England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		15 May 2009

Friday 15 May 2009

LORD JUSTICE GOLDRING: Mr Justice McCombe will give the judgment of the court.

MR JUSTICE McCOMBE:

1. On 27 October 2008, in the Crown Court at Birmingham, before His Honour Judge Salomonsen, the appellant pleaded guilty on re-arraignment to an offence of threatening behaviour, contrary to section 4 of the Public Order Act 1986 on an indictment charging him with violent disorder, contrary to section 2 of that Act. On 22 December 208, he was sentenced by His Honour Judge Davis QC to a fine of £1,000, to be paid within six months, with 28 days' imprisonment in default of payment. He was also sentenced to a Football Banning Order for a period of five years under section 14A of the Football Spectators Act 1989. He appeals against the Football Banning Order by leave of the single judge.
2. The facts were these. It is necessary to put into context the appellant's personal behaviour in the light of a wider incident in which he was involved. The background is a football match between Birmingham City and Aston Villa which took place on 11 November 2007 at the St Andrews ground (Birmingham City's home ground). The possibility of violence flaring up at the match was anticipated because of trouble on previous occasions. The police mounted a substantial operation both inside and outside the ground, in the lead up to the match, during the match and after it. There was little trouble until the end of the game when, apparently as a result of a swing against fortunes of the home side, the crowd started to gather outside the gates leading to the accommodation for the Aston Villa fans. Police cordons were set up. They tried to move the crowd on, but more and more people arrived at the scene until there were hundreds standing together outside, effectively preventing the Aston Villa supporters from leaving the terracing. The gates were locked so that the away fans could not leave the stands. At this point the group were chanting, jumping up and down, shouting and eventually began to throw missiles. This was at about 2.55pm. As the home supporters were unable to get to the away supporters, they turned their attention to the police. In the incident as a whole (not, we emphasise, involving the appellant), stones, coins and bottles were thrown. The crowd shouted taunts and a longer chant began. The police tried to force the crowd back. Later on in the incident (after the events in which the appellant was directly involved), missiles were thrown, sauce bottles from hamburger stands and so forth were used as such missiles. There were incidents outside the ground and in the surrounding roads where members of the crowd (not the appellant) began to kick out at stationary police vans, and missiles continued to be thrown. It was only at about 3.30pm that the gates could finally be opened to allow the away supporters to disperse from the ground.
3. The Crown's case against the appellant was that he encouraged the crowd. He could be seen in the crowd outside the gates leading to the terracing accommodating the fans from Aston Villa, chanting, shouting and jumping up and down. He appears in the video-recording of the scene to be highly excited, protesting and shouting. The incident went on for about twelve minutes. The appellant was unknown to the police as a trouble-maker at football matches. His photograph appeared in a local newspaper inviting his identification.
4. To his credit, on 28 December 2008 the appellant attended the police station voluntarily. In interview he said that he had attended the match with his family; that he had not had anything to drink beforehand (and there was no evidence to suggest that he had); that he had been leaving the match when he was pushed between a line of police and the Birmingham City fans; and that he had just been "trying to get out of it". From the video-recording, it is clear that his role was much greater than this. Eventually, however, he admitted chanting and jumping up and down. He said that he had just joined in doing what everybody else was doing. When shown the video recording, he agreed that the crowd was out of control.
5. We have seen that video recording. It is clear that the appellant was in an excited state, jumping up and down, waving his arms about, and appears to be directing taunts to the police officers.
6. The appellant was born on 12 May 1987, and is therefore now 22 years of age. He has no previous convictions, but has been cautioned on one occasion for common assault. There was no pre-sentence report before the court, but there were a number of references testifying generally to the appellant's good character and with regard to his uneventful attendance at football matches for many years. The references spoke of his attendance at matches, frequently in the company of his family.
7. In passing sentence on the appellant, the judge observed that the offence had been committed in the company of a large number of other Birmingham City supporters, when the appellant had been seen shouting, chanting and jumping up and down. The judge accepted that the behaviour was out of character for the appellant and was in a different category from that of the other accused who appeared for sentence before him on that day. The judge also noted that in the appellant's case it had been urged that no banning order should be made against him. The judge went on to say that banning orders were intended as a deterrent to others who might be minded to cause trouble at football matches, and that this particular local Birmingham match was long-known as a potential flash-point.
8. On the present appeal it is argued that the judge erred in imposing a banning order. It is submitted that there was no evidence to justify the conclusion that such an order in the appellant's case would help to prevent violence or disorder at matches within the meaning of the statute. The appellant was a long-standing supporter who regularly attended matches without a hint of trouble. His involvement was said to be minimal and he had used no violence on this occasion. In the alternative, it is submitted that the length of the banning order was excessive. Mr Bell, whose submissions have been helpfully addressed to this court this morning, urges in addition that the judge failed to give proper individual consideration to the circumstances of the appellant and to consider whether in his case such an order was necessary in order to prevent football-related violence in the future.
9. The relevant statutory provisions are to be found in section 14A of the 1989 Act, which provides as follows:

"(1) This section applies where a person (the offender) is convicted of a relevant offence.

(2) If the court is satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder at or in connection with any regulated football matches, it must make an order in respect of the offender.

(3) If the court is not so satisfied, it must in open court state that fact and give its reasons."

10. We have been referred in writing and in oral submissions by Mr Bell to three cases: Gough v Chief Constable of Derbyshire [2002] QB 1213, R v Hughes [2006] 1 Cr App R(S) 632, and The Queen (on the application of White) v Crown Court at Blackfriars [2008] EWHC 510 (Admin). It is to be noted that Gough was a case which dealt on its facts with section 14B of the Act, where the liability to a banning order was not premised on convictions for football-related offences. Lord Phillips of Worth Matravers MR said:

"As a starting point a banning order should only be imposed where there are strong grounds for concluding that the individual subject to the order has a propensity for taking part in football hooliganism."

In oral submissions today, Mr Bell has referred us to paragraphs 68 and 70 of the judgment where Lord Phillips MR said this:

"68. .... It seems to us that the principles that [the claimant] invokes should, in logic, apply as much to a derogation from freedom of movement as they do to the derogation from freedom of establishment. Thus, if the restrictions imposed on the appellants are to be justified --

(i) They must have been imposed after giving individual consideration to each appellant;

(ii) they cannot have been based simply on the criminal record of each appellant;

(iii) They must be rationally connected to the objective of preventing English football hooliganism abroad;

(iv) They must be no more than was necessary to achieve that objective."

Mr Bell submits that certainly the first two of those criteria must apply equally in considering the application of section 14A of the Act. Of course, it must be recognised that criteria (iii) and (iv) were particularly directed to the European legislation with which the court was concerned in that case. In paragraph 70 Lord Phillips MR emphasised the importance of concentrating on the individual circumstances of the person against whom the banning order was sought.

11. In contrast, in Hughes, a case like the present, where the question of a banning order arose following conviction of a football-related offence, this court was referred to Gough. However, as the court there observed in the judgment given by His Honour Judge Gordon QC (on behalf of himself, May LJ and Openshaw J):

"13. It is important to remember that the banning order here was made under section 14A of the Act. That means that the first element -- the conviction of a relevant offence -- will already have been established to the criminal standard. It is then, in our view, necessary to look at subsections (2) and (3) together. It is clear, having done so, that the legislature expected, in a normal case, that the conviction itself would be sufficient to satisfy the court under subsection (2), but that if there were something in the particular case that meant that the judge was not so satisfied then he should explain what it was in open court. There is clearly no requirement under section 14A for either repetition or propensity."

12. In White Richards LJ, giving the principal judgment on behalf of himself and Swift J, quoted the passage to which we have just referred and added:

"18. .... Where [the offender] has actually been involved in football related violence constituting an offence, a football banning order may well be considered appropriate without having to evaluate the risk of repeat offending at the same time.

19. Furthermore, the Crown Court was .... entitled to take into account and to give great weight to deterrence. That approach is plainly permitted by the wording of section 14A(2) and is in line with legislative policy. There are clear benefits in it being widely known that a person who assaults an official at a football match is liable to be made the subject of a football banning order even if the incident was, for that person, an isolated one."

13. In our judgment, that final remark of Richards LJ's is equally capable of application to anyone who takes part in the type of disorder that resulted in this conviction and the other convictions with which the judge was concerned. Participation in this manner of disorder, as part of a large number of persons who are behaving in an uncontrolled manner, is highly distressing and threatening to those lawfully going about their business in attending football matches, perhaps in some cases in the company of young children. Activities such as those of the appellant in this case were part of a scene of wholly unwarranted disorder and can only serve to encourage others to behave similarly, or in an even worse fashion. It is quite clear that such behaviour can also warrant the making of a banning order, even if the behaviour is an isolated first incident in the case of the person in question.
14. In our view, the judge was fully entitled to take into account the deterrent nature of orders such as this and the fact that this particular fixture was a well-known flash-point. That is not to say that in every case of a football-related offence of this type a banning order must be imposed. All depends on the facts of the incident, the precise behaviour of the offender in context, and his character in the past.
15. In this case the judge gave individual consideration to the appellant's case in the manner that we have indicated. It was clearly relevant to take into account the appellant's good behaviour generally at football matches, and his relatively low level of participation (although his participation was of a serious character). The judge clearly did this. However, the offence was committed in the context of a high level of disorder, which must have been very frightening for those not involved. It was also committed at a location well-known for its propensity to give rise to such disorder. Accordingly, a banning order cannot be said to have been wrong in principle in the appellant's case.
16. However, we consider that the factors carefully and succinctly prayed in aid by Mr Bell on his behalf in this appeal indicate that in the appellant's case the banning order was too long in duration. It has been pointed out to us, as we have read on the papers, that his was the only case among the offenders sentenced on this occasion where a plea had been entered, and accepted by the Crown, to the offence under section 4 rather than under section 2 or for affray. We also note the appellant's previous absence of any history of violent disorder of this type. We consider that those factors indicate that the order imposed was too long in duration and that a banning order of three years would have met the justice of the case.
17. To that extent we propose to allow the appeal so as to reduce the banning order imposed by the judge from five years to three years.