Football related offences
Principle
Following the excellent work of some CPS Areas over the past few years working closely with the police to tackle football related violence and hooliganism, the Director has decided that this close liaison with the police should become the standard in all Areas during the forthcoming season. Well planned and co-ordinated arrangements have produced high profile improvements locally in case outcomes and have enjoyed the overwhelming support of the public and press.
As Areas develop their expertise in charging and giving early advice, the police will benefit from informed legal advice on what evidence to seek to bring to justice a high proportion of those arrested for football related offences. Each police force will have one or more Football Intelligence Officers and Areas should consider nominating a lead prosecutor to liaise with the police on football matches. Where an Area contains a number of clubs, it may be wise to have a point of contact for each club.
Guidance
The legislation affecting football matches
The Legislation concerned can be found in Archbold 2005 (5-821). Guidance is available on the Police National Legal Database and copies of the complete Acts of Parliament are available on the Office of Public Sector Information website.
Public interest considerations - Decisions to prosecute
Although of course each case will depend on its own facts, once the evidential test has been passed, the Director of Public Prosecutions has decided that for offences which are prima facie football related, there will be a strong presumption in favour of prosecution. In the highly unlikely event that a prosecution does not proceed on public interest grounds, managers will wish to see that there are clear and appropriate grounds recorded for not proceeding and that these are discussed and wherever possible agreed with the police.
Disposals that involve Cautions or Penalty Notices for Disorder will hardly ever be appropriate and their use should be governed by an agreed public strategy which almost always ensures that an offender is prosecuted in court. Football Banning Orders cannot be obtained on the back of Penalty Notices for Disorder. There will of course be exceptions, albeit rare, within the proposed strict regime and prosecutors will have to, as always, exercise appropriate discretion; for example, an incident which involves a minor infringement with no likelihood of repetition may be appropriately dealt with other than by a prosecution, but this will be the exception and each case should be very carefully considered in the light of the overall policy.
Football banning orders
Hooligans hate and fear Football Banning Orders. They are the main weapon we have and they must be sought wherever possible. Most hooliganism takes place away from football grounds, often affecting local public houses. Organised hooliganism can involve rival groups of fans meeting some distance from the ground. Railway and bus stations have also been the scenes of disorder.
Where a person is convicted of a 'relevant offence', the court MUST make a Football Banning Order if satisfied that there are reasonable grounds to believe that it would help to prevent violence or disorder at or in connection with any regulated football matches (s.14A (1)). If the court is not so satisfied, it must state its reasons in open court (s. 14 A (2)).
It is particularly important for all to understand which offences are football related 'relevant offences' since it is these that enable the court to make Football Banning Orders. It is the exclusion from football matches, limitations on travel and other restrictions on liberty which are going to stop those intent on causing trouble at football matches in the future and safeguard the safety and enjoyment of genuine fans as well as the UK's reputation abroad.
For the avoidance of doubt, the First Schedule to the 1989 Act which lists all the 'relevant offences' has been replaced by a new Schedule in the Football (Disorder) Act 2000 and is attached to this Guidance as an Annex. It is important for those advising and charging these offences to be familiar with the Schedule and for the individual points to prove to be thoroughly understood. Having the list to hand when advising the police or making a charging decision will aid the process of obtaining more Football Banning Order 'hits'.
Where the offences have been charged by the police under the Director's Guidance or under remaining shadow charging arrangements, it will be important for a reviewing lawyer to check that the opportunity has been taken to charge a football related offence where possible and that the evidence exists to enable the court to make a declaration of relevance (see below).
Where good grounds exist and the court have refused to make a Football Banning Order, it will be important for a full note to be kept of the reasons given for not making an order and for urgent discussions with line management to consider an appeal by way of case stated. Any appeal against a finding or Football Banning Order should be responded to by the CPS.
Prosecutors should be aware that the Violent Crime Reduction Act (VCRA) 2006 has amended s14A so that a court is now permitted to remand an offender if proceedings are adjourned. The court can also impose bail conditions of not permitting the offender to leave England and Wales prior to his appearance and requiring the offender to surrender his passport.
In addition, the prosecution now has the right to appeal any failure by a court to make a banning order on conviction (s.5A as inserted by the VCRA 2006). If the failure is by the magistrates' court, then the appeal is to the Crown Court. If the failure is by the Crown Court, then the appeal is to the Court of Appeal but only in the Judge grants a certificate that his decision is fit for appeal.
The court that hears the appeal will only have the power to make an order as that of the court from which the appeal was brought.
'Civil' football banning orders on complaint from Chief Officer of Police
From the 6th April 2007 prosecutors will be able to apply for a 'civil' football banning order. The court must make an order if satisfied that the respondent has at any time caused or contributed to any violence or disorder in the UK or elsewhere and that there are reasonable grounds to believe that it would help to prevent violence or disorder at or in connection with any regulated football matches.
For s.14(A) and (B), “violence” means violence against persons or property and includes threatening violence and doing anything which endangers the life of any person.
Also, disorder includes:
- stirring up hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins, or against an individual as a member of such a group,
- using threatening, abusive or insulting words or behaviour or disorderly behaviour,
- displaying any writing or other thing which is threatening, abusive or insulting.
Most importantly, the terms "violence" and "disorder" are not limited to violence or disorder in connection with football.
The court are given a wide discretion of what to take into account in making a s. 14B Football Banning Order; this includes decisions of foreign courts, evidence of deportation back to the UK, removal from football matches wherever this occurred and conduct recorded visually - e.g. CCTV.
The court can look at the conduct of the responded for up to ten years before the application for the making of an order.
If one is unable to proceed to a conviction for a (football) relevant offence in all circumstances, it may still be possible to apply for an order under s.14(B). Prosecutors should discuss this with police officers prior to the hearing.
The VCRA 2006 has also amended the remand provisions in relation to s.14B in terms similar to s.14A (see above).
Prosecution can appeal a magistrates' court refusal to make a banning order or complaint by application to the Crown Court.
Regulated football matches
Football matches that are the subject of controls under this legislation must be 'regulated football matches' (s. 14). The Football Spectators (Prescription) Order 2000 sets out which are the regulated matches in England and Wales and elsewhere.
Those in England and Wales are, basically, any association football match in which either team is a member of the Premier League, the Football League or the Football Conference (including its subdivisions, namely its Premiership Division and its North and South 'feeder' Division). Other matches may also qualify - see the Order for further details.
Length of football banning orders
When made following conviction under s. 14A, a Football Banning Order may be for up to 10 years if immediate imprisonment is imposed and must be for at least 6 years. If no immediate imprisonment is ordered, the maximum is 5 years and the minimum 3 years.
If made under the section 14 (B) civil procedures, the maximum is 5 years and the minimum 3 years.
Additional requirement of football banning orders
Football Banning Orders can be made more effective by the use of schedule containing additional restrictions, such as a restricted zone around a ground for a period of 2 hours before to 2 hours after a match, and a prohibition on using the national rail network without the prior approval of the British Transport Police. Other restrictions may be imposed and the police may have views worth taking on board on what will be effective restrictions on particular individuals.
Passports and reporting
Under s.14(E), a person who has been given a Football Banning Order must report to a specified police station within 5 days and, unless there are exceptional circumstances, they will have to surrender their passport when required by the Enforcing Authority under the Act and to report to a police station during the 'control periods' associated with 'regulated football matches' outside the UK (see s. 14 for the relevant definitions of control period and regulated football matches).
Prosecutors will need to be ready to counter any false or spurious arguments raised that there are exceptional circumstances that pertain to any individual.
Declarations of relevance
Through the operation of s. 23 of the Football Spectators Act 1989, the court cannot make a Football Banning Order unless it is satisfied that the offence is football related. This section provides that the court has firstly to make a declaration of relevance and can only do so once it is satisfied that the prosecutor has served a notice on the defendant (at least 5 days before the first day of the trial) indicating that the prosecution propose to show that the offence related to football matches.
The court can waive the requirement for full notice to be given if satisfied it is in the interests of justice. The defendant may also waive away his rights for full notice. A finding by the court that the offence was football related can be appealed as part of an appeal against sentence. It is important to ask the court to waive the requirements if an offender appears in custody and is dealt with at first hearing.
Prosecutors should agree with the police that a notice will be served on the defendant at the time of charge, and provision made for proving service so as to satisfy the court. The court is likely to require a copy notice.
Prosecutors should ensure that there is sufficient evidence to prove relevance to a football match and should not feel limited to incidents arising at or near the ground. It is perfectly possible for criminality that would be caught by the Schedule to include incidents some considerable distance away from the ground involving those on the way to the match or for some time before or after the actual match itself. It will usually be obvious from the circumstances, but if not, additional evidence may be available on enquiry of the police. Football Banning Orders have successfully been sought for offences over 2 miles from the ground and 5 hours after the end of the game, as well as for offences on the national rail network some distance from the game.
The court may conduct a hearing analogous to a Newton Hearing to determine the question of relevance. You will need to discuss this with your court so that prosecutors are and appear to be properly prepared.
The use of CCTV evidence may be very persuasive and lawyers should not hesitate to view such material which may save substantial numbers of police officers from having to attend court to give evidence.
The use of bail and liaison with the court
Conditional bail is available pre-charge in statutory charging areas. The police may impose conditions from the moment they deem there is sufficient to charge and would have charged but for the DPP's Guidance. The whole range of post charge/pre-court conditions are available and can include keeping away from certain areas and reporting at specific times.
Ordinarily however, it will be appropriate where the evidence is available for an early charge and court hearing. This may cause considerable pressure on short term listing and Areas will need to liaise with the court for an agreed strategy to deal with what may be large numbers both in custody and on bail. Additional security may be required to safeguard the court and officials.
Photographs
Section 35 of the Public Order Act 1986 entitles the court, on applications by the prosecutor, to order a person on whom a Football Banning Order has been made to attend a specified police station within 7 days at a specified time to have a photograph taken. A power of arrest exists for disobedience.
Liaison with the police
The success of the improved outcomes will depend on closer working with the police at a senior level. It has been proved to be highly beneficial for the CCP or senior lawyer to liaise with the relevant police Commander in charge.
Again, a successful model has been demonstrated by the attendance of such a person at a match to observe what the police can see from their operational control as this assists in briefing the lawyers to be tasked with advising, charging and then seeking the Football Banning Orders.
For specific events, where trouble is anticipated or an agreed crack down is to take place, success will be generated by having charging lawyers on duty at the stress periods who will deal with the early advice and charging and through case ownership, will deal with any subsequent advocacy.
Publicity
All this work will be generate a large amount of interest locally which will benefit the police and CPS if properly handled. Really good relationships with the local newspaper editors, facilities and information for the reporters, and a good media strategy will help seal not only the success of the operation but will do much to boost public confidence in local criminal justice agencies. Advice on this can be obtained from the Press Office. You will be able to refer to the National Media Handling Plan which will assist in planning your local publicity which has been circulated to the Area Communication Managers. A copy is attached for your further assistance.
Experience has shown that one or two really good joint operations can substantially reduce potential trouble locally.
Useful references
Archbold 2005 (5-821)
Office of Public Sector Information website