England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Laws LJ and Poole J)

		Royal Courts of Justice Strand London WC2 Tuesday, 27th November 2001

1. LORD JUSTICE ROBERT WALKER: On 12th October 2000 Mr. Mark Lilley was sentenced at the Leeds Magistrates' Court, having earlier pleaded guilty to threatening behaviour contrary to section 4 of the Public Order Act 1986. The offence took place on 2nd April 2000 on the occasion of a UEFA cup match at Elland Road, Leeds, between Leeds United and Galatasary. Mr Lilley was sentenced to 8 weeks' imprisonment and was made subject to a football banning order under section 14A of the Football Spectators Act 1989, which I will call the 1989 Act, as amended by the Football (Disorder) Act 2000, which I will call the amending Act.
2. The amending Act was passed following the deplorable disturbances that took place during the Euro 2000 competition in Belgium. It made extensive amendments to the 1989 Act. In brief summary it brought about a general convergence between banning orders relating to home matches and overseas matches. It introduced banning orders not only following a conviction in criminal proceedings (that is under section 14A of the 1989 Act as amended) but also on a complaint to magistrates. That was a new provision found in section 14B of the 1989 Act as amended. Moreover, the amending Act increased the minimum period for banning orders.
3. The banning order on Mr Lilley was for six years, the minimum period prescribed by section 14F of the 1989 Act as amended. A question of law arose because the amending Act, which increased the minimum period to six years in the case of an order made after the imposition of an immediate custodial sentence, came into force on 28th August 2000, that is almost five months after the offence to which Mr Lilley had pleaded guilty. The question was therefore whether the longer banning period infringed article 7 of the European Convention on Human Rights which provides "nor shall a heavier penalty be imposed than the one that was applicable at the time the offence was committed." The crucial question was whether a banning order under section 14A constituted a penalty within the autonomous meaning of that expression in article 7.
4. On 25th October 2000 Mr. Lilley appealed to the Leeds Crown Court on that point. On 1st December 2000 the Leeds Crown Court dismissed his appeal, holding that the banning order was not a penalty, but stated a case for the opinion of the High Court under section 28 of the Supreme Court Act 1981. On 13th July 2001 the appeal by way of case stated was heard by the Divisional Court in the persons of Laws LJ and Poole J. They dismissed the appeal in a long and closely reasoned judgment of Laws LJ, with which Poole J agreed. The Divisional Court refused permission to appeal.
5. Subject to submissions which I shall mention in a moment, such an appeal would have been a third appeal direct to the House of Lords under section 1 of the Administration of Justice Act 1960. It would require not only the permission of either the Divisional Court or the House of Lords but also certification by the Divisional Court that a point of law of general public importance is involved. The Civil Division of the Court of Appeal has no jurisdiction to hear any appeal in respect of a criminal cause or matter (see section 18(1) of the Supreme Court Act 1981, to which Keene LJ referred when he refused permission to appeal on a paper application).
6. This morning Mr. Alex Bates, who has been instructed at short notice to appear on the application, has submitted that, despite the fact that the banning order was made by the Leeds Magistrates' Court following on Mr. Lilley's conviction for an offence under the Public Order Act 1986, it was not made in a criminal cause or matter. He has recognized that a criminal case was the genesis of the banning order, but he has submitted that the banning order itself should be regarded as something ancillary to or consequent on that. In support of that submission he has referred to the decision of the Divisional Court in R on the application of McCann v Manchester Crown Court [2001] 1 WLR 358, and in particular to a passage in the judgment of the Lord Chief Justice, Lord Woolf, at page 366, in which Lord Woolf drew attention to five indicators that an anti- social behaviour order made by magistrates under section 1 of the Crime and Disorder Act 1988 on a complaint made to magistrates should be regarded as made in civil, and not criminal, proceedings.
7. It appears to me, and I think to my Lord, that that argument, clearly though Mr. Bates has tried to develop it, is doomed to failure. Certainly, there is an intelligible and important distinction between the domestic character of the proceedings in which a particular type of sanction is imposed and the question whether that sanction should, for the autonomous purposes of article 7, be regarded as a criminal penalty. It is clearly possible that, in proceedings which are classified as criminal for the purposes of domestic procedure, a sanction may be imposed which is not a criminal penalty for the purposes of article 7. It seems, however, an impossible task to show that when a sanction is imposed in what are for domestic purposes criminal proceedings, and when the applicant wishes to argue that the sanction is for article 7 purposes a criminal penalty, the proceedings should nevertheless be regarded as non-criminal for the purposes of an appeal.
8. It is true that two banning orders made by the Derby Magistrates' Court in the cases of Gough and Smith under section 14B of the 1989 Act as amended were considered on appeal by the Divisional Court at the same hearing as the applicant's appeal by way of case stated from the Leeds Crown Court. As I have mentioned, orders under section 14B are made on a complaint (as in the McCann case) and not in criminal proceedings. The Divisional Court's dismissal of the appeals in Gough and Smith is to be the subject of an appeal to the Civil Division of this court under permission granted by Keene LJ on the same occasion as he refused permission in this case. That is a curious result of the hybrid character of football banning orders, a character shared, for instance, by orders under the Company Directors Disqualification Act 1986, which have the same character in that they may be made either in the course of criminal proceedings or in free-standing civil proceedings. There is also a good deal of Strasbourg jurisprudence on disqualification orders.
9. It seems to me that the coincidence of the other pending appeal cannot alter the plain fact that this court has no jurisdiction to hear an appeal in a criminal case and that there are insuperable difficulties in Mr. Bates' way in contending that this appeal would not be an appeal in a criminal case. However, the court has indicated that it does not propose on this occasion to dismiss the application but rather to adjourn the matter.
Order: Application adjourned.