Gough and Another v Chief Constable of Derbyshire; R (Miller) v Leeds Magistrates' Court; Lilley v DPP
| Jurisdiction | England & Wales |
| Judge | Lord Phillips MR |
| Judgment Date | 20 March 2002 |
| Neutral Citation | [2002] EWCA Civ 351 |
| Date | 20 March 2002 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C/2001/1698 |
[2002] EWCA Civ 351
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Phillips Mr
Lord Justice Judge and
Lord Justice Carnwath
Case No: C/2001/1698
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)
This is the judgment of the Court.
Introduction
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 – [2001] EWHC Admin 554; [2001] 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.
Football hooliganism
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 legislation
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...
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