• A football banning order must apply to all regulated matches.

  • A magistrates' court may not permit a person to attend some matches but not others.

  • Attendance at a football match does not engage article 8.

 

Where a magistrates court imposes a football banning order, it must ban the person from attending any and every regulated football match. It cannot make a limited order, permitting attendance at some matches and not others. So held Edis J in Commissioner of the Police of the Metropolis v Thorpe [2015] EWHC 3339 (Admin). The decision is interesting for its restating a couple of points.

First, this principle had already been stated, albeit it was not the ratio, in R v Ciaran Doyle and others [2012] EWCA Crim 995. At paragraph 4 of that decision, the Court of Appeal Criminal Division held without detailed reasoning that it was not possible to make an order limited to particular matches or particular teams. In the High Court, Edis J considered that the words at Football Spectators Act 1989 section 14(4) that “Banning order means an order made by the court… which… prohibits the person from any premises for the purpose of attending [regulated football] matches” applied to prevent attendance at any, that is each and every, regulated football match. He rejected the submission that “any” should be interpreted as any premises deemed necessary and proportionate by the court. 

Second, he found that the attending of a football match did not, of itself, fall within the definition of private and family life for the purposes of attracting the protections of article 8, citing R v (Countryside Alliance) v Attorney General [2007] UKHL 52; [2008] 1 AC 719. In that decision, Lord Hope stated, at paragraph 55, that an event which by its nature was carried on in public and had many social aspects to it which involved the wider community fell outside the scope of private life. Lady Hale stated at paragraph 116 that article 8 did not protect things that people could only do by leaving private space and engaging in very public gathering and activity. Edis J considered that the protection afforded by article 8 did not extend to engagement in sporting activities which, by their nature, were conducted in public with social aspects involving the wider community.

Is that really a true link? When people go on a hunt, they are performing a public sport with some degree of spectacle. The participants perform in the public sphere, notwithstanding that the entire hunt may take place on private land. It might be said that football fans contribute to the atmosphere of a football match but is it a stretch to say that they become part of the spectacle? Perhaps there is more to be said about whether the restriction on the passive consumption as opposed to active pursuit of activities that can only be performed in public but which are, formally, private events falls within article 8. In R (George O'Dowd) v National Probation Service London [2009] EWHC 3415 (Admin), the High Court relied on Countryside Alliance to hold that participation in Big Brother fell outwith the protections of article 8.

One wonders whether the same result would apply to a ballet, opera and theatre banning order, which could be called a ‘BOT banning order” or BOTBO, given the government’s fondness for these sorts of acronyms. Who wants to be the first to say that these more rarefied activities fall outwith the description given by Lord Bingham of “a very public activity, carried out in daylight with considerable colour and noise”?

But back to the actual orders themselves, the imposition of a football banning order does seem to be a very fixed matter for courts - it must order one where it is satisfied of the stated statutory conditions. But its sanctions also are relatively light - a maximum of six months’ imprisonment on summary conviction for breach.

The other alternative may be an anti-social behaviour order, which could prohibit a person from using public transport to travel to football matches on days when particular teams are playing or entering the environs of certain towns on match days. It may be problematic to prohibit a person from being within a certain number of metres or kilometres of a football stadium, as this may be difficult to determine without a marked map. 

It remains more difficult to obtain an ASBO than a FBO - the court may make an ASBO only where it considers the imposition one to be necessary, as a separate exercise of discretion. However, despite the fact that the minimum length of an order is two years, as opposed to to six years for a football banning order, the maximum sanction for breach much greater at five years’ imprisonment.