Gough and Another v Chief Constable of Derbyshire; R (Miller) v Leeds Magistrates' Court; Lilley v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS |
| Judgment Date | 13 July 2001 |
| Neutral Citation | [2001] EWHC 554 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/606/01, CO/818/01, CO/995/01 |
| Date | 13 July 2001 |
[2001] EWHC 554 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Mr Justice Poole
Case No: CO/606/01, CO/818/01, CO/995/01
Rhodri Thompson and Jessica Simor (instructed by Timms for the 1 st Appellants Gough & Smith)
Alan Newman QC and Timothy Maloney (instructed by Counsin Tyrer for the Claimant Miller)
Alan Newman and Scott Wilson (instructed by Lester Morrill for the 3 rd Claimant Lilley)
Mr Phillip Havers QC and Mr Simon Davenport (instructed by Weightmans for the 1 st Respondent)
Mr Phillip Havers QC and Mr J Morgan (instructed by the CPS for the CPS)
David Pannick QC and Mark Hoskins (instructed by The Treasury Solicitor for the Secretary of State)
LAWS LJ:
INTRODUCTORY
1 These cases are about statutory measures enacted by Parliament in primary legislation to confront the shame and menace of football hooliganism. The three sets of proceedings before the court, which we heard together, raise important questions as to the legality of “banning orders” made under the Football Spectators Act 1989 as amended by the Football (Disorder) Act 2000 (“the 1989 Act”). In Miller the claimant seeks a judicial review (permission to apply having been given by Richards J on 4 April 2001) to quash a banning order made against him under s.14A of the 1989 Act at the Leeds Magistrates Court on 20 October 2000. The other two sets of proceedings are appeals by way of case stated. In Lilley the decision under challenge was made by the Leeds Crown Court on 1 December 2000, when the court on appeal upheld a banning order under s.14A made against Lilley at the Leeds Magistrates Court on 12 October 2000. In Gough & Smith the composite appeal is directed to banning orders made against both appellants under s.14B of the 1989 Act on the same occasion at the Derby Magistrates Court on 2 October 2000. I shall set out the relevant legislation below.
2 The appellants Gough and Smith take a series of far-reaching points which their counsel Mr Thompson encapsulated in five propositions, to which I shall come. Their principal content consisted in arguments of European Community law, though there was also a submission based on Art. 8 of the European Convention on Human Rights (“ECHR”). It is to be noted in their case that the date of the hearing, 2 October 2000, was also the date when the principal provisions of the Human Rights Act 1998 took effect. Mr Newman QC for the other two claimants adopted Mr Thompson's submissions so far as they might be applied to banning orders made under s.14A (as I have said the orders against Mr Thompson's clients were made under s.14B), but his primary argument was that the orders made against his clients fell foul of Art. 7 ECHR.
THE DOMESTIC LEGISLATION
3 Before turning to the facts it will make for clarity if I first explain and set out the relevant provisions of domestic legislation. 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”. I will not take time with the meaning of “prescribed football match”: it is enough to say that it 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). I will summarise them briefly, omitting some of the detail. 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.
4 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) defines 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.
S.16(1):
“… 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. I may deal with it very broadly: 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. I need not set out the mechanics.
5 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.
6 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;
(b) in addition to an order discharging him absolutely or conditionally.”
S.32(2) as substituted provided that the duration of a domestic football banning order should be not less than one year and not more than three years.
7 The Act of 1989 was amended so that the following substitute provisions were made in s.15:
“15(1) Subject to subsection (3) below –
(a) 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.
8 Now I may come to the 1989 Act (that is, the Act of 1989 as amended by the Football (Disorder) Act 2000). It will be clearest if I set out the relevant provisions in full, though there is some replication of what has gone before.
9 Given the arguments in the case I should first cite part of the long title of the Act of 198in its...
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