Gough & Smith v Chief Constable Of Derbyshire [2001] EWHC 554 (Admin)

"There is currently a group of males that can number between 40 and 60 for high profile games who come under the banner of the media term `football hooligans'. The policing term for these people is `football prominents'. In the Derby group they are males aged from 18 to 40. The group is commonly referred to by the public and themselves as the DLF (Derby Lunatic Fringe)." 17 The tactics of the police have had to respond to this developing phenomemon. There is a Football Intelligence System co-ordinated by the National Criminal Intelligence Service. Each club has a Football Intelligence Officer, who is known to the prominents as they are known to him. In relation to each match - certainly as regards Derby, for it is what was done in these cases - information is collected by police "spotters" who watch the prominents. The information is collated in an information/intelligence report. The profiles are prepared in reliance on the contents of such reports, and consist in short notes, each giving an outline description of the particular prominent's involvement in actual or threatened trouble in relation to any given match. Fifteen profiles for Gough were put before the Magistrates Court, describing incidents from 14 September 1996 to 29 April 2000; twenty-one for Smith, from 14 September 1996 to 17 June 2000. Within these there appear to be eight incidents in which both appellants participated. I will not set out all the profiles. The following convey the flavour. "8/3/97. Derby v Middlesbrough, 70 of the Derby prominent group were involved in disturbances with Middlesbrough prominents both before and after this game. Gough was part of the Derby group."

"7/8/99. Leeds v Derby, Gough seen leaving the stadium with three other males." "11/12/99. Smith seen sitting in the South East corner of the ground during the Derby v Burnley FA Cup game."

"29/4/00. Tottenham v Derby, Gough attended London on this day on a rogue coach with 40 other Derby prominents. This coach was stopped and searched and was found to contain DLF calling cards, drugs and tickets for the game, all had been secreted on the coach. The group were allowed by police to walk into central London where they later became involved in slight disorder with West Brom prominents."

"17/6/00. England v Germany Euro 2000 Championships. Smith was seen in the square in Charleroi after the disorder had occurred corralled by the Belgian riot police with around 15 other Derby prominents and 1,500 other England supporters." 18 At the hearing Gough, then aged 36, gave unchallenged evidence that he suffered from a brain tumour; that his last football-related conviction had been eighteen years previously; that he had never been to a football match outside the United Kingdom; and that he regularly took his children to the Derby town centre for shopping as well as football matches. Smith was 38. He had had no convictions of any kind since November 1990. He said that his last "football-related incident" had happened nearly 15 years previously. 19 Mr Thompson's submissions for Gough and Smith were largely directed to the legality of the material provisions of the 1989 Act as a matter of principle. But the case stated raises questions as to the adequacy of the evidence in these instances to justify the making of banning orders under s.14B, and it was part of Mr Thompson's argument that evidence of the kind contained in the profiles was generally inadequate or unjustified: a submission which straddles the ground between the general law and the facts of the case. In these circumstances it is appropriate to see what challenge was offered in the court below to the material contained in the profiles, such as it was. 20 There was no suggestion in the magistrates' court that the profiles were not admissible evidence. Rather, Mr Thompson took a few narrow, specific points in relation to them. On behalf of Gough and Smith respectively he challenged the relevance of the profiles of 7 August 1999 and 11 December 1999 (these I have set out: they are the ones which make no reference to prominents or to disorder). Moreover both appellants disputed the evidence of the "rogue coach" trip to London on 29 April 2000, or rather the inferences to be derived from it: they asserted that they were going to London "in relation to the death of a friend" (case stated, paragraph 12): this seems to have been a claim (see paragraph 13.1) that the visit was for a fund-raising event. As regards the incident at Charleroi on 17 June 2000, Smith's evidence was that he was not in the square at the time of the disorder, although he had arrived there shortly afterwards. 21 There was thus in truth no challenge to the primary facts very shortly stated in the profiles. The Deputy District Judge rejected in terms the appellants' account of why they had gone to London in the rogue coach on 29 April 2000 (paragraph 13.1,2). He found that their evidence was "of little assistance to the court" (paragraph 13.3). He concluded as regards each appellant that the matters set out in s.14B(4)(a) and (b) were established and so proceeded to make banning orders, for two years in each case. That was the minimum period permitted by the statute: s.14F(5). The orders as made curtailed the appellants' freedom of movement to a lesser extent than had been sought by the police. As the Deputy District Judge made clear by reference to a map before him, there was no restriction placed upon their going into the city of Derby within the inner ring road. Matches Played Outside England and Wales 22 There was some uncertainty at the Bar during the course of argument as to the likely real impact of a banning order, in terms of the length of time for which it might effectively prevent its recipient from travelling abroad, especially having regard to s.14(3) and (6) of the 1989 Act which respectively define "external tournament" and "control period" in relation to external tournaments. An agreed note was placed before us. It describes the three European football club competitions presently existing, namely the Champions League, the UEFA Cup and the Intertoto Cup (whose winner qualifies for the UEFA Cup). As must be obvious, the involvement of English and Welsh sides in these competitions, and therefore the impact on any individual of a banning order in terms of the period(s) of time in which he may not travel abroad, depends on the clubs' success rates at all the earlier stages in the process. I do not think it necessary to go into the minutiae , not least since the note helpfully includes a table showing how the reporting and passport surrender requirements of the 1989 Act have in practical terms affected all four appellants in 2000/2001. From this I shall only take the data relating to Gough and Smith. Each has so far been prevented from travelling abroad for three periods: 6 - 11 October 2000, 10 - 15 November 2000, and 23 - 28 March 2001. The Secretary of State's Evidence 23 The Secretary of State put in two witness statements. The first was made by Mr Bohannan, who is Head of the Home Office section with responsibility for football-related disorder. The second was by Mr Jaglall who is an officer of the Football Banning Orders Authority ("

"In total, 965 England followers were arrested during the tournament. Only one was convicted of an offence. Police checks on the individuals concerned revealed that only one of those arrested was subject to a football banning order and only 35 were known to the National Criminal Intelligence Service as prominent football hooligans. However, further analysis revealed that 391 (40%) of the 965 individuals arrested had non football-related criminal records. Of this number 133 had convictions for violence, 200 for... offences under the Public Order Act 1986... 38 for offensive weapons, and 122 for criminal damage (Some had records in more than one category)... ... the profile of the England following, compared to the support of other competing nations, was disproportionately young white males (aged 20 - 35) with a propensity to `herd' together in large groups, consume excessive quantities of alcohol and in many cases adopt an overtly racist, xenophobic and threatening demeanour... This sort of behaviour is consistent with the high proportion of those arrested who had previous convictions for such offences, even although those offences had not necessarily been committed in a football context." 25 Mr Bohannan proceeds to refer to the heavy criticisms directed to the United Kingdom for its perceived failure to protect European centres from the activities of English hooligans, and in particular to a threat issued by UEFA on 18 June 2000 to expel the English team from Euro 2000 if there were further outbursts of disorder involving English supporters. Mr Bohannan says in terms (paragraph 20): "

"The first key change was that the distinction between domestic and international football banning orders was abolished. This was done as only 106 of the 560 individuals who were subject to football banning orders as a result of conviction of a football-related offence could be prevented from travelling to Euro 2000, because most of those who were the subject of banning orders were only the subject of a domestic order." (paragraph 24) 27 Mr Jaglall's description of the procedures adopted by the FBOA in relation to the giving of notices under s.19 of the 1989 Act is to be found in paragraph 3 of his statement: "

"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence as committed."

"The wording of Article 7(1), second sentence, indicates that the starting point in any assessment of the existence of a penalty is whether the measure in question is imposed following conviction for a `criminal offence'. Other factors that may be taken into account as relevant in this connection are the nature and purpose of the measure in question; its characterisation under national law; the procedures involved in the making and implementation of the measure; and its severity." 31 The Court in Welch concluded that a confiscation order was a "penalty" within Art. 7. It considered, however, that such an order had a preventive as well as a punitive purpose (paragraph 30), and in addressing the Art. 7 issue in the present case I think it of some importance to recognise that many orders made by courts may possess both these characteristics. It is important also to have in mind the fact, obvious as it is, that there are various instances in which a familiar form of order may bear with great severity on the person against whom it is made without there being the least question of its amounting to a "penalty" for the purposes of Art. 7: what were previously known as Mareva injunctions and Anton Pillar orders (now freezing injunctions and search orders) are plain examples. 32 Our duty is to take account of the Strasbourg jurisprudence, not necessarily to apply it: see s.2 of the Human Rights Act 1998. But given the Strasbourg court's judgment that "penalty" within Art. 7 is an autonomous Convention concept, I am clear that we should in any event follow the guidance given in Welch . 33 In conducting that exercise, I would make two linked points at the outset. First, the question whether the proceedings in which the relevant order is made fall to be classified as "criminal" proceedings or not is, in my judgment, very largely unhelpful in relation to the "penalty" issue under Art. 7. Plainly, the proceedings in which an order under s.14A is imposed are necessarily criminal, since it is made in the very proceedings and by the very court in and before which the person in question is convicted of the "relevant offence": s.14A(6). I venture to suppose that such a state of affairs is likely to arise in cases where there is a live issue as to "penalty" within Art. 7, since if the order in question is made in civil proceedings it may be doubted whether it is much of a candidate for the status of "penalty" in any event. But none of this throws useful light on the question whether the order in any given instance is in truth a penalty. There are various circumstances in which criminal courts are empowered to make orders which would not be classed as penalties. 34 Secondly, I cannot think that there could be different answers to the Art. 7 question as between ss.14A and 14B. I say at once that Mr Newman did not submit as much; he was, understandably, at pains to emphasise that he was concerned only with s.14A. However a major theme in his argument was that a banning order under s.14A can only follow conviction of a criminal offence - the starting-point in Welch - and as I understood him he would not accept that orders under ss.14A and 14B necessarily fall to be classified in the same way for the purposes of Art. 7. (Indeed the skeleton argument in Lilley , drafted by junior counsel Mr Scott Wilson, comes close to suggesting the contrary.) I recognise the differences between the structure of ss.14A and 14B respectively, and also the differences in the potential duration of ss.14A and 14B orders (see s.14F(3) - (5)). But a single definition of "banning order" applies to both: s.14(4); and the provisions of ss.14E, 14G, 14H and 14J, and the regimes of ss.19 - 21, apply to both without distinction. In my judgment it would simply be absurd to hold that one constituted a penalty within Art. 7 and the other did not. It follows that the nature of an order made under s.14A cannot be examined and categorised without regard to that of an order under s.14B. 35 Although I have said that the categorisation of the proceedings in which the order is made as "criminal" is of itself very largely unhelpful in relation to the "penalty" issue under Art. 7, there is jurisprudence concerning the classification of proceedings, as opposed to orders made in proceedings, in which as it seems to me the reasoning offers assistance on the Art. 7 question. McCann (1 WLR 1084 ) concerned the making of "anti-social behaviour orders" under s.1 of the Crime and Disorder Act 1998. The Crown Court had treated applications for such orders as being made in civil proceedings. In consequence evidence was admitted under the Civil Evidence Act which would have been inadmissible in criminal proceedings. An anti-social behaviour order (like a banning order under s.14B) may be sought by complaint to a magistrates' court. It must be shown (s.1(1)(a)) that the respondent to the application has acted in a manner which caused or was likely to cause harassment, alarm or distress, and (s.1(1)(b)): "that such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him"

"The prohibitions that may be imposed by an anti-social behaviour order are those necessary for the purpose of protecting from further anti-social acts by the defendant - (a) persons in the local government area; and (b) persons in any adjoining local government area specified in the application for the order..."

"38. Mr Fulford submitted that the prohibitions imposed by an anti-social behaviour order can have severe consequences to a defendant. In the present case the order prohibits the defendants from going into an area of Manchester where they have family and friends. Mr Fulford submitted that such a restriction of liberty operates as a penalty. 39. Many injunctions in civil proceedings operate severely upon those against whom they are ordered. In matrimonial proceedings a husband may be ordered to leave his home and not to have contact with his children. Such an order may be made as a consequence of violence which amounted to criminal conduct. But such an order is imposed not for the purpose of punishment but for protection of the family. This demonstrates that, when considering whether an order imposes a penalty or punishment, it is necessary to look beyond its consequence and to consider its purpose. 40. An order which is, in terms, restricted to the prohibition necessary to protect persons from anti-social behaviour, is manifestly an order designed to protect in the future not to punish for misconduct." 36 In my view this reasoning serves to emphasise the difference between a punitive order and one whose purpose is to offer future protection to the public or a section of it (and one may compare paragraph 63 of the judgment, and the Master of the Rolls' citations from the judgment of Lord Bingham CJ as he then was in B (Divisional Court, 5 April 2000)). 37 As I have acknowledged, many court orders may serve both a punitive and a preventive or protective purpose. The use of imprisonment in criminal cases is itself a prime example; and a community sentence is no less a penalty by reason of the fact that its principal focus may be rehabilitative. In truth, a just and humane system for the punishment of criminals is bound to have all these different ends in view. It follows that a punitive or retributive purpose no more marks an order as a penalty than a protective order serves to take it out of such a category. That being so the court is, as it seems to me, likely to be assisted by considering whether, in the statutory scheme before it, the predominant purpose of the measure under scrutiny is punitive, or for the protection of the public at large or a section of it. 38 In line with this, it is I think possible to give a little more focus to the Art. 7 issue, penalty or no, than is afforded by the list of considerations provided in Welch. As it seems to me, the more closely an order is related, or under the regime in question falls to be related, to the commission of a particular offence or offences, the more likely it is that the order should fall to be treated as a penalty. The reason is that the very idea of a penalty - albeit that in the particular case its imposition may be to protect, prevent, or rehabilitate - takes its place within a distinct scheme or philosophy of distributive justice. There is a principled distinction between distributive justice and social betterment simpliciter , however much the former may advance the latter. 39 The primacy of distributive justice in the steps toward a conclusion that a measure amounts to a penalty in my judgment marches with the Strasbourg court's insistence in Welch that the starting-point is the measure's being shown to follow a criminal conviction. More than this; it stands in line with the Court of Human Rights' reasoning on the particular facts in Welch : "33. However, there are several aspects of the making of an order under the 1986 Act which are in keeping with the idea of a penalty as it is commonly understood even though they may also be considered as essential to the preventive scheme inherent in the 1986 Act. The sweeping statutory assumptions in section 2(3) of the 1986 Act that all property passing through the offender's hands over a six-year period unless he can prove otherwise; the fact that the confiscation order is directed to the proceeds involved in drug dealing and is not limited to actual enrichment or profit; the discretion of the trial judge, in fixing the amount of the order, to take into consideration the degree of culpability of the accused; and the possibility of imprisonment in default of payment by the offender - are all elements which, when considered together, provide a strong indication of inter alia a regime of punishment."

"... the measures complained of are imposed as a matter of law: no procedure whatever is involved... Whilst the Commission accepts that failure to comply with a measure is a criminal offence, it considers that the position is different from that in the case of Welch , where periods of imprisonment in default of payment were fixed at the sentencing stage... In the case of the [Sex Offenders] Act, independent criminal proceedings would have to brought against a defaulter... Overall, the Commission considers that, given in particular the way in which the measures imposed by the Act operate completely separately from the ordinary sentencing procedures, and the fact that the measures do not, ultimately, require more than mere registration, it cannot be said that the measures imposed on the applicant amounted to a `penalty' within the meaning of Article 7 of the Convention." [p. CD334] See also Adamson (1999) 28 EHRR CD 209 , which was again concerned with the sex offenders register. 40 It seems to me with respect that this learning tends to underline the importance of the role of the mechanisms of distributive criminal justice in ascertaining whether a measure amounts to a penalty within Art. 7; and with all these considerations in mind, I address that question as it arises in these cases. 41 As I have said Mr Newman sought to emphasise the fact that under s.14A the order must follow conviction of a criminal offence. He was also at pains to draw attention to the potential severity, particularly in terms of duration, of orders under s.14A in comparison with the earlier statutory regimes. The details, canvassed by Mr Newman with inexhaustible thoroughness, appear in the legislation as I have set it out and I will not repeat them. Mr Newman also had a point concerning certain statutory appeal rights to the Court of Appeal Criminal Division. 42 In my judgment it is plain that a football banning order, whether made under s.14A or s.14B, is not a penalty within the autonomous sense of the term for the purposes of Art. 7. (1) In my judgment it is no part at all of the purpose of any such order to inflict punishment. The fact that it imposes a detriment on its recipient no more demonstrates that it possesses a punitive element than in the case of a Mareva injunction. The purpose is to protect the public, here and abroad, from the evil of football violence and the threat of it. So much is plain from the whole scheme, but in particular the preamble to the 1989 Act and the condition "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" : ss.14A(2), 14B(4)(b). (2) The order is not made as part of the process of distributive criminal justice. Under s.14B there is no requirement of a criminal conviction, so that the Welch starting-point is not met. In s.14A, the existence of a relevant conviction is in my judgment no more than a gateway criterion for the making of the order, equivalent to the provision in s.14B(4)(a) where no conviction is involved. S.14A(4)(a) actually contrasts the banning order with the sentence imposed for the relevant offence. (3) (Plainly this overlaps with (2).) In other more detailed respects the order's characterisation under national law tells against its bring treated as a penalty. I have in mind the provisions relating to the alteration of requirements imposed (s.14G); the power to terminate the order in light of all the circumstances (s.14H); the provision in s.14J which treats breach of the order's requirements as a separate criminal offence, rather than a default for which a penalty is fixed when the order is made: cf. the Commission's reasoning in Ibbotson ; and all the regimes established by ss.19 - 21B. Ss.19 - 21 in particular provide for pragmatic administrative measures, whose good sense is plain but which by their nature are not about or within the ordinary framework of criminal justice. (4) As for the orders' severity, I would accept that the restrictions they impose are more than trivial; and under the 1989 Act they are potentially more burdensome than previously. How harshly they might bear on any individual must, I would have thought, be largely subjective. However that may be, it is clear from the Strasbourg jurisprudence, not least Welch itself, that severity alone cannot be decisive; and in my judgment the burdens or detriments involved cannot conceivably confer the status of penalty on banning orders if otherwise they do not possess it, which in my judgment plainly they do not. I have in mind also the right to seek exemption (s.20); and this will be of some relevance to Mr Thompson's submissions on proportionality to which I will come in due course. 43 For these reasons I would hold that banning orders under ss.14A and 14B of the 1989 Act do not constitute penalties within the meaning of Art. 7 ECHR. I would have come to the same conclusion in relation to s.14A even had I not been of the clear view that the result must be the same as between the two sections. I hope I do no injustice to Mr Newman if I say that none of his detailed submissions, so far as I have not expressly dealt with them, began to persuade me to the contrary. GOUGH & SMITH: MR THOMPSON'S FIVE PROPOSITIONS 44 These were helpfully put in writing. The first four assert by one route or another that the regime of banning orders under s.14B is contrary to Community law. The first three engage European provisions and principles relating to freedom of movement. The fourth concerns procedural standards under Community law. The last asserts a violation of Art. 8 ECHR. As Mr Thompson articulated them the five are as follows. (1) There is no derogation, in particular on grounds of public policy, for restrictions on the rights of EU citizens to leave a Member State, other than: (a) those implicit in domestic criminal and public order legislation (for example, imprisonment); and (b) those recognised by the Court of Justice as a general principle of Community law precluding abuse of rights conferred by Community law. (2) Even if a public policy derogation exists, it is limited to cases where it can be proved , to a fair standard, that the departure of an individual from the Member State would constitute a genuine, present and sufficiently serious threat to one of the fundamental interests of society in that Member State. (2) Even if a broader public policy derogation exists, it is not necessary or appropriate to impose a 2-year international banning order on an individual: (a) who is proved on the balance of probabilities to have been involved in violence or disorder in the past 10 years; and (b) in respect of whom it is found, again on the balance of probabilities, that there are reasonable grounds to believe that the imposition of such an order would reduce the risk of violence or disorder at any matches, without any need for such matches to include international matches. (4) The procedures and evidential rules under section 14B and 14C are incompatible with Community law standards of procedural fairness, as provided for in Articles 6 ff. of Directive 64/221 and Articles 6 and 13 of the Convention, whether or not the section 14B procedure is a `criminal charge' for the purposes of Article 6. (5) Section 14B banning orders, including the ancillary powers conferred on the Secretary of State, magistrates, police and the enforcing authority, are incompatible with Article 8."

"Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect."

"Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended..."

"1. The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health."

"Whereas the co-ordination of special measures concerning the movement and residence of foreign nationals, justified on grounds of public policy, public security or public health, is already the subject of the Council Directive of 25 February 1964 [viz. Directive 64/221, to which I will refer below] "

"Art. 1: 1. The Member States shall, acting as provided in this Directive, abolish restrictions on the movement and residence of: ... (b) nationals of Member States wishing to go to another Member State as recipients of services; ... Art. 2: 1. Member States shall grant the persons referred to in Article 1 the right to leave their territory. Such right shall be exercised simply on production of a valid identity card or passport. Members of the family shall enjoy the same right as the national on whom they are dependent. 2. Member States shall, acting in accordance with their laws, issue to their nationals, or renew, an identity card or passport, which shall state in particular the holder's nationality. ... Art. 3: 1. Member States shall grant to the persons referred to in Article 1 the right to enter their territory merely on production of a valid identity card or passport. ... Art. 8: Member States shall not derogate from the provisions of this Directive save on grounds of public policy, public security or public health."

"Member States shall not derogate from the provisions of this Directive save on grounds of public policy, public security or public health"

"24. ...according to the case law of the court a member state is entitled to take measures designed to prevent certain of its nationals from attempting, under cover of the rights created by the Treaty, improperly to circumvent their national legislation or to prevent individuals from improperly or fraudulently taking advantage of provisions of Community law [and authority is then set out] . 25. However, although, in such circumstances, the national courts may, case by case, take account - on the basis of objective evidence - of abuse or fraudulent conduct on the part of the persons concerned in order, where appropriate, to deny them the benefit of the provisions of Community law on which they seek to rely, they must nevertheless assess such conduct in the light of the objectives pursued by those provisions..." 56 In light of Kremzow and more particularly Centros Mr Thompson accepted in terms that were it shown that Gough or Smith, or anyone else, proposed to travel to the continent for the purpose of perpetrating (or presumably inciting or encouraging) acts of violence and hooliganism the UK authorities would be wholly entitled to stop them at the point of departure, and nothing in the law of Europe would gainsay their right so to confine them. It would be a case of abuse of Community law rights. 57 If that concession is correctly made, as surely it is, I think it undermines Mr Thompson's Proposition 1. It implies at once that the language and structure of the Treaty and Directives are perfectly consistent with such a right, to confine their citizens at least in some circumstances, in the hands of the Member States. In face of that the edifice of Mr Thompson's argument based on the language of Art. 46 of the Treaty, Art. 8 of Directive 73/148, and the terms of Directive 64/221 is in my judgment turned into a house of cards. He is driven to espouse the proposition that whereas nothing in those materials impedes the Member State's right to confine within its territory those of its nationals who can be proved to be bent on hooliganism in connection with football matches elsewhere in Europe, these same provisions, by contrast, render the Member State absolutely powerless so to restrict any of its nationals where a court is satisfied that there are reasonable grounds to believe that to do so would help to prevent just such hooliganism: it lacks only distinct proof of the individual's subjective intentions - proof which will often be hard or impossible to find. In my view such a distinction could only be sustained by acceptance of a subjection of the public interest to private rights so abject and supine as to be alien to the civilised balances struck by the common law and the law of Europe alike. It cannot, in my judgment, represent the law. Mr Pannick's reductio ad absurdum remains intact. (I shall have more to say about these balances in the next section of the judgment, dealing with Mr Thompson's Second and Third Propositions.) 58 Given all these factors I prefer Mr Pannick's submission, first, that in the ordinary way one would expect Community law to confer or allow the same or greater powers upon a Member State as regards restrictions upon its own nationals in contrast with the powers it may exercise in relation to nationals of other Member States. It is difficult to see a rational basis for any other position. Secondly, the express reference to foreign nationals in Art. 46 is no more than an implicit recognition of an obvious and prior truth, that as regards its own nationals a Member State may of course impose restrictions; and so far as a question then arises whether the State may impose equivalent restrictions on foreign nationals, Directive 73/148 shows that the same principles apply to both. 59 Mr Pannick is supported, moreover, by the decision of the Court of Justice in Alpine Investments [1995] ECR I-1141 . The case concerned the practice of a company established in the Netherlands of "cold-calling", by telephone, clients or potential clients in other Member States. Such cold-calling was prohibited by Dutch law. In reference proceedings before the Court of Justice the company argued that the prohibition contravened Art. 59 (now 49) of the Treaty. The Court rejected that submission on the facts of the case, and said at p. I-1179: "43. Although the protection of consumers in the other Member States is not, as such, a matter for the Netherlands authorities, the nature and extent of that protection does none the less have a direct effect on the good reputation of Netherlands financial services. 44. Maintaining the good reputation of the national financial sector may therefore constitute an imperative reason of public interest capable of justifying restrictions on the freedom to provide public services." 60 Alpine Investments could hardly be further distant from the present case on its facts. But Mr Pannick's point is that the Court's reasoning recognises that in principle, subject always to the particular circumstances, a Member State may on public policy grounds be justified in imposing restrictions on those within its territory to prevent their conducting themselves elsewhere in the Union in such a way as to damage the home State's reputation in some concrete respect. Mr Thompson is of course entitled to point out that it is one thing to ban telephone calls to another Member State, and something quite different to prohibit a person from travelling from one State to another. However Mr Pannick seeks no more than broad support from Alpine Investments , and that I think it provides. 61 For all these reasons I would hold that Mr Thompson's Proposition 1 is false. In a proper case a Member State may be justified on public policy grounds in preventing a citizen of the Union from leaving its shores, and its right to do so is not limited to any narrow conception of "abuse of rights"

"The basic defect of s.14B(4)(b) is that there is no necessary connection between the public policy objective of the legislation as drafted and the matters that form the basis of international banning orders" . 63 Mr Thompson first points to the fact that it is effectively common ground that the scope of the power to derogate on public policy grounds from the Treaty's free movement rights is to be derived from the jurisprudence of the Court of Justice relating to Directive 64/221, and the terms of the Directive itself. As for the latter, Art. 3(1) and (2) (which I have set out) are the salient provisions. As for the authorities, particular emphasis was laid on Calfa [1999] ECR I-11 . That case concerned a Greek law by which a foreign national convicted of a drugs offence in Greece was to be expelled from the country for life unless there were compelling reasons to the contrary. The Court of Justice referred to Directive 64/221 and stated: "24. ... It follows that the existence of a previous criminal conviction can, therefore, only be taken into account insofar as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy. 35. It follows that an expulsion order could be made against a Community national such as Ms Calfa only if, besides her having committed an offence under drugs laws, her personal conduct created a genuine and sufficiently serious threat affecting one of the fundamental interests of society."

"No restriction order may be made unless the court is satisfied that making such an order in relation to the accused would help to prevent violence or disorder at or in connection with designated football matches."

"By virtue of that principle [sc. proportionality] , the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued."

"All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached." ( Hudson County Water Co v McCarter (1908) 209 US 349, 355) To give effect to the right's uttermost assertion - its logical extreme - would alike confound the right's moral credentials and its practical utility. The reason is, first, that the claim of moral authority for any right given by the general law rests upon the fact that the right belongs to every citizen, as do all other rights thus given; so that in any particular case, where there is a clash of interests, it is inherent in the nature of the right itself that the individual who claims its benefit may have to give way to the supervening weight of other claims. And secondly, the right's practical utility rests upon the fact that there can be no tranquillity in the State without a plethora of unruly individual freedoms, which will be measured in the language of rights; anything else looks tyranny in the face without blinking; so that in any particular case, to crown the possessors of one such right and consign the others beneath the throne, will sooner or later undercut the community fabric. 74 Here I would respectfully emphasise what was said by Lord Steyn in Brown v Stott at 839F: "

"... the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The search for this balance is inherent in the whole of the Convention ..." (my emphasis) Such texts, I think, reflect the same idea as Justice Holmes' "neighborhood of principles of policy which are other than those on which the particular right is founded"

"... there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights... a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in ... Ex p Smith [1996] QB 517 , 554 is not necessarily appropriate to the protection of human rights. [His Lordship proceeded to refer to the Strasbourg court's decision in Smith , which criticised the domestic judgments as having effectively excluded a `pressing social need' or proportionality test.] In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued." 80 With deference I believe that what I have said in the foregoing paragraphs as to the nature of proportionality, and its application, is in line with this reasoning. It seems to me that the principle which I have suggested reflects the first, and the requirement which I have asserted reflects the second, of Lord Steyn's three propositions; and the third of them provides critical guidance to the intensity of review where the right in question is one guaranteed by the Convention (no doubt subject, as Lord Steyn said, to the structural differences between Convention rights). 81 Applying this approach to the present case yields a plain answer. The State was entitled to conclude that very firm measures were justified to confront the various sickening ills of football violence. The principle and the requirement which must be respected and followed have clearly been so: the progressive nature of the succeeding measures from 1986 onwards, and the safeguards clearly established in the 1989 Act, demonstrate as much. In short the terms of s.14B(4)(b) are amply justified in light of Directive 64/221, the Calfa jurisprudence, and the general law relating to proportionality. THE FOURTH PROPOSITION 82 There is no doubt, and I understand it to be common ground, that where an established Community law right is to be restricted by a Member State on public interest grounds, appropriate procedural protections must be provided: Rutili , to which I have already referred, shows as much. It is no less clear that the Court of Justice has regarded Arts. 6 and 13 ECHR as providing particular substance to this general proposition. 83 In this context Mr Thompson submits first, by reference to Art. 6 of Directive 64/221 and Unectef v Heylens (Case 222/86), that decisions made under the 1989 Act carry a duty to give reasons to the affected party. Mr Pannick accepts as much. But of course the Magistrates Court in this case gave reasons for imposing banning orders under s.14B. As regards decisions taken by the enforcing authority under s.19, Mr Pannick points to the fact that before us there are no judicial review proceedings of any such decision: we are concerned (in the case of Mr Thompson's clients) solely with an appeal by way of case stated against the magistrate's orders. He adds that if reasons had been sought, they would have been given; in any event the reasons are obvious - to prevent disorder; and there is nothing to show that either appellant has sought an exemption under s.20. In my judgment there is no live issue in this case arising from any obligation to give reasons. 84 In support of his general argument that there are no adequate procedural protections built into the regime of the 1989 Act, Mr Thompson next submitted that no sufficient standard of proof is insisted on. He was disposed to say that the formula in s.14B(4)(b) imposes (as regards any individual who is in contemplation for a banning order) a requirement as to what must be proved, effectively no greater than what must be shown to justify a public decision when it is assaulted on traditional judicial review grounds; this, he suggested, was inherent in the language of the subsection. And he submitted that the inadequacy of the statute's requirements as to proof is graphically illustrated by the fact that the magistrate might perfectly logically hold that there existed "reasonable grounds to believe that making a banning order would help to prevent violence or disorder [etc] " , but yet not himself believe that it would do so. 85 This last seems to me to be a wholly artificial point. The "reasonable grounds" test assumes that the magistrate does not know whether the result will be achieved or not. The magistrate may be sceptical, or optimistic; but if he were actually to conclude that the order would not achieve the desired result, that could in reality only be on the footing that the reasonable grounds test was not made out on the evidence before the court. 86 On the more general issue as to standard of proof, Mr Thompson did not go so far as to argue that an application under s.14B is made in criminal proceedings for the purpose of Art. 6 ECHR. He accepts that the procedures under s.14B are "civil in form"