Following the glories of the Lionesses at the Euros 2022 and the new football seasons kicking off, football fans have much to look forward to in the coming months.
The introduction of the Police, Crime, Sentencing and Courts Act 2022 though has had an impact on the law surrounding Football Banning Orders and it is important that football fans are aware of these changes, particularly relating to Football Banning Order applications made in respect of offences alleged to have been committed on or after 29 June 2022, should they find themselves facing prosecution and/or at risk of a Football Banning Order being imposed.
What is a Football Banning Order?
A Football Banning Order (‘FBO’) is an order imposed by a criminal court (Magistrates’ or Crown Court at first instance) and includes mandatory provisions which generally have the following effects:
- Prevents a person from attending any regulated football match in the UK (regulated means association football*);
- Prevents a person from attending any regulated football match outside England and Wales if one or both of the teams are a member of association football (UK);
- Requires a person to report to their local Police Station and surrender their passport at a time when a regulated football match is being played outside the UK or an external tournament which includes regulated football matches. The time period for that is up to five days before either the match or the tournament begins and ends when the match or tournament is finished.
This means that a person with a FBO cannot attend any regulated football match in the UK (the men or women’s game) irrespective of whether it is a team they support. This also includes the national team.
Similarly, they are also prevented from attending a regulated football matched played outside England and Wales if one or both teams are a member of association football. For example, a person with a FBO would be prevented from attending a Champions League match if a premiership team were playing or the World Cup tournament in its entirety but also from attending the country where the match is held, by virtue of the fact they must surrender their passport.
In addition to notification requirements concerning personal details, a FBO may also contain other prohibitions unique to the individual, such as preventing a person from entering a defined area (usually within the radius of their local football club or town centre) several hours before kick-off up to several hours after the end of the match.
They can be applied for following a conviction or upon complaint (not charged with an offence) by the relevant chief officer (Police Force or British Transport Police) which means that even if a person is charged with an offence and found ‘not guilty’ after a trial, the prosecution can still apply for a FBO.
In terms of length of a FBO, it varies depending on how the order was made and any sentence received:
- If convicted and the person received a sentence of immediate imprisonment, the maximum duration is 10 years and a minimum of 6 years;
- If convicted and they did not receive a sentence of immediate imprisonment, the maximum duration is 5 years and a minimum of 3 years;
- If they were not convicted, the maximum is 5 years and the minimum is 3 years.
A person can apply to the Court which made the FBO for an early termination, after two thirds of the time has elapsed from the date the FBO was made.
What sort of offences allow an application for a Football Banning Order to be made?
For FBOs sought upon conviction, it must arise from a ‘relevant offence’. These are outlined in Schedule 1 of the Football Spectators Act 1989 and is an exhaustive list, covering offences said to have occurred inside a football ground or on the way to/from a football match. Since the commencement of section 190 of the Police, Crime Sentencing and Courts Act 2022, the scope has been widened to encompass the following:
- Offences under section 4/4A/5 Public Order Act 1986 alleged to have been committed whilst on a journey to or from a football match or during the period relevant to the football match (24 hours before kick-off and 24 hours after the match has finished). In these circumstances, the Court must declare the offence relevant to the football match;
- Racially or religiously aggravated public order offences (section 31 of the Crime and Disorder Act 1988) or offences under Part 3/3A (hatred by reference to race, religion or sexual orientation) which can be committed at any time against a football organisation or a person who the accused knew or believed to have a prescribed connection with a football organisation**. This includes (but not limited to) a player, manager, coach, physiotherapist, referee, match official, journalist, broadcast staff or matchday pitchside staff. The Court must declare it is football-related;
- Similarly, offences pertaining to section 1 of the Malicious Communications Act 1988 or 127(1) of the Communications Act 2003 (can also be aggravated by hostility of any type) are to be treated in the same way and also without the limitations of time or geography.
These changes only apply to offences alleged to have been committed on or after 29 June 2022.
The effect of the legislation is that theoretically, a public order offence could be committed away from the football ground and the match itself or a tweet pertaining to a referee which was considered grossly offensive, could be posted several days after the relevant match and yet, in both scenarios, it could still result in that person receiving an FBO.
What is the legal test for imposing a Football Banning Order?
Perhaps the most significant change introduced by the legislation is the test which is to be applied by the Court when considering whether to impose a FBO following a conviction.
The test for FBOs made upon complaint, remains unchanged, namely, i) did a person cause or contribute to violence in the UK or elsewhere and ii) would imposing a FBO help prevent football-related violence or disorder? Any application under this limb should be made to the Magistrates’ Court.
For FBOs sought after conviction, offences committed before 29 June 2022, the test remains the same, namely:
- If the court is satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder at or in connection with any regulated football matches, it must make such an order in respect of the offender.
Section 192 of the Police, Crime Sentencing and Courts Act 2022 has amended the test for offences committed on or after 29 June 2022 to:
- The Court must impose a FBO unless the Court considers that there are particular circumstances relating to the offence or to the offender which would make it unjust in all the circumstances to do so.
Consequently, this creates an obligation upon the Court to impose a FBO when a person is convicted of a relevant offence, removing the subjective nature of test. It also raises the bar for those seeking to argue that they should not be made subject to a FBO, as the focus is less on the prevention of further violence/disorder and on why it would be unjust which seemingly has the effect of making a FBO a punitive order rather than a preventative one, as originally intended.
Do I have to accept a Football Banning Order?
No – even if a person is charged with an offence and pleaded guilty, they have the right to contest the imposition of a FBO.
Each case is different though and anybody who is faced with having a FBO imposed upon them is urged to seek legal advice.
Any Further Changes?
In addition to those already outlined, Section 191 of the Police, Crime Sentencing and Courts Act 2022 confers a power on the Secretary of State to add, modify or remove offences listed under Schedule 1 of the Football Spectators Act 1989 (relevant offences) which enables an application to be made for a FBO following a conviction.
The Government has already signalled its intention to tackle drug use by football fans and in their consultation ‘Swift, Certain, Tough: New Consequences for Drug Possession’ published on 28 July 2022, the Home Office has outlined plans to include ‘those at football matches caught in possession of class A drugs’[1] who may receive a FBO. Therefore, whilst it is not in force presently, it is likely that in the near future, football fans caught in possession of drugs such as cocaine maybe at risk of receiving a FBO.
*The full list of what constitutes ‘association football’ in the UK is contained at Article 3 of the Football Spectators (Prescription) Order 2002.
**A person who has a prescribed football connection is defined at Article 5 of The Football Spectators (Prescription) Order 2022.
[1] https://www.gov.uk/government/consultations/swift-certain-tough-new-consequences-for-drug-possession-white-paper/swift-certain-tough-new-consequences-for-drug-possession-accessible-version para 72-73
Article written by Helen Dawson
Helen and the members of 15NBS work closely with Football Law Associates and other solicitors firms in assisting clients with football related charges and football banning orders.
