Parkes, R. v [2010] EWCA Crim 2803

[2010] EWCA Crim 2803Case No 201003464 A3; 201003502 A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 9th November 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE PITCHFORD
MR JUSTICE HENRIQUES
HIS HONOUR JUDGE MILFORD QC
(Sitting as a judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownv
Between
DAVID PARKESMICHAEL JOHN CARTWRIGHT
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7422 6138(Official Shorthand Writers to the Court)
Mr C O'Gorman appeared for AppellantsMr D Whitehead appeared for Crown
J U D G M E N T

JUDGE MILFORD:

[1]These appellants, David Parkes, aged 44, and Michael John Cartwright, aged 42, were both sentenced by His Honour Judge Parkes at Wolverhampton Crown Court for offences which arose out of an incident of disorder involving rival football fans. They had both pleaded guilty to offences contrary to section 4 of the Public Order Act 1986, using threatening words or behaviour, and were sentenced on 21st May 2010 to 18 weeks' imprisonment suspended for two years with a 200 hours unpaid work requirement. Additionally, Cartwright was made subject to a curfew requirement from 8 pm to 7 pm for 18 weeks. Both were ordered to pay £500 towards the costs of the prosecution and both were made the subject of a Football Banning Order for four years.[2]Both appeal against the imposition of the Football Banning Order and the order for costs with the leave of the single judge.[3]The appellants are both supporters of Wolverhampton Wanderers, commonly known as "Wolves". On Saturday 3rd January 2009 their team was scheduled to play Birmingham City, but owing to inclement weather the fixture was cancelled.[4]On the same day a match did take place between West Bromwich Albion and Peterborough United at home for West Bromwich Albion. After the match some of the West Bromwich Albion supporters made their way to the Bellwether public house at Wednesbury. The police had intelligence that disorder was being planned in Wednesbury town centre between Wolves fans and West Bromwich Albion fans. Accordingly they deployed to the front and rear of the public house.[5]Initially five Wolves supporters were seen to approach the public house and were stopped and checked by the police. Both appellants were in that group. Cartwright provided false details. They were allowed to go on their way, whereupon West Bromwich Albion supporters climbed over the fence of the public house and began to sing and shout at the group of five. Within seconds the incident escalated. Bottles and beer glasses were thrown and the numbers of West Bromwich Albion supporters swelled to about 40, advancing towards the five Wolves supporters and inviting them to fight. The appellants responded in an equally threatening manner.[6]The police were doing their best to cope with the situation when about 50 more Wolves supporters materialised and attempted to provoke the West Bromwich Albion supporters. Bricks and bottles were thrown and riot vans arrived to deal with the situation. A rocket was fired from the West Bromwich Albion supporters. A number of arrests were made including the appellants. Cartwright admitted taunting the rival group. Parkes made no admissions, save to presence.[7]The appellants and eight others were indicted with violent disorder. The trial commenced on 26th April. Cartwright had pleaded guilty immediately before the trial started to violent disorder. Parkes pleaded guilty to the section 4 offence on 29th April when the prosecution had indicated that such pleas would be acceptable. He pleaded guilty on a written basis which set out that he was not part of any plan to cause disorder and went to the cancelled match at the invitation of Paul Whittall, another of the group of five. He believed that they were just going for a drink in Wednesbury. Effectively, he was caught up in what occurred, and when he was confident that the group he was with were not going to worsted he joined in the threats to the West Bromwich Albion supporters by holding out his arms and inviting them to fight.[8]Sentence was put over to 21st May. Those who had pleaded guilty to violent disorder were permitted to withdraw their pleas and enter pleas of guilty to the section 4 offence.[9]Mr Mann, who was then acting for Parkes but does not appear before the court today, apparently went to the hearing armed with the relevant authorities and ready to argue that there were no grounds for making a Football Banning Order. However, his resolve did not last very long. When confronted with the prospect of a Newton hearing he backed down and accepted that a Football Banning Order could properly be made, so did those acting for Cartwright and indeed everyone else who was there. That is to say, all accepted that a Football Banning Order could be made because the offences were related to a football match.[10]It is an unhappy aspect of this appeal that now these two appellants come before the court standing back from the decision that was clearly made on their behalf at the sentencing hearing and challenging the finding of the trial judge. However, that does not preclude this court considering whether or not the orders were properly made.[11]Football Banning Orders are governed by section 14A of the Football Spectators Act 1989. Section 14A(1) reads:
"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." "
Relevant offences" are defined in Schedule 1 to the Act as at paragraph 1(r):
"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 relevant period is 24 hours either side of the match.[12]Mr O'Gorman, for the appellants, argues that what occurred here did not relate to a football match and that the judge, when making the order, did not find that it did or identify the match. What he said was:
"I am satisfied that the offence is a relevant offence and that it is related to football. It is abundantly clear from the circumstances of the case that this was a football-related offence."
Mr O'Gorman submits that the test is not whether the offence is related to football, it is whether it is related to a football match to which the schedule applies.[13]It is accepted that the offence which both appellants had admitted was a relevant offence and that the match between West Bromwich Albion and Peterborough United was a football match to which the schedule applied. The match between Wolves and Birmingham City had been cancelled. It never took place.[14]So the simple question is, did the offences relate to the football match between West Bromwich Albion and Peterborough?[15]For the appellants it is submitted it is not so related. For the respondents it is submitted that it is.[16]We have been directed to a number of authorities in which this court had to consider whether a Football Banning Order could properly be said to relate to a match. The judgments in those cases do not purport to set out principles of general application. Each case was decided on its own facts.[17]In R v Smith [2004] Cr App R (S) 58, Kidderminster football fans turned away from a match at Shrewsbury were returning home on a train and behaving in a disorderly manner. They were drunk. The appellant in that context committed a section 4 offence against a police constable. The court allowed the appeal, finding that the offence did not relate to the football match.[18]In R v Elliott and others [2007] EWCA Crim 1002, [2007] Cr App R (S), a case which coincidentally concerned Wolves fans, at paragraph 21 Stanley Burnton J (as he then was) observed this:
"We have to say that, in our judgment, the case for making the required declaration on the facts of Smith were significantly stronger than the facts of the present case. The Court in that case did not lay down any conclusion in principle, and therefore it would perhaps be unwise to say any more about it, other than to comment that where supporters become drunk and, in particular, violent, or simply violent, on their way to a match or coming from a match (and even where they have failed to get to the match), in an appropriate case it may well be open to a court to make the appropriate declaration, even though the spark for the violence is not itself football-related. The fact that the spark for the violence is something which is not intrinsically football-related does not of itself mean that the offence is not related to a football match. There is always a spark for violence. In the present case, however, the spark was unconnected with the match, and although those participating in the violence were Wolverhampton supporters, the incident had nothing else to do with the football match."
[19]It is instructive thus to seek to identify the spark which caused the violence in this case. Can it be said to be something wholly unrelated to football?[20]The underlying facts of this case are these. West Bromwich Albion had played a match to which the schedule applied and some of its fans, after the match, had repaired to the Bellwether public house to refresh themselves. Wolves had not played a match. From what occurred that evening it is clear that there was hostility between at least some Wolves and some West Bromwich Albion fans. The evidence demonstrated, as the judge found, that some Wolves fans, amongst whom were the appellants, went deliberately to Wednesbury in the knowledge that West Bromwich Albion supporters would be at the Bellwether after their match. The judge said this at letter E page 2 of the sentencing remarks:
"This was, in my judgment, a serious public disorder incident. I am quite satisfied, having heard some evidence which was tested under cross-examination, that there was an element of pre-planning in this meeting on the day in question. The exact circumstances in which arrangements were made for this encounter are unknown but in my judgment it is beyond coincidence that a large group of West Bromwich Albion supporters congregated in an area where also congregated a large group of Wolverhampton Wanderers supporters. The circumstances are that on the evening, at about 6.00 to 6.25, a large group of West Bromwich Albion supporters were in and around the public house. Five members of supporters of Wolverhampton Wanderers were across the road. I am satisfied that they were there in order to entice the West Bromwich Albion supporters, in the knowledge that there was a large group of Wolverhampton Wanderers supporters in the near vicinity who were engaged in a further public disorder."
[21]The fact that the Wolves supporters were not involved in the match which West Bromwich Albion had earlier played is a point of little substance when the whole picture is considered. The West Bromwich Albion fans were together because of the match that their team had played. The Wolves supporters knew they would be together because of that match and where they would be and sought them out to cause trouble based on the rivalry between the clubs.[22]Returning to the question of the spark, it is sophistry to suggest that it was anything other than the enmity which existed between the two sets of fans. The spark was football.[23]The offences, judged individually, were clearly related to the match between West Bromwich Albion and Peterborough. Parkes did not accept that he went to Wednesbury looking for West Bromwich Albion fans and for trouble but he became caught up in the hostility which erupted between the two sets of fans, which was related to the match and joined in by threatening the West Bromwich Albion fans. So it is that his offence too is related to the match.[24]Although the judge's declaration was defective in that he did not identify the particular match, this was the only match and is what he must have been referring to. He was entitled to make the declaration he was endeavouring to make and said the offences related to football.[25]The second point which is raised, with, we have to say, not much enthusiasm by Mr O'Gorman today is the question of costs. Complaint is made that these offences could have been dealt with in the Magistrates Court when costs would have been lower. It was the violent disorder, not proceeded with, which brought the case to the Crown Court.[26]Anyone who indulges in an offence of public disorder with others of the sort and scale here should realise that his case may well find its way to the Crown Court, and if it does he cannot be heard to complain. Indeed, Cartwright pleaded guilty, initially, to violent disorder.[27]The appeals are dismissed.