Abstract
In 2000, the Chief Constable of Derbyshire applied to a Magistrates’ Court for banning orders against Gough and Smith under section 14B of the Football Spectators Act 1989. The Chief Constable adduced evidence that Gough had been convicted of common assault in March 1998 and that Smith had been convicted of assault with intent to resist arrest in November 1990. The Chief Constable also adduced in evidence “profiles” gathered by the police from information supplied by informant “spotters” at football matches. The spotters purportedly described incidents at domestic football matches involving Derby County FC between September 1996 and June 2000 in which Gough and Smith had participated. On the balance of probabilities the district judge was satisfied that the preconditions for making an order pursuant to section 14B(4)(a) and (b) of the Football Spectators Act 1989 were met, and namely that Gough and Smith had caused or contributed to violence or disorder in the United Kingdom or elsewhere and that there were reasonable grounds to believe that making a banning order would help to prevent violence or disorder at or in connection with any regulated football match. The district judge accordingly made banning orders against Gough and Smith for the minimum period of two years. Gough and Smith appealed to the High Court (and on dismissal there to the Court of Appeal) inter alia on three grounds: (i) whether the restrictions on their freedom of movement were compatible with EU law; (ii) whether the restrictions on their movement were otherwise at odds with the principle of proportionality and (iii) whether the procedural and evidential rules in section 14B, including its low standard of proof, violated the requirements of procedural fairness applicable to criminal charges contained in Article 6 ECHR. A decade or so after the judgment, this chapter reviews the Court of Appeal’s decision and looks at its impact upon the human rights of football fans and policing tactics to prevent football crowd disorder.
Director of Studies for the MBA (Football Industries) programme and Lecturer in Law.
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- 1.
- 2.
See further Pearson 2002.
- 3.
Gough and Smith v Chief Constable of Derbyshire [2002] QB 1213.
- 4.
See the House of Lords Debate on the Football Disorder Bill, HL Deb, 20 July 2000, vol 615, cols 1182–1262.
- 5.
In November 1998, the British Government issued a consultation document, entitled the Review of Football-Related Legislation, which set out suggested changes to improve and strengthen the existing legislation relating to football. The measures proposed included recourse to the law to prevent a range of offenders from attending matches domestically and travelling to and attending designated matches abroad. Subsequently, a private members bill led to the enactment of the Football (Offences and Disorder) Act 1999, though the provisions on banning orders were very much a “watered down” version of what was to follow.
- 6.
FBOs on complaint can be seen as part of New Labour’s wider policy of introducing “hybrid” measures to deal with low-level criminality and most notably Anti-Social Behaviour Orders. See generally Ashworth 2004; Brownlee 1998; Crawford 2008, 2009 and Duff and Marshall 2006. Note in particular Von Hirsch and Simester 2006 who refer to such “hybrid” provisions as “two-step prohibitions” and launch a strong criticism on the constitutional legitimacy of Anti-Social Behaviour Orders in particular.
- 7.
This was increased to three to five years by the Violent Crime Reduction Act 2006. See in particular s52 and Schedule 3 of that Act.
- 8.
See generally Stott and Pearson 2007.
- 9.
Gough and Smith v Chief Constable of Derbyshire [2002] QB 459.
- 10.
Gough and Smith v Chief Constable of Derbyshire [2002] QB 1213, 1224, Lord Phillips MR.
- 11.
Gough and Smith v Chief Constable of Derbyshire [2002] QB 1213, 1229, Lord Phillips MR.
- 12.
Gough and Smith v Chief Constable of Derbyshire [2002] QB 1213, 1245, Lord Phillips MR.
- 13.
Gough and Smith v Chief Constable of Derbyshire [2002] QB 1213, 1237, Lord Phillips MR citing de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80, Lord Clyde.
- 14.
Gough and Smith v Chief Constable of Derbyshire [2002] QB 1213, 1242, Lord Phillips MR.
- 15.
Note the comments of the ECtHR in Engel v The Netherlands (No. 1) (1976) 1 EHRR 647, Garyfallou AEBE v Greece (1997) 28 EHRR 344 and Lauko v Slovakia (1998) 33 EHRR 439 where it indicated a willingness to look beyond the domestic clarification of analogous measures and instead focus on the impact of the provision upon the defendant.
- 16.
See the “conclusions” in Gough and Smith v Chief Constable of Derbyshire [2002] QB 1213, 1240–1242, Lord Phillips MR.
- 17.
Gough and Smith v Chief Constable of Derbyshire [2002] QB 1213, 1242–1243, Lord Phillips MR and citing B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, 354 and R (McCann) v Crown Court at Manchester [2001] 1WLR 1084, 1102.
- 18.
Gough and Smith v Chief Constable of Derbyshire [2002] QB 1213, 1243, Lord Phillips MR.
- 19.
See generally Pearson 2006.
- 20.
- 21.
- 22.
See further Doyle and Others v R [2012] EWCA Crim 995, where the Court of Appeal ruled that the definition of violence or disorder “in connection with” football should not include behaviour that merely happened to occur at or around a match event. In Doyle, three defendants who assaulted a train passenger who had objected to their behaviour as they returned from a football match had their FBO revoked because the offence was not football related and no evidence had been provided that the order would prevent disorder at football in the future. Doyle was used successfully to contest the imposition of a s14B FBO in the observed case of Commissioner of Police for the Metropolis v Melody, Unreported, Tower Bridge Magistrates Court, 9 July 2012.
- 23.
In the 2009 football season, the Association of Chief Police Officers estimated that policing of designated matches in England and Wales cost around £25million per year. See further Stott et al. 2012.
- 24.
Sections 4 and 5 of the Public Order Act 1986.
- 25.
Section 2(2) of the Sporting Events (Control of Alcohol etc.) Act 1985.
- 26.
Section 3 of the Football (Offences) Act 1991.
- 27.
Again, see generally James and Pearson 2006.
- 28.
Pearson 2012.
- 29.
Pearson 2012.
- 30.
See, for example, R (on application of Lyndon) v Chief Constable of Greater Manchester Police, Unreported, Queen’s Bench Division, 15 Nov 2008.
- 31.
Note the comments of the then Parliamentary Under Secretary of State for the Home Department (Kate Hoey) during the House of Commons Standing Committee D Debate on the Football (Offences and Disorder) Bill of 5 May 1999, SC Deb (D) 5 May 1998, available online www.publications.parliament.uk/pa/cm/stand.htmcol: “The power to make banning orders in respect of people without conviction is necessary…because from football intelligence we know that some people commit offences or are involved in organising violence but cleverly manage not to be where they may be arrested. We need to find a way of dealing with those people”.
- 32.
- 33.
- 34.
Stott et al. 2007, 84–85.
- 35.
Stott and Pearson 2007.
- 36.
R v Boggild and others [2012] 1 Cr App R (S) 81; [2011] EWCA Crim 1928.
- 37.
R v Boggild and others [2012] 1 Cr App R (S) 81; [2011] EWCA Crim 1928, para 23, Hughes LJ.
- 38.
R v Boggild and others [2012] 1 Cr App R (S) 81; [2011] EWCA Crim 1928, para 24, Hughes LJ.
- 39.
Thomas 2012, 51–52.
References
Ashworth A (2004) Social control and anti-social behaviour: the subversion of human rights. Law Q Rev 120:263–291
Brownlee I (1998) New labour—new penology? punitive rhetoric and the limits of managerialism in criminal justice policy. J Law Soc 25:313–335
Crabbe T (2003) The public gets what the public wants: England football fans, ‘truth’ claims and mediated realities. Int Rev Sociol Sport 38:413–425
Crawford A (2008) Dispersal powers and the symbolic role of anti-social behaviour legislation. The Mod Law Rev 71:753–784
Crawford A (2009) Governing through anti-social behaviour: regulatory challenges to criminal justice. Brit J Criminol 49:810–831
Duff R, Marshall S (2006) How offensive can you get? In: von Hirsch A, Simester A (eds) Incivilities: regulating offensive behaviour. Hart, Oxford, pp 57–90
James M, Pearson G (2006) Football banning orders: analysing their use in court. J Crim Law 70:509–530
Pearson G (2002) A cure worse than the disease? reflections on Gough and Smith v Chief Constable of Derbyshire. Entertain Law 1:92–102
Pearson G (2005) Qualifying for Europe? The legitimacy of football banning orders ‘on complaint’ under the principle of proportionality. Entertain Sports Law J 3(1). Online: www2.warwick.ac.uk/fac/soc/law/elj/eslj/issues/volume3/number1/pearson. Accessed 31 July 2012
Pearson G (2006) Hybrid law and human rights: quasi-criminal banning and behaviour orders in the appeal courts. Liverp Law Rev 27:125–145
Pearson G (2012) An ethnography of english football fans: Cans, cops and carnival. Manchester University Press, Manchester
Rookwood J (2009) Fan Perspectives of Football Hooliganism: defining, analysing and responding to the British phenomenon. VDM Publishing House, Saarbrucken
Stott C, Pearson G (2006) Football banning orders, proportionality and public order. Howard J Crim Justice 45:241–254
Stott C, Pearson G (2007) Football hooliganism: policing and the war on the english disease. Pennant Books, London
Stott C, Reicher S (1998) How conflict escalates: the inter-group dynamics of collective football crowd ‘violence’. Sociology 32:353–377
Stott C, Hutchinson P, Drury J (2001) ‘Hooligans’ abroad? inter-group dynamics, social identity and participation in collective ‘disorder’ at the 1998 world cup finals. Brit J Soc-Psychol 40:359–384
Stott C et al (2007) Variability in the collective behaviour of England fans at Euro 2004: ‘Hooliganism’, public order policing and social change. Eur J Soc Psychol 37:75–100
Stott C, Hoggett J, Pearson G (2012) ‘Keeping the peace’: social identity, procedural justice and the policing of football crowds. Brit J Criminol 52:381–399
Thomas D (2012) Sentencing: banning orders—football Spectators Act 1989—appeal by prosecutor against refusal of crown court to make order. Criml Law Rev (1):48–52
Von Hirsch A, Simester A (2006) Regulating offensive conduct through two-step prohibitions. In: von Hirsch A, Simester A (eds) Incivilities: regulating offensive behaviour. Hart, Oxford, pp 173–194
Weed M (2001) Ing-Ger-Land at Euro 2000: how “handbags at 20 paces” was portrayed as a full-scale riot. Int Rev Sociol Sport 34:407–424
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Pearson, G. (2013). Football and Crowds: Gough and Smith v Chief Constable of Derbyshire [2002] QB 1213. In: Anderson, J. (eds) Leading Cases in Sports Law. ASSER International Sports Law Series. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-909-2_19
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