The Commissioner of Police of the Metropolis v Thorpe [2015] EWHC 3339 (Admin)

Case No CO/3853/2015[2015] EWHC 3339 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/11/2015
Before
MR JUSTICE EDIS
Between
THE COMMISSIONER OF POLICE OF THE METROPOLISAppellantJAMIE THORPERespondent
Catriona Hodge (instructed by Directorate of Legal Services) for AppellantLaura Collier (instructed by Haddow & Kaye) for RespondentHearing Hearing dates: 18 th November 2015
JudgmentMr Justice Edis :
[1]This is an appeal by way of case stated against a decision of the Ealing Magistrates Court to impose a football banning order under section 14B of the Football Spectators Act 1989 with a limitation which the Appellant says is unlawful.

The Order

[2]The Appellant applied by complaint for an order as set out below which was granted on 12th May 2015 for a period of 3 years with additional words added by the Justices which I have underlined. “Order The above named person shall be subject to a football banning order and must report initially to Brighton Police Station within the period of five days beginning with the date of the making of this order Subsequently that person must during the duration of the order i) Not to enter any premises for the purpose of attending any football matches in the United Kingdom that are regulated for the purposes of the Football Spectators Act 1989 in relation only to matches between Fulham and either Brentford FC or Chelsea FC whether at home or away. ii) And on the occasion of football matches which are played outside the United Kingdom and are regulated for the purposes of Part 2 of the Football Spectators Act 1989 if and when required to do so under section 19(2)(b) of that Act, report to that or any other named Police Station in United Kingdom and surrender his passport at the time or between the times specified in the notice by which the requirement is imposed. iii) Notify the enforcing authority within seven days if any of the matters set out in Schedule 2 of this order arise. It is further ordered pursuant to section 14G(1) of Football Spectators Act 1989 that the above named person must during the duration of the[3]The effect of the underlined words is that the Respondent is free to attend regulated football matches which do not involve the three named clubs. The Appellant contends that there is no power to impose a prohibition limited in this way. The Magistrates have stated a case for the opinion of the High Court on this question:- “Did we have the power to make a Football Banning Order under section 14B(4) of the Football Spectators Act 1989 that was limited to matches played between Fulham FC and either Chelsea FC or Brentford FC.”[4]The Case records the findings of fact made by the Justices. They found that the first condition in section 14B(4) was met and this was not contested on their findings of fact. The second condition was more contentious but was also found proved and the Justices correctly decided that they were therefore required to make a Banning Order. They were then persuaded to make a limited order even though the Appellant submitted that there was no power to do so.[5]Section 14 of the 1989 Act provides, so far as material:
“14 Main definitions (1) This section applies for the purposes of this Part. (2) “Regulated football match” means an association football match (whether in the United Kingdom or elsewhere) which is a prescribed match or a match of a prescribed definition. (3) “External tournament” means a football competition which includes regulated football matches outside the United Kingdom. (4) “Banning order” means an order made by the court under this Part which – (a) in relation to regulated football matches in the United Kingdom, prohibits the person who is subject to the order from entering any premises for the purpose of attending such matches, and (b) in relation to regulated football matches outside the United Kingdom requires that person to report to a police station in accordance with this Part.” (a) in relation to regulated football matches in the United Kingdom, prohibits the person who is subject to the order from entering any premises for the purpose of attending such matches, and (b) in relation to regulated football matches outside the United Kingdom requires that person to report to a police station in accordance with this Part.”
[6]The power of the Magistrates’ Court to make a football banning order on a complaint is set out at section 14(B) of the 1989 Act which provides, so far as material: “ 14B Banning Orders made on a complaint”(1) An application for a banning order in respect of any person may be made by – (a) The relevant chief officer, or (b) The Director of Public Prosecutions, if it appears to him that the condition in subsection (2) is met. (1A) In subsection (1) “the relevant chief officer” means – (a) the chief officer of police of any police force maintained for a police area; or (b) the chief constable of the British Transport Police Force.(2) That condition is that the respondent has at any time caused or contributed to any violence or disorder in the United Kingdom or elsewhere.(3) The application is to be made by complaint to the magistrates’ court.(4) If – (a) It is proved on the application that the condition in subsection (2) above is met, and (b) 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, the court must make a banning order in respect of the respondent.” (a) the chief officer of police of any police force maintained for a police area; or (b) the chief constable of the British Transport Police Force. (a) It is proved on the application that the condition in subsection (2) above is met, and (b) 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,[7]Section 14G of the 1989 Act permits “additional requirements” to be added to the banning order, as follows:
“14G Additional requirements of orders (1) A banning order may, if the court making the order thinks fit, impose additional requirements on the person subject to the order in relation to any regulated football matches.”
[8]In R v Ciaran Doyle and Others[2012] EWCA Crim 995, [2013] 1 Cr. App. R. (S.) 36, the Court of Appeal was concerned with a number of appeals against the imposition of football banning orders made on conviction pursuant to section 14A of the 1989 Act. Hughes LJ (giving the judgement of the Court) gave general guidance about the scope and effect of football banning orders made under the 1989 Act. He held at paragraph 4(2) that a defendant subject to a football banning order was prohibited by operation of s. 14(4)(a) from attending any regulated football matches anywhere in the United Kingdom and that the courts had no power to make an order limited to particular matches or particular teams. The Respondent submits that this was not necessary to the decision and therefore not binding on me. This decision was not cited to the Justices.[9]The Respondent’s argument which prevailed before the Justices was set out in the stated case as follows:- “Counsel for the Respondent contended that the wording was ambiguous and “any” should be interpreted as any premises decided necessary and proportionate by the Court. She contended that making an all encompassing order to cover all football matches in England and Wales would be a breach of the Respondent’s Article 8 Human Rights – the right to a private and family life and completely disproportionate. She also contended that if there was any ambiguity, then any decision of the Court should be made in favour of the Respondent.”[10]The Respondent now submits that any interference with the private life of the Respondent must be the least which will meet the legitimate aim of controlling violence at football matches. If the Justices have found as a fact that the Respondent only presents a risk at certain matches, it must be disproportionate and therefore unlawful to impose a ban which prevents him from attending any other matches. If the 1989 Act says otherwise, it must be read down so as to comply with the Convention. This can easily be acheived, because section 14(4)(a) defines an Order as preventing its subject from entering any premises for the purpose of attending such matches and not all premises. Therefore, the Act can be construed so that it is compatible with the Convention.

Discussion

[11]In my judgment, the decision in Ciaran Doyle and Others cannot be so easily sidestepped as the Respondent argues. The Court of Appeal Criminal Division conducted a thorough review of the relevant provisions and was actually considering a case in which a limited Banning Order (West Ham matches only) was made. That Order was quashed because the first condition (which was then in rather different terms) was not met. It is therefore true that the Court did not have to consider whether it was the Banning Order in that case was unlawful because it was limited. However, the issue was not academic in the case and it is not a situation where a court has made an unnecessary observation wholly unrelated to the case. Hughes LJ Vice President of the CACD said this of an Order under this Act at paragraph 4(2) of the judgment:- “It prohibits the defendant from attending any regulated football match anywhere in the United Kingdom, s14(4)(a). That means all league matches at Blue Square North and South level or above, plus Cup matches except for preliminary rounds. Note that it is not possible to make an order limited to particular matches or particular teams. Article 3 of theFootball Spectators (Prescription) Order 2004/2409 specifies which matches are prescribed. It is not in exactly these terms, but the effect is no doubt much as described by Hughes LJ. ”[12]I accept that this observation is strictly not binding on me, but it is persuasive authority and, in the context I have just explained, a decision which is deserving of considerable weight. I rely on it as confirming my own view that the natural reading of section 14(4)(a) of the 1989 Act is as Hughes LJ explained. A Football Banning Order, if made, prevents the subject from attending any regulated football match and there is no power to make a limited order as was attempted in Ciaran Doyle and Others and in this case. This reading is confirmed by the Oxford English Dictionary which says that after a negative, the use of the word “any” emphasises that the negative applies to all things within the description qualified by the word “any”. Thus, a sentence which says “You will not attend any football match” means what it says. “You will not attend all football matches” might mean that you cannot attend them all but you can go to some. In my judgment Hughes LJ was right to construe the provision as he did.[13]Therefore, the onus shifts to the Respondent to show that this provision is to be construed in a different way from the natural reading of the words used. Ciaran Doyle and Others does not affect the merits of these submissions because they were not advanced in that case. The submissions take two routes to the intended destination. i) This provision should be construed in a similar way to the approach taken to the making of an Anti Social Behaviour Order under the Crime and Disorder Act 1998 in R v. Boness and others [2006] 1 Cr App R(S) 120. That provision is different from the 1989 Act and enables a court to exercise a discretion to make a very wide variety of different orders tailored to different factual situations. The threshold condition was that the order which is made must be necessary to protect persons in any place in England and Wales from further anti-social acts by the offender. In this respect it is similar to a number of protective orders including, for example, the Sexual Harm Prevention Order. It is submitted that, by analogy, “The clear and established principle is that orders which limit the freedom of an offender must be “tailored” to each individual, to meet the menace which the order seeks to prevent.” ii) The 1989 Act should be read in line with section 3 of the Human Rights Act 1998 in such a way that it is compatible with the Convention rights, in this case Article 8 (private and family life) and 11 (freedom of assembly and association) rights. After hearing Miss Hodge’s submissions on Article 11 based on R (Countryside Alliance and others) v Attorney General and another [2008] 1 AC 719, Miss Collier who appears on behalf of the Respondent sensibly said that she does not pursue a claim based on Article 11. A football crowd, if it is an assembly in the sense used in Article 11 at all, is not an assembly for a purpose which attracts protection under that Article.

The Convention Right

[14]I shall take these submissions in reverse order and deal first with the impact of the ECHR on the 1989 Act. This question was considered in Gough and another v Chief Constable of Derbyshire Constabulary [2002] EWCA Civ 351, [2002] QB 1212, the Court of Appeal was concerned with a challenge to the legality of the 1989 Act on various grounds including a claim that the provisions which prohibited any person subject to a football banning order from leaving the country when regulated football matches were taking place outside England and Wales, breached the appellants’ rights under Article 8 ECHR. Lord Phillips of Worth Matravers MR (giving the judgement of the Court) said this about Article 8:- “Article 8 99 Mr Thompson also submitted that article 8 of the Convention was engaged. It was conceded by the Secretary of State that a banning order might result in interference with the right to respect for private or family life. Whether it did would depend upon the particular facts and it certainly did not do so in the case of Mr Gough or Mr Smith. We agree with the judge. We would add that if a banning order, properly made, interferes with the right to respect for private or family life the interference is likely to prove justified under article 8(2) on the grounds that it is necessary for the prevention of disorder. ”[15]This decision therefore holds that a Banning Order might engage Article 8. In my judgment this should be understood as relating to the power to impose additional requirements in addition to the mandated terms of a Banning Order defined by section 14(4) of the Act, see section 14G set out above. It does not mean that an order simply in those mandatory terms is capable of engaging Article 8, at least where the subject of the order is simply a spectator at football matches. If it did mean that, it would have to be reconsidered in the light of R (Countryside Alliance and others) v Attorney General and another [2008] 1 AC 719.[16]Before the court can be invited to have recourse to section 3(1) of the 1998 Act, the court must first be satisfied that the statutory provision in question gives rise to an incompatibility with any of the Convention rights (see S v L [2012] UKSC 30, 2013 S.C. (U.K.S.C.) 20, at [75]). R (Countryside Alliance and others) v Attorney General and another [2008] 1 AC 719 at [15], [54 – 55], [115-116] decided that the protection afforded by Article 8 is confined to the private sphere of a person’s existence and does not extend to engagement in sporting activities which, by their very nature, are conducted in public with social aspects involving the wider community. I consider that Article 8 is not engaged when a person is prevented from attending as a spectator an event to which the public are invited in return for payment, and subject to contractual terms.[17]The decision on Article 8 in R (Countryside Alliance and others) v Attorney General and another [2008] 1 AC 719 was unanimous. The reasoning of the 5 members of the Judicial Committee of the House of Lords differs. Lord Bingham, Lord Hope and Baroness Hale appear to me to have agreed closely with each other in the paragraphs I have identified in paragraph 16 above. The views of Lord Rodger and Lord Brown are somewhat divergent in their reasoning but not in the result. I take the view that the essence of the decision is encapsulated by Baroness Hale at paragraphs 115 and 116. On that basis it is simply not arguable that the freedom to attend professional football matches as a paying spectator enjoys the protection of Article 8 from interference by the state. This does not mean that those who value going to football matches as part of their life do not lose a great deal if they are no longer able to do so. Baroness Hales recorded the deep passion which members of the hunting community feel for their sport. She illustrated that by saying “Many hunt supporters would no doubt share of their sport Bill Shankly’s view of the importance of association football.”[18]Bill Shankly, it will be recalled, said that football was not a matter of life and death. It was, he said, far more important than that. Baroness Hale’s observation is to be read on the assumption that Mr. Shankly was not joking. Therefore, even if an activity inspires devotion at that level, the freedom to pursue it does not attract Article 8 protection unless it is private in the sense described by Baroness Hale in paragraph 116:- “Article 8, it seems to me, reflects two separate but related fundamental values. One is the inviolability of the home and personal communications from official snooping, entry and interference without a very good reason. It protects a private space, whether in a building, or through the post, the telephone lines, the airwaves or the ether, within which people can both be themselves and communicate privately with one another. The other is the inviolability of a different kind of space, the personal and psychological space within which each individual develops his or her own sense of self and relationships with other people. This is fundamentally what families are for and why democracies value family life so highly. Families are subversive. They nurture individuality and difference. One of the first things a totalitarian regime tries to do is to distance the young from the individuality of their own families and indoctrinate them in the dominant view. Article 8 protects the private space, both physical and psychological, within which individuals can develop and relate to others around them. But that falls some way short of protecting everything they might want to do even in that private space; and it certainly does not protect things that they can only do by leaving it and engaging in a very public gathering and activity.”[19]There is therefore no human right protected by the ECHR to attend football matches as a paying spectator. This does not diminish the importance of football and other entertainments in society, but to involve human rights in this sphere would, in my judgment, undermine the importance to be attached to those rights in areas where they are genuinely engaged.[20]In any event, the rights, if they are engaged, are not unqualified. Pursuant to Article 8(2) a public authority must not interfere with the exercise of the rights protected by Article 8 save where such an interference is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others..[21]The 1989 Act creates a narrow and tailored jurisdiction. If two threshold conditions are found to have been established an order must be made. The conditions are first that the respondent has at any time caused or contributed to any violence or disorder in the United Kingdom or elsewhere, and secondly that 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. In other words, the person affected must have caused or contributed to violence and the evidence must show that making the banning order would help to prevent violence or disorder at football matches. If those conditions are met, the court has no discretion as to how to proceed. It must make the order defined in paragraph 14(4) and no other order. Having made that order, the court should then go on to decide whether to impose any additional requirements under section 14G.[22]The power and discretion of the court is therefore narrowly limited, at least until the section 14G stage. At those earlier stages the court is exercising a fundamentally different power from that under which an ASBO could be made. Parliament has decided that where people have behaved in such a way that a court considers that their absence from football matches will be helpful to the prevention of violence and disorder at such events, they are to be prohibited from attending them for a period. In so acting, Parliament has struck the balance required by Article 8(2) if it is engaged and the role of the court has been reduced to fact finding in relation to the two conditions. Principles which govern how courts should exercise broadly phrased protective powers do not apply to a scheme where Parliament has made the decision on proportionality and where the court has no choice as to how it should act. For this reason, I do not find the salutary statements of principle in the judgment of Hooper LJ in R v. Dean Boness and others [2006] 1 Cr App R(S) 120 to be applicable to the 1989 Act, at least until the section 14G stage is reached.[23]If there is a Convention right to go to football matches its restriction is more easily justified than would be the case in respect of other rights. Attendance at matches is done for pleasure. Many matches are now shown on television and can be watched in company at public houses. Limited orders of the kind proposed are the most intrusive because they are designed to prevent the subjects from attending at the matches of the clubs they support. The ability to attend matches played between clubs in which they have previously shown no interest is not a very important human right even if it can be described in those terms at all. If an order preventing a subject from going to a match he wants to attend can be justified (as is conceded) an order which prevents him from attending other matches can be that much more easily justified. That is the answer to the submission made by Miss Collier on behalf of the Respondent that the definition of regulated football matches is so wide that it catches many matches at which there is no real risk of any violence or disorder.[24]The observations of Lord Phillips in paragraph 6 of Gough and another v Chief Constable of Derbyshire Constabulary and Hughes LJ in paragraph 3 of Ciaran Doyle together with the evidence of Police Constable Paul Todd filed in this case amply explain the social evil which this legislation was designed to address.[25]The submissions of the Respondent as to “necessity” and as to Article 8 (which are interrelated) involve an assertion of the particular importance of football to its adherents. I accept that this is so. However, in my judgment that is an argument in support of the Banning Order. Football is equally important to the enormous majority of its followers who do not use matches as a pretext for planned mob violence. If it is so important, what matters most is the freedom of those supporters to enjoy the matches they attend without fear. Their right to do so is substantially more deserving of protection than his.

Conclusion

[26]For these reasons I consider that there is no reason to adopt anything other than the natural construction of the words used in the 1989 Act because of section 3 of the Human Rights Act 1998. No Convention right is engaged and, if it is, it is a qualified right and Parliament has decided what qualification is necessary. As to the latter part of that decision, I follow Gough and another v Chief Constable of Derbyshire Constabulary in the passage quoted at paragraph 14 above, but would have reached the same result in the absence of authority.[27]I reject the comparison with the ASBO legislation for the reasons set out at paragraph 22 above. There is no principle to be carried over from a provision which gives a court a wide power to make a wide variety of orders to a provision which gives the court no power to choose what order to make if the threshold conditions are met. That order is already a tailored order. It relates only to regulated football matches. The subject can continue to enjoy an interest in football in other ways, and can go to other sporting events without restriction. What he cannot do is go to football matches where a court has decided that his absence would be helpful in reducing violence and disorder at such events, where such violence and disorder was a major source of public concern and danger until it was substantially reduced perhaps partly because of this provision.[28]I therefore answer the question posed by the Justices set out at paragraph 3 above: “No”.

order

iv) Not to come within two miles of any regulated football match involving Fulham Football Club and either Brentford FC or Chelsea FC played at Craven Cottage, Fulham (or any future ground registered as the home of Fulham Football Club) during a period of four hours prior to the advertised kick-off time and until four hours after the final whistle inclusive. v) Not to enter any Town, City or London Borough in which a regulated “away football match” involving Fulham Football Club and either Brentford FC or Chelsea FC is being played four hours preceding the advertised kick-off time and before a time four hours after the conclusion of the match. vi) Not to go within two miles of any regulated football match involving Fulham Football Club and either Brentford FC or Chelsea FC preceding the advertised kick off time and before a time four hours after the conclusion of the match inclusive. i) Not to enter any premises for the purpose of attending any football matches in the United Kingdom that are regulated for the purposes of the Football Spectators Act 1989 in relation only to matches between Fulham and either Brentford FC or Chelsea FC whether at home or away. ii) And on the occasion of football matches which are played outside the United Kingdom and are regulated for the purposes of Part 2 of the Football Spectators Act 1989 if and when required to do so under section 19(2)(b) of that Act, report to that or any other named Police Station in United Kingdom and surrender his passport at the time or between the times specified in the notice by which the requirement is imposed. iii) Notify the enforcing authority within seven days if any of the matters set out in Schedule 2 of this order arise. It is further ordered pursuant to section 14G(1) of Football Spectators Act 1989 that the above named person must during the duration of the order: iv) Not to come within two miles of any regulated football match involving Fulham Football Club and either Brentford FC or Chelsea FC played at Craven Cottage, Fulham (or any future ground registered as the home of Fulham Football Club) during a period of four hours prior to the advertised kick-off time and until four hours after the final whistle inclusive. v) Not to enter any Town, City or London Borough in which a regulated “away football match” involving Fulham Football Club and either Brentford FC or Chelsea FC is being played four hours preceding the advertised kick-off time and before a time four hours after the conclusion of the match. vi) Not to go within two miles of any regulated football match involving Fulham Football Club and either Brentford FC or Chelsea FC preceding the advertised kick off time and before a time four hours after the conclusion of the match inclusive.