Criminal sentencing update: banning football fans

Philip Brown comments on Commissioner of Police of the Metropolis v Thorpe [2015] EWHC 3339 (Admin).

About the author
Philip Brown specialises in operator licensing and road transport law at AMD Solicitors, Bristol.

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 was concerned, a decided case had determined that the courts had no power to make a banning order limited to particular matches or particular teams. 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.

The magistrates [did not have] power to make a football banning order under FSA s14

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 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’ , and 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.