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: The respondents, Barry Beaumont and James Dowling, both pleaded guilty on 27 September 2006 at Selby Magistrates' Court to an offence under Section 5 of the Public Order Act 1996. They were fined and made the subject of a football banning order for 3 years. They appealed against the football banning order to the Crown Court at York. On 2 February 2007 the Crown Court allowed the appeal, holding that there was no power in the circumstances of the case to make a football banning order. The Director of Public Prosecutions now appeals by way of case stated against that decision.
2. The facts, as found by the Crown Court, were these:

"1 On 29 October 2005 the appellants attended a football match between Middlesbrough and Manchester United Football Clubs held at Middlesbrough.

2 The match commenced at 5.15 pm. There was no evidence as to when it concluded.

3 The appellants boarded a train which left Middlesbrough at 8.07 pm and behaved in such a way as would amply justify the making of a banning order under Section 14A of the Football Spectators Act 1999 ...... (as amended) if the magistrates were so empowered to do."

The reference to the appellants in that passage is of course to the present respondents.

3. It seems that what happened was that a group of Manchester United supporters travelling on the train behaved in a rowdy manner and caused substantial damage to the interior of the train. The respondents' plea of guilty to the Section 5 offence involved an acceptance that they had been party to the rowdy behaviour, but they denied being party to the damage. No evidence was offered against them on separate charges of criminal damage.
4. The making of football banning orders is governed by Part II of the Football Spectators Act 1999. The Act has been the subject of amendments since the date relevant to these proceedings. I will concentrate on the form the statute took prior to those amendments.
5. Section 14A deals with the making of a banning order on conviction of an offence. It applies by virtue of sub-section (1) where a person is convicted of a "relevant offence". A relevant offence is defined by Section 14(8) as an offence to which Schedule 1 to the Act applies. Schedule 1 lists a wide range of offences arising under a number of different statutes, including, in paragraph 1 (k):

"any offence under Section 5 of the Public Order Act 1986 (harassment, alarm or distress) or any provision of Part III of that Act (racial hatred) committed while the accused was on a journey to or from a football match to which this Schedule applies being an offence as respects which the court makes a declaration that the offence related to football matches."

The reference to "football match" is, by paragraph 4(1) of the Schedule, a reference to a regulated football match, which includes a football match where either team is a member of the Premier League.

6. Where Section 14A applies, then by virtue of sub-section (2) the court has to make a football banning order in respect of the offender where 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.
7. In the present case there is, to a large extent, no difficulty about the application of the statutory provisions. The respondents committed an offence under Section 5 of the Public Order Act. It is clear that they were on a journey from a regulated football match. The point that concerned the Crown Court was the question whether the offences under Section 5 of the Public Order Act were offences "related to football matches" within the meaning of paragraph 1(k) of Schedule 1. The court held that that expression was defined by or had the same meaning as the expression "relevant to" a designated football match in Section 1(8) of the Act.
8. Section 1(8) appears in Part I of the Act. It provides that each of certain periods is relevant to a designated football match, including, in paragraph (a), the period beginning two hours before the start of a match or various other possible starting points "and ending one hour after the end of the match". Longer periods are specified for certain purposes in Section 1(8A).
9. The Crown Court held that an offence could not be related to a football match within paragraph 1(k) of Schedule 1 unless it took place within the period specified in Section 1(8) and therefore could not be so related if it took place more than one hour after the end of the match. The court found as a fact that there was no evidence that the offences here were committed within one hour of the end of the match and, indeed, that they were probably committed later. It therefore held that the Section 5 offences were not related to football matches and that there was no power to make a football banning order.
10. Mr Shaw, for the Director of Public Prosecutions, submits that the Crown Court misdirected itself. The expression "related to football matches" in paragraph 1(f) of Schedule 1 is not itself defined in the Act and should be given its ordinary meaning. It is not defined or governed by Section 1(8) or (8A) which are concerned with a different point. The phrase "relevant to" is used in Section 1(8) in conjunction with periods of time before and after designated football matches where restrictions on attendance are in force.
11. Mr Shaw acknowledges rightly that Section 1(8) also has some application to Schedule 1 by virtue of paragraph 4(2) of Schedule 1, which provides that Section 1(8) and (8A) apply for the interpretation of references to periods relevant to football matches in Schedule 1. Such references appear in a number of the provisions of paragraph 1. In particular, each of paragraph 1(c) to (f) refers to an offence committed during "a period relevant to a football match".
12. By contrast, no such references appear in the paragraphs dealing with offences committed on a journey to or from a football match, including paragraph 1(k), the operative provision for the purposes of this case. In the paragraphs relating to journeys to and from a football match the expression used is "offence related to football matches". No reference is made to any period relevant to a football match. The use of the expression "related to football matches" or "offence related to football matches" in those provisions is, it is submitted, the result of a deliberate legislative choice that the limited time scales laid down in Section 1(8) and (8A) are not to apply to journeys to or from a football match. Those situations are covered by the different and more general expression, "offence related to football matches".
13. That the expressions are different is reinforced by the fact that they appear together in a number of the later provisions of paragraph 1, which are the result of amendment to the form of Schedule 1 as originally enacted. For example, paragraph 1(q) refers to -

"any offence under Section 5 of the Public Order Act 1986 .....

(i) which does not fall within paragraph (c) or (k) above;

(ii) which was committed during a period relevant to a football match to which the Schedule applies;

(iii) as respects which the court makes a declaration that the offence related to that match and any other football match which took place during that period."

14. To treat the two expressions "period relevant to a football match" and "offence related to football matches" as having the same meaning would be to create a redundancy and would be plainly a mistaken interpretation of the provision.
15. Those are the submissions put forward by Mr Shaw. In my judgment, they are plainly correct. Mr Willoughby, for the respondents, has recognised the force of those submissions but has advanced arguments to the effect that such an interpretation is capable of producing perverse results. He gave various examples which, I confess, I found wholly unpersuasive. I do not accept that any real problem arises if the expression "offence related to football matches" is given its ordinary meaning and is applied in a reasonable way in practice.
16. Mr Willoughby raised a further point concerning a recent amendment to paragraph 4(2) of Schedule 1, an amendment effected by the Violent Crime Reduction Act 2006. The amended provision lays down a more specific and limited meaning to the expression "period relevant to a football match". That however does not, in my view, in any way alter or undermine the analysis put forward by Mr Shaw in relation to the proper construction of the relevant provisions. It does no more than alter the specific content of the "relevant to" provision.
17. For those reasons I accept the submission on behalf of the Director of Public Prosecutions. It seems to me that the conclusion so reached accords with the approach of the Court of Appeal (Criminal Division) in R v Smith [2004] 1 Cr App R (S) 58, at page 341, in particular in paragraph 7 where Mr Justice Penry-Davey, giving the judgment of the court, said:

"We can well envisage incidents of offences being committed at considerable physical remove from football matches and at a considerable remove in time which could well be an offence or offences related to football matches."

The court in that case was not asked to consider the specific issue that we have had raised in the present appeal. But the approach that it adopted seems to me to be one that accords with the proper construction of the relevant provisions and is one that is eminently sensible and with which I agree.

18. The question raised in the case stated on this issue is whether the court was entitled to conclude that the phrase "related to football matches" in paragraph 1(k) of Schedule 1 has the same meaning in law as the phrase "relevant to" in Section 1(8) of the Act. It goes on to ask various further sub-questions. For the reasons given I would answer that the Crown Court was not entitled so to conclude.
19. There remains a further issue to consider, which arises in this way. Paragraph 1(k) of Schedule 1 refers to an offence "as respects which the court makes a declaration" that the offence related to football matches. Such a declaration is a "declaration of relevance" within Section 7(10)(a) of the Act. The respondents argued, unsuccessfully, before the Crown Court that the Magistrates' Court had made no such declaration. That argument is renewed before us, in effect as a cross-appeal under the case stated: the second question asks whether the Crown Court was entitled to conclude that a declaration of relevance had been made.
20. The basis of the argument for the respondents is that there is no mention of a declaration of relevance in any of the material relating to the Magistrates' Court proceedings. It is not mentioned in the prosecuting solicitor's notes of the hearing. It is not recorded in the memorandum of conviction. Nor is it recited in the banning orders as served on the respondents. It is submitted that the magistrates did not consider a declaration of relevance at all. A declaration should be expressly made in open court and be a discrete part of the sentencing process or at least should be recorded in any banning order.
21. The reason given by the Crown Court for rejecting that argument relates to the fact that under Section 23 of the Act the prosecution must give five days' notice of its intention to seek a banning order unless that requirement is waived by the defence. The Crown Court relied on the fact that in the present case the prosecution had secured a waiver in respect of the five-day notice period. It is said that the only purpose of securing such a waiver would have been to ask the court to make a declaration of relevance and although the declaration was not expressly mentioned in the memorandum of conviction, the Crown Court was satisfied that such a declaration had been made.
22. Mr Shaw has submitted that this was a finding of fact by the Crown Court which is not susceptible to appeal to this court on a point of law, and has further submitted that the Crown Court was plainly satisfied that the offences to which the respondent pleaded guilty related to football matches.
23. Mr Willoughby, while accepting that this was a finding of fact by the Crown Court, submits that it was not one that the Crown Court was entitled to make. It was totally unsupported by evidence and was one to which no reasonable tribunal could have arrived by inference, including any inference derived from waiver of the notice under Section 23. Therefore it is said the point is one that the respondents are entitled to raise on appeal to this court.
24. I would accept that the respondents are entitled to raise the point, but I do not think it is a point that gets them anywhere. Under the statutory provision it is true the court is required to make a declaration of relevance. The making of a declaration involves some express statement which should, in my view, be made in open court and recorded on the memorandum of conviction. It does not appear that either was done in this case. But does the failure to make a declaration of relevance render the banning order invalid? I do not think that that could have been the legislative intention. Provided that the court actually considered the question of whether the offence was related to football matches and concluded that it was so related, then in my view the court's failure to state that conclusion in terms should not be regarded as fatal to the validity of the ensuing banning order.
25. In this case, in my judgment, there was a sufficient basis upon which the Crown Court could properly infer that the Magistrates' Court had considered the question and reached an affirmative conclusion on it even if the Crown Court was not entitled to infer that the Magistrates' Court had made a declaration of relevance as such. It seems to me that the circumstances in which the issue was raised before the Magistrates' Court, coupled with the orders actually made by the magistrates, provide a clear enough indication that the relevant question had been addressed by that court. That, in substance, is how I would answer the second question in the case stated.
26. In any event what happened in the Magistrates' Court is ultimately not material because it is common ground that it was open to the Crown Court on an appeal against sentence to consider for itself whether the offence related to football matches and, if it did, to make a declaration of relevance and to impose a banning order thereafter. In this case, as it is clear from the facts as found by the Crown Court, in particular paragraph 3 of the passage I have quoted from the factual findings set out in the case stated, the Crown Court was of the view that the conditions for a banning order were made out, subject to the one technical question of whether "related to football matches" was to be read as importing the time limitation in Section 1(8). Had the Crown Court concluded that the expression "related to football matches" was to be given the wider meaning that I consider to be the right one, then it is plain that the Crown Court would have made a declaration of relevance and have concluded that the banning order made by the Magistrates' Court was correctly made and would have dismissed the appeal from the Magistrates' Court.
27. In saying all of that, I reject a submission by Mr Willoughby that it would have been possible for the Crown Court on the facts before them to reach the view that the offences in question were not related to football matches and that we should therefore, at the very least, remit the case to the Crown Court for that court to consider the issue. The issue has, in my view, already been considered by the Crown Court and no useful purpose would be served by remitting.
28. I am satisfied that had it directed itself properly on the meaning of "related to football matches" the Crown Court would have concluded that the appeal from the imposition of a banning order by the Magistrates' Court should be dismissed. In those circumstances I take the view that the right course for this court is to quash the decision of the Crown Court and to decline to remit the case to the Crown Court but to declare or otherwise make clear that the order of the Magistrates' Court, in respect of which the original appeal to the Crown Court was brought, stands. It is effectively revived. The order of the Crown Court quashing it is itself quashed.
29. We are told that the respondents have served some six months of the football banning order before it was quashed by the Crown Court. An order is for a minimum period of three years. As it seems to me, there is at the very least no reason why an order should not run for a period of three years from the time when it was imposed by the Magistrates' Court. It is unnecessary for us to resolve an issue that has been raised but not fully argued before us as to whether the period between the quashing of the Magistrates' Court order by the Crown Court and our decision quashing the Crown Court order should count towards the three-year period or whether, in effect, the respondents still have two-and-a half years or so of the order to run.
30. For all those reasons, and subject to any points counsel may wish to raise in respect of the question of relief with which I have just dealt, I would allow the appeal by the Director of Public Prosecutions and quash the Crown Court's order as I have said.
31. MRS JUSTICE SWIFT: I agree.
32. LORD JUSTICE RICHARDS: Does that sufficiently cover the question of relief? There are two possibilities. One is that the order simply runs from three years from the date when it was imposed even though for part of it they were not subject to it. The other is that the period when they were not subject to it between the Crown Court decision and our decision does not count and so they still have the balance of two-and-a-half years to run. We have not looked at the relevant provisions. We have not been invited to do so. I suspect that that can be dealt with elsewhere.
33. MR SHAW: Yes. We certainly take the view that the former is probably the fairest way of interpreting the legislation.
34. LORD JUSTICE RICHARDS: In that case, so long as the matter is set out clearly, I do not think the respondents will be complaining about it.
35. MR WILLOUGHBY: There are costs from public funds.
36. LORD JUSTICE RICHARDS: Yes. You want a detailed assessment. You may have it.
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