Allen, R. v [2011] EWCA Crim 3076

[2011] EWCA Crim 3076Case No 2011/2038/A7
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 8 December 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LAWS
MR JUSTICE OWEN
MR JUSTICE HADDON-CAVE
Between
R E G I N ACrownv
Between
BRADLEY ALLEN
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 7831 8838(Official Shorthand Writers to the Court)
Mr W Grier appeared for AppellantMr M Graham appeared for Crown
J U D G M E N T

LORD JUSTICE LAWS:

[1]On 8th February 2011 before His Honour Judge Whitburn at the Newcastle Crown Court, this appellant alongside some 10 others pleaded guilty to an offence of affray and on 18th March 2001 was sentenced to a community order for 12 months with an unpaid work requirement of 100 hours. In addition a Football Banning Order was imposed for three years. Football banning orders were also made in respect of four of the other defendants. The appellant now appeals against the Banning Order only by leave of the learned single judge.[2]On 8th August 2009, after a friendly match that day between Hearts and Sunderland played at Edinburgh, there was a confrontation at Newcastle Central Station between Newcastle supporters - their team had not of course been involved in the match - and Sunderland supporters, of whom the appellant was one. There was a police presence. The Sunderland supporters advanced on the police line. Police officers sensing that the Sunderland supporters were becoming more aggressive drew their batons. The Sunderland supporters surged forward, they lashed out at the officers and the police dogs. The officers used the batons. The incident lasted less than a minute. Three supporters sustained head injuries. The police at length regained control. They ushered the Sunderland supporters towards the Newcastle Metro train service. As they did so a group of Newcastle supporters entered the Metro station. They goaded the Sunderland supporters. Someone in the Newcastle group threw a smoke canister, another was seen to wave an asp baton over his head. There was then a fight between some of the rival gangs of supporters. At length the police managed to get the Sunderland supporters onto the Metro.[3]The Crown said that the appellant was playing an obvious and visible part throughout the incident. He was seen to jump up and down and swear at the police. One officer deployed her baton and pushed the appellant away. He was seen to clap and to shout into a camera:
"Well done, you fucked up again, I hope you are proud of yourselves."
Those are the unsavoury facts.[4]The appellant was born on 1st September 1990, so was nearly 19 at the time of the affray. He was of previous good character. The pre-sentence report assessed the risk of reoffending and of harm to the public as low and proposed a conditional discharge. As we have foreshadowed, the grounds of appeal are directed only to the Football Banning Order. It originally said in the written grounds that the judge's decision to impose the order was erroneous as a matter of law. That ground has been withdrawn this morning by Mr Grier, and rightly so. Alternatively it is said, and this is sought to be persisted in, the order should not have been imposed in all the circumstances of the case.[5]The imposition of a Football Banning Order is governed by section 14A of the Football Spectators Act 1989. By section 14A(1) the section applies where a person is convicted of a "relevant offence". Relevant offences are listed in schedule 1. Section 14A(2) provides:
"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."
It will be seen that the court is given no discretion by that subsection. We should note that the term "violence" includes threatened violence - section 14C(1) - and violence and disorder are not in this statutory context limited to violence or disorder in connection with football - section 14A(5)(a).[6]Schedule 1 to the 1989 Act sets out a number of offences which if committed will bring the case within the purview of section 14A2.

(d) :

"... any offence involving the use or threat of violence by the accused towards another person committed during a period relevant to a football match to which this schedule applies at any premises while the accused was at or was entering or leaving or trying to enter or leave the premises."
The "period relevant to a football match" is the period beginning 24 hours before the start or advertised start of the matching and ending 24 hours after it finishes. The "football match" to which the schedule refers means a regulated football match, that is one where at least one of the teams represents a club which is a member of the Football Association, Premier League, Football Conference or League of Wales -- that includes Sunderland AFC. Plainly "premises" within (d) in the schedule would include the Central Railway Station at Newcastle. Mr Grier rightly accepts that (d) covers the offence of affray to which the appellant pleaded guilty in this case.[7]The question then is whether the judge was correctly satisfied within the terms of section 14A(2) that, as we have indicated, there were reasonable grounds to believe that making the order would help prevent violence or disorder in connection with football matches. Mr Grier effectively accepts that the judge was properly satisfied as to that matter and for our part it is plain to us that he was. He played a very visible role in the incident itself, as we have indicated. There is moreover material before the court to show that he has been in association with other persons known to be what are called "risk supporters" in relation to football. We repeat, there is no discretion in the statute to make or not make a Football Banning Order once it is shown that the offence before the court is within schedule 1. In those circumstances, there is simply nothing in this appeal. It is the court's duty to dismiss it and we do so.