FOOTBALL FANS ON A FOOTBALL BANNING ORDER MAY HAVE BEEN UNLAWFULLY PREVENTED FROM TRAVELLING DURING THE NATIONS LEAGUE IN JUNE 2019
Lawyers have identified that the United Kingdom Football Policing Unit may have required football fans on a football banning order to surrender their passports prior to the 2019 Nations League tournament in Portugal, without a law being in place to require them to do so. If this is the case, the travel restriction on banned football fans is likely to have been unlawful, and the fans may be entitled to compensation.
If the United Kingdom Football Unit did not have the power to issue the travel restriction, it is questionable how the police had the authority to seize and retain passports. Any action by the police at a port or airport, stopping football fans and preventing them from travelling is also likely to have been unlawful.
Quite simply, the law requires the Secretary of State to stipulate the Control Period during which the football fans have to surrender their passport. The United Kingdom Football Policing Unit required fans to surrender their passport to the police between 29thMay 2019 and 1stJune 2019. It appears that no control period was put in place by the Secretary of State for the Nations League tournament. If the United Kingdom Football Policing Unit did act unlawfully, then at best those who surrendered their passport on 1stJune 2019 had their human rights interfered with for 9 days, those who surrender their passport on 29thMay 2019 had their rights interfered with for nearly 2 weeks.
If it is correct that there was no authority in place to restrict banned football fans’ movements, this could affect nearly two thousand football fans!
The claim against the United Kingdom Football Unit, which is part of the Home Office, is being brought on behalf of some football fans by Sarah Magson of Watson Woodhouse. Anyone who wishes to find out more about the claim, or thinks they too may have been affected can contact me at firstname.lastname@example.org or Sarah Magson at email@example.com 01642 266 559
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.
- 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.
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.
‘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.