The Commissioner of Police of the Metropolis v Jamie Thorpe
| Jurisdiction | England & Wales |
| Judge | Mr Justice Edis |
| Judgment Date | 18 November 2015 |
| Neutral Citation | [2015] EWHC 3339 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: C/O3853/2015 |
| Date | 18 November 2015 |
[2015] EWHC 3339 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Edis
Case No: C/O3853/2015
Catriona Hodge (instructed by Directorate of Legal Services) for the Appellant
Laura Collier (instructed by Haddow & Kaye) for the Respondent
Hearing dates: 18 th November 2015
This is an appeal by way of case stated against a decision of the Ealing Magistrates Court to impose a football banning order under section 14B of the Football Spectators Act 1989 with a limitation which the Appellant says is unlawful.
The Order
The Appellant applied by complaint for an order as set out below which was granted on 12 th May 2015 for a period of 3 years with additional words added by the Justices which I have underlined.
"Order
The above named person shall be subject to a football banning order and must report initially to Brighton Police Station within the period of five days beginning with the date of the making of this order
Subsequently that person must during the duration of the order
i) Not to enter any premises for the purpose of attending any football matches in the United Kingdom that are regulated for the purposes of the Football Spectators Act 1989in relation only to matches between Fulham and either Brentford FC or Chelsea FC whether at home or away.
ii) And on the occasion of football matches which are played outside the United Kingdom and are regulated for the purposes of Part 2 of the Football Spectators Act 1989 if and when required to do so under section 19(2)(b) of that Act, report to that or any other named Police Station in United Kingdom and surrender his passport at the time or between the times specified in the notice by which the requirement is imposed.
iii) Notify the enforcing authority within seven days if any of the matters set out in Schedule 2 of this order arise.
It is further ordered pursuant to section 14G(1) of Football Spectators Act 1989 that the above named person must during the duration of the order:
iv) Not co come with two miles of any regulated football match involving Fulham Football Club and either Brentford FC or Chelsea FC played at Craven Cottage, Fulham (or any future ground registered as the home of Fulham Football Club) during a period of four hours prior to the advertised kick-off time and until four hours after the final whistle inclusive.
v) Not to enter any Town, City or London Borough in which a regulated "away football match" involving Fulham Football Club and either Brentford FC or Chelsea FC is being played four hours preceding the advertised kick-off time and before a time four hours after the conclusion of the match.
vi) Not to go within two miles of any regulated football match involving Fulham Football Club and either Brentford FC or Chelsea FC preceding the advertised kick off time and before a time four hours after the conclusion of the match inclusive.
The effect of the underlined words is that the Respondent is free to attend regulated football matches which do not involve the three named clubs. The Appellant contends that there is no power to impose a prohibition limited in this way. The Magistrates have stated a case for the opinion of the High Court on this question:-
"Did we have the power to make a Football Banning Order under section 14B(4) of the Football Spectators Act 1989 that was limited to matches played between Fulham FC and either Chelsea FC or Brentford FC."
The Case records the findings of fact made by the Justices. They found that the first condition in section 14B(4) was met and this was not contested on their findings of fact. The second condition was more contentious but was also found proved and the Justices correctly decided that they were therefore required to make a Banning Order. They were then persuaded to make a limited order even though the Appellant submitted that there was no power to do so.
Section 14 of the 1989 Act provides, so far as material:
"14 Main definitions
(1) This section applies for the purposes of this Part.
(2) "Regulated football match" means an association football match (whether in the United Kingdom or elsewhere) which is a prescribed match or a match of a prescribed definition.
(3) "External tournament" means a football competition which includes regulated football matches outside the United Kingdom.
(4) "Banning order" means an order made by the court under this Part which —
(a) in relation to regulated football matches in the United Kingdom, 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 the United Kingdom requires that person to report to a police station in accordance with this Part."
The power of the Magistrates' Court to make a football banning order on a complaint is set out at section 14(B) of the 1989 Act which provides, so far as material:
"14B Banning Orders made on a complaint"
(1) An application for a banning order in respect of any person may be made by —
(a) The relevant chief officer, or
(b) The Director of Public Prosecutions,
if it appears to him that the condition in subsection (2) is met.
(1A) In subsection (1) "the relevant chief officer" means —
(a) the chief officer of police of any police force maintained for a police area; or
(b) the chief constable of the British Transport Police Force.
(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 the 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."
Section 14G of the 1989 Act permits "additional requirements" to be added to the banning order, as follows:
"14G Additional requirements of orders
(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."
In R v Ciaran Doyle and Others [2012] EWCA Crim 995, [2013] 1 Cr. App. R. (S.) 36, the Court of Appeal was concerned with a number of appeals against the imposition of football banning orders made on conviction pursuant to section 14A of the 1989 Act. Hughes LJ (giving the judgement of the Court) gave general guidance about the scope and effect of football banning orders made under the 1989 Act. He held at paragraph 4(2) that a defendant subject to a football banning order was prohibited by operation of s. 14(4)(a) from attending any regulated football matches anywhere in the United Kingdom and that the courts had no power to make an order limited to particular matches or particular teams. The Respondent submits that this was not necessary to the decision and therefore not binding on me. This decision was not cited to the Justices.
The Respondent's argument which prevailed before the Justices was set out in the stated case as follows:-
"Counsel for the Respondent contended that the wording was ambiguous and "any" should be interpreted as any premises decided necessary and proportionate by the Court. She contended that making an all encompassing order to cover all football matches in England and Wales would be a breach of the Respondent's Article 8 Human Rights — the right to a private and family life and completely disproportionate. She also contended that if there was any ambiguity, then any decision of the Court should be made in favour of the Respondent."
The Respondent now submits that any interference with the private life of the Respondent must be the least which will meet the legitimate aim of controlling violence at football matches. If the Justices have found as a fact that the Respondent only presents a risk at certain matches, it must be disproportionate and therefore unlawful to impose a ban which prevents him from attending any other matches. If the 1989 Act says otherwise, it must be read down so as to comply with the Convention. This can easily be acheived, because section 14(4)(a) defines an Order as preventing its subject from entering any premises for the purpose of attending such matches and not all premises. Therefore, the Act can be construed so that it is compatible with the Convention.
Discussion
In my judgment, the decision in Ciaran Doyle and Others cannot be so easily sidestepped as the Respondent argues. The Court of Appeal Criminal Division conducted a thorough review of the relevant provisions and was actually considering a case in which a limited Banning Order (West Ham matches only) was made. That Order was quashed because the first condition (which was then in rather different terms) was not met. It is therefore true that the Court did not have to consider whether it was the Banning Order in that case was unlawful because it was limited. However, the issue was not academic in the case and it is not a situation where a court has made an unnecessary observation wholly unrelated to the case. Hughes LJ Vice President of the CACD said this of an Order under this Act at paragraph 4(2) of the judgment:-
"It prohibits the defendant from attending any regulated football match anywhere in the United...
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