Implications of CA ruling on whether banning orders made under 1989 Act as amended by 2000 Act breached EC law and ECHR

Deards, E

Nottingham Trent Institutional Repository (IRep)

European Law Review2002Case CommentHuman rights for football hooligans?Elspeth DeardsSubject: Criminal law. Other related subjects: Human rightsKeywords: Banning orders; EC law; Football; Free movement of persons; Violent disorderLegislation: Football Spectators Act 1989Football (Disorder) Act 2000Case: Gough v Chief Constable of Derbyshire [2002] EWCA Civ 351; [2002] Q.B. 1213 (CA (Civ Div))*E.L. Rev. 765 The Court of Appeal in Gough has ruled that banning orders made under the Football(Spectators) Act 1989 are compatible with European Community law and the ECHR. In doing so, ithas upheld the decision of the Divisional Court in Gough & Smith v. Chief Constable of Derbyshire,Miller v. Leeds Magistrates Court, Lilley v. Director of Public Prosecutions.The facts and procedure in the lower courtsThe Football (Disorder) Act 2000 (“the 2000 Act”), which amends the Football Spectators Act 1989(“the 1989 Act”), is the most recent in a series of legislative measures designed to combat footballhooliganism by British fans at home and abroad. Section 14B of the 1989 Act as amended providesfor the making of a banning order against a person who has “at any time caused or contributed to anyviolence or disorder in the United Kingdom or elsewhere” if the court is:satisfied that there are reasonable grounds to believe that making a banning order would help toprevent violence or disorder in connection with any regulated matches.Gough and Smith were alleged, on the basis of convictions for assault and police “profiles”concerning their behaviour as part of a group of football hooligans, to have caused or contributed toviolence or disorder. Deputy District Judge Aujla in the Derby Magistrates Court imposed two yearbanning orders on both Gough and Smith under section 14B of the 1989 Act. The orders applied toareas within a radius of grounds at which Derby County were playing. Gough and Smith weresubsequently notified by the Football Banning Orders Authority (“FBOA”) that they must report to apolice station during regulated matches played abroad and surrender their passports. Their appeal tothe Divisional Court was rejected on the ground that the orders complied both with EuropeanCommunity law and the European Convention for the Protection of Human Rights and FundamentalFreedoms 1950 (ECHR).1The judgment of the Court of AppealGough and Smith argued that the banning orders imposed on them were not justified on public policygrounds and were therefore in breach of Community law, in particular *E.L. Rev. 766 Article 2 ofDirective 73/1482 which provided that Member State nationals who wished to go to another MemberState as recipients of services must be granted the right to leave their home Member State and haveissued or renewed a passport or identity card. The Court of Appeal3 addressed, first, the issue ofwhether the right of free movement was subject to derogations on grounds of public policy; second,whether such a derogation justified the banning orders; and, third, whether Article 8 ECHR had beenbreached.There was an exception on grounds of public policy to the right of free movementThe Court of Appeal ruled that Article 8 of Directive 73/148 enabled Member States to derogate fromthe rights in Article 2 on grounds of public policy, public security or public health. The expressderogation in Article 46 E.C. permitting the special treatment of “foreign” nationals on such groundsPage1did not imply that a Member State could not impose non-discriminatory restrictions on free movementon those grounds. For example, the High Court had jurisdiction under section 37(1) of the SupremeCourt Act 1981 to restrain a party from leaving the jurisdiction and require his or her passport to besurrendered where this was necessary to prevent court proceedings being deprived of their purpose.4The possibility of such restrictions had also been recognised by Council Resolution of 6 December2001, which provided that countries with the legal possibility of preventing potentially disruptive fansfrom travelling abroad should take all possible measures to do so.The measures taken were proportionate to the legitimate aim of preventing footballhooliganismThe Court of Appeal ruled that section 14B of the 1989 Act was compatible with Community lawaccording to the test of proportionality adopted by Lord Clyde in De Freitas v. Permanent Secretary ofMinistry of Agriculture, Fisheries, Lands and Housing 5 and cited by Lord Steyn in R v. Secretary ofState for the Home Department, ex parte Daly. 6a) The objective of the banning orders was sufficiently important to justify restrictionsThe Court stated that preventing football hooligans from taking part in violence and disorder in foreigncountries was an imperative reason of public interest which was capable of justifying restrictions ontheir freedom of movement. However, the justification was not the need to protect nationals in otherMember States, since in Alpine Investments BV v. Minister van Financien 7 the Court of Justice hadruled that Dutch restrictions on cold calling of consumers in other Member States could not bejustified by the protection *E.L. Rev. 767 of consumers in other Member States because this was nota matter for the Dutch authorities. Instead, the Court of Appeal ruled that the restrictions were justifiedby a number of factors relating to the United Kingdom's own interests in preventing hooliganismabroad. First, since other Member States had requested the United Kingdom's help in preventing itsfootball hooligans from creating disorder at matches in their countries, it should as a matter ofinternational solidarity endeavour to comply with those requests. Second, hooliganism by English andWelsh fans abroad tarnished the reputation of the United Kingdom. Third, hooliganism could lead tothe banning of English and Welsh clubs from international competitions, which would have seriousfinancial implications for those clubs and for associated businesses.It is submitted that this aspect of the ruling in Alpine Investments , and its consequences in Gough,are unfortunate. Directive 73/148 permits derogations on grounds simply of “public policy”, and thethreat of violence and disorder clearly constitutes “a genuine and sufficiently serious threat to therequirements of public policy affecting one of the fundamental interests of society” 8 so as to justifyrestrictions on free movement. Moreover, since the rationale underlying the free movement ofpersons is the creation of a single internal market, the protection of citizens of other Member Statesshould be as capable of justifying derogations as the protection of a Member State's own nationals. Itis true that proving the existence of a threat in another Member State will be more difficult, but in thiscase the requests for assistance by other Member States could provide the necessary evidence. TheAlpine Investments approach also risks weakening the protection of public policy since it reduces thescope for the home Member State, which is in the best position to identify and prove the risk posed byits nationals, to impose restrictions on them. In addition, such an approach in this case is contrary toCouncil Resolution of 6 December 2001 requiring Member States to prevent their own nationalstravelling abroad and participating in disorder there.In Alpine Investments, the Court of Justice concluded that the ban on cold calling could be justified bythe maintenance of the good repute of the Netherlands financial markets because of the importanceof these markets to the financing of economic operations. However, the factors cited by the Court ofAppeal to justify the banning orders in Gough are not analogous. Neither international comity nor thegood repute generally of the United Kingdom have an identifiable economic impact, and indeed theformer supports the argument that public policy considerations should include the impact on otherMember States. The financial interests of the football sector are more compelling, but exclusion fromEuropean competitions would only affect the limited number of clubs (and associated businesses)which would have qualified, and therefore there would be no substantial or widespread impact on theBritish economy.b) The imposition of the banning orders was proportionate to the objectiveThe Court considered that the test in De Freitas required the banning orders to have been imposedPage2after giving individual consideration to each appellant, not to have been based simply upon thecriminal record of each appellant, to be rationally connected to the *E.L. Rev. 768 objective ofpreventing English football hooliganism abroad, and to be no more than necessary to achieve thisobjective.The Court concluded that the 1989 Act clearly required consideration to be given to the individualduring the making of a banning order. First, the magistrates court must be satisfied that the personhad caused or contributed to violence or disorder and that the order would help to prevent violence ordisorder. Second, when considering whether to impose travel restrictions on a banned person, theFBOA must give his case individual consideration. It is submitted that although section 19(2D)allowed it to impose restrictions on a class basis and in practice they were so imposed, the fact thatthese restrictions resulted directly from the imposition of an individually considered banning ordersatisfied the requirement of individual consideration overall. Third, an individual subject to restrictionson travelling abroad could seek exemption from them and, if he did so, individual consideration wouldbe given to his case. The Court was also satisfied that the banning orders had not been based simplyupon the criminal record of each appellant.Although the Court concluded that the measures were connected to the objective of preventingEnglish football hooliganism abroad and were no more than necessary to achieve it, since a personlikely to get involved in violence or disorder at domestic matches was as or more likely to do so atmatches abroad, it disagreed with the assertion of the Divisional Court that the failure of previousmeasures to prevent hooliganism by English fans abroad automatically demonstrated that the moreradical measures of the 2000 Act were proportionate. Indeed the Court of Appeal made a number ofcriticisms of the amendments to the 1989 Act introduced by the 2000 Act. The nature of the facts tobe proved and the applicable standard of proof when the magistrates considered whether there were“reasonable grounds to believe that making a banning order would help to prevent violence ordisorder at or in connection with any regulated football matches” under section 14B of the 1989 Actwere unclear. The meaning of “special circumstances” and the applicable standard of proof when theFBOA considered whether there were special circumstances justifying a banned person going abroadand meaning that such a person would not attend matches were also unclear, and the onus of proofwas on the banned person. The provisions were therefore open to an interpretation which would bedisproportionate.However, the Court of Appeal concluded that the question was not whether the statutory provisionscould give rise to a disproportionate effect but whether they could give rise to a proportionate effect,and that they could. This approach must be correct, since if national law can be interpreted in line withCommunity law, national courts are obliged to interpret it in that way, regardless of whether anotherinterpretation is possible.9The Court considered that the provisions were capable of being applied proportionately because, first,a banning order should only be imposed where there were compelling grounds to conclude that thesubject had a propensity to take part in football hooliganism. This reflects the approach of the Court ofJustice when assessing whether restrictions on grounds of public policy are justified by criminalconvictions.10 Second, it was *E.L. Rev. 769 proportionate that such persons be required to obtainpermission to travel abroad when prescribed matches were taking place, and to prove that theirpurpose was other than attendance at such matches. The public policy objective would not be met bylesser measures. Third, a reverse burden of proof was not incompatible with Community law or theECHR.11 The object of the foreign travel was likely to be within the exclusive knowledge of the bannedperson, and its proof should not be difficult so long as an appropriate standard of proof was applied.The Court of Appeal agreed with the Divisional Court that the proceedings in which banning orderswere imposed were civil proceedings, and that orders were not penalties. However, although the civilstandard of proof technically applied when assessing whether there were “reasonable grounds tobelieve” that a banning order would help to prevent violence or disorder, the Court of Appeal ruledthat this standard was flexible and must reflect the serious consequences for citizens' freedom that anorder had. The necessity of imposing a restriction upon a fundamental freedom must be strictlydemonstrated, and the standard of proof applied should be “hard to distinguish from the criminal”.12The Court considered that such a standard was possible under the section 14B regime. First, section14B(4)(a) required that the person be proved to have “caused or contributed to any violence ordisorder in the United Kingdom or elsewhere”, a standard of proof that was virtually indistinguishablefrom the criminal. Second, section 14B(4)(b) required that there be reasonable grounds to believe thatmaking a banning order would help to prevent violence or disorder at or in connection with anyPage3regulated football matches. The reasonable grounds would almost inevitably consist of past conduct,which must be such as to make it reasonable to conclude that if the person was not subject to abanning order, he was likely to contribute to football violence or disorder in the future. The conductneed not be football related but must be proved to a strict standard of proof and be such that if theperson were not banned, he would attend matches and take part in violence and disorder. Third,section 20(4) of the 1989 Act required the FBOA to exempt the subject of a banning order fromrestrictions on foreign travel if there were “special circumstances” which justified the exemption andindicated that he would not attend matches if exempted. The phrase “special circumstances” shouldnot be interpreted as extraordinary circumstances, and provided that the reason for travel was otherthan attendance at a prescribed match, permission should be granted. The FBOA should merelysatisfy themselves on a balance of probabilities that this was the case, and indeed the facts indicatedthat this had been its approach. All of the 80 or so applications made so far had been granted,including one by Gough himself.The Court of Appeal concluded that the District Judge (Magistrates Court) had failed to apply theappropriate standard of proof. His ruling that the civil standard applied and that he need only havegrounds to believe that an order would help to prevent violence or disorder indicated that he did notapply a sufficiently strict standard. However, the Court considered that this was unsurprising, sincethe only argument before him was whether the civil or criminal standard applied and McCann 13 hadnot yet been decided, and ruled that *E.L. Rev. 770 the profile of each appellant would in fact havejustified making an order had the strict standard been applied.The banning orders did not breach Article 8 ECHRThe Court ruled that although a banning order might result in a breach of the right to respect forprivate or family life under Article 8 ECHR, on the facts there had been no such breach. In any event,such a breach would be likely to be justified under Article 8(2) as necessary for the prevention ofdisorder.The appeal was therefore dismissed. Leave to appeal to the House of Lords was refused.ConclusionThis judgment is important for a number of reasons. First, it provides Court of Appeal authority for theproposition that banning orders under section 14B of the 1989 Act are lawful as a matter ofCommunity law. This is despite the Resolution on hooliganism and the free movement of footballsupporters, which states that only a conviction for violence or a football related offence should justifya banning order.14Second, the judgment also provides Court of Appeal authority for the proposition that the imposition ofthe banning orders was in accordance with the ECHR. Although Gough and Smith did not appealagainst the ruling of the Divisional Court that the Article 7 ECHR prohibition on the retrospectiveapplication of heavier penalties did not apply because the banning orders were not penalties, theCourt of Appeal nonetheless confirmed that this was correct. It also ruled that there had been nobreach of Article 8 ECHR.Third, the judgment confirms that public policy restrictions on a Member States' own nationals may bejustified only by reference to its own interests. However, the latter are to be construed widely, andmay include its duty to co-operate with other Member States, its international reputation generally,and the financial interests of a small sector with limited impact on other areas of the economy. Whilethe Court of Appeal cannot be criticised for following the judgment of the Court of Justice in AlpineInvestments, it is regrettable that the latter has excluded the protection of other Member Statenationals from public policy considerations. As argued above, this could adversely affect theprotection of public policy unless (and possibly even if) the artificial exercise of identifying someinternal interest for a Member State to protect is carried out. It is therefore to be hoped that the Courtof Justice reverses its position on this issue.LLB (Hons), Solicitor, Senior Lecturer, Nottingham Law School, Nottingham Trent University.E.L. Rev. 2002, 27(6), 765-770Page41.Gough & Smith v. Chief Constable of Derbyshire, Miller v. Leeds Magistrates Court, Lilley v. Director of Public Prosecutions [2001] EWHCAdmin 554, [2001] 3 C.M.L.R. 29; see Deards (2002) 27 E.L.Rev. 206.2.Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community fornationals of Member States with regard to establishment and the provision of services [1973] O.J. L172/14.3.Gough and Smith v. Chief Constable of Derbyshire , [2002] EWCA Civ 351, [2002] 2 C.M.L.R. 11.4.B v. B (Injunction: Jurisdiction ) [1988] 1 W.L.R. 329 at 334.5. [1999] 1 A.C. 69.6. [2001] UKHL 26; [2001] 2 W.L.R. 1622, para. 27.7.Case C-384/93, Alpine Investments BV v. Minister van Financien [1995] E.C.R. I-1141; [1995] 2 C.M.L.R. 209.8.Case 30/77, R. v. Bouchereau [1977] E.C.R. 1999; [1977] 2 C.M.L.R. 800, para. 35.9.See, for example, Case C-300/95, Commission v. United Kingdom [1997] E.C.R. I-2649; [1997] 3 C.M.L.R. 923.10.R. v. Bouchereau, above, n. 8 at para. 29.11.Lord Bingham in Brown v. Stott [2001] All E.R. 97 at 104.12.See also B v. Chief Constable of Avon and Somerset Constabulary [2001] 1 W.L.R. 340 per Lord Bingham at para. 31 and R (McCann) v.Manchester Crown Court [2001] EWCA Civ 281; [2000] 1 W.L.R. 1084.13.ibid.14. [1996] O.J. C166/40 at para. 32.© 2012 Sweet & Maxwell and its ContributorsPage5

Human rights for football hooligans? ("Gough v Chief Constable of Derbyshire, 2002")

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Human rights for football hooligans? ("Gough v Chief Constable of Derbyshire, 2002")

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