. But the lesser known slang words include ‘Jammer’, ‘Ox’, ‘Hawk’, ‘Skeng’ ‘Wep’ and ‘Tool’. In a recent case, my client was a young lad arrested for possession of a knife after an off duty officer noticed the lad showing his knife off to his friends just outside the school grounds. I asked him why he had referred to the knife as ‘Skeng’ and he said he didn’t know but he’d looked up the slang words for knife on the internet, and ‘Skeng’ came up so he decided to use it so that his parents wouldn’t know what he was talking about and so that he could look good in front of his friends.

It’s not just young lads who are carrying knives, girls are increasingly carrying knives. The same reasons apply, for their protection and to look good in front of their friends. If their friends are carrying a knife, they don’t want to be the odd one out. The knives carried by girls are often smaller. My female clients have hidden a knife in their make up bag or in a box of sanitary towels. One commented to me that hiding a small folding blade in a bundle of sanitary towels is the easiest way to avoid detection as most teachers or parents won’t search them for fear of embarrassing the girl.

Some of the youths I represent in the youth court have found themselves on the periphery of a gang as they are easily led. These are often the youths who do not have a large circle of friends at school, are perhaps socially awkward or just want a bit of excitement. Gangs will quickly identify a youth who fits into these categories and use them. The youth may be encouraged to purchase one or more knives using their parent’s debit card or Paypal account. Websites may encourage purchases by offering 2 for 1 on knives, so it will not show up as a large amount on the debit card. The youth may be encouraged to hide the knife or carry it as they are not known to the police and will be less likely to be stopped. These youths are usually the least street wise and will hide the knife in their backpack or their locker at school, and will be the most likely to be caught. An excuse of “I was carrying the knife for someone else” is not a defence. The gang members won’t be facing court, but the duped youth will be facing custody.

The harsh reality of these youths carrying knives is that they are either likely to be killed or injured by their own knife or face custody. I hear many youths in the police station or court who now say “Oh, but I didn’t think the police were searching us anymore so I thought I wouldn’t get caught.” Wrong, stop and search is still being carried out by a lot of police officers, and there are other ways of being caught, the off duty officer who witnessed the knife being shown around, was picking his own daughter up from school. Knife sweeps at schools and in public areas are being carried out more frequently by the police and other authorities and a quick check on the school cctv can often identify who has hidden the knife behind the drainpipe or in the bushes at the back of the car park.

The Law on Knife Carrying
Anyone caught carrying a knife for the first time can receive a community or prison sentence. But under the Criminal Justice Act 1988, since July 2015 a youth over 16 who is guilty of carrying a knife in a public place on more than one occasion must be given at least 4 months’ Detention and Training Order, so that means the youth will serve at least 2 months in a young offenders institution and then at least 2 months under close supervision when they are released from custody. Anyone over 18 must be sentenced to at least 6 months in custody. This has created a two strikes rule in relation to carrying knives. Anyone caught with a knife for a second time will be locked up!

In reality, for many of the youths carrying knives, this could mean the end of aspirations of college, apprenticeship, or a job, for a moment of stupidity, by a youth trying to fit in with their mates or thinking that they will protect themselves from a gang attack by carrying a bread-knife!

So what can be done to combat this increase in knife carrying by those who have no previous contact with the police or courts? Parents and family members should speak to youths about knives, and the harsh reality. If a knife goes missing from the kitchen, question it. Listen out for the slang words, challenge a change in behaviour and increased secretism. Schools should be challenged about whether there is a knife problem, not just in school, but outside the grounds, are knife sweeps being carried out, if so what is being found? This will help to highlight the level of the danger to teenagers at that school.

Most police forces offer a knife amnesty bin, which provides a safe disposal of the knife with no questions asked. This should be used by parents who find a knife in their son or daughter’s possession, merely placing the knife elsewhere may result in the youth finding it and taking it back or giving it to their mate. Knife amnesty bins also help the police to gauge the amount of knives being carried in their area, and the types of knives.

Don’t ignore the knife crime problem. It sounds dramatic, but the harsh reality is that ignorance can cost a life.

About Me

I am a social justice barrister, with an interest in criminal law, complaints against the police, prison law, International human rights, inquests and any challenging cases which involve the criminal justice system.

Specialisms:

  • football supporter law;
  • human trafficking;
  • defending people facing the death penalty.

My employment law work includes unfair dismissal, whistle blowing, minimum wage claims and discrimination, also police and prison officer disciplinaries.

I have been voted Pro Bono Lawyer of the year for 2012 and have also been awarded the Florida Criminal Defence Lawyers Association Rodney Thaxton Award for criminal defence work on a high profile death penalty case.  The Florida Chapter of the American Civil Liberities Union awarded me the Clyde Atkins Award for my work defending death penalty cases.

I work from 1 Gray’s Inn Square chambers in London, but will travel anywhere.

I can be contacted via www.alisongurden.com or www.1gis.co.uk

Smoke Bombs, Flares and Football Matches = Arrest, Prison and a Football Banning Order

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.

You have the Right to a Lawyer – So Use It!

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!

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 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.

Football Banning Order spiraling out of control – from drinking in sight of the pitch to a 5 month prison sentence!

The news reports of the football fan who has just received a 5 month prison sentence for breaching his football banning order, makes it an opportune time to remind fans how acceptance of a football banning order, in the belief that it is a civil order, can result in a criminal conviction and prison sentence.

While I don’t have first hand knowledge of this case, and will leave you to draw your own conclusions from the news article below, the circumstances are similar to those that play out in magistrates and crown courts all over England and Wales during every football season.    A Football Banning Order can be requested by the police against a fan who they police deem to be causing or likely to cause disorder at football matches. This is a civil order, and many fans will accept the order without challenge due to the fact it is civil and they are under the impression that they cannot challenge it in court.  That impression is incorrect, although it is a civil order, the consequences of breaching it are criminal and as such it can be challenged from the first stage.

A civil order can be imposed on a fan by the Magistrates Court for between 3 and 5 years.  If the fan breaches that order  (and a breach can be as simple as entering a town on a saturday where the fan’s team are playing) then the fan can face a prison sentence.   If it is a Home game, this often means that a fan, subject to a football banning order, who takes his or her family into town on a Saturday can be arrested.  The breach then becomes a criminal case and this can result in prison.

The fan may consider that the alleged incident in or outside of the football ground which resulted in the football banning order was a minor incident. They may also consider that taking their family into town on a Saturday is a minor incident and as such they will be able to talk their way out of it with the Police or the Magistrates Court.  This is a big mistake.  The Football Banning Order is a court order and the courts take the breach of one of their orders very seriously.  So the simple facts of the case will not excuse the fan, the fact they have breached a court order will mean that they will likely be sentenced to a criminal sanction which can include imprisonment.  And hence the minor incident has a life changing effect on the fan, a criminal record, and possibly a period at Her Majesty’s Pleasure!

The key to all of this is not to immediately accept the order, or panic when a summons arrives on the doorstep or is handed over by a police officer.  It is best to seek legal advice at the earliest opportunity, and most lawyers specializing in football banning orders will provide their initial advice for free.  But even if things have started to spiral out of control, and a criminal conviction for breaching an order is looming, seek advice.  Not only the future of attending football matches, but also of work and liberty may depend on whether advice is sought.

5 month prison sentence all started with drinking in sight of the pitch at a football match