Brown v Inner London Crown Court

LORD JUSTICE ROSE: This application, brought with leave of the single judge, seeks to challenge a decision of HHJ Stone sitting with two justices on 10 April 2003. The judge and justices at the Crown Court on that occasion dismissed an appeal by the claimant against a decision of justices whereby a three year football banning order was made against the claimant under section 14A of the Football Spectators Act 1989. The justices sitting at Highbury Corner Magistrates' Court had made that order on 29 January 2003.

The claimant had been convicted of an offence of offering for sale on 9 November 2002 a ticket for a designated football match contrary to section 166(1) and (3) of the Criminal Justice and Public Order Act 1994. The claimant had pleaded guilty before the justices to that offence. It was common ground that the football match, which on 9 November 2002 was taking place at the Arsenal stadium between Arsenal and Newcastle, was a designated football match within the appropriate legislation. There was evidence to be found in the statement served on the defence made by two police officers which was not in dispute. The material parts of it disclosed these facts.

A little before 3 o'clock in the afternoon, a 6' 04" male with short ginger hair, wearing a long cream jacket and blue jeans and who was, it transpired, the claimant, was observed by the officers. He was saying "anybody selling any tickets", and one of the officers said "no mate, we are looking for one more". The claimant then said "I can get you one for £100". The officers took out some money and said that they had that sum. The claimant then said "yes, I will go and get you one". And he asked the officers to follow him, which they did. The stage came when the claimant asked the officers to wait for him in Gillespie Road between the junctions of St Thomas's Road and Avenell Road, and the claimant then walked off and disappeared from view. Shortly afterwards he came back and said he had a ticket, but would the officers follow him because, as he put it, there were undercover police officers about at that place.

A little after that, having said that the ticket was for the west stand, the claimant produced a ticket and was then told he was being arrested for ticket touting. He made no reply. When he was searched there was found to be in his possession a sum just in excess of £426 in cash.

The statutory provisions in relation to this matter are to be found in the Football Spectators Act 1989. Section 14A says:

It is to be noted that that section is headed "banning orders made on conviction of an offence". Because of the submissions made by Mr Fiddler on behalf of the complainant to which in a moment I shall come, it is necessary to read the provisions of section 14B which, it is to be noted, is headed "banning orders made on a complaint". That section provides:

Section 14F prescribes, in relation to the period of banning orders, that where an order is made under section 14A in addition to a sentence of imprisonment taking immediate effect, the maximum is 10 years and the minimum is 6 years. The section further provides that, in any other case, that is to say where there is not an immediate sentence of imprisonment, the maximum is 5 years and the minimum is 3 years. In the present case, it is apparent that the minimum period of 3 years was imposed.

Schedule 1 to the same Act lists, in paragraph 1, the offences to which the schedule applies. It is to be noted that, in relation to all the offences listed in (a) to (t), there is an element of violence, threatened violence, the carrying of a weapon, or the causing of harassment or distress or what might be described as bad behaviour by reason of the consumption of alcohol. (u), however, is in a category unsullied by any conduct of that kind. It says:

Indeed, section 166 of the 1994 Act, as is implicit in what I said at the beginning of this judgment, makes it an offence for an unauthorised person to sell or offer or expose for sale a ticket for a designated football match in any public place or place to which the public has access or in the course of a trade or business in any other place.

The matter came before the single judge who granted leave because there had been a refusal by the Crown Court judge at Inner London Crown Court to state a case on the basis that the application that he should do so was frivolous and misguided. In a letter written to the claimant's solicitors on 14 April by the Court Service at that Crown Court, there appears, by reference to the judge, the following:

It was in that context that the single judge in granting leave said:

The argument advanced by Mr Fidler on behalf of the claimant before this court today is, first, that, as a matter of statutory construction, it is necessary to read into section 14A the provisions of section 14B(2), that is to say, that the defendant is shown to have caused or contributed to violence or disorder in the United Kingdom or elsewhere. Once that is incorporated into section 14A, submits Mr Fidler, the test in section 14A and 14B(4)(b) is the same, that is to say, the making of a banning order is dependent on there being reasonable grounds to believe that it would help to prevent violence or disorder at or in connection with any regulated football match.

Mr Fidler sought sustenance for his submission from paragraphs 69 and 70 of the judgment of the Master of the Rolls, giving the judgment of the court, in Gough v Chief Constable of the Derbyshire Constabulary [2002] QB 1213. For my part, I find nothing in that judgment to support Mr Fidler's contention.

The court in that case, when considering the question of whether or not the statutory provisions of section 14B were in violation of the requirements of Article 6 of the European Convention on Human Rights, indicated the three stage procedure appropriate in relation to the civil remedy, which is provided by section 14B. For my part, I find nothing of relevance to the construction of section 14A with which the Court of Appeal was not concerned.

Mr Fidler's second submission is that the imposition of a banning order was unreasonable and disproportionate in relation to the demonstrated sale of only one ticket. He accepted that no explanation was offered in the Crown Court of the substantial sum of cash in the claimant's possession, but he pointed out that the prosecution did not at the Crown Court seek a confiscation order in respect of that cash.

The central thrust of Mr Fidler's submissions was that it is necessary to look at the circumstances of the particular defendant in relation to whether he has in fact contributed personally and directly to violence or disorder and in relation to whether he has previous convictions in determining whether a banning order is capable of being made under section 14A(2). For my part, I am quite unable to accept Mr Fidler's submissions.

His point on the construction of the statute is, it seems to me, quite unarguable. It is to my mind of significance that there is, in section 14A, no reference to the defendant having at any time caused or contributed to any violence or disorder such as is to be found in section 14B and such as is a prerequisite for the making of an order in civil proceedings under that section. The regime provided by section 14A in relation to banning orders made on conviction is clearly and expressly different, and as Mr Zeitlin, for the Crown Prosecution Service, points out, the purpose of a banning order, following conviction for an offence is to contribute to prevention of a breach of the peace as an ancillary order to whatever other punishment is imposed.

For my part, I do not accept that there was anything in the present case disproportionate in the making of an order. It is true, as Mr Fidler points out, that the terms of section 14A(2) are mandatory in relation to the making of an order, but that mandatory obligation, it is to be noted, only arises once the court is satisfied that there are reasonable grounds for believing that such an order will help to prevent violence or disorder. It does not necessarily follow that the mere sale of a ticket in relation to a designated match in, for example, a domestic or family or friendly context, would provide reasonable grounds for satisfaction that the making of a banning order would help to prevent violence or disorder. In such a case, such an order may well be inappropriate. But that is not the case with which we are here concerned. The case with which we are concerned is a defendant who quite plainly was selling not only the ticket which he sold to the police officers, but was in a position immediately to gain access to a source of such tickets. Further, it was reasonably to be inferred, in the absence of any other explanation, that the substantial sum of cash found in his possession was the fruit of earlier similar activity. It seems to me, therefore, that there was ample material justifying the Crown Court in reaching the conclusion that there were reasonable grounds for believing that a banning order would in this case help to prevent violence or disorder at an appropriately regulated match.

There was no disproportion in the Crown Court upholding the minimum term for a banning order imposed by the magistrates. That, no doubt, reflected the early plea of guilty, remorse and the defendant's previous good character. For my part, I would dismiss this application.

MR JUSTICE JACKSON: I agree. The Football Spectators Act 1989 (as amended) provides a scheme which is intended to reduce so far as possible the occurrence of violence at football matches. As the Court of Appeal explained in Gough v Chief Constable of Derbyshire [2002] QB 1213 at paragraph 13, the Act provides for the making of a banning order in two different situations.

Mr Fidler argues that the condition set out in section 14B(2) should be imported by implication into section 14A. In my view, that argument is misconceived. Proceedings under section 14A are criminal whereas proceedings under section 14B are civil. The two procedures leading to the making of a banning order are fundamentally different. In support of his argument, Mr Fidler places reliance on Gough at paragraphs 69 to 7O. In my view, those paragraphs apply only to proceedings under section 14B. They are of no application to proceedings under section 14A.

The short answer to the claimant's claim is this. The claimant was convicted of unauthorised sale of a ticket contrary to section 166 of the Criminal Justice and Public Order Act 1994. That offence is specified in Schedule 1 to the Football Spectators Act 1989. It is included in Schedule 1 not because it involves violence, but because it is inimical to crowd control and thus increases the risk of subsequent violence. Both the magistrates and the Crown Court in the present case concluded that making a banning order against the claimant would help to prevent violence or disorder at or in connection with any regulated football matches. On the evidence in the present case, that finding was amply justified. Having made that finding, the court was obliged to make a banning order by reason of section 14A(2). The court duly did so. There is no possible basis for challenging that order. The claimant's claim must fail.

MR FIDLER: My Lord, there is one application for legal aid taxation.

LORD JUSTICE ROSE: You have a representation order, have you?

MR FIDLER: I lodged a copy this morning.

LORD JUSTICE ROSE: Yes, provided the court has the appropriate certificate then we shall make the necessary order if we need to.

MR FIDLER: I am grateful.