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Cite as: [2001] 3 WLR 1392, [2001] 4 All ER 289, [2001] EWHC 554 (Admin), [2001] EWHC Admin 554, [2001] Eu LR 701, [2002] QB 459, [2001] 3 CMLR 29

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Gough & Smith v. Chief Constable of Derbyshire [2001] EWHC Admin 554 (13th July, 2001)

Case No: CO/606/01, CO/818/01, CO/995/01
Neutral Citation Number: [2001] EWHC Admin 554
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 13th July 2001

B e f o r e :
LORD JUSTICE LAWS
MR JUSTICE POOLE

	Gough & Smith	Appellants
	- v -
	Chief Constable of Derbyshire Miller - v - Leeds Magistrates Court & Lilley - v - Director of Public Prosecutions - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - -	Respondent Appellant Defendant Appellant Respondent

	(3) The Secretary of State may make regulations regulating the giving by the enforcing authority to persons subject to banning orders of notices under section 19 above...; and it shall be the duty of the enforcing authority to comply with the regulations. 21A(1) This section and section 21B below apply during any control period in relation to a regulated football match outside England and Wales or an external tournament if a constable in uniform -
	(a) has reasonable grounds for suspecting that the condition in section 14B(2) above is met in the case of a person present before him, and
	(b) has reasonable grounds to believe that making a banning order in his case would help to prevent violence or disorder at or in connection with any regulated football matches.
	(2) The constable may detain the person in his custody (whether there or elsewhere) until he has decided whether or not to issue a notice under section 21B below, and shall give the person his reasons for detaining him in writing.



	21B(1) A constable in uniform may exercise the power in subsection (2) below if authorised to do so by an officer of at least the rank of inspector.
	(2) The constable may give the person a notice in writing requiring him -
	(a) to appear before a magistrates' court at a time, or between the times, specified in the notice,
	(b) not to leave England and Wales before that time (or the later of those times), and
	(c) if the control period relates to a regulated football match outside the United Kingdom or to an external tournament which includes such matches, to surrender his passport to the constable,
	And stating the grounds referred to in section 21A(1) above.

	...


	(4) For the purposes of section 14B above, the notice is to be treated as an application for a banning order made by complaint by the constable to the court in question and subsection (1) of that section is to have effect as if the references to the chief officer of police for the area in which the person resides or appears to reside were references to that constable.


	21C(1) The powers conferred by sections 21A and 21B above may only be exercised in relation to a person who is a British citizen.
	(2) A person who fails to comply with a notice given to him under section 21B above is guilty of an offence...




	21D(1) Where a person to whom a notice has been given under section 21B above appears before a magistrates' court and the court refuses the application for a banning order in respect of him, it may order compensation to be paid to him out of central funds if it is satisfied -
	(a) that the notice should not have been given,
	(b) that he has suffered loss as a result of the giving of the notice, and
	(c) that, having regard to all the circumstances, it is appropriate to order the payment of compensation in respect of that loss.
	(2) An appeal lies to the Crown Court against any refusal by a magistrates' court to order the payment of compensation under subsection (1) above.
	(3) The compensation to be paid by order of the magistrates' court under subsection (1) above or by order of the Crown Court on an appeal under subsection (2) above shall not exceed £5,000 (but no appeal may be made under subsection (2) in respect of the amount of compensation awarded).
	..."

Schedule 1 ("relevant offences") lists a large number of statutory offences. I do not think it necessary to set them all out. They replicate and update the list contained in Schedule 1 to the Act of 1989 in its original form.
THE FACTS
11 I will first deal very shortly with the facts in Lilley and Miller. The distinct point taken by Mr Newman QC on their behalf, arising as I have said under Art. 7 ECHR requires no elaboration of factual detail.
Lilley
12 On 20 April 2000 the UEFA Cup semi-final between Leeds United and Galatasary was held at Leeds. After the game there was an ugly episode of public disorder. Lilley took part. He appears on a video recording of the scene near the football ground, hurling two missiles at the police in quick succession. He was charged with an offence of using threatening, abusive or insulting words or behaviour contrary to s.4(1) of the Public Order Act 1986. He pleaded guilty at the Leeds Magistrates Court on 21 September 2000, and after an adjournment for pre-sentence reports he was sentenced on 12 October 2000 to eight weeks imprisonment, and was made the subject of a football banning order for six years under s.14A of the 1989 Act. As I have shown that is the minimum period in such a case: s.14F(3). His appeal (brought against the banning order only) was dismissed by the Leeds Crown Court on 1 December 2000.
Miller
13 Miller also attended the Leeds United v Galatasary match on 20 April 2000. Like Lilley, he was involved in the disorder and was charged with an offence contrary to s.4(1) of the Public Order Act 1986. On 21 September 2000 he pleaded guilty and on 20 October 2000 was sentenced to eight weeks imprisonment and made the subject of a banning order for six years. In his case there was no appeal to the Crown Court.
14 In each of these cases, it was argued below (in Lilley's case, at least in the Crown Court) that there was a violation of Art. 7 ECHR because at the time when the appellants did the acts which led to the banning orders - 20 April 2000 - the permissible duration of a domestic football banning order was no more than three years (s.32(2) of the 1986 Act as amended by the Act of 1999), so that the imposition of a banning order for six years was in breach of the rule, enshrined in Art. 7, against the imposition of a heavier penalty than was applicable when the offence was committed. The lower courts in both cases rejected that contention, and as the case stated in Lilley and the judicial review grounds in Miller both demonstrate, its correctness is the issue for decision in this court. I propose to address it before the other arguments which arise in Gough & Smith, but before doing so I must set out the facts in those cases, and also some more general factual considerations.
Gough & Smith
15 As I have said the orders in these cases were made under s.14B of the 1989 Act, and not s.14A. Considerable emphasis was placed on the differences between these provisions in the course of argument. On 18 September 2000 the Chief Constable of Derbyshire preferred complaints against Gough and Smith (and others) under s.14B(3) with a view to seeking orders under s.14B(4) in the Magistrates Court. The complaints alleged in each case that the condition stipulated in s.14B(2) - that "the respondent has at any time caused or contributed to any violence or disorder in the United Kingdom or elsewhere" - was fulfilled: in Gough's case specifically by a conviction on 17 March 1998 for common assault, and in Smith's case specifically by a conviction on 26 November 1990 for assault with intent to resist arrest. However it is plain from the terms of the case stated that the court attached greater importance to the "profile" prepared by the police in respect of each man, and I must explain what these are and how they come into existence.
16 As a matter of background it is important to recognise, as appears from the witness statement made by Superintendent Wright on 18 September, that violence connected with football matches has become organised, even sophisticated. Groups of men who associate themselves with particular clubs use mobile phones and the internet to arrange fights with other such groups. These men are not ordinary football club supporters. The fights, at which weapons are often used, generally take place away from the football ground. Specifically as regards Derby County matches, with which Gough and Smith were associated, Supt. Wright says this:
"There is currently a group of males that can number between 40 and 60 for high profile games who come under the banner of the media term `football hooligans'. The policing term for these people is `football prominents'. In the Derby group they are males aged from 18 to 40. The group is commonly referred to by the public and themselves as the DLF (Derby Lunatic Fringe)."
17 The tactics of the police have had to respond to this developing phenomemon. There is a Football Intelligence System co-ordinated by the National Criminal Intelligence Service. Each club has a Football Intelligence Officer, who is known to the prominents as they are known to him. In relation to each match - certainly as regards Derby, for it is what was done in these cases - information is collected by police "spotters" who watch the prominents. The information is collated in an information/intelligence report. The profiles are prepared in reliance on the contents of such reports, and consist in short notes, each giving an outline description of the particular prominent's involvement in actual or threatened trouble in relation to any given match. Fifteen profiles for Gough were put before the Magistrates Court, describing incidents from 14 September 1996 to 29 April 2000; twenty-one for Smith, from 14 September 1996 to 17 June 2000. Within these there appear to be eight incidents in which both appellants participated. I will not set out all the profiles. The following convey the flavour.
"8/3/97. Derby v Middlesbrough, 70 of the Derby prominent group were involved in disturbances with Middlesbrough prominents both before and after this game. Gough was part of the Derby group."
There is an identical profile for Smith, referring to the same occasion. There are two profiles which make no reference to disorder or to prominents:
"7/8/99. Leeds v Derby, Gough seen leaving the stadium with three other males."
"11/12/99. Smith seen sitting in the South East corner of the ground during the Derby v Burnley FA Cup game."
The Deputy District Judge in the Magistrates Court referred to this profile in particular:
"29/4/00. Tottenham v Derby, Gough attended London on this day on a rogue coach with 40 other Derby prominents. This coach was stopped and searched and was found to contain DLF calling cards, drugs and tickets for the game, all had been secreted on the coach. The group were allowed by police to walk into central London where they later became involved in slight disorder with West Brom prominents."
Again there is an identical profile for Smith. I should explain what is meant by a "rogue" coach. Apparently a system exists by which coach trips to away matches are notified to the police. A coach not so notified is a "rogue" coach. However the police have no powers to prevent a rogue coach from travelling, nor indeed (as I understand it) to require the notification procedure to be followed. Then lastly:
"17/6/00. England v Germany Euro 2000 Championships. Smith was seen in the square in Charleroi after the disorder had occurred corralled by the Belgian riot police with around 15 other Derby prominents and 1,500 other England supporters."

18 At the hearing Gough, then aged 36, gave unchallenged evidence that he suffered from a brain tumour; that his last football-related conviction had been eighteen years previously; that he had never been to a football match outside the United Kingdom; and that he regularly took his children to the Derby town centre for shopping as well as football matches. Smith was 38. He had had no convictions of any kind since November 1990. He said that his last "football-related incident" had happened nearly 15 years previously.
19 Mr Thompson's submissions for Gough and Smith were largely directed to the legality of the material provisions of the 1989 Act as a matter of principle. But the case stated raises questions as to the adequacy of the evidence in these instances to justify the making of banning orders under s.14B, and it was part of Mr Thompson's argument that evidence of the kind contained in the profiles was generally inadequate or unjustified: a submission which straddles the ground between the general law and the facts of the case. In these circumstances it is appropriate to see what challenge was offered in the court below to the material contained in the profiles, such as it was.
20 There was no suggestion in the magistrates' court that the profiles were not admissible evidence. Rather, Mr Thompson took a few narrow, specific points in relation to them. On behalf of Gough and Smith respectively he challenged the relevance of the profiles of 7 August 1999 and 11 December 1999 (these I have set out: they are the ones which make no reference to prominents or to disorder). Moreover both appellants disputed the evidence of the "rogue coach" trip to London on 29 April 2000, or rather the inferences to be derived from it: they asserted that they were going to London "in relation to the death of a friend" (case stated, paragraph 12): this seems to have been a claim (see paragraph 13.1) that the visit was for a fund-raising event. As regards the incident at Charleroi on 17 June 2000, Smith's evidence was that he was not in the square at the time of the disorder, although he had arrived there shortly afterwards.
21 There was thus in truth no challenge to the primary facts very shortly stated in the profiles. The Deputy District Judge rejected in terms the appellants' account of why they had gone to London in the rogue coach on 29 April 2000 (paragraph 13.1,2). He found that their evidence was "of little assistance to the court" (paragraph 13.3). He concluded as regards each appellant that the matters set out in s.14B(4)(a) and (b) were established and so proceeded to make banning orders, for two years in each case. That was the minimum period permitted by the statute: s.14F(5). The orders as made curtailed the appellants' freedom of movement to a lesser extent than had been sought by the police. As the Deputy District Judge made clear by reference to a map before him, there was no restriction placed upon their going into the city of Derby within the inner ring road.
Matches Played Outside England and Wales
22 There was some uncertainty at the Bar during the course of argument as to the likely real impact of a banning order, in terms of the length of time for which it might effectively prevent its recipient from travelling abroad, especially having regard to s.14(3) and (6) of the 1989 Act which respectively define "external tournament" and "control period" in relation to external tournaments. An agreed note was placed before us. It describes the three European football club competitions presently existing, namely the Champions League, the UEFA Cup and the Intertoto Cup (whose winner qualifies for the UEFA Cup). As must be obvious, the involvement of English and Welsh sides in these competitions, and therefore the impact on any individual of a banning order in terms of the period(s) of time in which he may not travel abroad, depends on the clubs' success rates at all the earlier stages in the process. I do not think it necessary to go into the minutiae, not least since the note helpfully includes a table showing how the reporting and passport surrender requirements of the 1989 Act have in practical terms affected all four appellants in 2000/2001. From this I shall only take the data relating to Gough and Smith. Each has so far been prevented from travelling abroad for three periods: 6 - 11 October 2000, 10 - 15 November 2000, and 23 - 28 March 2001.
The Secretary of State's Evidence
23 The Secretary of State put in two witness statements. The first was made by Mr Bohannan, who is Head of the Home Office section with responsibility for football-related disorder. The second was by Mr Jaglall who is an officer of the Football Banning Orders Authority ("FBOA"), an enforcing authority within the meaning of s.22A(1) of the 1989 Act. Mr Bohannan gives some of the melancholy history of the involvement of Englishmen in violence and disorder at football matches held abroad. The main focus of his statement, however, is directed to the police preparations for the Euro 2000 finals, the events which happened at Euro 2000 at Charleroi and Brussels, and the legislature's response to those events contained in the amending Act of 2000. Euro 2000 took place after the coming into effect of the amending legislation of 1999 but before that of 2000. Mr Jaglall deals with the procedures adopted by his authority in relation to the giving of notices under s.19 of the 1989 Act, and its treatment of applications for exemption under s.20. In light of various aspects of the argument before us (not least that contained in Mr Thompson's critical note on the Secretary of State's evidence), it is necessary to give some account of this material.
24 In the run-up to Euro 2000 there was mounted what Mr Bohannan called "the most extensive United Kingdom policing operation ever for an overseas football tournament". He gives details, which include many measures of co-operation with police services on the continent. I need not set them out. Despite these extensive precautions, "English fans were still involved in significant disturbances in both Charleroi and Brussels". He continues (paragraphs 16 - 17):
"In total, 965 England followers were arrested during the tournament. Only one was convicted of an offence. Police checks on the individuals concerned revealed that only one of those arrested was subject to a football banning order and only 35 were known to the National Criminal Intelligence Service as prominent football hooligans. However, further analysis revealed that 391 (40%) of the 965 individuals arrested had non football-related criminal records. Of this number 133 had convictions for violence, 200 for... offences under the Public Order Act 1986... 38 for offensive weapons, and 122 for criminal damage (Some had records in more than one category)...
... the profile of the England following, compared to the support of other competing nations, was disproportionately young white males (aged 20 - 35) with a propensity to `herd' together in large groups, consume excessive quantities of alcohol and in many cases adopt an overtly racist, xenophobic and threatening demeanour... This sort of behaviour is consistent with the high proportion of those arrested who had previous convictions for such offences, even although those offences had not necessarily been committed in a football context."
25 Mr Bohannan proceeds to refer to the heavy criticisms directed to the United Kingdom for its perceived failure to protect European centres from the activities of English hooligans, and in particular to a threat issued by UEFA on 18 June 2000 to expel the English team from Euro 2000 if there were further outbursts of disorder involving English supporters. Mr Bohannan says in terms (paragraph 20): "The 2000 Act was adopted in response to the lessons learned from Euro 2000"; and this same point was made by the Secretary of State in addressing the House of Commons on the occasion of the Bill's Second Reading.
26 Mr Bohannan describes the changes to the previous regime made by the amending legislation of 2000. These, of course, may be gathered from the statutes themselves. I will not therefore set out Mr Bohannan's account save for this short passage which, I think, is of some significance in light of the arguments as to proportionality which have been addressed to us:
"The first key change was that the distinction between domestic and international football banning orders was abolished. This was done as only 106 of the 560 individuals who were subject to football banning orders as a result of conviction of a football-related offence could be prevented from travelling to Euro 2000, because most of those who were the subject of banning orders were only the subject of a domestic order." (paragraph 24)
27 Mr Jaglall's description of the procedures adopted by the FBOA in relation to the giving of notices under s.19 of the 1989 Act is to be found in paragraph 3 of his statement:
"The FBOA issue individual notices to those made subject to an order setting out the conditions and reporting requirements in each case. Notices are sent to all subjects prior to the control period for an England international match played overseas and, where appropriate, prior to the control period for an international club match involving the club that the subject supports. Each club match is looked at individually with a risk assessment made at that particular time. The risk of disorder at some club matches abroad is considered minimal and no reporting requirements are imposed. Exceptionally, where intelligence is received that attaches a greater degree of risk to a particular match, notices may be sent to subjects who do not have an allegiance to that club."
He proceeds to explain that applications for exemptions under s.20 are considered on an individual basis. 26 exemptions had been granted since Euro 2000.
28 That is a sufficient account of the facts for the purpose of deciding the issues which have been argued before us. I turn next to Mr Newman's argument on Art. 7 ECHR. It was specifically disavowed by Mr Thompson. The orders in his clients' case were of course made under s.14B of the 1989 Act, whereas those against Mr Newman's clients were made under s.14A.
ARTICLE 7 ECHR
29 Art. 7(1) ECHR provides:
"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence as committed."
Mr Newman's submission is that a banning order, at least one made under s.14A of the 1989 Act, is a "penalty" within the meaning of this provision. If that is right, it is argued (as I have indicated) that in the cases of Lilley and Miller there was a violation of Art. 7 because at the time when they did the acts which led to the banning orders - 20 April 2000 - the permissible duration of a domestic football banning order was no more than three years (s.32(2) of the 1986 Act as amended by the Act of 1999), so that the imposition in October 2000 of a banning order for six years was a heavier penalty enacted with retroactive effect.
30 In Welch v UK (1995) 20 EHRR 247 the European Court of Human Rights had to consider the nature of a confiscation order made under the Drug Trafficking Offences Act 1986, it being argued that such an order constituted a "penalty" within the meaning of Art. 7. The Court held that "penalty" in that context was an autonomous Convention concept; and it set out the approach to be taken to the question whether, in any given case, a measure amounted to such a penalty. In its unanimous judgment the Court stated (paragraph 28, p.262):
"The wording of Article 7(1), second sentence, indicates that the starting point in any assessment of the existence of a penalty is whether the measure in question is imposed following conviction for a `criminal offence'. Other factors that may be taken into account as relevant in this connection are the nature and purpose of the measure in question; its characterisation under national law; the procedures involved in the making and implementation of the measure; and its severity."
31 The Court in Welch concluded that a confiscation order was a "penalty" within Art. 7. It considered, however, that such an order had a preventive as well as a punitive purpose (paragraph 30), and in addressing the Art. 7 issue in the present case I think it of some importance to recognise that many orders made by courts may possess both these characteristics. It is important also to have in mind the fact, obvious as it is, that there are various instances in which a familiar form of order may bear with great severity on the person against whom it is made without there being the least question of its amounting to a "penalty" for the purposes of Art. 7: what were previously known as Mareva injunctions and Anton Pillar orders (now freezing injunctions and search orders) are plain examples.
32 Our duty is to take account of the Strasbourg jurisprudence, not necessarily to apply it: see s.2 of the Human Rights Act 1998. But given the Strasbourg court's judgment that "penalty" within Art. 7 is an autonomous Convention concept, I am clear that we should in any event follow the guidance given in Welch.
33 In conducting that exercise, I would make two linked points at the outset. First, the question whether the proceedings in which the relevant order is made fall to be classified as "criminal" proceedings or not is, in my judgment, very largely unhelpful in relation to the "penalty" issue under Art. 7. Plainly, the proceedings in which an order under s.14A is imposed are necessarily criminal, since it is made in the very proceedings and by the very court in and before which the person in question is convicted of the "relevant offence": s.14A(6). I venture to suppose that such a state of affairs is likely to arise in cases where there is a live issue as to "penalty" within Art. 7, since if the order in question is made in civil proceedings it may be doubted whether it is much of a candidate for the status of "penalty" in any event. But none of this throws useful light on the question whether the order in any given instance is in truth a penalty. There are various circumstances in which criminal courts are empowered to make orders which would not be classed as penalties.
34 Secondly, I cannot think that there could be different answers to the Art. 7 question as between ss.14A and 14B. I say at once that Mr Newman did not submit as much; he was, understandably, at pains to emphasise that he was concerned only with s.14A. However a major theme in his argument was that a banning order under s.14A can only follow conviction of a criminal offence - the starting-point in Welch - and as I understood him he would not accept that orders under ss.14A and 14B necessarily fall to be classified in the same way for the purposes of Art. 7. (Indeed the skeleton argument in Lilley, drafted by junior counsel Mr Scott Wilson, comes close to suggesting the contrary.) I recognise the differences between the structure of ss.14A and 14B respectively, and also the differences in the potential duration of ss.14A and 14B orders (see s.14F(3) - (5)). But a single definition of "banning order" applies to both: s.14(4); and the provisions of ss.14E, 14G, 14H and 14J, and the regimes of ss.19 - 21, apply to both without distinction. In my judgment it would simply be absurd to hold that one constituted a penalty within Art. 7 and the other did not. It follows that the nature of an order made under s.14A cannot be examined and categorised without regard to that of an order under s.14B.
35 Although I have said that the categorisation of the proceedings in which the order is made as "criminal" is of itself very largely unhelpful in relation to the "penalty" issue under Art. 7, there is jurisprudence concerning the classification of proceedings, as opposed to orders made in proceedings, in which as it seems to me the reasoning offers assistance on the Art. 7 question. McCann (1 WLR 1084) concerned the making of "anti-social behaviour orders" under s.1 of the Crime and Disorder Act 1998. The Crown Court had treated applications for such orders as being made in civil proceedings. In consequence evidence was admitted under the Civil Evidence Act which would have been inadmissible in criminal proceedings. An anti-social behaviour order (like a banning order under s.14B) may be sought by complaint to a magistrates' court. It must be shown (s.1(1)(a)) that the respondent to the application has acted in a manner which caused or was likely to cause harassment, alarm or distress, and (s.1(1)(b)):
"that such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him".
S.1(6):
"The prohibitions that may be imposed by an anti-social behaviour order are those necessary for the purpose of protecting from further anti-social acts by the defendant -
(a) persons in the local government area; and
(b) persons in any adjoining local government area specified in the application for the order..."
Lord Phillips MR said this:
"38. Mr Fulford submitted that the prohibitions imposed by an anti-social behaviour order can have severe consequences to a defendant. In the present case the order prohibits the defendants from going into an area of Manchester where they have family and friends. Mr Fulford submitted that such a restriction of liberty operates as a penalty.
39. Many injunctions in civil proceedings operate severely upon those against whom they are ordered. In matrimonial proceedings a husband may be ordered to leave his home and not to have contact with his children. Such an order may be made as a consequence of violence which amounted to criminal conduct. But such an order is imposed not for the purpose of punishment but for protection of the family. This demonstrates that, when considering whether an order imposes a penalty or punishment, it is necessary to look beyond its consequence and to consider its purpose.
40. An order which is, in terms, restricted to the prohibition necessary to protect persons from anti-social behaviour, is manifestly an order designed to protect in the future not to punish for misconduct."
36 In my view this reasoning serves to emphasise the difference between a punitive order and one whose purpose is to offer future protection to the public or a section of it (and one may compare paragraph 63 of the judgment, and the Master of the Rolls' citations from the judgment of Lord Bingham CJ as he then was in B (Divisional Court, 5 April 2000)).
37 As I have acknowledged, many court orders may serve both a punitive and a preventive or protective purpose. The use of imprisonment in criminal cases is itself a prime example; and a community sentence is no less a penalty by reason of the fact that its principal focus may be rehabilitative. In truth, a just and humane system for the punishment of criminals is bound to have all these different ends in view. It follows that a punitive or retributive purpose no more marks an order as a penalty than a protective order serves to take it out of such a category. That being so the court is, as it seems to me, likely to be assisted by considering whether, in the statutory scheme before it, the predominant purpose of the measure under scrutiny is punitive, or for the protection of the public at large or a section of it.
38 In line with this, it is I think possible to give a little more focus to the Art. 7 issue, penalty or no, than is afforded by the list of considerations provided in Welch. As it seems to me, the more closely an order is related, or under the regime in question falls to be related, to the commission of a particular offence or offences, the more likely it is that the order should fall to be treated as a penalty. The reason is that the very idea of a penalty - albeit that in the particular case its imposition may be to protect, prevent, or rehabilitate - takes its place within a distinct scheme or philosophy of distributive justice. There is a principled distinction between distributive justice and social betterment simpliciter, however much the former may advance the latter.
39 The primacy of distributive justice in the steps toward a conclusion that a measure amounts to a penalty in my judgment marches with the Strasbourg court's insistence in Welch that the starting-point is the measure's being shown to follow a criminal conviction. More than this; it stands in line with the Court of Human Rights' reasoning on the particular facts in Welch:
"33. However, there are several aspects of the making of an order under the 1986 Act which are in keeping with the idea of a penalty as it is commonly understood even though they may also be considered as essential to the preventive scheme inherent in the 1986 Act. The sweeping statutory assumptions in section 2(3) of the 1986 Act that all property passing through the offender's hands over a six-year period unless he can prove otherwise; the fact that the confiscation order is directed to the proceeds involved in drug dealing and is not limited to actual enrichment or profit; the discretion of the trial judge, in fixing the amount of the order, to take into consideration the degree of culpability of the accused; and the possibility of imprisonment in default of payment by the offender - are all elements which, when considered together, provide a strong indication of inter alia a regime of punishment."
It is useful to compare the Commission decision in Ibbotson (1998) 27 EHRR CD 333, which was concerned with the registration requirements imposed by the Sex Offenders Act 1997. The Commission stated:
"... the measures complained of are imposed as a matter of law: no procedure whatever is involved... Whilst the Commission accepts that failure to comply with a measure is a criminal offence, it considers that the position is different from that in the case of Welch, where periods of imprisonment in default of payment were fixed at the sentencing stage... In the case of the [Sex Offenders] Act, independent criminal proceedings would have to brought against a defaulter...
Overall, the Commission considers that, given in particular the way in which the measures imposed by the Act operate completely separately from the ordinary sentencing procedures, and the fact that the measures do not, ultimately, require more than mere registration, it cannot be said that the measures imposed on the applicant amounted to a `penalty' within the meaning of Article 7 of the Convention." [p. CD334]
See also Adamson (1999) 28 EHRR CD 209, which was again concerned with the sex offenders register.
40 It seems to me with respect that this learning tends to underline the importance of the role of the mechanisms of distributive criminal justice in ascertaining whether a measure amounts to a penalty within Art. 7; and with all these considerations in mind, I address that question as it arises in these cases.
41 As I have said Mr Newman sought to emphasise the fact that under s.14A the order must follow conviction of a criminal offence. He was also at pains to draw attention to the potential severity, particularly in terms of duration, of orders under s.14A in comparison with the earlier statutory regimes. The details, canvassed by Mr Newman with inexhaustible thoroughness, appear in the legislation as I have set it out and I will not repeat them. Mr Newman also had a point concerning certain statutory appeal rights to the Court of Appeal Criminal Division.
42 In my judgment it is plain that a football banning order, whether
made under s.14A or s.14B, is not a penalty within the autonomous sense of the term for the purposes of Art. 7.

(1) In my judgment it is no part at all of the purpose of any such order to inflict punishment. The fact that it imposes a detriment on its recipient no more demonstrates that it possesses a punitive element than in the case of a Mareva injunction. The purpose is to protect the public, here and abroad, from the evil of football violence and the threat of it. So much is plain from the whole scheme, but in particular the preamble to the 1989 Act and the condition "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": ss.14A(2), 14B(4)(b).
(2) The order is not made as part of the process of distributive criminal justice. Under s.14B there is no requirement of a criminal conviction, so that the Welch starting-point is not met. In s.14A, the existence of a relevant conviction is in my judgment no more than a gateway criterion for the making of the order, equivalent to the provision in s.14B(4)(a) where no conviction is involved. S.14A(4)(a) actually contrasts the banning order with the sentence imposed for the relevant offence.
(3) (Plainly this overlaps with (2).) In other more detailed respects the order's characterisation under national law tells against its bring treated as a penalty. I have in mind the provisions relating to the alteration of requirements imposed (s.14G); the power to terminate the order in light of all the circumstances (s.14H); the provision in s.14J which treats breach of the order's requirements as a separate criminal offence, rather than a default for which a penalty is fixed when the order is made: cf. the Commission's reasoning in Ibbotson; and all the regimes established by ss.19 - 21B. Ss.19 - 21 in particular provide for pragmatic administrative measures, whose good sense is plain but which by their nature are not about or within the ordinary framework of criminal justice.
(4) As for the orders' severity, I would accept that the restrictions they impose are more than trivial; and under the 1989 Act they are potentially more burdensome than previously. How harshly they might bear on any individual must, I would have thought, be largely subjective. However that may be, it is clear from the Strasbourg jurisprudence, not least Welch itself, that severity alone cannot be decisive; and in my judgment the burdens or detriments involved cannot conceivably confer the status of penalty on banning orders if otherwise they do not possess it, which in my judgment plainly they do not. I have in mind also the right to seek exemption (s.20); and this will be of some relevance to Mr Thompson's submissions on proportionality to which I will come in due course.
43 For these reasons I would hold that banning orders under ss.14A and 14B of the 1989 Act do not constitute penalties within the meaning of Art. 7 ECHR. I would have come to the same conclusion in relation to s.14A even had I not been of the clear view that the result must be the same as between the two sections. I hope I do no injustice to Mr Newman if I say that none of his detailed submissions, so far as I have not expressly dealt with them, began to persuade me to the contrary.
GOUGH & SMITH: MR THOMPSON'S FIVE PROPOSITIONS
44 These were helpfully put in writing. The first four assert by one route or another that the regime of banning orders under s.14B is contrary to Community law. The first three engage European provisions and principles relating to freedom of movement. The fourth concerns procedural standards under Community law. The last asserts a violation of Art. 8 ECHR. As Mr Thompson articulated them the five are as follows.
(1) There is no derogation, in particular on grounds of public policy, for restrictions on the rights of EU citizens to leave a Member State, other than:
(a) those implicit in domestic criminal and public order legislation (for example, imprisonment); and
(b) those recognised by the Court of Justice as a general principle of Community law precluding abuse of rights conferred by Community law.
(2) Even if a public policy derogation exists, it is limited to cases where it can be proved, to a fair standard, that the departure of an individual from the Member State would constitute a genuine, present and sufficiently serious threat to one of the fundamental interests of society in that Member State.
(2) Even if a broader public policy derogation exists, it is not necessary or appropriate to impose a 2-year international banning order on an individual:
(a) who is proved on the balance of probabilities to have been involved in violence or disorder in the past 10 years; and
(b) in respect of whom it is found, again on the balance of probabilities, that there are reasonable grounds to believe that the imposition of such an order would reduce the risk of violence or disorder at any matches, without any need for such matches to include international matches.
(4) The procedures and evidential rules under section 14B and 14C are incompatible with Community law standards of procedural fairness, as provided for in Articles 6 ff. of Directive 64/221 and Articles 6 and 13 of the Convention, whether or not the section 14B procedure is a `criminal charge' for the purposes of Article 6.
(5) Section 14B banning orders, including the ancillary powers conferred on the Secretary of State, magistrates, police and the enforcing authority, are incompatible with Article 8."
THE FIRST PROPOSITION
45 In order to understand this and the next two following propositions it is necessary to set out the relevant European materials. Mr Thompson first referred to general provisions contained in Articles 10, 14(2) and 18 of the EC Treaty, and also to the Protocol on the Application of Certain Aspects of Article 14 of the Treaty to the United Kingdom and to Ireland. Of these texts I need only cite Art.18:
"Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect."
Then Art. 49 of the EC Treaty provides:
"Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended..."
By force of Art. 55, Art. 46 is applied to Art. 49, and provides in part:
"1. The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health."
Directive 73/148 gives effect to Art. 49. I note first the last recital:
"Whereas the co-ordination of special measures concerning the movement and residence of foreign nationals, justified on grounds of public policy, public security or public health, is already the subject of the Council Directive of 25 February 1964 [viz. Directive 64/221, to which I will refer below]".
Then:
"Art. 1:
1. The Member States shall, acting as provided in this Directive, abolish restrictions on the movement and residence of:
...
(b) nationals of Member States wishing to go to another Member State as recipients of services;
...
Art. 2:
1. Member States shall grant the persons referred to in Article 1 the right to leave their territory. Such right shall be exercised simply on production of a valid identity card or passport. Members of the family shall enjoy the same right as the national on whom they are dependent.
2. Member States shall, acting in accordance with their laws, issue to their nationals, or renew, an identity card or passport, which shall state in particular the holder's nationality.
...
Art. 3:
1. Member States shall grant to the persons referred to in Article 1 the right to enter their territory merely on production of a valid identity card or passport.
...
Art. 8:
Member States shall not derogate from the provisions of this Directive save on grounds of public policy, public security or public health."
In light of Mr Thompson's argument I should refer also to Directive 64/221 "on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health".
"Art. 1:
1. The provisions of this Directive shall apply to any national of a Member State who resides in or travels to another Member State of the Community, either in order to pursue an activity as an employed or self-employed person, or as a recipient of services.
...
Art. 2:
1. This directive relates to all measures concerning entry into their territory, issue or renewal of residence permits, or expulsion from their territory, taken by Member States on grounds of public policy, public security or public health.
...
Art. 3:
1. Measures taken on grounds of public policy or public security shall be based exclusively on the personal conduct of the individual concerned.
2. Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures.
...
Art. 6:
The person concerned shall be informed of the grounds of public policy, public security, or public health upon which the decision is based, unless this is contrary to the interests of the security of the State involved."
46 It is common ground that banning orders impose, at least are capable of imposing, restrictions on an individual's right to travel to another Member State to provide or receive services. That being so I think it right to proceed on the basis that the orders made against Gough and Smith prima facie violate their rights under Art. 49 of the Treaty and Art. 2 of Directive 73/148. Mr Thompson's argument under Proposition 1 is that the Treaty neither enacts nor allows for any right of derogation from the free movement provisions such that a Member State might, on public policy grounds, prohibit a citizen of the Union (including its own nationals) from leaving its territory.
47 Upon analysis this argument rests essentially on two steps. (1) No such derogation is given or allowed for by the terms of Art. 46 of the Treaty (nor by any other Treaty provision). (2) Art. 8 of Directive 73/148 must be read conformably with Art. 46, and cannot extend its scope (and the terms of Directive 64/221 are said to confirm that the public policy exception contained in Art. 8 of 73/148 has the same scope as Art. 46).
48 I would first draw attention to a characteristic of Mr Thompson's submission which, though in other more municipal debates it may possess a robust and traditional attraction, in the arena of Community law represents a potential Trojan Horse. It consists in the argument's tight dependence on a literal interpretation of the Treaty. Art. 46 is the fons et origo of his Proposition 1. It refers to "special treatment for foreign nationals on grounds of public policy, public security or public health" (my emphasis). Upon the adjective, foreign, Mr Thompson must build an edifice of legislative intent, sure and sound, to demonstrate that the Community lawmakers intended in this context that a Member State should enjoy far richer powers of derogation as regards entry to its territory by nationals of other Member States than it may possess as regards its own citizens leaving its shores.
49 That, I think, would be a heroic labour. And at the very level of literal interpretation, which must be Mr Thompson's password, his argument is pressed with difficulty: here is the Trojan Horse. It will be recalled that Art. 8 of Directive 73/148 provides: "Member States shall not derogate from the provisions of this Directive save on grounds of public policy, public security or public health". Now, Directive 73/148 is plainly concerned with EU citizens' rights to leave their home Member State; one needs only recall the first sentence of Art. 2(1). Mr Thompson is driven to submit that the Community legislature intended by Art. 8 no implication that Member States might derogate from Art. 2(1) (and all the associated provisions) on the public interest grounds to which Art. 8 specfically refers. But that requires a grossly restrictive reading of Art. 8, for which the terms of 73/148 offer no perceptible support.
50 There is more to be said about the language of the relevant legislation. Mr Thompson's submission tends to conflate the subject-matter of Directives 64/221 and 73/148. Desiring to avoid the error of over-literal interpretation, which I think confounds Mr Thompson's approach, I put the matter very broadly. 64/221 is generally concerned with the rights of EU citizens to enter a Member State other than their home State: see Arts. 1(1), (2)(1). 73/148 is, by contrast, first concerned with the rights of EU citizens to leave their home State for another Member State: see Arts. 1(1)(b), 2(1); though it deals also with rights of entry (see for example Arts 3 and 4). These considerations seem to me to undermine such support for his position relating to Art. 46 and Directive 73/148 as Mr Thompson seeks to derive from Directive 64/221.
51 Now, I of course accept (for it is elementary) that legislation by Directive must be intra vires the Treaty; and that, accordingly, subordinate Community legislation must not break ground where the Treaty gives no power to tread. Mr Thompson cites Pharmacia [2000] 3 WLR 303 and Delhaize (Case C-47/90) which with respect I need not set out. Neither is authority for so literal a reading of Art. 46 of the Treaty as is required by Mr Thompson's argument. In my judgment, given the points as to the legislation's language to which I have drawn attention, the words of Art. 46 provide no sufficient foundation for Proposition 1.
52 However Mr Pannick QC for the Secretary of State did not rest on the coils of the legislation's language. He submitted in addition that Mr Thompson was fixed with a reductio ad absurdum: though a Member State may on Mr Thompson's argument prohibit citizens of other Member States from entering its territory on proper public interest grounds, upon the very same argument it has no shred of power to prohibit a citizen of its own from leaving its territory on any public interest ground whatever.
53 Mr Thompson accepted that his argument was far-reaching to this extent: it would mean that restriction orders provided for by the Football Spectators Act 1989 as originally enacted were repugnant to Community law. But he sought to disavow so extreme a conclusion as was attributed to his argument by Mr Pannick. Here is the basis on which he did so.
54 Mr Thompson conceded, first, that a Member State's internal criminal jurisdiction is in the ordinary way unaffected by the requirements of Community law, so that a lawful sentence of imprisonment, which obviously stops the prisoner's free movement, cannot be said to infringe Treaty rights: Kremzow [1997] ECR I-2629, a case about a retired Austrian judge convicted of murder. I need not go into the details. He accepts, secondly, that Community law recognises an emerging principle, which he named "abuse of rights". Its effect is that where an EU citizen purports to exercise a right such as freedom of movement, but is actually intent upon some ulterior and alien purpose for which the Community right is nothing but false cover, Community law will not protect him. For this position he cited Centros [2000] 2 WLR 1048. In that case two Danish residents had formed a company in the United Kingdom with the express purpose of avoiding the effects of Danish legislation which required (in contrast to the British position) that a minimum amount of the share capital of a Danish company be paid up. They promptly applied to register a branch of the company in Denmark. The application was refused on the ground that the true intention was to set up a principal trading establishment in Denmark while circumventing the rules as to paid up shares. In subsequent proceedings there was a reference to the Court of Justice.
55 In its judgment in Centros the Court said:
"24. ...according to the case law of the court a member state is entitled to take measures designed to prevent certain of its nationals from attempting, under cover of the rights created by the Treaty, improperly to circumvent their national legislation or to prevent individuals from improperly or fraudulently taking advantage of provisions of Community law [and authority is then set out].
25. However, although, in such circumstances, the national courts may, case by case, take account - on the basis of objective evidence - of abuse or fraudulent conduct on the part of the persons concerned in order, where appropriate, to deny them the benefit of the provisions of Community law on which they seek to rely, they must nevertheless assess such conduct in the light of the objectives pursued by those provisions..."
56 In light of Kremzow and more particularly Centros Mr Thompson accepted in terms that were it shown that Gough or Smith, or anyone else, proposed to travel to the continent for the purpose of perpetrating (or presumably inciting or encouraging) acts of violence and hooliganism the UK authorities would be wholly entitled to stop them at the point of departure, and nothing in the law of Europe would gainsay their right so to confine them. It would be a case of abuse of Community law rights.
57 If that concession is correctly made, as surely it is, I think it undermines Mr Thompson's Proposition 1. It implies at once that the language and structure of the Treaty and Directives are perfectly consistent with such a right, to confine their citizens at least in some circumstances, in the hands of the Member States. In face of that the edifice of Mr Thompson's argument based on the language of Art. 46 of the Treaty, Art. 8 of Directive 73/148, and the terms of Directive 64/221 is in my judgment turned into a house of cards. He is driven to espouse the proposition that whereas nothing in those materials impedes the Member State's right to confine within its territory those of its nationals who can be proved to be bent on hooliganism in connection with football matches elsewhere in Europe, these same provisions, by contrast, render the Member State absolutely powerless so to restrict any of its nationals where a court is satisfied that there are reasonable grounds to believe that to do so would help to prevent just such hooliganism: it lacks only distinct proof of the individual's subjective intentions - proof which will often be hard or impossible to find. In my view such a distinction could only be sustained by acceptance of a subjection of the public interest to private rights so abject and supine as to be alien to the civilised balances struck by the common law and the law of Europe alike. It cannot, in my judgment, represent the law. Mr Pannick's reductio ad absurdum remains intact. (I shall have more to say about these balances in the next section of the judgment, dealing with Mr Thompson's Second and Third Propositions.)
58 Given all these factors I prefer Mr Pannick's submission, first, that in the ordinary way one would expect Community law to confer or allow the same or greater powers upon a Member State as regards restrictions upon its own nationals in contrast with the powers it may exercise in relation to nationals of other Member States. It is difficult to see a rational basis for any other position. Secondly, the express reference to foreign nationals in Art. 46 is no more than an implicit recognition of an obvious and prior truth, that as regards its own nationals a Member State may of course impose restrictions; and so far as a question then arises whether the State may impose equivalent restrictions on foreign nationals, Directive 73/148 shows that the same principles apply to both.
59 Mr Pannick is supported, moreover, by the decision of the Court of Justice in Alpine Investments [1995] ECR I-1141. The case concerned the practice of a company established in the Netherlands of "cold-calling", by telephone, clients or potential clients in other Member States. Such cold-calling was prohibited by Dutch law. In reference proceedings before the Court of Justice the company argued that the prohibition contravened Art. 59 (now 49) of the Treaty. The Court rejected that submission on the facts of the case, and said at p. I-1179:
"43. Although the protection of consumers in the other Member States is not, as such, a matter for the Netherlands authorities, the nature and extent of that protection does none the less have a direct effect on the good reputation of Netherlands financial services.
44. Maintaining the good reputation of the national financial sector may therefore constitute an imperative reason of public interest capable of justifying restrictions on the freedom to provide public services."
60 Alpine Investments could hardly be further distant from the present case on its facts. But Mr Pannick's point is that the Court's reasoning recognises that in principle, subject always to the particular circumstances, a Member State may on public policy grounds be justified in imposing restrictions on those within its territory to prevent their conducting themselves elsewhere in the Union in such a way as to damage the home State's reputation in some concrete respect. Mr Thompson is of course entitled to point out that it is one thing to ban telephone calls to another Member State, and something quite different to prohibit a person from travelling from one State to another. However Mr Pannick seeks no more than broad support from Alpine Investments, and that I think it provides.
61 For all these reasons I would hold that Mr Thompson's Proposition 1 is false. In a proper case a Member State may be justified on public policy grounds in preventing a citizen of the Union from leaving its shores, and its right to do so is not limited to any narrow conception of "abuse of rights". I should add that in reply Mr Thompson submitted that were I against him on Proposition 1, I should nevertheless refer it in the form of a question to the Court of Justice under Art. 234 of the Treaty, the matter not being acte clair. I decline to do so. I consider that this point is acte clair.
THE SECOND AND THIRD PROPOSITIONS
62 Given the shape of Mr Thompson's argument, it is convenient to take these two together. This part of the case of course proceeds on the footing that Proposition 1 is wrong, as I would hold it is. Indeed the argument recognises that the prevention, more realistically the diminution, of violence associated with international football matches constitutes a legitimate aim of public policy which in principle may properly be furthered by deployment of a Member State's power to confine citizens of the Union (including its own citizens) within its borders. The overall submission is that the material provisions of the 1989 Act as they were framed in 2000 are disproportionate to this legitimate aim. At paragraph 9 of his note on Propositions 2 - 5 Mr Thompson says: "The basic defect of s.14B(4)(b) is that there is no necessary connection between the public policy objective of the legislation as drafted and the matters that form the basis of international banning orders".
63 Mr Thompson first points to the fact that it is effectively common ground that the scope of the power to derogate on public policy grounds from the Treaty's free movement rights is to be derived from the jurisprudence of the Court of Justice relating to Directive 64/221, and the terms of the Directive itself. As for the latter, Art. 3(1) and (2) (which I have set out) are the salient provisions. As for the authorities, particular emphasis was laid on Calfa [1999] ECR I-11. That case concerned a Greek law by which a foreign national convicted of a drugs offence in Greece was to be expelled from the country for life unless there were compelling reasons to the contrary. The Court of Justice referred to Directive 64/221 and stated:
"24. ... It follows that the existence of a previous criminal conviction can, therefore, only be taken into account insofar as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy.
35. It follows that an expulsion order could be made against a Community national such as Ms Calfa only if, besides her having committed an offence under drugs laws, her personal conduct created a genuine and sufficiently serious threat affecting one of the fundamental interests of society."
The judgment of the Court of Justice in Rutili [1975] ECR 1219, [1976] 1 CMLR 140 is further authority for the requirement that the concept of public policy be interpreted strictly, where it is advanced as the justification for a derogation from core Community rights. In particular there is some emphasis placed on the need for any restrictive decision to be based on the individual circumstances of the person concerned.

64 Mr Thompson submits that the regime of the 1989 Act, so far from being concerned with the individual conduct of persons against whom orders might be made, lacks entirely any requirement to prove that the individual in question presents an actual risk or threat to public order. He says that so far as personal conduct seemingly plays a part in the scheme, Mr Bohannan's evidence (and a statement made by the Secretary of State to Parliament) shows that it figures only in the sense and to the extent that the individual is shown to be a member of a class: that is, the class of persons with some propensity for disorder and some connection with football. And the policy adopted in relation to the issues of notices under s.19, as disclosed by Mr Jaglall, shows also that restrictions are imposed on a class basis.
64 But, so the argument runs, it is much worse than that. Under the regime as it stands an order under s.14B must be made, if the statutory conditions are met, even in the case of a subject who on the evidence has never been to a football match abroad and in respect of whom there is nothing to show that he intends to do so. Yet the order covers domestic and international matches alike. Mr Thompson says that this argument is well illustrated by the case of Mr Gough. He submits that there exists a mismatch both between the scope of an order made under s.14B and the statutory basis for making it, and between the objective of the order and the nature of the restrictions which it imposes. The bite of Mr Thompson's argument on this part of the case, I think, is well displayed by his acceptance, rather his positive submission, that s.15(2) of the Act of 1989 in its original form satisfied the requirements of Directive 64/221. As will be recalled the terms of s.15(2) were:
"No restriction order may be made unless the court is satisfied that making such an order in relation to the accused would help to prevent violence or disorder at or in connection with designated football matches."
That provision required the court to be satisfied that the order would have the desired effect in relation to the particular accused.
66 In relation to proportionality more generally Mr Thompson submitted that there were various possible measures to which recourse might be had which (this is necessarily implicit in the argument) would fulfil the public policy aim in question, but whose effects would be less draconian than the measures actually in place. These included notification to other national authorities of persons against whom orders might be made; restricting the scope of international banning orders so as only to prevent attendance at the ground, or at least only travel to the country where the match or tournament was to take place; and limiting the requirement to report at a police station to the day of the match.

67 Mr Thompson had two further submissions on this part of the case. Neither in my judgment can carry the case standing alone, and I summarise them very briefly. First, it is not the business of the United Kingdom to enact legislation to repair what it may perceive as the failure of other Member States to act in the field in question (I do not of course suggest that there has been any such actual or perceived failure). Secondly, even though Mr Newman's arguments as to Art. 7 ECHR are wrong, the retrospectivity inherent in the scheme of the 1989 Act is material to the judgment to be made as to proportionality.
68 To the battery of all these submissions Mr Pannick responds thus. (1) An order under s.14B(4)(b) must indeed be based on the magistrates' perception of the conduct of the particular individual. And that is what happens, as the course of the proceedings below in Gough & Smith demonstrates. (2) The case of Calfa shows that derogations from free movement rights may be permitted to counter what are no more than risks or threats: see paragraphs 21 and 24 of the Court's judgment. (3) As regards Mr Thompson's strictures relating to the use of the notice provisions under s.19, the Magistrates Court will already have made a decision based on personal conduct, under s.14B(4)(b); and in relation to enforcement, the subject can apply for exemption under s.20 and such an application will be considered on its individual merits.
69 As for the requirement of proportionality more generally, first it is plain from Mr Bohannan's evidence (paragraphs 16 - 18) that the measures in place before the amendments made in 2000, and the implementation of those measures, had proved woefully inadequate; and (paragraph 18) "... the United Kingdom was heavily criticised for not taking more radical steps to protect host cities and citizens from other European countries from English hooligans." Secondly Mr Pannick submitted that in practice the effect of the restrictions imposed by banning orders was distinctly limited, given their scope under the scheme and the number of matches played abroad that are likely to be involved, and the opportunity to seek exemption. There can be no question (as at one stage had been suggested) that the Secretary of State might make an order under s.14(6) by force of which an individual may be required to surrender his passport in September and have it kept from him until the following May, simply because certain isolated matches were to be played within the period.
70 Both Mr Pannick and Mr Havers QC for the Chief Constable of Derbyshire advanced particular submissions intended to demonstrate that the less draconian measures suggested by Mr Thompson in the course of argument would be ineffective or in other respects undesirable or counter-productive. Thus for example: notification to other States' authorities of the identities of possible subjects had been tried before Euro 2000 and proved a failure: Bohannan paragraphs 13(h), 16. Barring entry to the ground only would fail to meet the plain fact that hooligans riot in town squares and streets. Banning subjects only from travel to the country where the match is to take place does not engage with the likelihood of their congregating just across the border. Limiting the requirement to report at a police station to the day of the match fails to confront the fact that violence may erupt on days before or after the game.
71 I should briefly record arguments of Mr Pannick and Mr Havers advanced to counter Mr Thompson's submissions (a) that it must be disproportionate to impose a banning order potentially having effect to prohibit travel abroad upon someone as regards whom there is nothing to show he has ever been to a football match in another country or intends to do so, and (b) that the issue of notices under s.19 is not done by reference to the individual's circumstances. Mr Havers said that it cannot nowadays be supposed that football hooligans, with a history of involvement in ugly incidents at home, will necessarily intend to restrict their activities to domestic matches; and he referred to Supt. Wright's evidence as to the 4would be frankly unworkable if there were a requirement to establish whether or not any given person proposed to travel abroad. Likewise Mr Havers submitted that it would be unreal, at the s.19 stage, to insist that the enforcing authority, before it serves a notice, should distinctly discover in every individual case whether the subject intends to travel to the relevant match or matches overseas.
72 By what kind of yardstick is the court to judge these competing arguments? It is time to turn to the law. The idea of proportionality mediates the tension between private right and public interest, where enacted law proposes to prefer the latter over the former. In Fedesa [1990] ECR I-4023 it was described thus (the passage is cited at paragraph 41 in the judgment of Lord Bingham CJ as he then was in Eastside Cheese [1999] 3 CMLR 123, 142):
"By virtue of that principle [sc. proportionality], the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued."
However, it is plain on European and domestic authority alike that when in any given case the court's duty is to decide whether a legislative measure or administrative decision is in truth proportionate to the aim in view, the judge does not stand in the shoes of the first decision-maker and retake the decision for himself on the merits. Rather he will exercise a secondary judgment, there being a margin of discretion in the original decision-maker which the court respects: indeed the court confers it. Upon this aspect I have in mind the learning to be found in Bouchereau [1977 ECR 1999], paragraphs 34 - 35 of the judgment; Eastside Cheese paragraph 48, p.145; Brown v Stott [2001] 2 WLR 817 (PC) per Lord Bingham at 834H - 835B; these materials were cited by counsel before us. There is also important further authority (which with great respect I need not cite), including authority of their Lordships' House, to which I referred in Mahmood [2001] 1 WLR 840 (an immigration case in which were raised arguments founded on Art. 8 ECHR): Ex p. Smith [1996] QB 517, Ex p. A [2000] 1 WLR 1855, and Ex p. Launder [1997] 1 WLR 839. Since the target of Mr Thompson's submissions had been the 1989 Act itself, it is no surprise that Mr Pannick was at pains to emphasise a particular feature of the jurisprudence, namely that the margin of discretion accorded by the courts will be the greater where the decision-maker in question is the primary legislator: see Eastside Cheese at paragraph 48, p. 145.
73 The legal security of the principle of proportionality must be made consistent with the public decision-maker's margin of discretion. The means of doing it can be found in closer scrutiny of the tension between private right and public interest. This case is about the scope or reach of rights of free movement given by the EU Treaty. Now, there exists a great danger in allowing any pride of place to rights. Once a right is established in the State, it will by force of human nature be asserted to the uttermost. There is a dictum of the great American jurist, Justice Holmes, that is very much in point:
"All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached." (Hudson County Water Co v McCarter (1908) 209 US 349, 355)
To give effect to the right's uttermost assertion - its logical extreme - would alike confound the right's moral credentials and its practical utility. The reason is, first, that the claim of moral authority for any right given by the general law rests upon the fact that the right belongs to every citizen, as do all other rights thus given; so that in any particular case, where there is a clash of interests, it is inherent in the nature of the right itself that the individual who claims its benefit may have to give way to the supervening weight of other claims. And secondly, the right's practical utility rests upon the fact that there can be no tranquillity in the State without a plethora of unruly individual freedoms, which will be measured in the language of rights; anything else looks tyranny in the face without blinking; so that in any particular case, to crown the possessors of one such right and consign the others beneath the throne, will sooner or later undercut the community fabric.
74 Here I would respectfully emphasise what was said by Lord Steyn in Brown v Stott at 839F:
"The fundamental rights of individuals are of supreme importance but those rights are not unlimited: we live in communities of individuals who also have rights. The direct lineage of this ancient idea is clear: the European Convention (1950) is the descendant of the Universal Declaration of Human Rights (1948) which in article 29 expressly recognised the duties of everyone to the community and the limitation on rights in order to secure and protect respect for the rights of others."
As it seems to me this passage points to the same essential truth as is reflected in what was said by the European Court of Human Rights in Sporrong 5 EHRR 35 at 52 (paragraph 69):
"... the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The search for this balance is inherent in the whole of the Convention..." (my emphasis)
Such texts, I think, reflect the same idea as Justice Holmes' "neighborhood of principles of policy which are other than those on which the particular right is founded". Also they reflect ancient good sense: it was the Preface to the Book of Common Prayer that declared the wisdom of the Church of England "to keep the mean between the two extremes"; it is a wisdom which travels far beyond this local context of the English Church. It is in my judgment clear that the balance of private right and general interest falls to be struck, no less surely than at Strasbourg, also in the field of Community law where, as in this very case, a judgment must be made whether considerations of the public interest should override the individual's enjoyment of a right which prima facie the Treaty accords to him.
75 It is inherent, then, in any principled approach to rights enjoyed by the individual under the general law that the right's very justification, and its consistency with the State's sound fabric, critically depend upon its being subject to limits imposed to protect the public interest: to protect, compendiously, the rights of others. If there are absolute untrammelled rights, they are very few and far between. The right not to be tortured, the right to think whatever one likes, and the right to a fair trial are candidates, but it is difficult to think of others. Otherwise rights are divisive, harmful, ultimately worthless, unless their possession is conditional upon the public good.
76 The importance of these points for present purposes is that the doctrine of proportionality is what translates this philosophical truth into practical reality. It provides the means by which the balance between private right and public interest is weighed and fulfilled. Now, the balance between the individual's right, which is conditional, and the general public good, which is often amorphous and arguable, is frequently difficult and frequently delicate. It is always so where there is a clash between values none of which is absolute. And if the possession of rights is conditional upon the public good, nothing is more important than that the public good should not itself be usurped, deployed as a means of suppressing liberty by spurious excuses for the extinguishment or diminution of individual rights. In my judgment, this difficult trade between private right and public good is regulated by the idea of proportionality.
77 Thus the doctrine of proportionality in general, and the jurisprudence exemplified in Calfa in particular, recognise in terms that it is not legitimate for the State decision-maker (legislature or executive) to override an established Community right on any grounds whatever which it might choose, even granted that the grounds would be reasonable. Where the restriction of such a right is in contemplation, the doctrine insists that the State recognise a principle which, certainly, was not earlier insisted on by the domestic law of England as exemplified in Wednesbury [1948] 1 KB 223. The principle is that the right in question, which possesses an independent value calling for respect by virtue of the very fact that it is guaranteed by the European legislature, is not to be interfered with save on substantial and objective grounds of public interest. This principle necessarily gives rise in practice to a further requirement: that the State, if it decides that the right must be interfered with, has to choose a means judged to constitute the least interference consistent with the public policy aim in view. Anything else overweens the State to the citizen's cost and would usurp the public good; it upsets the balance between private right and public interest.
78 And so the law demands that the State respect and adhere to this principle, and its consequent requirement, as I have described them. No less important however, the State enjoys a margin of discretion. That does not extend so as to entitle the State to question the principle, nor yet to question the need to judge what is the least intrusive interference. Those are mandatory; fixed points in the constellation of the State's authority. The margin of discretion goes rather to the assessment on the merits as to what interference is, in truth, required; and to that extent it regulates the trade between private right and public interest. This is a discretion of ample scope; it is demanded alike by the imperative of respect due to the democratic arm of the State, and as an antidote to the dreary solipsism of rights asserted to the uttermost. The State decision-maker is free - indeed, by his public responsibilities may be obliged - to judge the degree of importance possessed by the public interest in question, to which it is proposed that the private right be subordinated. He will judge whether it is necessary to take measures to avoid the certainty, or only the probability, or only the risk, of damage to the public interest in whatever sphere is in contemplation. He will judge the gravity of the interference with the private right which the measures he propounds may involve. His respect for the principle, and his observation of the requirement, which I have sought to formulate, should suffice to give effect to the ideal of proportionality. His judgment thereafter as to the measures required to save the public interest will be subjected to a judicial scrutiny that may be close to the conventional Wednesbury test if the decision-maker is the primary legislature. So far as he sits lower in the hierarchy of public power, it may be the court's judgment will be more intrusive. But the first protections of proportionality are the law's insistence on the principle, and the requirement, which I have discussed. They are the weights in the balance scales; and they will measure, broadly at least, where Justice Holmes' "certain point is reached".
79 Since this case was argued, their Lorships' opinions have been delivered in R v Secretary of State ex p. Daly [2001] 2 WLR 1622, which concerned a challenge to the Secretary of State's policy relating to the searching of prison cells. Counsel have had no opportunity to advance submissions before us about it; but it does not alter my view of the right result in the case before us, and I think it appropriate to refer to what was said by Lord Steyn at paragraph 27:
"... there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights... a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in ... Ex p Smith [1996] QB 517, 554 is not necessarily appropriate to the protection of human rights. [His Lordship proceeded to refer to the Strasbourg court's decision in Smith, which criticised the domestic judgments as having effectively excluded a `pressing social need' or proportionality test.] In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued."
80 With deference I believe that what I have said in the foregoing paragraphs as to the nature of proportionality, and its application, is in line with this reasoning. It seems to me that the principle which I have suggested reflects the first, and the requirement which I have asserted reflects the second, of Lord Steyn's three propositions; and the third of them provides critical guidance to the intensity of review where the right in question is one guaranteed by the Convention (no doubt subject, as Lord Steyn said, to the structural differences between Convention rights).

81 Applying this approach to the present case yields a plain answer. The State was entitled to conclude that very firm measures were justified to confront the various sickening ills of football violence. The principle and the requirement which must be respected and followed have clearly been so: the progressive nature of the succeeding measures from 1986 onwards, and the safeguards clearly established in the 1989 Act, demonstrate as much. In short the terms of s.14B(4)(b) are amply justified in light of Directive 64/221, the Calfa jurisprudence, and the general law relating to proportionality.
THE FOURTH PROPOSITION
82 There is no doubt, and I understand it to be common ground, that where an established Community law right is to be restricted by a Member State on public interest grounds, appropriate procedural protections must be provided: Rutili, to which I have already referred, shows as much. It is no less clear that the Court of Justice has regarded Arts. 6 and 13 ECHR as providing particular substance to this general proposition.
83 In this context Mr Thompson submits first, by reference to Art. 6 of Directive 64/221 and Unectef v Heylens (Case 222/86), that decisions made under the 1989 Act carry a duty to give reasons to the affected party. Mr Pannick accepts as much. But of course the Magistrates Court in this case gave reasons for imposing banning orders under s.14B. As regards decisions taken by the enforcing authority under s.19, Mr Pannick points to the fact that before us there are no judicial review proceedings of any such decision: we are concerned (in the case of Mr Thompson's clients) solely with an appeal by way of case stated against the magistrate's orders. He adds that if reasons had been sought, they would have been given; in any event the reasons are obvious - to prevent disorder; and there is nothing to show that either appellant has sought an exemption under s.20. In my judgment there is no live issue in this case arising from any obligation to give reasons.
84 In support of his general argument that there are no adequate procedural protections built into the regime of the 1989 Act, Mr Thompson next submitted that no sufficient standard of proof is insisted on. He was disposed to say that the formula in s.14B(4)(b) imposes (as regards any individual who is in contemplation for a banning order) a requirement as to what must be proved, effectively no greater than what must be shown to justify a public decision when it is assaulted on traditional judicial review grounds; this, he suggested, was inherent in the language of the subsection. And he submitted that the inadequacy of the statute's requirements as to proof is graphically illustrated by the fact that the magistrate might perfectly logically hold that there existed "reasonable grounds to believe that making a banning order would help to prevent violence or disorder [etc]", but yet not himself believe that it would do so.
85 This last seems to me to be a wholly artificial point. The "reasonable grounds" test assumes that the magistrate does not know whether the result will be achieved or not. The magistrate may be sceptical, or optimistic; but if he were actually to conclude that the order would not achieve the desired result, that could in reality only be on the footing that the reasonable grounds test was not made out on the evidence before the court.
86 On the more general issue as to standard of proof, Mr Thompson did not go so far as to argue that an application under s.14B is made in criminal proceedings for the purpose of Art. 6 ECHR. He accepts that the procedures under s.14B are "civil in form". However, he submitted (skeleton argument, paragraph 66) that "applications under s.14B are in substance criminal charges for the purposes of Art. 6 [ECHR]". Accordingly, the rights and safeguards provided for by Art. 6(2) and (3) should effectively be applied; or (I think he would say) they should at least be reflected in the statutory procedures.
87 That approach seems to me entirely misconceived. An application under s. 14B is, categorically, not a criminal charge, and no amount of special pleading will make it so. Mr Pannick referred to Raimondo (1994) 18 EHRR 237. In that case the applicant was placed under special police supervision in the course of certain criminal proceedings against him. At paragraph 43 the Court said:
"... special supervision is not comparable to a criminal sanction because it is designed to prevent the commission of offences. It follows that proceedings concerning it did not involve `the determination... of a criminal charge'."
88 In any event, it seems to me that Mr Pannick was right to submit that Mr Thompson's true complaint was not so much a procedural one, but rather to the effect that in substance the s.14B(4)(b) criterion is of itself offensive. However such a complaint in essence replicates Mr Thompson's Propositions 2 and 3 by another name; and these propositions I have already rejected. Mr Thompson was at pains to draw a contrast between the requirements of s.14B and the emphasis of the Court of Appeal in McCann (per Lord Phillips MR at paragraphs 65 - 67) upon the need for rigorous proof of relevant facts against the individual in question in the context of the making of anti-social behaviour orders. I have referred to this case in dealing with Mr Newman's argument. The contrast urged by Mr Thompson is misplaced. The legislation relating to such orders is framed so as distinctly to require proof of matters relating wholly to the individual in question. There is no analogue to s.14B(4)(b) of the 1989 Act. The suggestion that s.14B should have been drafted so as to constitute an analogue (or at least a reflection) to the Crime and Disorder Act 1998 lacks any foundation if I am right as to Mr Thompson's Propositions 2 and 3 (and, indeed, Proposition 1). In fact Mr Pannick accepts (rightly) that the standard of proof required for s.14B(4)(a) will be practically indistinguishable from the criminal standard; and that the standard for s.14B(4)(b) will be appropriate to the gravity of what is asserted.
89 Once these matters are clear, there is in my judgment nothing in Mr Thompson's submissions as to the procedures of s.14B. There is nothing to suggest that an affected person will not get a fair trial before the magistrate. There is nothing objectionable in the measures, relating to evidence, provided for by s.14C(4). As regards the particular evidence which was admitted in the cases of Mr Thompson's clients - the profiles - there was no challenge to their admissibility, nor to the primary facts asserted in them. In those circumstances I cannot see what complaint can run here.
90 There were some subsidiary arguments advanced by Mr Thompson which, with respect, I will not set out in what is already a very long judgment. None of them could carry the day alone.
91 I conclude against Mr Thompson on his Proposition 4.

THE FIFTH PROPOSITION
92 I mean no disrespect to Mr Thompson in dealing very shortly with this last argument. Mr Pannick suggests that any issue as to violation of ECHR rights in the context of the case would in truth call up, not Art. 8, but Art. 2 of the Fourth Protocol, which guarantees the right to leave one's own country but allows (Art. 2(3)) restrictions on the right to be imposed on a series of public interest grounds - the very kind of grounds as justify derogations from the rights given by Arts. 8 - 11 of the Convention. The United Kingdom has not ratified Art. 2 of Protocol 4. Mr Pannick's point is that it cannot sensibly be supposed that the right given by Art. 2 Protocol 4 is for all the world already conferred, at least for some situations, by Art. 8; and in truth, Art. 8 has nothing to do with the case.
93 I think this argument is correct. But even if it were not, once given my conclusions as to proportionality upon Propositions 2 and 3, there is no perceptible basis on which s.14B, while proportionate to its aim as a matter of Community law, may be said to be disproportionate in the context of Art. 8 ECHR and therefore not justified within Art. 8(2). In my judgment this part of Mr Thompson's argument is not even a makeweight.

***

94 In my judgment these appeals, and Miller's application for judicial review, should all be dismissed. If my Lord agrees, we should hear counsel as to the proper form of our answers to the questions posed by the courts below, and the orders which we ought to make.
POOLE J:
95 I agree.
***************

LORD JUSTICE LAWS: For the reasons given in the judgment which has been handed down, the judicial review in Miller's case will be dismissed. The other proceedings are, of course, appeals by way of case stated. In the joint case of Gough and Smith, my Lord and I have received what I understand to be an agreed suggested form of answers to the questions in the case, signed by Mr Davenport of counsel.
Is that agreed between the relevant parties, Mr Davenport?
MR DAVENPORT: My Lord, it is only agreed, I am afraid, as between the Chief Constable of Derbyshire, the first defendant, and the Secretary of State, the intervenor. I believe all the other defendants agree with it as well. Mr Havers today does not appear on behalf of the first defendant, but he does appear on behalf of the other defendants. I am told he agrees with that as well.
LORD JUSTICE LAWS: Does anyone have any difficulty with it?
MR DAVENPORT: My Lord, I believe that the first claimant, perhaps also the second claimant, have some modest divergence. They have copied my learned friend and I two alternative suggestions. I think that the defendants do not have a difficulty with their second suggestion.
LORD JUSTICE LAWS: Hang on. Sorry to interrupt you, but if we are going to have a debate about it, we ought to get out the actual case stated and see what the questions were, I think.
MR DAVENPORT: My Lordship will find it at paragraphs 17 and 18 of the case stated at pages 13 and 14 of the core bundle.
LORD JUSTICE LAWS: Let me just find the right bundle. I have it now. What page?
MR DAVENPORT: My Lord, it is pages 13 and 14 of the case stated, which is behind tab 1 immediately in the core bundle.
LORD JUSTICE LAWS: Yes.
MR DAVENPORT: It bears pages 13 and 14.
LORD JUSTICE LAWS: Right, okay.
MR DAVENPORT: So my Lord has questions 17 and 18, and the note that my Lord has referred to are the answers which Mr Hoskins and I agreed.
LORD JUSTICE LAWS: Let us just run through. 17.1, Does the making of a banning order constitute a restriction falling within the scope of Article 49 of the EC treaty? The suggested answer is "yes". I do not imagine anyone quarrels with that.
17.2, Does such a restriction pursue a policy justifiable on grounds of public policy as defined by Directive 64/221 and/or an overriding objective in the general interest? I would have thought "yes" follows from our judgment.
MR DAVENPORT: My Lord, yes.
LORD JUSTICE LAWS: 17.3, Is the making of a banning order against the Appellants a necessary and appropriate measure to achieve such a policy? That is really a proportionality question, is it not?
MR DAVENPORT: Yes, my Lord.
LORD JUSTICE LAWS: Answer again, "yes".
MR DAVENPORT: It must be, yes.
LORD JUSTICE LAWS: 17.4, Does the personal conduct of the Appellants create a genuine and sufficiently serious threat to one of the fundamental interests of society if...et cetera. Answer again, "yes".
MR DAVENPORT: It must be yes, my Lord.
LORD JUSTICE LAWS: 17.5, Was there evidence in respect of the two Appellants on the basis of which the court could come to the decision that points 15.3 and 15.4 could be answered in the affirmative? There as regards the necessity to make a banning order, presumably.
MR DAVENPORT: Yes, my Lord.
LORD JUSTICE LAWS: Again, "yes".
MR DAVENPORT: Yes.
LORD JUSTICE LAWS: Thank you. 18 deals with the Human Rights Act. 18.1, Is such an application -- that is for a banning order -- a "criminal charge"? "No", right?
MR DAVENPORT: Correct, my Lord.
LORD JUSTICE LAWS: 18.2, Are the burden of proof and evidential rules governing -- I see, not applicable, yes.
MR DAVENPORT: Does not apply.
LORD JUSTICE LAWS: 18.3, Are banning orders "penalties"? That was Mr Newman's point. "No".
MR DAVENPORT: Yes.
LORD JUSTICE LAWS: 18.4, Are the rules governing the matters... That is parasitic on the Article 7 argument.
MR DAVENPORT: Completely, my Lord.
LORD JUSTICE LAWS: So not applicable. And 18.5, also not applicable. There is no difficulty with any of them. I thought you said the first and second claimants -- oh, Miss Simor, you are going to enlighten me.
MISS SIMOR: Two very minor points, my Lord. Firstly, in relation to questions 17.3 and 17.4, we suggest that a more appropriate reflection of the content of the judgment would be to conflate those two questions together and answer it in the following terms: the making of banning orders against the appellants is compatible with the general principles of community law, in particular proportionality.
The reason we say that is because we cannot identify from the part of the judgment that is directed to the actual threat imposed or existing in relation to the personal conduct of the appellants, so we are just concerned to properly reflect the content of the judgment.
LORD JUSTICE LAWS: I see, yes. Please continue.
MISS SIMOR: Our other very minor point is that since a matter was raised under Article 8, it would be sensible to add an answer to the end of these questions saying banning orders are compatible with Article 8 of the Convention.
LORD JUSTICE LAWS: Subject to my Lord, I rather agree with the last point. Where would it go?
MISS SIMOR: Just perhaps at the end would be suitable, at 18.6, or 19 even.
LORD JUSTICE LAWS: Technically, although it is tedious perhaps, our job is to answer the questions which the court has chosen to pose.
MISS SIMOR: I believe additional questions can be added on a case stated.
LORD JUSTICE LAWS: They can interlocutorily, yes. But once proceedings have been conducted and concluded and the case stated is all settled, the Divisional Court answers the questions. It does not then, generally speaking, invent new questions.
MISS SIMOR: I believe the court heard submissions on those questions. It was probably our omission to not actually make an actual application.
LORD JUSTICE LAWS: Maybe we should not have heard you at all.
MISS SIMOR: Perhaps you should not have heard us at all. But since you did hear us and you did give judgment on that point, it would seem sensible. But I leave it to you.
LORD JUSTICE LAWS: Miss Simor, I do not think any of us need to lose sleep about it because the judgment speaks for itself, does it not?
MISS SIMOR: Quite right.
LORD JUSTICE LAWS: As regards your other points, 17.3 and 4, speaking off the top of my head, I would have thought the concerns that you have, which I respect, because these really are questions of fact, as if we were being invited to find the facts, would it not be appropriate, again subject to my Lord, to answer 17.3 and 17.4 in each case by the formula "the magistrates' court was entitled so to find"?
MISS SIMOR: Yes.
LORD JUSTICE LAWS: Unless anyone has any comment, we will answer the questions as suggested by Mr Davenport, with that alteration in the case of 17.3 and 17.4, the answer to each of which will be "the magistrates' court was entitled so to find".
MR DAVENPORT: Much obliged.
LORD JUSTICE LAWS: Thank you for your assistance in that matter, Mr Davenport.
Now, the other case was also a case stated. That is Lilley, is it not?
MR NEWMAN: My Lord, we have agreed very simple answers to two questions.
LORD JUSTICE LAWS: Can we just see where the case is.
MR NEWMAN: Yes, my Lord. The case is in a separate little bundle, a very thin bundle marked "Lilley documentation". I do not think it was even in the -- your Lordship might have put it in a file, but it was not in a file. It was a very thin bundle.
LORD JUSTICE LAWS: In that case, the chances of my not having lost it are minimal.
MR NEWMAN: It is a matter that is so easy to recount.
LORD JUSTICE LAWS: Tell us about it.
MR NEWMAN: There are two questions. The first asks whether a banning order amounts to a penalty. Answer, clearly "no" to that. The second one says, if a banning order is a penalty, then it asks about the powers --
LORD JUSTICE LAWS: It is not applicable.
MR NEWMAN: Not applicable, and my learned friend agrees with that.
LORD JUSTICE LAWS: Clearly right. Thank you very much indeed. Then that deals with all matters relating to relief, apart from the costs. What other matters are there?
MR DAVENPORT: My Lord, I am instructed actually to make an application for costs. I fully appreciate that -- can I hand that to Miss Simor. Can I hand this to my Lord. It is only in relation to the first claimant, my Lord.
LORD JUSTICE LAWS: You are for the Chief Constable of Derbyshire?
MR DAVENPORT: I am for the Chief Constable of Derbyshire.
LORD JUSTICE LAWS: Who is the respondent or defendant in Gough and Smith?
MR DAVENPORT: My Lord, yes. My Lord, I readily appreciate that, as far as I know, Mr Gough and Mr Smith have not won lotteries or pools or anything of that nature and might not be able to meet any cost orders. Nevertheless, I have been instructed to make such an application, and I do it. I am going to make it at length. My Lord, this is an application that has failed. They have received funding from the Legal Services Commission to make such an application.
LORD JUSTICE LAWS: They are not on legal aid, are they?
MISS SIMOR: They are.
MR DAVENPORT: Yes, they are on legal aid.
LORD JUSTICE LAWS: They are.
MR DAVENPORT: Yes, my Lord, they are on legal aid.
LORD JUSTICE LAWS: What is the present position under the present regime?
MR DAVENPORT: The proper form of order is as drafted. I have just made so many orders, I do not have my own. So will my Lord just look --
LORD JUSTICE LAWS: Oh, I see.
MR DAVENPORT: -- at that costs order. And that now provides --
LORD JUSTICE LAWS: Has Miss Simor received this?
MR DAVENPORT: Yes, Miss Simor does have one. She has the advantage on me now.
LORD JUSTICE LAWS: This would have it that the first claimants -- wait a minute, sorry. Let me start again.
MR DAVENPORT: The first claimants are Carl Gough and Gary Smith.
LORD JUSTICE LAWS: That is the two of them. Yes, I see. It is because they are conjoined with the other proceedings, yes. The first claimants' liability of the costs to be determined pursuant to the Access to Justice Act and regulation 10. Those provisions --
MR DAVENPORT: Are the standard provisions now for orders that are made in relation to a funded party losing to a non-funded party.
LORD JUSTICE LAWS: They are the successors to what, when I was a boy, used vulgarly to be called the football order.
MR DAVENPORT: Yes, my Lord, exactly. The whole of this frame of wording is the successor now. The underlying ethos here is that one does not automatically assume that a legally aided party is not able to pay his or her own costs.
LORD JUSTICE LAWS: You find out whether they are or not.
MR DAVENPORT: Exactly, my Lord.
LORD JUSTICE LAWS: Let us see what Miss Simor says. Miss Simor, what do you say about this application?
MISS SIMOR: We make the normal application for the normal order: legal aid assessment in relation to our own costs, and then of course costs against us but not to be enforced. I am afraid I am not aware of regulation 10.
LORD JUSTICE LAWS: Nor am I off the top of my head.
MISS SIMOR: No. I have a reference in a recent order to regulation 5(2), service cost protection regulations. Proceedings should be determined by a costs judge and regulation -- is that the same?
MR DAVENPORT: Yes.
MISS SIMOR: Well, I accept my friend if he tells me that that is the correct regulation and this is the normal order.
LORD JUSTICE LAWS: If it turns out to be wrong, no doubt you will be asking us to change it. Then we will make the inter partes costs order as asked. This draft also says the first claimants' costs, that is Gough and Smith's costs, be subject to detailed assessment pursuant to the Access to Justice Act. That is the successor to legal aid assessment.
MR DAVENPORT: Legal aid taxation.
LORD JUSTICE LAWS: Legal aid taxation.
MR DAVENPORT: My Lord, yes.
LORD JUSTICE LAWS: That is what gives you that.
MISS SIMOR: Could I make one further point. We say there should be one set of costs, and that insofar as the Home Secretary chose to contest, there should be one set of costs against the claim and not two.
LORD JUSTICE LAWS: We have only heard one application against you so far. Is anybody applying for costs against Miss Simor?
MR HOSKINS: I am not making an application, my Lord.
LORD JUSTICE LAWS: Then you are pushing not at an open but a non-existent door. Very well, then we will make that order. Thank you very much. What next?
MR NEWMAN: I represent both Miller and Lilley, separately instructed. In each case may I ask firstly for an order for a detailed assessment of legal aid costs. The old legal aid taxation, whatever that is called now.
LORD JUSTICE LAWS: Certainly, you can have that.
MR NEWMAN: I do not hear any applications for costs against me, and therefore I am not going to address your Lordships on that.
LORD JUSTICE LAWS: Right.
MR NEWMAN: The only other matter, and if it is an appropriate time to deal with it, is this: I do ask your Lordships in both Miller and Lilley's case for permission to appeal.
LORD JUSTICE LAWS: We have dealt with all matters relating to costs now, have we? I think we have. Permission to appeal. To what court, Mr Newman?
MR NEWMAN: My Lord, I have given it anxious thought, and given the authority of McCann, I suspect it is to the Court of Appeal, because that is the logic of your Lordship's ruling. Now, if the Court of Appeal were hypothetically to disagree with it, they would then --
LORD JUSTICE LAWS: You mean if they were actually to disagree with it.
MR NEWMAN: I am positing the extreme hypothesis, the unlikely hypothesis, that a court would disagree with your Lordships. But if they were to disagree with it, then of course, my Lords, the problem may arise. But as the law stands as enunciated by your Lordships, it seems that the Court of Appeal is the correct forum to appeal to.
LORD JUSTICE LAWS: Yes. You must ask their Lordships, Mr Newman.
MR NEWMAN: As your Lordship pleases.
LORD JUSTICE LAWS: Are there any other applications? Miss Simor?
MISS SIMOR: We also make an application for permission to appeal. We say this is an important case, and that insofar as your Lordship has not found it necessary to make the reference, it is important that a further court be able to consider that issue in order to see whether there is a final court that is obliged to make a reference.
I will not go into the reasons why we -- specific reasons why we say that permission to appeal should be granted, but we ask your Lordships' permission.
LORD JUSTICE LAWS: You, too, must ask their Lordships. Thank you very much. We are extremely grateful to counsel for their illuminating submissions in this extremely interesting case.
I desire to aplogise to the parties for the time it has taken for the judgment to be handed down. That was due to a number of the genuinely unavoidable contingencies. I would only add that everyone should be confident that at least Poole J is by no means to blame for it. Thank you very much indeed.