B e f o r e :
LORD PHILLIPS MR
LORD JUSTICE JUDGE
LORD JUSTICE CARNWATH
| || CARL GOUGH AND GARY SMITH||Appellants|
| ||- and -|
| ||THE CHIEF CONSTABLE OF DERBYSHIRE||Respondent|
(Transcript of the Handed Down Judgment of
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Mr Rhodri Thompson and Mr Arnondo Chakrabarti (instructed by Timms for the Appellants)
Mr Philip Havers, QC, and S Davenport (instructed by Weightmans for the Respondent)
Mr David Pannick QC and Mark Hoskins (instructed by The Treasury Solicitor for the Secretary of State)
HTML VERSION OF JUDGMENT
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Lord Phillips MR :
This is the judgment of the Court.
- The appellants, Carl Gough and Gary Smith have run foul of the statutory scheme that has been put in place to combat football hooligans. On 2 October 2000 Deputy District Judge Aujla (“the Judge”) made a banning order against each appellant under the Football (Spectators) Act 1989 as amended by the Football (Disorder) Act 2000. The banning orders prevent the appellants from attending certain football matches in England and Wales. They also prevent the appellants from leaving the country when certain football matches are taking place outside England and Wales. The appellants contend that it is not lawful to impose the latter restrictions upon them. They say that the statutory provisions under which they are imposed violate Community law in a manner which renders void those provisions. They further contend that the statutory provisions in question violate certain articles of the European Convention on Human Rights, so that the statutes are incompatible with the Convention.
- At the request of the appellants, the Judge stated a case for the Divisional Court which raised the question of whether the appellants’ challenge to the legality of the legislation was well-founded. On July 13 the Divisional Court roundly rejected the appellants’ challenge –  EWHC Admin 554;  3 WLR 1392. In the leading judgment, Laws LJ held that compliance with European Community law was ‘acte clair’ and that there was no conflict with the Convention. The appellants now appeal against the decision of the Divisional Court with the permission of Keene LJ, who rightly observed that the grounds of appeal raise issues of some importance.
- At the beginning of his judgment Laws LJ spoke of the ‘shame and menace of football hooliganism’. As questions of proportionality are an important feature of this appeal, we propose to say a little about this phenomenon at the outset.
- Football started life as an amateur sport, but professional football is now very big business. Following professional football is an activity pursued with passion by large sections of the populace in this country and abroad.
- Over the last forty years the adversarial encounter on the football pitch has, in this country, been increasingly accompanied by a degree of physical conflict between certain elements of the supporters of at least some of the football clubs. For this reason, rival supporters are now segregated within the grounds. In the vicinity of the grounds where matches are played disorder has now, unhappily, become commonplace.
- There is a small minority for whom the attraction of football matches is not the game itself, but the warfare that they intend shall accompany the game. To describe what takes place by the word ‘warfare’ is hardly too strong. To quote from the witness statement in these proceedings of Superintendent John Wright:
“It has become common for groups of males to associate themselves with Football Clubs as a vehicle for them to become involved in violence and disorder. This has developed to the stage where this has become extremely organised. These groups will often make use of mobile phones and the internet to arrange fights with other like-minded individuals. These fights often involve the use of weapons, e.g., knives, bottles, and CS gas. They usually occur away from football grounds at railway stations or in or around city centre public houses.”
- The behaviour of a lawless minority at matches within England and Wales has been mirrored by lawlessness on the part of a small minority of those who follow English teams in competitions abroad. Mr David Bohannan, who heads the Home Office Section responsible for tackling football related disorder provided the court with the following summary of this phenomenon:
“Disorderliness has been associated with football since the end of the nineteenth century when it became a mass spectator sport. However, it only became recognised as a major social problem in the 1960s when domestic football grounds regularly provided a venue for fights and other kinds of disorder involving many hundreds of young males. Since 1977, attention has also focussed on the behaviour of English football fans when overseas. There has been a catalogue of incidents involving English supporters, including serious outbursts of violence and disorder in Luxembourg (1977), Turin (1980), Basle (1981), Oslo (1981), Paris (1984), West Germany (1988), Italy (1990), Sweden (1992), Amsterdam (1993), Rotterdam (1993), Dublin (1995), Rome (1997), Marseilles (1998), Glasgow (1999), Copenhagen (2000), Brussels (2000) and Charleroi (2000). These incidents have mainly taken place in connection with matches played by the English national team. However, serious problems have also arisen in relation to matches play by English club sides, eg. The UEFA Cup Final in Copenhagen in 2000 between Arsenal and Galatasaray. In most cases, the disorder has occurred in streets and bars rather than in the grounds and often during the period leading up to match day. Each incident has brought shame on our national reputation and also resulted in very many arrests and expulsions of English supporters by host nations. Acts of disorder by English supporters receive wide media coverage both in the UK and abroad.”
- The history of legislative measures introduced to address the problem of football hooliganism, together with a summary of the relevant measures is set out at pp.1400 to 1407 of Laws L.J’s judgment. What this history demonstrates is that, over the years, the legislation has not achieved the intended result of putting an end to football hooliganism and that Parliament’s response has been progressively to make more stringent the circumstances in which restraints can and will be imposed on those who are believed to be liable to indulge in such behaviour. We shall annexe Laws LJ’s helpful summary to this judgment and attempt, in broad and necessarily imprecise detail, to identify the significant changes that have been made to the legislation in question.
- Under Part IV of the Public Order Act 1986 (‘the 1986 Act’), where a court convicted a defendant of an offence of violence or drunkenness committed in connection with attendance at a football match, it was empowered to make an order excluding the defendant from attending certain prescribed football matches in this country, subject to this proviso in section 30(2):
“No exclusion 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 prescribed football matches.”
- The Football Spectators Act 1989 provided that, in similar circumstances to those covered by the 1986 Act and subject to the same proviso, the court could place a restriction order on a defendant whereby he would be required to report to a police station during the period within which certain designated football matches were being played abroad. The object of this was to prevent the defendant from travelling to those matches.
- The Football (Offences and Disorder) Act 1999 amended the relevant provisions of the earlier two Acts. Restriction orders were redefined as ‘football banning orders’, but the most significant change was in the wording of the proviso. That was, in each Act, amended to read as follows:
“It shall be the duty of the court to make a …football banning order in relation to the accused if it is satisfied that there are reasonable grounds to believe that making the order would help to prevent violence or disorder at or in connection with prescribed [designated] football matches.”
- The 2000 Act has amended the 1989 Act in such a way as to combine the relevant provisions of that Act and the 1986 Act. It makes provision for the making of a single banning order in relation to ‘regulated football matches’ (i.e. prescribed matches) whether in England and Wales or elsewhere.
- The amended Act, which we shall from now on describe simply as the 1989 Act, provides for the making of a banning order in two different circumstances. The first, under section 14A, is when a court convicts a defendant of one of the scheduled offences – i.e. football related violence. The second, under section 14B, is new, and much more far reaching. The order is made on a complaint to a Magistrates’ Court by the chief officer of police of the area in which the respondent resides. It must appear to the chief officer and he must prove to the court that the respondent has, within the last ten years, ‘at any time caused or contributed to any violence or disorder in the United Kingdom or elsewhere’.
- By whichever of the two routes the matter comes before the court, the court must make a banning order:
“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.”
An appeal lies to the Crown Court against the imposition of a banning order.
- Under section 14C, violence is defined as meaning ‘violence against persons or property and includes threatening violence…’ and disorder has a lengthy definition which includes ‘using threatening, abusive, or insulting words or behaviour or disorderly behaviour’. There is no requirement for the violence or disorder to be football related.
- The same section specifies a number of matters that the court can take into account when considering whether to make a banning order under 14B. These include ‘conduct recorded on video or by other means’.
- Regulated football matches taking place outside England and Wales are prescribed by order of the Secretary of State having regard to the risk that they will be an occasion for violence and disorder on the part of English supporters. Under the current order these are matches involving the English or Welsh national teams or clubs which are members of the Football League or the Football Association Premier League.
- A person subject to a banning order is not automatically affected by that order in respect of every prescribed overseas game. The Act provides for an ‘enforcing authority’ – a police authority prescribed by the Secretary of State – whose duties include tailoring the requirements of a banning order to fit the particulars of the individual subject to the order. This is the Football Banning Orders Authority (‘FBOA’). Its functions include issuing individual notices to those made subject to banning orders. These set out the appropriate conditions and reporting restrictions which apply to each individual having regard to the degree of risk associated with the individual person for the individual match.
- Section 19(2A) provides that the FBOA must issue a notice if it ‘is of the opinion that requiring any person subject to a banning order to report is necessary or expedient in order to reduce the likelihood of violence or disorder at or in connection with the match’. Section 19(2B) provides that the notice must require the person to report at a police station and surrender his passport. The surrender will normally be for a control period which runs from 5 days before the match to the time that the match finishes.
- Section 19(2D) provides that the FBOA may establish criteria for determining whether such a requirement should be imposed on any person or any class of person.
- Mr Jaglall, one of the FBOA officers, described in a witness statement how the FBOA performs this duty in practice:
“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.”
- The FBOA has power under section 20(4) to exempt a person from the requirements imposed under a banning order in respect of any match or matches where satisfied that this is justified by special circumstances and that, because of these circumstances, that person would not attend the match or matches if so exempted. An appeal lies to the Magistrates Court against a refusal to grant an exemption.
- The amendments made by the 2000 Act include important provisions, with which we are not concerned, empowering the police, in defined circumstances, to prevent from leaving the country individuals on the point of embarking for a football match abroad .
- The circumstances that led to the passing of the 2000 Act, and the reasoning behind its provisions, are not in dispute. They were explained to Parliament by the Home Secretary, Mr. Jack Straw, in the course of the second reading of the Bill on 13 July 2000. They are relevant, not by way of interpretation of the Act, but to inform the debate on proportionality that arises on this appeal.
- The 2000 Act was a response to ‘appalling scenes’ of disorder at Brussels and Charleroi during the Euro 2000 tournament. In the course of that tournament 965 English citizens were arrested by the Belgian police. The English National Criminal Intelligence Service (‘NCIS’) is an agency which dedicates a significant proportion of its time and expertise to monitoring the activities of football hooligans. Only 30 of those arrested were known to the NCIS. Only 1 of the total of 454 individuals who were subject to domestic, but not international, banning orders was among them. Mr. Straw summarised the position by stating that the disorder was ‘prompted not by a small core of known football hooligans, but by xenophobic, racist and offensive behaviour of a significant number of drunken, white males, typically aged between 20 and 35…’
- The NCIS carried out an analysis of those arrested. 391 – about 40% - had previous convictions: 133 for violence, 200 for disorder, 38 for possession of an offensive weapon and 122 for criminal damage. Plainly many of these had convictions for more than one of these offences. The convictions were not, in the main, football-related.
- The following account of the facts is an adaptation of a portion of the judgment of Laws LJ. We do not believe that it is controversial.
- On 18 September 2000 the Chief Constable of the Derbyshire Constabulary preferred complaints against Mr Gough and Mr Smith (and 9 others) under section 14B(3) with a view to seeking orders under section 14B(4) in the Magistrates’ Court. The complaints alleged in each case that the condition stipulated in section 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 Mr Gough’s case specifically by violence resulting in a conviction on 17 March 1998 for common assault and in Smith’s case specifically by violence resulting in 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 it is necessary to explain what these are and how they come into existence. The football club with which each appellant is associated is Derby County. As regards Derby County matches, Superintendent Wright stated:
“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 from 18 to 40. The group is commonly referred to by the public and themselves as the DLF (Derby Lunatic Fringe).”
- The tactics of the police have had to respond to this developing phenomenon. 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 County, 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 Mr Gough were put before the magistrates’ court, describing incidents from 14 September 1996 to 29 April 2000; 21 for Mr Smith from 14 September 1996 to 17 June 2000. Within these there appear to be eight incidents in which both appellants participated. The following convey the flavour of the profiles. ‘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. Mr Gough was part of the Derby group’. There is an identical profile for Mr 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 stadium with three other males.’ and ‘11/12/99. Smith seen sitting in the south-east corner of the ground during the Derby v Burnley FA Cup game.’
- The 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. The expression ‘rogue’ coach calls for an explanation. 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 to require the notification procedure to be followed.
- One profile is particularly relevant:
“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.”
- At the hearing Mr Gough, then aged 36, gave unchallenged evidence that he suffered from a brain tumour; that his last football-related conviction had been 18 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. Mr 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.
- The appellants gave oral evidence in the Magistrates’ Court and challenged the accuracy of some of the profiles. The Judge did not find their evidence credible. He found that their evidence was ‘of little assistance to the court’. He concluded as regards each appellant that the matters set out in section 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: section 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 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.
Judge Aujla’s decision
- The Judge held that the Chief Constable had satisfied the obligation to prove that each appellant had ‘caused or contributed to violence or disorder’. Thus the first pre-condition to his obligation to make a banning order was satisfied. As to the second, when dealing with all 11 cases before him, he said this in the case stated:
“The other condition is section 14B(4): whether or not I am 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.
I read this section to mean that I have to have reasonable grounds. I only have to have reasonable grounds to believe and, given the nature of the antecedents of all 11 and the matters that I have referred to earlier, I have no choice but to make banning orders on the basis that there are reasonable grounds to believe that they would help to prevent violence or disorder in the future.”
- Accordingly the Judge imposed banning orders for a period of 2 years – the minimum period required under section 14B. So far as domestic matches were concerned the order specified a geographical area radiating from the football stadium as the exclusion zone in relation to matches in which Derby County was playing. In relation to international matches, he ordered the appellants to report, within 5 days, to a local police station for further information. In due course they received the relevant directions from FBOA as to restrictions relating to international travel. The effect of these for the season 2000/2001 was that each was subjected to restrictions preventing travel abroad for 3 periods: 6-11 October 2000, 10-15 November 2000 and 23-28 March 2001.
The appellants’ contentions
- Before us the appellants have, to a degree, reformulated the case advanced before the Administrative Court, although not in a manner which involves inconsistency. We propose to proceed directly to the points argued before us, indicating, where appropriate, the manner in which these arguments were dealt with by the court below.
- The appellants’ case is founded on positive rights conferred on them by Articles 1 and 2 of Council Directive 73/148/EEC of 21 May 1973 (‘the 1973 Directive’), which, so far as material, provide:
1. The Member States shall, acting as provided in this Directive, abolish restrictions on the movement and residence of:
(a) nationals of a Member State who are established or who wish to establish themselves in another Member State in order to pursue activities as self-employed persons, or who wish to provide services in that State;
(b) nationals of Member States wishing to go to another Member State as recipients of services;
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.
3. The passport must be valid at least for all Member States and for countries through which the holder must pass when travelling between Member States. Where a passport is the only document on which the holder may lawfully leave the country, its period of validity shall be not less than five years.
4. Member States may not demand from the persons referred to in Article 1 any exit visa or any equivalent requirement.”
- The following important matters are common ground:
i) The 1973 Directive has direct effect in English law;
ii) To the extent that the primary legislation in play in this case is incompatible with the 1973 Directive, it is thereby rendered void and this Court can and should so declare;
iii) By way of elaboration on the previous point, incompatibility with Community law cannot be amended by severance, with the consequence that if section 14B is incompatible with the 1973 Directive, it must be struck down in its entirety.
- On behalf of the appellants Mr Rhodri Thompson and Mr Arnondo Chakrabarti have provided the court with lengthy written outline submissions. At the outset they summarise the four broad grounds of appeal as follows:
“(1) Banning orders necessarily involve derogations from the rights conferred on individuals by Article 2 of Directive 73/148/EEC. Such derogations are rendered unlawful by Article 8 of the Directive unless they can be justified on public policy grounds. Directive 73/148 has not been implemented in this respect into English law. Articles 2 and 8 are therefore directly enforceable in the English courts and as against UK public bodies. Thus, independently of the proper interpretation of the 1989 Act, banning orders are unlawful unless the derogations from the rights conferred on the Appellants by the Directive, imposed by the banning orders made in this case, can be justified on public grounds. The applications made by the Chief Constable and the judgments both of District Judge Aujla and of the Divisional Court are vitiated by failure to consider this issue. Further, there was manifestly no evidence on the basis of which orders could lawfully have been made if that issue had been considered.
(2) The UK legislative regime introduced in 2000 is contrary to Community law and therefore inapplicable insofar as it imposes mandatory restrictions on free movement within the Community on the basis of criteria that are not provided for or permitted by binding Community legislation.
(3) It is contrary to the Community law principle of proportionality to prevent an individual made subject to a banning order on the basis of the criteria laid down in section 14B(4) of the 1989 Act from travelling anywhere within the European Community, in order to reduce the risk of trouble at a football match or tournament taking place outside the United Kingdom, particularly where that match or tournament is not to take place within the European Community.
(4) As a matter of fundamental rights protected by Community law, the procedures for the imposition of banning orders under section 14B(4) are unfair, in contravention of Article 6 of the European Convention on Human Rights:
(a) The standard of proof under section 14B(4)(b) is so low that a fair hearing is precluded.
(b) A notice of application for banning orders pursuant to section 14B(2) is a ‘criminal charge’ within the meaning of Article 6(1) of the Convention but the procedural guarantees provided for in Article 6(3) are not provided for in the legislation or in practice.
Given the broad criteria for the making of such orders and their disproportionate geographical scope, they are also unjustified infringements of Article 8 of the Convention.”
- Article 8 of the 1973 Directive provides:
“Member States shall not derogate from the provisions of this Directive save on grounds of public policy, public security or public health.”
- The four broad grounds of appeal appear to accept that the 1973 Directive leaves it open to the United Kingdom to restrict the freedom of movement conferred by Articles 1 and 2 where this can be shown to be necessary on grounds of public policy. It is, indeed, the appellants’ primary case that the provisions of the amended 1989 Act which are in play are unlawful in that they manifestly exceed any legitimate requirement of public policy. However, the appellants have a fall-back case, should this submission not succeed. They contend that it is uncertain whether a Member State has any general power to prevent a national of a Member of the European Union from leaving that State to go to another Member State for reasons of public policy. Should this question become critical they submit that it should be referred to the European Court. It seems to us that this is a seminal issue which should logically be addressed at the outset.
Is there a public policy exception to Article 2 of the 1973 Directive?
- Mr Thompson’s argument runs as follows:
i) Article 8 of the 1973 Directive is prohibitive, not permissive. It does not confer a public policy exception to the requirements of Article 2 but simply recognises the possibility that one may exist. One must look elsewhere to see the extent to which any public policy exception exists.
ii) The 1973 Directive states that it is directed to ‘the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services’. As such, the Directive is aimed at the implementation of Chapters 2 and 3 of the EC Treaty. Chapter 3 deals with services and, in that chapter, Article 49 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.”
iii) Article 55 provides that Article 49 is subject to Article 46. This Article is in Chapter 2, which deals with establishment. It provides:
“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.”
iv) The forerunner of the 1973 Directive was Council Directive 64/220/EEC. That Directive had an Article 8 in identical terms to that in the 1973 Directive. One of the recitals to the Directive provided, however, that ‘co-ordination of measures justified on grounds of public policy, public security or public health’ would be dealt with in a separate Directive.
v) The separate Directive is 64/221/EEC (‘the 1964 Directive’). That Directive includes a recital in the following terms:
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…
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…
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…”
vi) The last recital to the 1973 Directive refers expressly to the 1964 Directive.
vii) Thus, all the provisions dealing with restrictions on movement on grounds of public policy refer to restrictions affecting foreign nationals. Nowhere is there any provision which recognises that it is, or could be, lawful for a Member State to impose restrictions on movement on its own nationals on grounds of public policy. In the absence of such a provision, no derogation on grounds of public policy could be imposed in respect of the freedom granted to citizens of the United Kingdom to travel to another Member State under the 1973 Directive.
- Mr Thompson put these submissions at the forefront of the argument that he addressed to the Divisional Court. Laws LJ described his submissions as a ‘heroic labour’. He rejected them, holding that they were founded on an interpretation of Article 46 of the EC Treaty which was over-literal and would lead to an absurdity. We agree with this conclusion.
- Mr Thompson’s submissions have the result that the only derogations from the provisions of Chapters 2 and 3 permitted by Article 46 are those which discriminate against foreign nationals. Restrictions on freedom of establishment or the provision of services imposed on grounds of public policy, public security or public health, which a Member State applied to both foreign nationals and to its own nationals without distinction, would be unlawful. This would patently be an absurd result.
- We think that it is understandable why those who agreed the EC Treaty made specific provision in Article 46 for derogation in respect of provisions that provided for special treatment for foreign nationals. Chapter 2 deals with freedom of establishment. Article 43 provides:
“Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.”
- Thus Chapter 2 is concerned with ensuring that foreign nationals established in a Member State enjoy equality of treatment with nationals of that State. The derogation permitted by Article 46 naturally relates to discriminatory treatment, for it is such treatment that Chapter 2, in general, prohibits.
- Chapter 3 deals with freedom to provide services. More particularly, it provides for the liberalisation of the provision of services. Article 54 provides:
“As long as freedom to provide services has not been abolished, each Member State shall apply such restrictions without distinction on grounds of nationality or residence to all persons providing services within the meaning of the first paragraph of Article 49.”
- Once again one can readily understand why it should be appropriate to apply the provisions of Article 46 to this Chapter.
- As Advocate General Jacobs remarked in Alpine Investments BV v Minister van Financien  ECR I 1141 at p.1159:
“With regard to restrictions on the freedom to provide services imposed by the Member State of destination, the case-law of the Court draws a distinction between restrictions which are discriminatory and those which are non-discriminatory.
Restrictions which are discriminatory are compatible with the Treaty only if they fall within the scope of an express derogation, such as that contained in Article 56. Restrictions which are non-discriminatory may be compatible with the Treaty even if they do not benefit from an express derogation.”
- In our judgment the express derogation in Article 46 in respect of provisions for special treatment for foreign nationals does not implicitly preclude the right of a Member State to impose restrictions which are not discriminatory on grounds of public policy, public security or public health.
- Mr Thompson accepted that there were certain circumstances under which the English court exercised a power to prevent a person leaving the jurisdiction. The writ ne exeat regno was one example, albeit archaic. More germane is the inherent jurisdiction exercised in the Family Division to restrain a party from leaving the jurisdiction and to require the surrender of his or her passport where this is necessary to prevent the proceedings in that court from being rendered nugatory – see B v B (Injunction: Jurisdiction)  1 WLR 329 at 334. These are examples of restraints on freedom of movement imposed in this country, without discrimination between nationals and non-nationals, which can be justified on the grounds of public policy. We are in no doubt that other Member States assert both similar and dissimilar powers to restrict freedom of movement on grounds of public policy. It would be startling if provisions of the EC Treaty had been agreed which rendered the exercise of such powers unlawful.
- Finally on this topic, we should draw attention to the Council Resolution of 6 December 2001 dealing with measures to prevent and control violence and disturbances in connection with football matches with an international dimension, in which at least one Member State is involved. Chapter 3 contains the following exhortation:
“Countries which have the legal possibility to prevent risk fans from travelling abroad should take all the necessary measures to achieve this objective effectively and should inform the organising country accordingly. Each country should take all possible measures to prevent its own citizens from participating in and/or organising public order disturbances in another country.”
It would be, to say the least, surprising if the Council were urging measures which were outlawed by Community law.
- For the reasons that we have given, we are satisfied that Community law does not outlaw restraints on persons leaving this country if these can be justified on the grounds of public policy. Article 8 of the 1973 Directive recognises that this is so. Whether public policy justifies the restraints must, of course, be considered having regard to the established principles of Community law.
Public policy and proportionality
- The primary case advanced by Mr Thompson accepted, for purposes of argument and contrary to the submission considered above, that derogation on grounds of public policy from the obligations imposed by the 1973 Directive was permitted by Community law. On that premise, he submitted that section 14B of the 2000 Act was nonetheless unlawful under Community law in that it offended against the doctrine of proportionality.
The ban on leaving the country
- Mr Thompson accepted that the prevention of football hooliganism was a legitimate aim of public policy, but submitted that this aim could not justify prohibiting nationals from leaving the country. Such a step was disproportionate. He drew attention to the very limited circumstances in which the law of this country has hitherto prevented persons from leaving the country, as identified by Wilson J. in B v B (Injunction Jurisdiction).He pointed out that there are classes of persons capable of doing much more damage than football hooligans who are free, under domestic law, to leave the country, including drug dealers and paedophiles. The Home Secretary had confirmed in his evidence to the Parliamentary Joint Committee on Human Rights on 14 November 2000 that persons suspected of being, or having links with, international terrorists would be free to leave the country. How then could it be proportionate to prevent football hooligans from leaving the country?
- Mr Thompson submitted that European law did not normally recognise that public policy permitted one State to restrict Community rights in order to protect its neighbours. The proportionate approach was that each State should give effect to the requirements of public policy within its own boundaries. He suggested that support for this principle could be derived from the decision of the European Court in R v Ministry of Agriculture and Food, ex parte Hedley Lomas (Ireland) Ltd  QB 139. In that case the United Kingdom sought to justify the refusal of a licence to export sheep to Spain by relying on Article 36 of the EC Treaty. This permitted derogation from the Article 34 prohibition of restrictions on exports on the grounds of ‘the protection of health and life…of animals’. The licence had been refused on the ground that Spain had not implemented Directives on the protection of animals during international transport and on pre-slaughter stunning. Mr Thompson drew our attention to the following statement in the opinion of Advocate General Leger at p.161: ‘a member state can rely on Article 36 only in order to ensure protection of an interest safeguarded by that Article within its own national territory’.
- We do not consider that this case affords any guidance on the question of whether public policy can justify a Member State in imposing a restriction of movement that is designed to benefit another Member State. The principle to be derived from the case is to be found in the following passage from the judgment of the Court at p.203: ‘A Member State may not unilaterally adopt, on its own authority, corrective or protective measures designed to obviate any breach by another Member State of rules of Community law’.
- More in point is the decision of the European Court in Alpine Investments BV v Minister van Financien. That case concerned the freedom to provide services under Article 59 of the EEC Treaty. Alpine Investments was a Dutch company, which specialised in selling commodity futures. It challenged a prohibition imposed by the Dutch Minister of Finance on companies that indulged in such business ‘cold calling’ potential clients. The Court held that this prohibition, insofar as it concerned potential clients established in other Member States, constituted a restriction on the freedom to provide services under Article 59. The question then arose of whether the restriction could be justified. The test to be applied was whether ‘imperative reasons of public interest’ justified the prohibition on cold calling. As to this the Netherlands argued that the prohibition was justified in that it sought both to safeguard the reputation of the Netherlands financial markets and to protect the investing public.
- The Court held at p.1179:
“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.
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 financial services.”
- The facts of Alpine are remote from those of the present case. Indeed the phenomenon of cross-border football hooliganism happily has no parallel. Nonetheless the approach of the court in Alpine supports the conclusion that we would, in any event, have reached. That conclusion is that preventing football hooligans from taking part in violence and disorder in foreign countries is an imperative reason of public interest which is capable of justifying restrictions on their freedom of movement. Our reasons are as follows:
(i) Other Member States have requested this country to help in preventing our football hooligans from creating disorder at matches in their countries. This country should, as a matter of international comity do its best to comply with such requests.
(ii) Hooliganism by English and Welsh supporters abroad tarnishes the reputation of this country.
(iii) Such hooliganism can lead to the banning of English and Welsh clubs from international competitions. Such a ban will have serious financial implications for the clubs that are banned and for businesses associated with professional football, quite apart from depriving law abiding football supporters of legitimate pleasure.
The test of proportionality
- Mr Thompson submitted that the test of proportionality to be applied in this case was that identified by Lord Clyde in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69:
“whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”
- That was a decision of the Privy Council, but it was cited with approval by Lord Steyn in R v Secretary of State for the Home Department, ex parte Daly  HL 26 at paragraph 27,  2 WLR 1622..
- We accept that Lord Clyde’s test should be applied. We are in no doubt, for the reasons that we have already given, that the legislative objective is sufficiently important to justify limiting the right of freedom of movement. Mr Thompson submitted, however, that the measures that have been adopted by the legislation lack rational connection to the legislative objective. This was allied to the submission that the means used by the legislature went far beyond what was necessary to accomplish the objective. We are about to turn to consider these submissions. Before doing so, however, we should record some further submissions made by Mr Thompson as to the test to be applied.
- Article 3 of the 1964 Directive provides:
“1. Measures taken on grounds of public policy or of 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.”
- The European Court has emphasised, in the context of deportation, that if a derogation from the right of establishment is to be justified, an appraisal of the individual who is to be deported must be carried out to make sure that the deportation is necessary in order to achieve the requirements of public policy. A criminal conviction is not, of itself, enough in the absence of a finding that the individual has a propensity to act in the same way in the future: Bouchereau  ECR 1999 at paragraph 28; Calfa [1999 ECR I 11 at paragraph 24. Mr Thompson argued that the same principles should be applied to the decision to prevent an individual from leaving a Member State.
- Once again, we accept Mr Thompson’s submission. It seems to us that the principles that he invokes should, in logic, apply as much to a derogation from freedom of movement as they do to the derogation from freedom of establishment. Thus, if the restrictions imposed on the appellants are to be justified:
(i) They must have been imposed after giving individual consideration to each appellant;
(ii) They cannot have been based simply upon the criminal record of each appellant;
(iii) They must be rationally connected to the objective of preventing English football hooliganism abroad;
(iv) They must be no more than was necessary to achieve that objective.
The significance of a criminal record
- There is no question in the case of either appellant of the banning order having been made simply on the basis that he had a criminal conviction. Under section 14B of the 1989 Act, a criminal conviction is not even a condition precedent to the making of the order. It so happened that each of the appellants had been convicted of offences involving violence or disorder, but it is plain that it was the involvement of each in incidents of football related disorder that led the Deputy District Judge to conclude that it was necessary to make a banning order.
- The scheme of the 1989 Act requires consideration to be given at three different stages as to whether a restraint should be imposed on an individual leaving the country. The first is when the Magistrates Court makes the banning order. Individual consideration has to be given to each person at that stage. The Court has to be satisfied both that the individual has, in the past, caused or contributed to violence or disorder and that there are reasonable grounds to believe that making the order will help to prevent violence or disorder in connection with football matches in the future. This latter requirement also necessarily involves considering the circumstances of the individual who is to be subjected to the order.
- The second stage is that at which the FBOA considers whether to issue a notice to a person subject to a banning order imposing conditions and restrictions in relation to overseas matches. The wording of section 19(2A) indicates that individual consideration must be given to each person subject to an order. Section 19(2D) detracts from this to the extent that it permits the FBOA to impose conditions and restrictions on a class basis. As Mr Jagall has made plain, the approach of the FBOA is to impose restrictions on all who are subject to banning orders during those periods when England is playing abroad. When individual clubs are playing abroad, restrictions will normally be placed on those who are subject to banning orders who support those clubs.
- The third stage at which restrictions are considered arises only where the individual subject to the banning order wishes to go abroad during a period during which he has been placed under restrictions. In order to do so he has to seek an exemption under section 20(4). When he does so his case will receive individual consideration.
- The effect of this rather complex scheme can be summarised as follows.
i) Anyone who is subject to a banning order who would have wished to go to a prescribed match abroad is likely to be prohibited from doing so. The ground on which he will be prevented will be that, on the basis of individual consideration of his circumstances, he has been identified by the Magistrates Court as a person likely to become involved in violence or disorder if permitted to go to prescribed football matches. The ban on going to the match abroad will be based on individual consideration of the person subject to the ban.
ii) Anyone who is subject to a banning order who wishes to go abroad during the period of a prescribed overseas match for a purpose other than going to, or near, the match will receive individual consideration.
iii) During the period of a prescribed overseas match, there will be a significant cohort of individuals who would not have wished to go to the match and who do not wish to go abroad for any other reason. They will be subject to the restrictions involving reporting and passport surrender. They will be subject to these restrictions on the basis that they are necessary to ensure that they do not go to the overseas game should they wish to do so. Once again the restrictions will be based on the individual consideration by the Magistrates Court which led to the conclusion that each individual was a person likely to get involved in violence or disorder should he go to or near a prescribed match.
- For these reasons we do not consider that the scheme of the 1989 Act is open to attack on the ground that restrictions are imposed without individual consideration of each person who is subjected to the restrictions. If the scheme is vulnerable, this must be because the restrictions that follow from the individual consideration are not rationally connected to the objective or go beyond what is necessary to achieve that objective. Mr Thompson’s most vigorous submissions were directed to the contention that this was precisely the position.
Rationality and the scope of the restrictions
- The starting point of Mr Thompson’s argument was that many who were subjected to banning orders were so subjected solely on the basis that their presence at domestic matches would carry the risk of involvement in violence or disorder. Their history might show that they had never been to an overseas match and they might have no wish ever to do so. To ban them from going anywhere abroad at times when prescribed matches were about to be played was irrational and went far beyond any measures that were necessary to achieve the object of preventing football hooliganism at overseas matches.
- There were some who were subject to a banning order who would, if not prevented, go to overseas matches and become involved in violence or disorder. There was, so Mr Thompson submitted no reason, let alone necessity, that justified preventing them from travelling anywhere in the world in order to be sure that they did not travel to a prescribed match. Less radical solutions were available. Under German law temporal or geographical restrictions would be placed on the validity of a passport where this would suffice to meet the aims of public policy.
- For the Secretary of State Mr Pannick informed us that such measures had been considered but that it had been concluded that they would be more draconian in effect than the scheme embodied in the 1989 Act. An endorsement on a passport of the nature suggested is likely to produce far-reaching consequences. It is liable to give a signal to the immigration authorities of any country that the passport holder is a potential trouble maker and thus lead to a refusal of entry and even the entry of the passport holder on a black list that will bar entry in the future.
- At first blush there appears to be force in Mr Thompson’s submissions. To forbid all foreign travel during the period that a prescribed match is being played abroad seems irrational and disproportionate if the person subject to the ban has never attended an overseas match and shows no inclination to do so. If a prescribed match is being played in Japan, how can it be rational or necessary to prevent someone who is subject to a banning order from travelling to France? On reflection, however, we have concluded, for the reasons that follow, that this first blush reaction is unsound.
- The starting point is that a banning order will normally be made because the past conduct of the individual concerned gives rise to the likelihood that he will get involved in violence or disorder if he goes to certain domestic matches. We are satisfied that the evidence justifies the conclusion that if such a person chooses to go to a prescribed overseas match, it is just as likely, if not more likely that he will get involved in violence or disorder. Superintendent Wright explained that, in the case of international matches, those who are prominent in scenes of disorder at domestic matches ‘are still very prominent around any seat of disorder’, but that, in addition, those who would not indulge in disorderly behaviour at home become, often fuelled by drink, ‘involved in the national spirit of disorder’. Thus there is justification for a scheme that is designed to ensure that those subject to banning orders are prevented from attending prescribed overseas matches.
- The manner in which the scheme sets out to achieve this is first to identify those overseas matches which the individual subject to the banning order might wish to attend. Restrictions are then imposed which prevent that person from leaving the country during the periods of such matches unless he first obtains permission. In order to obtain permission he must satisfy the FBOA that the reason that he wishes to go abroad is not in order to attend the prescribed match or matches. The critical issue is whether the restrictions involved in this scheme are the minimum necessary if its object is to be achieved and, even then, whether they are proportionate to the evil that they seek to avoid. Mr Thompson submitted that they were not, but that the 1989 Act was a classic example of ‘legislative overkill’- cf R v A  2 WLR 1546 at paragraph 43 per Lord Steyn.
- Laws LJ applied a broad brush when rejecting these submissions. After a wide-ranging review of the principle of proportionality, he concluded:
“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 section 14B(4)(b) are amply justified in light of Council Direction 64/221/EEC, the Criminal proceedings against Calfa (Case C-348/96)  ECR I-11 jurisprudence and the general law relating to proportionality.”
- We have found the issue less easy to resolve than did Laws LJ. The fact that previous measures had not prevented football hooliganism by English fans abroad does not demonstrate that the more radical measures introduced by the 2000 Act were necessary or proportionate. The test to be applied by the Magistrates making a banning order of being ‘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’ is broad and imprecise. The nature of the facts that have to be proved, and the standard of proof that is to be applied is unclear. The Deputy District Judge held that the proceedings were civil proceedings attracting civil rules of evidence including the standard of proof being on balance of probabilities. He added in the passage from his judgment which we set out earlier ‘I only have to have reasonable grounds to believe…’ Mr Thompson submitted that the words of the test, if given their natural meaning and effect, reduced the standard of proof even below that to be applied at civil law. He emphasised the unusual feature that, provided that this standard of proof was satisfied, it was mandatory for the Court to make the banning order. He submitted that these features rendered the trial process a violation of Article 6 of the Human Rights Convention. We consider that this is a powerful submission.
- We turn to the test to be applied when a person subject to a banning order wishes to go abroad. Before granting permission to do so the FBOA has to be satisfied that ‘there are special circumstances which justify’ his being exempted from the effect of the ban and that he would not attend prescribed matches if granted an exemption. This places the onus of proof on the applicant for permission. Nor is it clear what can constitute special circumstances, or the standard of proof to be applied.
- In our judgment these statutory provisions, if given their natural meaning, are capable of being applied in a manner which is harsh and disproportionate. If a low standard of proof is applied at the first stage, there is a danger of individuals being made subject to banning orders on evidence which is too slender to justify the restrictions on their freedom which these entail. The requirement to demonstrate ‘special circumstances’ could also lead the FBOA, or the Magistrates Court on appeal, to refuse to grant permission to leave the country for a purpose which, while innocuous, would not naturally be said to constitute ‘special circumstances’.
- However, the question is not whether the statutory provisions are capable of being interpreted in a manner which has disproportionate effect. The question is whether they are capable of being interpreted in a manner that is proportionate. Those who have to apply them are under a duty to give them an interpretation which is compatible with the requirements of European law and of the Human Rights Convention if this can be achieved.
- We have concluded that the scheme itself, 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 to the order has a propensity for taking part in football hooliganism. We discuss below what this involves by way of standard of proof. We believe that 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 prescribed matches are taking place and to demonstrate that the purpose of doing so is other than attendance at the prescribed match or matches. We are not able to envisage a scheme which would achieve the public policy objective that involves a lesser degree of restraint. We consider that the German approach of entering restrictive endorsements in the passports of those suspected of football hooliganism would be difficult to operate in practice and would be liable to have more draconian consequences than the scheme under the 1989 Act, for the reasons advanced by Mr Pannick.
- A reverse burden of proof is not incompatible with Community or Strasbourg law where the circumstances justify this. See the speech of Lord Bingham of Cornhill in Brown v Stott  2 WLR 817 at p.825 and the authorities there cited. We think it reasonable that a person subject to a banning order should be required to demonstrate that foreign travel during the period of a prescribed match is not for the purpose of attending the match. This is because the object of the foreign travel is likely to be within the exclusive knowledge of the would-be traveller, and proof of that object should not involve untoward difficulty – at least if an appropriate standard of proof is applied.
- It is essential that the appropriate standard of proof at both the first and the last stage of the scheme is appreciated and applied, for compliance with the principles of Community and Strasbourg law depends on this.
The standard of proof required for making a banning order
- Mr Thompson contended that proceedings under section 14B are criminal proceedings and that, in consequence, the criminal standard of proof applies. Laws L.J. gave detailed consideration to the question of whether banning orders were ‘penalties’ in relation to submissions made on behalf of an appellant who has not appealed to us, that Article 7 of the Convention had been violated. Laws L.J. held that banning orders were not penalties. We endorse his conclusion for the reasons that he gave. We also reject the submission that section 14B proceedings are criminal. They neither require proof that a criminal offence has been committed, nor involve the imposition of a penalty. We find that the proceedings that led to the imposition of banning orders were civil in character.
- It does not follow from this that a mere balance of probabilities suffices to justify the making of an order. Banning orders under section 14(B) fall into the same category as antisocial behaviour orders and sex offenders’ orders. While made in civil proceedings they impose serious restraints on freedoms that the citizen normally enjoys. While technically the civil standard of proof applies, that standard is flexible and must reflect the consequences that will follow if the case for a banning order is made out. This should lead the Magistrates to apply an exacting standard of proof that will, in practice, be hard to distinguish from the criminal standard - see B v Chief Constable of Avon and Somerset Constabulary  1 WLR 340 at p.354 and R (McCann) v Manchester Crown Court  1 WLR 1084 at p.1102.
- Thus the necessity in the individual case to impose a restriction upon a fundamental freedom must be strictly demonstrated. The first thing that has to be proved under section 14B(4)(a) is that the respondent has caused or contributed to violence or disorder in the United Kingdom or elsewhere. Mr Pannick conceded that the standard of proof of this is practically indistinguishable from the criminal standard.
- The same is true of the next requirement, that imposed by section 14(4)(b), though this is less easily derived from the language of the statute. The court must be ‘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’. In practice the ‘reasonable grounds’ will almost inevitably consist of evidence of past conduct. That conduct must be such as to make it reasonable to conclude that if the respondent is not made subject to a banning order, he is likely to contribute to football violence or disorder in the future. The past conduct may or may not consist of or include the causing or contributing to violence or disorder that has to be proved under section 14B(4)(a), for that violence or disorder is not required to be football related. It must, however, be proved to the same strict standard of proof. Furthermore it must be conduct that gives rise to the likelihood that, if the respondent is not banned from attending prescribed football matches, he will attend such matches, or the environs of them, and take part in violence or disorder.
- These matters are not readily susceptible of proof. We can well understand the practice that is evidenced by this case of using a football intelligence service to build up profiles of ‘football prominents’. Such a practice may well be the only way of assembling evidence sufficiently cogent to satisfy the requirements of section 14B(4)(b). Those requirements, if properly applied in the manner described above, will provide a satisfactory threshold for the making of a banning order. The banning order, in its turn, will be a satisfactory basis for the conclusion that the individual subject to it should not be permitted to go to prescribed overseas matches.
- The designation by notice issued by the FBOA of the prescribed overseas matches in respect of which restrictions will apply to the individual who is subject to a banning order is a sensible and logical way of limiting the ambit of the restrictions. It is not, however, of paramount significance in the scheme. It merely identifies those periods in respect of which the individual must obtain permission to go abroad. The manner in which applications for such permission are treated is, however, of critical importance.
- We have drawn attention above to the requirement of ‘special circumstances’ as a precondition to granting an applicant permission to go abroad during a prescribed period. This is not a helpful phrase. Were it to be interpreted so that permission was only granted in extraordinary circumstances, it would not satisfy the Community requirement of necessity. Individuals subject to banning orders may have reasons for going abroad during prescribed periods that are perfectly ordinary and cannot naturally be described as ‘special circumstances’. Provided that the reason for going abroad is other than attendance at the prescribed match, there can be no justification for refusing permission. When considering whether there are ‘special circumstances’ the FBOA, or on appeal the Magistrates, should do no more than satisfy themselves on balance of probabilities that this is the true position. This should not be something that is difficult to prove, for the bona fide prospective traveller is like to be in a position to produce some evidence of the proposed trip.
- Happily, the approach of the FBOA to ‘special circumstances’ applications appears to accord with that which we have outlined as appropriate. We were informed by those representing the Secretary of State that there have been about 80 such applications and that all of them were granted. Mr Gough himself applied for and was granted permission to go abroad on holiday during the period of a prescribed match. There is thus no evidence to suggest that the scheme is operating in such a way that those who wish to go abroad for reasons other than attendance at prescribed matches are being prevented from doing so.
- Mr Thompson submitted that it was not legitimate to look to the provisions for administrative operation of the scheme by the FBOA as providing justification for it. We do not agree. Both Directive 64/221 and Directive 73/148 recognise expressly that administrative action can derogate from Community rights. The operation of the scheme has to be considered as a whole in order to evaluate whether it is compliant with Community law. For the reasons that we have given we are satisfied that it is.
Article 6 of the Convention
- Mr Thompson’s contention that the statutory scheme infringed Article 6 of the Convention was advanced on the premise that the proceedings that led to the banning orders were criminal in nature and that the standard of proof was set below the civil standard of balance of probabilities. We have explained why we consider that these were false premises. The allegation that the statutory scheme is contrary to Article 6 is not made out.
- Mr Thompson also submitted that Article 8 of the Convention was engaged. It was conceded by the Secretary of State, that a banning order might result in interference with the right to respect for private or family life. Whether it did would depend upon the particular facts and it certainly did not do so in the case of Mr Gough or Mr Smith. We agree with the Judge. We would add that if a banning order, properly made, interferes with the right to respect for private or family life, the interference is likely to prove justified under Article 8.2 on the grounds that it is necessary for the prevention of disorder.
Were the orders justified on the facts?
- Mr Thompson submitted that neither the Chief Constable nor the District Judge addressed the question of whether the banning orders would be compatible with Community law, and that this fact alone invalidated the orders. We do not agree. Both Chief Constable and the District Judge acted in accordance with the provisions of the 1989 Act. We have held that Act compliant with the Convention. The fact that the Chief Constable or the District Judge may not have addressed the question of whether they were acting in accordance with Community law is immaterial.
- There was more force in Mr Thompson’s complaint that the Judge failed to apply the appropriate standard of proof. The Judge’s ruling that the civil standard of proof applied coupled with the observations that we have set out in paragraph 36 above suggest that he did not appreciate that the case for making a banning order had to be proved to the strict standard that we have held should be applied. This is not surprising as the only argument before him was whether the criminal or the civil standard applied and he did not have the assistance of McCann, which had yet to be decided. In any event we are in no doubt that the ‘profile’ of each appellant would have justified the making of a banning order had that strict standard been applied. In each case the cumulative effect of the individual observations pointed unequivocally to the appellant being one of the Derby County football ‘prominents’.
- Mr Thompson complained that the appellants had not had the opportunity of cross-examining those who had prepared the profiles. Mr Pannick riposted that they had not sought to do so. Had they given notice that they wished to cross-examine, the witnesses could have been made available. We do not need to consider the accuracy of that last contention, nor are we in a position to do so. Cross-examination would have been likely to be an arid exercise. The witnesses responsible for preparing the profiles could not have been expected to retain a clear recollection of the individual events that they had recorded. The appellants gave evidence challenging some of the inferences that the Chief Constable suggested should be drawn from the evidence. This seems to us to have been the sensible way to challenge the profiles. It was much more likely to be effective than cross-examination. It placed the Judge in a position to form a reliable conclusion about whether or not the profiles were accurate. In the event the Judge was not impressed by the appellants’ evidence.
- For the reasons that we have given, we have concluded that the banning order was lawfully made in the case of each appellant. This appeal will be dismissed.
Order: Appeal Dismissed. Order as per counsel’s Minute of Order.
Leave to appeal to the House of Lords refused.
Summary of the relevant legislation prepared by Laws L.J.
The starting-point is to be found in Part IV of the Public Order Act 1986. This was the first measure taken by the legislature specifically to address the evils of hooliganism at football matches. S.30(1) empowered a court “by or before which a person is convicted of an offence to which s.31 applies” to make an “exclusion order”, that is an order “prohibiting him from entering any premises for the purpose of attending any prescribed football match there”. The meaning of “prescribed football match” did not include any matches played abroad. S.30(2) provided:
“No exclusion 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 prescribed football matches.”
S.31 applied to any offence which fulfilled one or more of three conditions set out in s.31(2) - (4). The first was that the offence was committed within a defined period of time starting not long before and ending not long after the match, and while the accused was at or entering or leaving the football ground concerned. The second was (essentially) that the offence involved violence or the threat of violence on the way to or from the match. The third was that the offence was one committed in breach of other statutory measures designed to control the consumption of alcohol on the way to or from football matches. S.32(2) provided that the duration of an exclusion order should be not less than three months. S.33(1) enabled a person in relation to whom an exclusion order had been made to apply to the court to terminate it.
Next in time comes the Football Spectators Act 1989, as originally enacted. S.14(1) provided in part:
“This Part of this Act applies in relation to football matches in any country outside England and Wales which are designated football matches...”
Here, then, is the first statutory measure to regulate attendance at matches abroad; and this Act, in its original form, dealt only with matches played abroad. S.14(4) defined a “restriction order” as “an order of a court under s.15 or 22 below requiring the person to whom the order applies to report to a police station on the occasion of designated football matches”. S.15 provided in part:
“(1) A court by or before which a person is convicted of a relevant offence... may make a restriction order in relation to him.
(2) 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.” - [effectively the same language as that of s.30(2) of the Act of 1986]
(3) A restriction order may only be made – (a) in addition to a sentence imposed in respect of the offence of which the accused is (or was) convicted; or (b) in addition to a probation order.”
“... the period for which a restriction order has effect in relation to a person convicted of a relevant offence is – (a) in a case where he was sentenced in respect of that offence to a period of imprisonment taking immediate effect, five years, and (b) in any other case, two years, beginning with the date of the making of the order.”
A failure without reasonable excuse to comply with the duty to report to a police station imposed by a restriction order is made a summary criminal offence: s.16(4) and (5). S.17 allows a person “in relation to whom a restriction order has had effect for at least one year” to apply to the court to terminate it. “Relevant offence” is defined in great detail in Schedule 1, it covers a whole series of statutory offences involving violence or the threat of violence, or drunkenness at, near, or on the way to or from a designated football match. S.22 made provision for offences under the law of countries outside England and Wales to be treated as if they were Schedule 1 offences.
Here, then, were two statutory regimes, respectively constituted by the Acts of 1986 and 1989, made by Parliament to respond to what was plainly an increasing barbarism. The later Act recognised the particular evil of violence and drunkenness by British fans abroad.
The Football (Offences and Disorder) Act 1999 amended both the Act of 1986 and the Act of 1989. The Act of 1986 was amended by ss.6 - 8. A “domestic football banning order” was substituted for an exclusion order. A new s.30(2) was enacted as follows:
“Subject to subsection (4), it shall be the duty of the court to make a domestic football banning order in relation to the accused if it is satisfied that there are reasonable grounds to believe that making the order would help to prevent violence or disorder at or in connection with prescribed football matches.”
S.30(4) as substituted provided:
“A domestic football banning order may only be made - (a) in addition to a sentence imposed in respect of the offence of which the accused is (or was) convicted; or (b) in addition to an order discharging him absolutely or conditionally.”
S.32(2) as substituted by s.8(1), provided that the duration of a domestic football banning order should be not less than one year and not more than three years.
The Act of 1989 was amended so that the following substitute provisions were made in s.15 by s.1 of the 1999 Act:
“(1) Subject to subsection (3) below – (a) court by or before which a person is convicted of a relevant offence, or (b) [the Crown Court where the person has been committed there], shall have the power to make an international football banning order in relation to him.
(2) Subject to subsection (3) below, it shall be the duty of the court to make an international football banning order in relation to the accused if it is satisfied that there are reasonable grounds to believe that making the order would help to prevent violence or disorder at or in connection with designated football matches.” [effectively the same language as is used in the new s.30(2) of the Act of 1986]
The new s.15(3) replicates precisely the new s.30(4) of the Act of 1986.
Turning to the 1989 Act as amended by the Football (Disorder) Act 2000), it will be clearest to set out the relevant provisions in full, though there is some replication of what has gone before.
The relevant provisions in the body of the statute are:
“14(2) ‘Regulated football match’ means an association football match (whether in England and Wales or elsewhere) which is a prescribed match or a match of a prescribed description.
(3) ‘External tournament’ means a football competition which includes regulated football matches outside England and Wales.
(4) ‘Banning order’ means an order made by the court under this Part which – (a) in relation to regulated football matches in England and Wales, prohibits the person who is subject to the order from entering any premises for the purpose of attending such matches, and (b) in relation to regulated football matches outside England and Wales, requires that person to report at a police station in accordance with this Part.
(5) ‘Control period’, in relation to a regulated football match outside England and Wales, means the period - (a) beginning five days before the day of the match, and (b) ending when the match is finished or cancelled.
(6) ‘Control period’, in relation to an external tournament, means any period described in an order made by the Secretary of State – (a) beginning five days before the day of the first football match outside England and Wales which is included in the tournament, and (b) ending when the last football match outside England and Wales which is included in the tournament is finished or cancelled, but, for the purposes of paragraph (a), any football match included in the qualifying or pre-qualifying stages of the tournament is to be left out of account....
(8) ‘Relevant offence’ means an offence to which Schedule 1 to this Act applies.
14A(1) This section applies where a person (the "offender") is convicted of a relevant offence.
(2) If the court is satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder at or in connection with any regulated football matches, it must make 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.
(4) A banning order may only be made under this section - (a) in addition to a sentence imposed in respect of the relevant offence, or (b) in addition to an order discharging him conditionally....
(6) In this section, ‘the court’ in relation to an offender means - (a) the court by or before which he is convicted of the relevant offence, or (b) if he is committed to the Crown Court to be dealt with for that offence, the Crown Court.
14B(1) An application for a banning order in respect of any person may be made by the chief officer of police for the area in which the person resides or appears to reside, if it appears to the officer that the condition in subsection (2) below is met.
(2) That condition is that the respondent has at any time caused or contributed to any violence or disorder in the United Kingdom or elsewhere.(3) The application is to be made by complaint to a magistrates' court.(4) If - (a) it is proved on the application that the condition in subsection (2) above is met, and (b) 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, the court must make a banning order in respect of the respondent.
14C(1) In this Part, ‘violence’ means violence against persons or property and includes threatening violence and doing anything which endangers the life of any person.
(2) In this Part, ‘disorder’ includes – (a) stirring up hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins, or against an individual as a member of such a group, (b) using threatening, abusive or insulting words or behaviour or disorderly behaviour, (c) displaying any writing or other thing which is threatening, abusive or insulting.
(3) In this Part, ‘violence’ and ‘disorder’ are not limited to violence or disorder in connection with football.
(4) The magistrates' court may take into account the following matters (among others), so far as they consider it appropriate to do so, in determining whether to make an order under section 14B above - (a) any decision of a court or tribunal outside the United Kingdom, (b) deportation or exclusion from a country outside the United Kingdom, (c) removal or exclusion from premises used for playing football matches, whether in the United Kingdom or elsewhere, (d) conduct recorded on video or by any other means.
(5) In determining whether to make such an order- (a) the magistrates' court may not take into account anything done by the respondent before the beginning of the period of ten years ending with the application under section 14B(1) above, except circumstances ancillary to a conviction.…
14D(1) An appeal lies to the Crown Court against the making by a magistrates' court of a banning order under section 14B above…
14E(1) On making a banning order, a court must in ordinary language explain its effect to the person subject to the order.
(2) A banning order must require the person subject to the order to report initially at a police station in England and Wales specified in the order within the period of five days beginning with the day on which the order is made.(3) A banning order must, unless it appears to the court that there are exceptional circumstances, impose a requirement as to the surrender in accordance with this Part, in connection with regulated football matches outside the United Kingdom, of the passport of the person subject to the order.(4) If it appears to the court that there are such circumstances, it must in open court state what they are….
14F(1) Subject to the following provisions of this Part, a banning order has effect for a period beginning with the day on which the order is made.
(2) The period must not be longer than the maximum or shorter than the minimum.
(3) Where the order is made under section 14A above in addition to a sentence of imprisonment taking immediate effect, the maximum is ten years and the minimum is six years; and in this subsection ‘imprisonment’ includes any form of detention.
(4) In any other case where the order is made under section 14A above, the maximum is five years and the minimum is three years.(5) Where the order is made under section 14B above, the maximum is three years and the minimum is two years.
14G(1) A banning order may, if the court making the order thinks fit, impose additional requirements on the person subject to the order in relation to any regulated football matches.
(2) The court by which a banning order was made may, on an application made by - (a) the person subject to the order, or (b) the person who applied for the order or who was the prosecutor in relation to the order, vary the order so as to impose, replace or omit any such requirements....
14H(1) If a banning order has had effect for at least two-thirds of the period determined under section 14F above, the person subject to the order may apply to the court by which it was made to terminate it.(2) On the application, the court may by order terminate the banning order as from a specified date or refuse the application.
(3) In exercising its powers under subsection (2) above, the court must have regard to the person's character, his conduct since the banning order was made, the nature of the offence or conduct which led to it and any other circumstances which appear to it to be relevant.
(4) Where an application under subsection (1) above in respect of a banning order is refused, no further application in respect of the order may be made within the period of six months beginning with the day of the refusal....
14J(1) A person subject to a banning order who fails to comply with - (a) any requirement imposed by the order, or (b) any requirement imposed under section 19(2B) or (2C) below, is guilty of an offence....
19(1) The enforcing authority [‘enforcing authority’ means a police organisation prescribed by the Secretary of State: s.22A(1)] and the officer responsible for the police station at which he reports initially shall have the following functions as respects any person subject to a banning order.
(2) On a person reporting initially at the police station, the officer responsible for the station may make such requirements of that person as are determined by the enforcing authority to be necessary or expedient for giving effect to the banning order, so far as relating to regulated football matches outside England and Wales.
PRIVATE(2A) If, in connection with any regulated football match outside England and Wales, the enforcing authority is of the opinion that requiring any person subject to a banning order to report is necessary or expedient in order to reduce the likelihood of violence or disorder at or in connection with the match, the authority must give him a notice in writing under subsection (2B) below.(2B) The notice must require that person - (a) to report at a police station specified in the notice at the time, or between the times, specified in the notice, (b) if the match is outside the United Kingdom and the order imposes a requirement as to the surrender by him of his passport, to surrender his passport at a police station specified in the notice at the time, or between the times, specified in the notice, and may require him to comply with any additional requirements of the order in the manner specified in the notice.(2C) In the case of any regulated football match, the enforcing authority may by notice in writing require any person subject to a banning order to comply with any additional requirements of the order in the manner specified in the notice.(2D) The enforcing authority may establish criteria for determining whether any requirement under subsection (2B) or (2C) above ought to be imposed on any person or any class of person.
(2E) A notice under this section - (a) may not require the person subject to the order to report except in the control period in relation to a regulated football match outside England and Wales or an external tournament, (b) may not require him to surrender his passport except in the control period in relation to a regulated football match outside the United Kingdom or an external tournament which includes such matches....
(6) A person who, without reasonable excuse, fails to comply with any requirement imposed on him under subsection (2) above shall be guilty of an offence....
20(1) A person who is subject to a banning order may - (a) as respects a particular regulated football match, or (b) as respects regulated football matches played during a period, apply to the authority empowered to grant exemptions under this section... to be exempt from the requirements imposed by or under this Part, or any of them as respects that match or matches played during that period....
(4) The enforcing authority shall exempt the applicant from the requirements imposed by or under this Part, or any of them, as respects any match or matches to which the application relates if he shows to the authority’s satisfaction – (a) that there are special circumstances which justify his being so exempted; and (b) that, because of those circumstances, he would not attend the match or matches if he were so exempted....
(7) A person who is aggrieved by the refusal of the exempting authority to grant him an exemption under subsection (4) above may... appeal to a magistrates’ court...
21(1) The Secretary of State may issue to the enforcing authority such guidance as he considers appropriate for the purposes of their functions under sections 19 and 20 above....
(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 Ł5,000 (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. They replicate and update the list contained in Schedule 1 to the Act of 1989 in its original form.