Facts: The commissioner applied to a court for a football banning order against the respondent in this case. A prohibition was included preventing the respondent from attending registered football matches involving three named football clubs (FCs), ie, Brentford FC, Chelsea FC and Fulham FC. The commissioner appealed by way of case stated, contending that there was no power to impose a prohibition limited to the three named football clubs.
Effectively, orders were made - under section 14 of the Football Spectators Act (FSA) 1989 - that the respondent was not to come within two miles of any football match involving the three specified clubs or to enter any town, city or borough where any of those teams were playing. The respondent was, however, free to attend regulated football matches which did not involve the three named clubs.
It was contended that there was no power to impose such a limited prohibition in this way, and the question for the high court was whether or not the magistrates had power to make a football banning order under FSA s14. The magistrates found that they were required to make a banning order. They were persuaded to make a limited order even though the police submitted that there was no power to do so.
As far as the law is concerned, a decided case had determined that the courts had no power to make a banning order limited to particular matches or particular teams (Doyle, Wise and Wise v R [2012] EWCA Crim 995. This decided case was not before the magistrates.
The magistrates accepted the argument put forward on the respondent’s behalf that the wording of FSA s14 was ambiguous, and the word ‘any’ should be interpreted as any premises decided necessary and proportionate by the court (para 9). The respondent contended that the making of an all-encompassing order - to cover all football matches in England and Wales - would be a breach of his human rights under article 8 (right to private and family life) of the European Convention on Human Rights (‘ the convention’ ) and would be disproportionate.
(Re Thorpe) The courts are not prepared to be flexible in interpreting legislation where the power to so interpret it does not exist
Decision: The high court took into consideration the arguments put before the magistrates, and concluded that there was no reason to adopt anything other than a natural construction to the words used in the FSA. No breach of a convention right was engaged, the right to a family life being a qualified right. There was no comparison with anti-social behaviour legislation, and no principle to be carried over from a provision which gives a court a wide power to make a whole variety of orders to a provision that gives the court no power to choose what order to make if the threshold conditions are met.
The order was already a tailored order and it related only to regulated football matches. A person who was subject to an order could continue to enjoy football in other ways, but what they could not do was to attend football matches where a court had decided that they should not do so.
In this case, the court had decided that it would be helpful to make such an order to reduce violence and disorder at such events, where such violence and disorder was a major source of public concern and danger. The answer to the question posed by the justices was, therefore, ‘no’ . Accordingly, the court held that there was no power to attach the kind of conditions to such an order which was made by the magistrates’ court.
Comment: It seems that the magistrates were trying to be helpful to the respondent in this case by modifying the football banning order in restricting the conditions to three specific football clubs. The appeal by the police against the decision of the magistrates to make a flexible order appears to have won favour with the high court on the basis that the FSA is quite specific in the terms that can be added to football banning orders. The high court further concluded that making such an order was not a breach of the Human Rights Act 1998.
The moral of this case is that the courts are not prepared to be flexible in interpreting legislation where the power to so interpret it does not exist. As will be seen from the above, analogies with comparable legislation cannot be drawn.
Facts: The claimant in this case entered a domestic home in the early hours of the morning and was encountered by the householder. The householder forced the intruder into a headlock on the floor. Serious injuries were suffered by the claimant and were such that he was not expected to recover.
A decision was made that the householder should not be prosecuted having considered Criminal Justice and Immigration Act (CJIA) 2008 s76, as amended by Crime and Courts Act 2013 s43. The statutory provision deals with reasonable force for the purposes of self-defence , and CJIA s76(3) stated that the question of whether the degree of force used was reasonable in the circumstances is to be decided by reference to the circumstances as the defendant believed them to be. A specific provision, ie, section 5A, relates to a householder case. The degree of force used here is not to be regarded as having been reasonable if it was grossly disproportionate to the circumstances.
The divisional court stated that in considering self-defence , the court had to look at two elements: the subjective element and the objective element. As far as the subjective element was concerned, the question was whether the defendant genuinely believed that it was necessary to use force in order to defend themself. The objective element related to whether the nature and degree of force used was reasonable in the circumstances, and the partly subjective test of determining that what was reasonable had to be tested against the circumstances as the defendant genuinely believed them to be, even if they were mistaken.
On the basis that the defendant genuinely believed that it was necessary to use force to defend themself, the relevant legislation, together with the common law on self-defence , needed two separate questions to be put to the jury in a case which involved a householder. The first related to the degree of force used and whether that force was grossly disproportionate to the circumstances as they believed them to be. If the answer to that question was ‘yes’ , then self-defence was not available to a defendant (para 20). If the degree of force used was, nevertheless, reasonable in the circumstances which the defendant believed them to be, a defence existed. If the force used was unreasonable, no defence existed. What was reasonable would depend on the particular facts and circumstances of the case.
Decision: The divisional court confirmed that the two questions should be considered separately, and that the answer to the first question did not provide the answer to the second question. In determining whether the relevant legislation was compatible with article 2 of the European Convention on Human Rights (‘ the convention’ ), it was relevant to consider the deterrent effect of the catalogue of offences against the person for which a householder using force against an intruder might be liable. While the effect of the domestic legislation was not to give householders ‘carte blanche’ in the degree of force they used against intruders in self-defence , the reasonableness element of self-defence was compatible with article 2. Accordingly, the application for judicial review brought against the justice secretary for seeking a declaration that the ‘householder defence’ under CJIA s76 was incompatible with article 2 of the convention was dismissed.
Comment: This is yet another case where the higher courts in England and Wales have taken a practical and pragmatic approach to the interpretation of domestic law when it is challenged by claimants who allege that it is not compatible with the convention. Because of the ‘reasonableness’ provisions in the relevant legislation in this case, the divisional court was able to find that there was no incompatibility with the principle of an intruder’s right to life (para 63).