Case No: 201104903 A7, 201104907 A7, 201104905 A7
Neutral Citation Number: [2012] EWCA Crim 995

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT READING
His Honour Judge McIntyre
T20100690
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16/05/2012
Before :

LORD JUSTICE HUGHES
MR JUSTICE COOKE
and
MR JUSTICE BURNETT
- - - - - - - - - - - - - - - - - - - - -
Between :

	Ciaran Doyle, Ryan Wise and Darren Wise	Appellants	
	- and -		
	The Queen	Respondent	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Henry Grunwald OBE QC and Jason Cross (instructed by First Defence Solicitors) for the Appellants
John McGuinness QC and Jonathan Sank (instructed by Crown Prosecution Service) for the Respondent

Hearing dates: Wednesday 9th May 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Hughes: 
1.	These appeals against sentence are confined to Football Banning Orders made by the Crown Court.  Not for the first time, the complexity of legislation enacted in pursuit of an entirely necessary objective has caused no little trouble.  In this case there was confusion over both the test for making the order and over what the order ought to contain.   
2.	The Football Banning Order (“FBO”) was introduced by the Public Order Act 1986.  The statutory provisions now reside in the Football Supporters Act 1989, which has been amended a number of times since it was first passed. 
3.	There can be no doubt that strong provisions of the kind enacted were and are necessary to achieve some control of the phenomenon of football hooliganism and violence.    The scourge of football violence has blighted the sport for years.  It is well known that it has very seriously affected this country's reputation abroad and has greatly damaged the willingness of other countries to compete with British teams.  It is also obvious that it carries with it the real likelihood that innocent people are either prevented from attending football matches, especially with their children, as they ought to be able to do, or are at risk of suffering disorder, harassment and serious violence if they do.  Moreover such disorder and violence can do real injury to people who have nothing to do with football but happen to be present where the offences are committed. It is a sad but well established feature of the phenomenon that whilst sometimes the offenders are people with a history of violent behaviour unrelated to football, many others are often otherwise hard working and unconvicted persons, who behave in the context of football matches in a way that they would not otherwise. One clear problem is the way in which violent behaviour is fuelled by numbers, and by a sense of tribal identity, which can lead people to think that violence and threats are acceptable; often actions of a crowd are greater in their effect than the sum of the individual actions of its members. In a case where a FBO is justified, it brings extensive controls over the defendant, which also support the considerable intelligence and co-ordination work undertaken by UK police forces to combat football violence.
What the order does
4.	The consequences of a FBO are not inconsiderable.  They must be explained to the defendant in ordinary language at the time an order is made:  s 14E(1).
(1)	It lasts for a minimum of 3 years (3 to 5 years) if attached to a non-custodial sentence, and for a minimum of 6 yrs (6 to 10 years) if attached to an immediate sentence of imprisonment:  s 14F
(2)	It prohibits the defendant from attending any regulated football match anywhere in the UK – s 14(4)(a).  That means all league matches at Blue Square North and South level or above, plus cup matches except for preliminary rounds.  Note that it is not possible to make an order limited to particular matches or particular teams.
(3)	It requires him to report within 5 days to the police station, and to provide the police with all the names he uses, any address where he lives for more than four weeks and his passport details:  s14E.
(4)	It then enables the enforcing authority (currently the UK Football Banning Order Authority) at its entire discretion, to direct him via the police as to how he must comply with the order.
(5)	It also enables the authority, again at its discretion, to order him to report to a police station when told to do so, and to surrender his passport, in order to prevent him from travelling abroad to a regulated football match outside the UK:  s 14(4)(b) & 19.
(6)	During what is termed the control period for any foreign football match or tournament, the authority may prohibit the defendant from travelling out of the country at all:  s19.  This applies to all matches or tournaments in which a British team (national or club) has an interest, whether it is playing in any particular match or not.  The control period starts 5 days before the match or tournament and ends only when the whole tournament ends.  
(7)	If he wishes to avoid any of these prohibitions, the defendant has to persuade the authority to grant an exemption:  s 20.  That includes the case where he needs to travel abroad for a reason completely unconnected with football, such as work or a family wedding, to a country many miles away from the place where the match is happening;  in this case also he must get special permission to go. There is a right of appeal to the magistrates if he is refused.
These components of a FBO are not optional but compulsory.  Failure to comply with an order is a summary offence punishable with up to six months imprisonment.
Additional requirements 
5.	The Act permits additional requirements to be added by the court:  s 14G.  These can be tailor made, but they must be requirements “in relation to any regulated football matches.”  There were some in this case, as we shall show.  These additional requirements are the only part of a FBO which is in the control of the court. Given the extent of the controls provided by the standard terms of a FBO, careful consideration ought to be given to whether any additional requirements sought are indeed required.
The FBO in the Crown Court  
6.	FBOs can be made by a Magistrates Court on the application of the police.  We are here concerned, however, with orders made ancillary to conviction.  The rules are contained in s14A and Schedule 1.  These parts of the Act are in Archbold (at 5-1087 of the current 2012 edition).  There are 3 vital things to grasp:
a)	   There are two main conditions for the making of an order.

b)	   If those conditions are met, the making of an order is mandatory.

c)	The order is not designed as a punishment, although it will have that effect.  It is designed as a preventative measure.

The conditions
7.	The two conditions are these:
i)	There must be a conviction for a relevant offence: s 14A(1).  The offences which are relevant are listed in Schedule 1.  For the most part they become relevant not simply when a particular offence is committed, such as, to take an example at random, affray, but only when it is committed in the circumstances stipulated in Schedule 1.  If the offence falls within Schedule 1, then the second condition must also be met.
ii)	The Judge must be 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:  s 14A(2)  Moreover by s 14A(3)  if the court is not so satisfied, it must in open court state that fact and give its reasons.  
Once both conditions are satisfied then a FBO must be made.  
8.	The second condition plus the prohibitions which come with a FBO together show that the principal purpose of the order is not punishment.  Of course to prevent a football follower from attending any match for 3 or 6 years will be an appreciable punishment for him, but the object is preventative.  If the second condition is not made out, but the Judge wants to impose an order which will, by way of punishment, keep the defendant away from a football match for a while, he has power to do so in a number of ways, for example by making it a requirement of a community order or suspended sentence that he does not attend matches, either generally or limited to a particular team or teams.  If on the other hand a FBO is mandatory, its prohibitions must be the wholesale ones which we have explained above.
9.	The need for the second condition also shows that it is not the law that a FBO will inevitably follow every conviction of a relevant offence:  see Boggild [2011] EWCA Crim 1928.  
Relevant offences
10.	These are listed in Schedule 1.
i)	There are some offences listed in para (a) and (p) which are ipso facto relevant. Those are, in essence, offences which of their nature are concerned with football.
ii)	Offences listed under paragraph (b) must have been committed whilst entering or trying to enter the ground.  
iii)	Offences listed under paragraphs (c) to (f) must have been committed during the period relevant to a football match (which means 24 hours either side of the match – see paragraph 4(2)(b)) and when D was at, or entering or leaving, premises, although it would seem that the premises can be any premises and are not confined to football grounds;  they might well, for example, be a public house.
iv)	Offences listed under paragraphs (g) to (o) and (q) will be relevant if they are “related to football matches”;  this calls for a judgment of the court declaring this to be so.  The decision is called in the Act a “declaration of relevance”;  see s 23.
“Related to football matches”
11.	The judgment which is required in relation to offences listed under (g) to (o) & (q) is therefore not an assessment of the legal character of the offence.  It is a determination whether on the particular facts of the offence as it was committed on the occasion in question, the offence was “related to football matches”.
12.	Although the test is expressed in terms of “matches” in the plural, it would appear that it would suffice if the behaviour was, on the particular facts, related to a single match.  But it is clear that what the Act is targeting is those offences which have a connection with football, generally with the defendant’s following of the game.  
13.	Paragraphs (g) to (o), although not (q), are all concerned with offences committed when the defendant was on a journey to or from a football match at the stipulated level (essentially Blue Square North or South or above).  It is obvious that football disorder and violence can often occur on such journeys.  Equally, because the Act requires the judgment of the court whether the particular offence was “related to football matches” it is clear that the mere fact that defendant was on a journey to or from a match is not enough.  There must be another connection.  The offence must be ‘related to football matches’.  
14.	The Act offers no definition of when this condition will be met.  It is (no doubt deliberately) left to the judgment of the judge on the particular facts before him.  It would be wrong to attempt to define when the condition will be met.  The facts which may occur will vary too much.  It is not difficult to say that a pitched battle between opposing fans as they walk away from the ground is ‘related’, or that a defendant who, when on his own twenty miles away from the ground on his journey home meets a rival for a woman’s affections and hits him, is not committing an offence related to football matches.  But in between there will be infinite graduations of conduct, and they must be left to the judge in each case.  In one or two reported cases the court has taken into account whether what was described as the “spark” for an offence of violence was a football factor, such a dispute with opposing fans, but this is only an example of the kind of matter which may be relevant and must not be taken as a substitute test. If a football-related ‘spark’ is present that will no doubt be likely to lead to the conclusion that the offence was related to football matches.  But it is all too notorious that the ‘spark’ for offences of violence may sometimes be illusory, or minimal, or simply irrelevant.  If the offence be one committed by a group of football fans clearly acting as such, in a group whose identity is clearly football-oriented, their violence may well justify the expression “related to football matches” even if the particular casus belli is that exception is taken to another person for no particular reason.  We offer only the observation that it will not by itself be enough, to make an offence “related to football matches” that it would not have occurred “but for” the fact that D was en route to or from a match.  If that by itself were enough, then every offence of the listed kind which was committed on a journey to or from a match would automatically qualify and the additional test of relation to football matches would be unnecessary and meaningless.  
The condition in s 14A(2)
15.	Whether this condition is met will in some cases be the key question.  No doubt the more the offence is linked to football grievances or the group “culture” of a set of fans linked by their support for a team, the more likely it will be that an FBO will help prevent violence or disorder.  The more there is a history of football related offending, the greater will be the likelihood that the condition will be met.  However, it is clear that it is possible for this condition to be met by the commission of a single offence, of which the defendant has just been convicted.  What it is important to remember is that this condition clearly contemplates that there must be a risk of repetition of violence or disorder at a match before it is met. The test of reasonable grounds to believe that a FBO will help prevent violence or disorder at regulated matches does not set a high hurdle, but it is clear that it is not automatically satisfied just because the instant offence was football-related.  If that were so, the condition would add nothing and would not be needed.   Many football-related offences will give rise to exactly this risk, but not all will.  Boggild was an example of one which the judge determined did not.  
This case
16.	These three defendants live in Reading and are supporters of West Ham FC in East London.  On 20 February 2010 they had been to a match at West Ham.  By the time they got onto the homeward train from Paddington to Reading they were rowdy, foul-mouthed and drunk.  Their unpleasant behaviour attracted the attention of another passenger, Mr Rawlins, who had the courage after a beer can was kicked into the carriage to speak up and to ask them to stop.  He was not simply taking upon himself the responsibility of trying to stop loutish behaviour, although it would have been praiseworthy if he had.  He was with his wife and children and did not want them affronted or upset.  The defendants took exception, came at him aggressively and seized him around the neck.  The assault on him and resulting struggle was frightening to other passengers.  Some tried to protect Mr Rawlins. Eventually somebody pulled the communication cord.  Everyone’s journey was made unpleasant and was disrupted by the behaviour of the defendants.  They continued to threaten Mr R, chasing him as he left the train and shouting that they were going to “fucking get him”.  He reached the guard’s cab and although he banged on the door for help they continued to punch him. Rather than admit what they had done, the defendants said that he had attacked them and they pursued that dishonest defence throughout the trial until the jury disbelieved them and convicted them of affray.
17.	Despite their previous good characters, and indeed decent jobs and positive good things said about them, the defendants clearly merited immediate sentences of imprisonment, and these the judge correctly imposed – 9 months for Darren Wise and 6 months for the other two, reflecting their slightly different parts in the offence and Darren Wise’s previous convictions.  
18.	The judge said this in sentencing:  
“Watching the football match was, in my view, a direct cause of your behaving in the way you did.  It is the combination of football match, drinking too much before and/or after it which led to this violent behaviour, and so I do make in respect of you all a football banning order for six years, which is the minimum period of time.”
He thus partly addressed the first condition – viz whether the offence was “related to football matches”, although not in terms.  He did not address the second.  
19.	The draft orders presented to him were in standard form and also contained paragraphs in the space where draft additional requirements under s 14G may appear.  The principal prohibition was part of the standard part of the order:  
“Not enter any premises for the purpose of attending any football matches in England and Wales that are regulated for the purposes of the Football Spectators Act 1989.”
The further paragraphs in the draft were to this effect:
a)	a bar on going within 2 Km of any stadium at which West Ham were playing, whether at home or away, during the period from 3 hours before the match to 3 hours after it finished; 
b)	a similar provision relating to any stadium at which an England team was playing;
c)	a bar on using any train, anywhere in the country, or any part of the underground system, for 3 hours either side of any match played by West Ham or England (anywhere), unless specifically authorised by the police. 
20.	Of those, the judge said this:
“Why on earth the order does not simply say that you are banned from attending West Ham football matches for six years I don’t know, but insofar as it does say that, I make an order in those terms. I think it does say that in a very sort of verbose fashion in paragraphs 1 and 2, but I don’t see that paragraph 3 adds anything to it at all”
21.	It is fairly clear from these remarks and the transcript as a whole that neither of the advocates nor the judge realised that these additional paragraphs were submitted as drafts which could either be incorporated or not according to his judgment.  It is plain that he thought, no doubt on a rapid reading of the draft at short notice, that they constituted the operative parts of the order.  Hence, it would seem, his observation that he did not see why the order was not confined to preventing them going to West Ham for the relevant period of 6 years.  That is clearly what he wanted to achieve.  
22.	For whatever reason, the terms of the order when served were distinctly different. There were two not three additional prohibitions.  The railway condition had gone.  Those which now appeared were:
(a)	not to be in any town or city where either West Ham or England are playing for a period running from 4 (not 3) hours before to 4 hours after the match;  and
(b)	not to be within 1 mile of any stadium where either West Ham or England are playing during that same period.

It is perhaps technically possible for the second ban to add to the first, but only if the stadium in question is right at the edge of a town or city, and it is difficult to see what the justification for it could ever have been.  An order in this form meant, for example, that the defendants would have had to move out of their homes if West Ham came to play at Reading. These conditions had not been canvassed before the judge and it remains a mystery how they came to be contained in the order as served on the defendants.  On any view the first was wrongly stated and the inclusion of the second was simply unlawful.
23.	When this case first came before this court, there was total uncertainty amongst the advocates on both sides as to what order had been made, and what order served.  We are extremely grateful to Mr Grunwald QC and Mr McGuinness QC, with the help of their juniors, for sorting it out, and also to Mr McGuinness for ascertaining the significance of a declaration of relevance under section 23 (see paragraph [10(iv)] above), which, though it did not there arise, eluded all counsel, police officers and judges present in the case of Boggild.  But the history only underlines the fact that the statutory process for considering, and if appropriate for making, a FBO, was simply not followed by anyone.  We are not surprised that the judge did not instantly appreciate this.  It takes a long and careful reading of the Act to discover amongst its much-amended provisions exactly what the process is, and the judge was rightly concerned principally with the decision whether there had to be an immediate sentence of custody or not.  He did not have the help which we have had, nor the luxury of concentrating only on the ancillary order.    
24.	What of the two statutory conditions for the making of any such order ?
25.	As to the first condition, that the offence be “related to football matches”, the judge’s statement that watching the football match was a direct cause of the behaviour amounted to a conclusion that but for the match they would not have been where they were, and perhaps not drunk.  That may be so, and in some circumstances that might be enough to justify a declaration that the offence was “related to football matches”, for example if the affray were fuelled by the tribal identity of a group of football fans.  Such a decision would, however, at the least involve a conscious conclusion that it was the football and its tribal excitement which had led to the unpleasant behaviour.  In the present case the judge did not so determine and the evidence showed only that the offence arose out of the fact that the defendants were drunk, rather than that it had any connection to football.  
26.	As to the second condition, the judge clearly did not address it at all.  We cannot know what his conclusion would have been.  He knew quite a lot about the defendants and he had seen them extensively during their trial; they had, as he expressly observed, a decent side to them as well as the unpleasant side on display on the Reading train.  What his conclusion would have been we do not know and we do not think that we ought to attempt to make it for him, on the facts of this case.  Since the first condition was not, as it seems to us, met in this case, the second in any event does not arise. 
27.	We invited submissions as to any alternative preventive orders which might be available to us in place of the FBOs and which might have achieved the aim which the judge evidently had to keep the defendants away from West Ham matches, probably largely as a suitable additional punishment. We are grateful to both counsel for their helpful researches.  If non-custodial sentences had been passed, then conditions could have been attached to either community orders or suspended sentences, and the conditions would then no doubt also have served as effective punishment. This, however, was a clear case which called for immediate imprisonment. Since immediate sentences of imprisonment were imposed, there was no other order available to the judge except perhaps an Anti-Social Behaviour Order, but, as counsel on both sides have pointed out to us, the test for the making of such an order is necessity, significantly higher than the second condition for a FBO.  It would be wrong to impose such an order in this case and we do not do so.  
28.	In those circumstances, as we announced at the end of the hearing, the appeal must be allowed to the extent that the Football Banning Orders are quashed in each case.