This article comes from the FSF.
As a sitting Magistrate (JP) in a large city and a season ticket holder at my local team, I regularly see people in court charged with offences either closely or more tenuously linked to football and subsequently the requests for a Football Banning Order (FBO). The problem can be the level of consistency applied to these cases.
FBOs are an example of what are known as ancillary orders along with things like restraining orders and can only be given by a court. That means that the underlying offence such as common assault is the criminal Offence but a ban can also be applied on conviction.
Football Banning Orders originated almost 30 years ago under the Football Spectators Act 1989.
Other Acts have since amended this but fundamentally that’s where they came from.
Now cast your mind back to the 1980’s and you can maybe see what was happening at the time. There had been a number of disasters at football grounds, we still had antiquated stadiums, violence when England travelled abroad, CCTV was in its infancy and football clubs did not have the fan facilities they have now.
A generation later all these things and more are in place. The football club I support have CCTV of such a high standard that if someone sneezes in the wrong place they know about it.
The guidance for us to consider when an application is made for an FBO on conviction of a football related offence is two part:
1) Will the order prevent future disorder?
2) Would an FBO be proportionate given the nature of the underlying offence?
So far on the face of it that’s pretty straightforward. However we see cases that manifestly do not seem proportionate and are even downright draconian in their implementation.
As I mentioned earlier, FBO’s can only be given by court.
After all they can be a serious restriction on a person’s civil liberties. Put yourself in the position of someone who has been told they can’t go within a mile of a football ground when there is a football match on, has to report to a police station at 3pm every Saturday, cannot attend any football matches or even has to hand in their passport if England play away regardless of whether they have ever followed England abroad. All of these are absolutely typical restrictions on a FBO.
You might have heard of a case recently where a pitch invader was given a five year banning order? Really? Is that going to prevent future disorder? Well it’s arguable that being a football fan that his team might just get him mad again (we’ve all been there). But is a five year FBO proportionate for doing that? Of course not.
I have also seen something that worries me and questions the legal principle that all defendants are presumed not guilty until they are proven guilty beyond reasonable doubt. It also puts into question whether football supporters are dealt with differently to the general population.
We had a case where the police had bailed a defendant to court but had attached a list of ten bail conditions which amounted to an extremely stringent FBO.
Worst of all it said at the top that the conditions had been suggested by the football club that the fan supported! That opens up another can of worms – should a private business and the investigating force be colluding to impose restrictions on a private individual prior to them receiving a court hearing?
Another case where a banning order was requested was a man who had been caught up in the arrival of a group of 40 away fans as they arrived at the ground from the train station singing and shouting and he had lashed out after being jostled by them as he made his way to the family stand.
He admitted he’d been a bit daft, but was a three year FBO proportionate to what he’d done? We decided on the facts not to grant one. In my opinion this case would not have ended up in court if it hadn’t been football related.
To finish I’d say three things to anyone involved in a case of this nature:
1) Take advantage of the duty solicitor if you don’t have your own both at the police station and contact the FSF who can refer you to a football law specialist who may be able to give some advice freely and it’s always best to contact them prior to the case getting to Court.
2) If you represent yourself don’t forget that not only do the prosecution have to show that a ban will prevent future disorder they also have to show that a ban (minimum three years) is a proportionate response to the underlying offence.
3) We need a fundamental review of all of this legislation. A generation has passed and the government need to involve all interested parties in a proper consultation on how this legislation should work in the future. We need to understand what we are trying to achieve and ask is this a reasonable way to go about it?
Magistrate lost in the Shires, January 2018