England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		4 March 2008

1. LORD JUSTICE RICHARDS: This an application for permission to apply for judicial review, listed on the basis that the substantive hearing would follow immediately if permission were granted. That has enabled us to hear full argument from Mr Bertham, on behalf of the claimant, on the issues that arise.
2. The challenge is to a decision of the Crown Court at Blackfriars dismissing an appeal against the imposition of a football banning order under Section 14A of the Football Spectators Act 1989, as amended. It is a challenge which should have been brought by way of case stated. The claimant's solicitors failed to apply in time for a case to be stated, and judicial review is sought, in effect, to circumvent the statutory time limit on an appeal. That in itself raises an issue to which I shall have to return.
3. The claimant is a man aged 44 who is a long-time supporter of Millwall Football Club, having attended over 1000 Millwall matches during his lifetime. On 14 April 2007, at the conclusion of a match between Millwall and Tranmere Rovers, he ran onto the pitch and ran at the assistant referee, Steve Creighton, shouting at him. Mr Creighton put up his hands to defend himself, thereby making contact with the claimant (as it is put in the statement of facts in support of the judicial review application). The claimant was immediately taken to the ground by members of staff. Mr Creighton had two scratches to his wrists as a result of the incident.
4. The claimant made full admissions in interview and expressed remorse. He said that he had been drinking. He also said that he had never before been involved in any football-related violence and had never been to a match abroad. He did have previous convictions for offences of robbery in 1978 when he was a youth, and in 1988, on which occasion he was sentenced to 4 years' imprisonment for offences that included three counts of robbery. It is said that at that time he had a long-standing addiction to heroin from which he has been free now for a number of years. We are also told that his good behaviour at football matches in general is further evidenced by the fact that he attended matches after the present offences, while on unconditional bail, and did not become involved in any incident on those occasions.
5. The claimant pleaded guilty at Greenwich Magistrates' Court to three offences: one of common assault on Mr Creighton, one of going on to a playing area at a football match contrary to Sections 4 and 5 of the Football (Offences) Act 1991, and one of possession of a class C drug. The drugs offence suggests that although free of heroin, he may not be completely free of drugs. The sentence imposed by the Magistrates' Court was one of 14 weeks' imprisonment suspended for 2 years, with a linked supervision order and curfew order. He was ordered to pay £300 compensation. A 3-year football banning order was imposed.
6. There was then an appeal to the Crown Court which, on 10 August 2004, allowed the appeal to the extent of varying the suspended term of imprisonment to 8 weeks and removing the supervision and curfew orders and also reducing the amount of compensation order to £100. However, the court upheld the football banning order.
7. In giving the decision of the court, His Honour Judge Karsten said this in relation to Section 14A(2), to which I will come in a moment:

"We take the view that the intention of this provision is really to allow the court to take into account the deterrent effect of a football banning order in relation to all others who attend football matches considering the use of violence at football matches. We cannot say that there are not reasonable grounds to believe that making an order where the defendant behaved as he did in front of all the spectators at the match would help to prevent violence or disorder at regulated matches. On the contrary, we take the view that there are reasonable grounds for believing that a banning order in a case of this kind for the person who goes on to the pitch and behaves as this defendant did will help to prevent violence or disorder because people will realise that if they behave as he did that is what is going to happen."

8. The judge went on to say that the court was sympathetic to the unhappy situation in which the claimant now found himself, but could not treat that as a sufficient basis for allowing the appeal against the banning order notwithstanding that it was accepted that this was an isolated incident.
9. Section 14A applies where a person is convicted of a relevant offence. It is plain that the offence of assault of which the appellant was convicted was such a relevant offence. Where Section 14A applies, sub-sections (2) and (3), to which the judge referred in the passage that I have just read, provide:

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

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

10. One of the features of a banning order is that by Section 14E(3) the court must impose a requirement as to the surrender in accordance with Part II, in connection with regulated football matches outside the United Kingdom, of the passport of the person subject to the order. There was previously some discretion in the court not to impose that requirement where exceptional circumstances existed. By the time the appeal was heard in the Crown Court, however. the imposition of such a requirement under Section 14E(3) had become mandatory by virtue of amendments to the legislation.
11. The effect of the travel restriction is that anyone wishing to travel abroad during the period when relevant matches are taking place has to get individual permission and demonstrate that the purpose of travel is other than attendance at proscribed matches.
12. The submission made by Mr Bertham, on the claimant's behalf, is that the Crown Court erred in law in imposing a banning order in this case. It is said that in a moment of madness the claimant opted to do an act that was extraordinary for him. He acted in a way that he has not done before or since and there is no reason to suppose that he might engage in such activity again. It is submitted that the court failed to assess his own conduct and personal circumstances in imposing the order and wrongly based its decision on the general deterrence such an order would have. The imposition of the order in the circumstances of this case, just because of the claimant's conviction for an isolated act of violence, is said to be disproportionate.
13. Mr Bertham has referred to the principles of European Community law regulating free movement of persons, including the application of the doctrine of proportionality in that context. The particular relevance of this is the requirement that the claimant surrender his passport when regulated football matches occur outside the United Kingdom. Reference has also been made to the European Convention on Human Rights and the need to satisfy the test of proportionality in the context of justifying interferences with Convention rights.
14. For the most part, it is unnecessary to refer to any of the detail of the European Community or Convention materials because the compatibility of football banning orders with such provisions has been considered in detail by the Court of Appeal in Gough v Chief Constable of Derbyshire Constabulary [2002] QB 1213 in which the judgment of the court was given by Lord Phillips of Worth Matravers MR. It should be noted that the orders in that case were made under Section 14B of the Act, on a complaint to the Magistrates' Court based on evidence of previous conduct but without convictions of a kind that specifically trigger liability to an order under Section 14A.
15. Mr Bertham has taken us to Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, a directive which amends various prior measures of EC law. Article 27, in a chapter on Restrictions on Rights of Entry and Rights of Residence, contains certain general principles, the most important of which is paragraph 2:

"Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted."

It seems to me that that paragraph does not effect any fundamental change in the principles of EC law that were considered on the basis of earlier measures in Gough.

I do not think it necessary to read extensive passages from the judgment in Gough. In short, so far as relevant, the court held that preventing football hooligans from taking part in violence and disorder in foreign countries is an imperative reason in the public interest which is capable of justifying restrictions on their freedom of movement (see paragraph 62). In terms of proportionality, it held that for the restrictions to be justified they would have to be imposed after individual consideration to each applicant. They cannot be based simply on the criminal record of each applicant. I stress again that the court was not considering convictions based on football related offences that specifically trigger the liability under Section 14A. The court further held that such restrictions must be rationally connected to the objective of preventing English football hooliganism abroad and must be no more than is necessary to achieve that objective. For all of that, see paragraph 68.

16. At paragraphs 84 and 85 the court stated that the statutory provisions, if given their natural meaning, are capable of being applied in a manner which is harsh and disproportionate. But equally they are capable of being interpreted in a manner which is proportionate. This led to the court's conclusion at paragraph 86 that the scheme, if properly operated, will satisfy the requirements of proportionality. As a starting point, a banning order should only be imposed where there are strong grounds for concluding that the individual subject of the order has a propensity for taking part in football hooliganism. It is proportionate that those who have been shown to constitute a real risk of participation in football hooliganism should be required to obtain permission to travel abroad during periods when proscribed matches are taking place.
17. Mr Bertham relies on that line of reasoning, submitting that in the present case it cannot be said - and the Crown Court did not say - that there are strong grounds for concluding that this claimant has a propensity for taking part in football hooliganism or that there is a real risk that he will take part in it. He has been involved in just one isolated incident. Accordingly to impose a banning order on him is disproportionate.
18. A difficulty about that submission is the decision of the Court of Appeal (Criminal Division) in R v Hughes [2006] 1 Cr App R (S) 107, 632. In Hughes the appellant had been convicted of an offence of affray related to a football match, an offence which triggered liability to an order under Section 14A, as in the present case. The court was referred to Gough but plainly considered it to be distinguishable, stating at page 635:

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

The court went on to apply that statement of principles to the facts. It is a statement of principles which, it seems to me, binds this court in relation to a case under Section 14A. One can also see good reason why the position under Section 14A may be different from that under Section 14B. Where the claimant has actually been involved in football related violence constituting an offence, a football banning order may well be considered appropriate without having to evaluate the risk of repeat offending at the same time.

19. Furthermore the Crown Court was, in my view, entitled to take into account and to give great weight to deterrence. That approach is plainly permitted by the wording of Section 14A(2) and is in line with the legislative policy. There are clear benefits in it being widely known that a person who assaults an official at a football match is liable to be made the subject of a football banning order even if the incident was, for that person, an isolated one.
20. As to Mr Bertham's arguments based on the inconsistency of the approach in Hughes with the provisions of Article 27 of the 2004 Directive, it seems to me that he faces a number of difficulties. First, the argument is based on the alleged incompatibility of the legislative scheme or part of the legislative scheme with Community law. That argument, and in particular the contention that the legislation is inconsistent with Article 27 of the Directive, is not a matter raised in the grounds and it is not sought in the grounds to contend that the court should have disapplied any part of the Act. Moreover it is too late to raise the point in that way now, especially given that no notice of these proceedings has been served on the Secretary of State, who would be entitled to be heard in relation to the contention that the legislation was incompatible with Community law.
21. Further, the fact that the travel restriction under Section 14E is an incident of a football banning order, and that an issue might arise as to the compatibility of that travel restriction with the Directive, does not provide a basis for challenging the entirety of the football banning order or the decision to impose a football banning order in the first place. It could, at most, relate to the validity of the additional requirement under Section 14E(3) as to a travel restriction. But that is not the way Mr Bertham has put his case. He is, in truth, seeking to have the order quashed in its entirety rather than directing the submissions simply at having the travel restriction removed.
22. For those reasons, but in particular on the basis that I think that this court is bound to follow the approach laid down in Hughes, I would be minded to refuse permission in this case.
23. There is one other matter that I should consider. I mentioned that the claim for judicial review was made because an appeal by way of case stated would be out of time. The time limit for an appeal was missed by a wide margin because the claimant's solicitors failed to give effect to counsel's advice and serve the documents in time. When counsel realised what had happened she advised in favour of applying for judicial review instead. The solicitors still did nothing. Eventually counsel contacted the claimant directly and advised him to change solicitors. It was this which led to the commencement of judicial review proceedings. (I should make it clear that when I refer there to counsel, it is to counsel who was then acting, not Mr Bertham, who has come into the case at a later stage.)
24. The decision of the Crown Court was on 10 August 2007. The deadline to submit an application for a case to be stated was 31 August. The judicial review claim was not filed until 9 November, only just within the outer three-month time limit for judicial review.
25. The court should, in my view, be slow to entertain an application for judicial review as an alternative to an appeal by way of case stated just because the time limit for an appeal has been missed, even if the fault lies with the claimant's solicitors rather than with the claimant personally. There may be cases where judicial review is nonetheless appropriate, in particular to avoid a serious injustice. But I do not think that the present case could be said to fall into that category. The point is related to the reasons I have already given for rejecting the substance of the challenge but does provide a further reason why, in my view, permission should be refused. Accordingly I would refuse the application before us.
26. MRS JUSTICE SWIFT: I agree.
27. MR BERTHAM: Can I have legal aid assessment?
28. LORD JUSTICE RICHARDS: You may.
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