Arbery & Anor, R. v [2008] EWCA Crim 702

No: 200801018 A7/200801026 A7[2008] EWCA Crim 702
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 19th March 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE MOORE-BICK
MR JUSTICE OPENSHAW
MR JUSTICE KING
Between
R E G I N ACrownv
Between
MARK ARBERYDANIEL MOBLEY
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr SM Cobley (Solicitor Advocate) appeared for AppellantMr B Morris appeared for Crown
J U D G M E N T

LORD JUSTICE MOORE-BICK:

[1]On 6th June 2007, in the Crown Court at Inner London before Mr Recorder Herbert, the applicants were convicted after trial of violent disorder and on 5th July they were each sentenced to 18 months' imprisonment. In addition, each of them was made subject to a football banning order for a period of six years. Their applications for extensions of time for leave to appeal against the football banning orders have been referred to the Full Court by the Registrar.[2]Four co-accused, one of whom was Craig Mabee, pleaded guilty to violent disorder and were sentenced to 12 months' detention or imprisonment as appropriate to their ages. They were also made the subject of six year football banning orders.[3]The convictions that led to those orders arose out of a street fight which took place in the area of Caledonian Road, London, quite close to King’s Cross railway station. The third round of the FA Cup was played on 7th January 2006, which resulted in many rival supporters travelling to and through London to attend matches at various football grounds in the south of England. The applicants and Craig Mabee were supporters of Northampton Town and had come to London to watch their team play Crystal Palace at Selhurst Park. The other co-accused were supporters of Charlton Athletic; they had been to Sheffield to watch their team play Sheffield Wednesday.[4]At about 8.30 pm the applicants and their companions went to the Flying Scotsman public house in Caledonian Road. They said at trial that they were waiting for the next train to Northampton. At about 8.55 pm a group of Charlton Athletic supporters arrived at the public house. Some racial abuse was apparently directed towards one of the Northampton Town supporters, who left the public house followed by the applicants and Craig Mabee. CCTV recordings showed communications of some kind taking place between the two factions and thereafter a large scale fight took place in and around the Caledonian Road, with punches and kicks being exchanged, all in full view of the public. After that, the Northampton Town supporters ran off towards the station and the Charlton Athletic supporters returned to the Flying Scotsman.[5]The investigating officer acknowledged in evidence that the incident had nothing directly to do with the football matches which these people had previously attended. Another officer said that he had become aware that the incident was originally of a racist nature.[6]In his sentencing remarks the Recorder described what had happened as a piece of gratuitous violence played out by a group of adults who purported to follow either Northampton Town or Charlton Athletic. It was a staged fight, set up by one or more people, in which all the defendants had become involved. The Recorder described the fighting as being at times quite vicious and clearly fuelled by drink. He accepted that the defendants were entitled to watch football and were perfectly entitled to get boisterous and drink large quantities of alcohol, but they were not entitled to bring abuse and violence on to the streets. The offence was aggravated by the fact that it was committed in a public place and by the fact that there had been an element of pre-planning.[7]The Recorder went on to hold that in each case the offence was to be regarded as football related because the violence arose out of the defendants’ support for their respective teams and would not have occurred otherwise. He held that all the convictions were related to a designated football match within the meaning of the statutory provisions, albeit that different matches were involved, because if the participants had not been following their respective teams this violence would not have happened. He also held that imposing football banning orders on the defendants would help prevent violence or disorder at, or in connection with, designated football fixtures. Accordingly, he imposed banning orders under the provisions of section 14A of the Football Spectators Act 1989 in addition to custodial sentences.[8]The only ground of appeal in this case is that the Recorder was wrong to impose football banning orders because the violent disorder did not relate to a football match but arose out of a simple disagreement in a bar in the course of which a racist remark was made.[9]Subsections (1)-(3) of section 14A of the Football Spectators Act 1989, as amended by the Football Disorder Act 2000, provide as follows:
"(1) This section applies where a person (the 'offender') is convicted of a relevant offence. (2) If 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, it must make such an order in respect of the offender. (3) If the court is not so satisfied, it must in open court state that fact and give its reasons."
[10]The important words in the context of the present case are "a relevant offence" in subsection (1), because the power to make a banning order only arises when a person is convicted of a relevant offence. “Relevant offence” is defined in section 14(8) as an offence to which Schedule 1 of the Act applies.

(r) as follows:

"any offence involving the use or threat of violence by the accused towards another person— (i) which does not fall within paragraph (d) or (m) above, (ii) which was committed during a period relevant to a football match to which this Schedule applies, and (iii) as respects which the court makes a declaration that the offence related to that match or to that match and any other football match which took place during that period."
The only question in this case is whether the offences committed by the appellants related to either of the matches which they and the co-accused had attended.[12]In November last year, this court heard an appeal by Craig Mabee, who had been involved in the very same disturbance, and quashed the banning order imposed on him. It did so on the grounds that the violence in this case did not relate to either of the matches in question and that therefore the Recorder had no jurisdiction to impose such an order. Giving the judgment of the court on that occasion, the Recorder of Chester said:
"We have had our attention drawn in particular to the case of R v Gregory Elliot [2007] EWCA Crim 1002 in this court and in fact the judgment given by Stanley Burnton J. We have had our attention specifically directed to page 13, paragraphs 14 and 15 of that judgment: 'Did the offences committed in the present case relate to the match? Clearly, the presence of the applicants in London and indeed at Leicester Square related to the match. But it is not their presence, or their allegiance, which is the touchstone of the declaration, it is the relationship between the offence and the match. Here, the offences were sparked by the presence of a group of football supporters in London. The spark, however, had nothing to do with the match itself on the facts as found by the judge. The violence took place, not because of anything that had happened at the football match, or between supporters but because of disparaging remarks made to a lady who had nothing to do with the football match and remarks which had nothing to do with the football match. In those circumstances, we do not consider that, in this case, the statutory requirement was satisfied.' We are bound to say that our view is that that case is indistinguishable from the circumstances of the present case."
[14]In our view the same result must follow in the present case since these two applicants were engaged in the self same outbreak of violence.[15]We therefore extend time for applying for leave to appeal, grant leave and quash the banning orders imposed on these two appellants.