Neutral Citation Number: [2011] EWCA Crim 1928
Case No: 2011/2403/D5, 2011/2412/D5, 2011/2410/D5, 2011/2408/D5, 2011/2405/D5, 2011/2407/D5, 2011/2406/D5 
IN THE COURT OF APPEAL
CIVIL AND CRIMINAL DIVISIONS
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Tuesday, 19 July 2011
 
B e f o r e:

THE VICE PRESIDENT
(LORD JUSTICE HUGHES) 

MR JUSTICE BEAN 
 
MR JUSTICE BLAKE 
- - - - - - - - - - - - - - - - - - - - -
R E G I N A 

v 

PHILLIP BOGGILD
DAVID HUGHES 
RYAN QUINN 
SCOTT PETTERSON 
JOHN DAVIES 
LUKE MCLOUGHLIN 
STEPHEN HAYES 
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
165 Fleet Street  London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Mr B Altman QC appeared on behalf of the Applicant Crown 
Mr E Haygarth appeared on behalf of the Respondent Defendants 
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T 

1.	THE VICE PRESIDENT:  This is an application for leave to appeal brought by the prosecution under section 14A(5A) of the Football Spectators Act 1989.  The contention made by the Crown is that the judge was wrong not to make a football banning order following the conviction of seven defendants for an affray which was committed in the aftermath of a football match.
2.	The first issue raised by this appeal is one of jurisdiction.  If a defendant is aggrieved at the making of a football banning order he has the standard right of appeal against sentence with leave because a football banning order is included as one of forms of ancillary order which counts as part of the sentence.  That is expressly provided by section 50 of the Criminal Appeal Act 1968.  A defendant's appeal against sentence comes to the Court of Appeal (Criminal Division) under sections 9 to 11 of the Criminal Appeal Act 1968.  There is accordingly no difficulty about a defendant's appeal in relation to a football banning order.
3.	However, the Crown of course has no general right of appeal against sentence.  Indeed, the Crown has no general right of appeal in a criminal case at all, except to the extent that it is, unusually, provided for by statute.  The only provision of the Football Spectators Act containing any reference to appeal are subsections 14A(5A), (5B) and (5C).  Those say as follows:  
"(5A) The prosecution has a right of appeal against a failure by the court to make a banning order under this section—
... 
 (b) where it is by the Crown Court, to the Court of Appeal. 
 (5B) An appeal under subsection (5A)(b) may be brought only if the Court of Appeal gives permission or the judge who decided not to make an order grants a certificate that his decision is fit for appeal.   
 (5C) An order made on appeal under this section (other than one directing that an application be re‑heard by the court from which the appeal was brought) is to be treated for the purposes of this Part as if it were an order of the court from which the appeal was brought." 
That is all there is.  Although subsection (5C) appears to contemplate that the Court of Appeal may decide or wish, if it allows the appeal, itself to make the football banning order that it has held ought to have been made below, there is no explicit provision authorising the court to do so.  That kind of provision accompanies every other kind of criminal appeal: see for example section 58 and subsequently of the Criminal Justice Act 2003, sections 31 to 32 of the Proceeds of Crime Act 2002 and indeed for that matter section 11(3) of Criminal Appeal Act 1968.  Nor is there any provision for any of the ancillary powers which it is necessary for a court of appeal to have if it is to entertain an appeal.  There is no provision for the attendance of the accused; there is no provision for the granting of leave; there is no provision for the reception of fresh evidence, if that should be necessary.  Much more fundamentally, there is no provision directing that the appeal which has been created by section 14A(5A) should be heard by the Court of Appeal (Criminal Division), which is where one would expect an issue relating to an order made at the time of sentence to be directed.  
4.	The consequence of the Senior Courts Act 1981, section 53, is that the Court of Appeal (Criminal Division) has no jurisdiction to hear any matter other than those which are specified in subsection (2) of that section, or where jurisdiction is expressly conferred by statute.  It follows that whilst we gravely doubt that this was Parliament's intention, the Court of Appeal (Criminal Division) has no jurisdiction to entertain this or any similar appeal by the Crown.  Curiously, however, by section 53(3) the Civil Division of the Court of Appeal does have the whole of the jurisdiction of the Court of Appeal as a whole, which is not exercisable by the Criminal Division.  
5.	The unexpected consequence of those provisions is that this appeal relating to an order made by a judge following a plea of guilty in the Crown Court against a defendant who was before it for sentence falls to be considered not by the court that one would expect, the Court of Appeal (Criminal Division), but rather by the Court of Appeal (Civil Division).  The possibility that that has been achieved by design seems to us to be remote.  We have, however, therefore constituted ourselves with the concurrence of the Master of the Rolls and the President of the Queen's Bench Division as a Civil Division of the Court of Appeal for the purposes of this appeal.  
6.	Since we have done so, the consequence of section 15(3) of the Senior Courts Act 1981 is that this court has all the authority and jurisdiction of the court from which the appeal is brought, that is to say the Crown Court.  That remedies the statutory absence of any provision giving us power to make the football banning order that the Crown says ought to have been made below.  It does not remedy the statutory absence of the other ancillary provisions which are necessary for the handling of an appeal in many cases, but in the present case their absence does not present an obstacle.  It does seem to me, however, that although this court is thus properly constituted as a Civil Division of the Court of Appeal and can deal with the Crown's appeal on its merits, the anomaly ought to be drawn to the attention of those responsible for the legislation.  The present statutory position means that it would be impossible to have heard at the same time, that is to say simultaneously, a defendant's appeal against sentence and a prosecution cross appeal against a decision not to make a football banning order.  Similarly, if the prosecution were to appeal in the case of defendant A, complaining about the absence of a football banning order, and at the same time co‑accused B, dealt with at the same time for the same offence, should wish to appeal against the making of a football banning order, those two appeals would have to be assigned to different divisions of the court.  They could not be heard simultaneously.  The only solution would be to adopt the device of the same judges sitting consecutively, to hear two separate appeals.  It does seem to me highly unlikely that those complications were the intention of Parliament.  One would have thought these appeals ought to be allocated to the Court of Appeal (Criminal Division) and that court ought to be empowered to make, on hearing the appeal, any order which the court below could have made.  Further, one would have thought that the usual ancillary powers of the Court of Appeal (Criminal Division) in relation to the reception of fresh evidence, attendance of the accused, whether by video link or otherwise and, importantly, as to the making of a decision as to leave by a single judge, all of which require statutory authority, ought to be provided for.
7.	This unexpected consequence of the drafting of the statute aside, it is time to turn to the merits of the application.
8.	These defendants were aged between 16 and 23 at the time of the offence.  In March of 2010 they came from Liverpool, where they live, as supporters of Everton Football Club to Wolverhampton where Everton were playing Wolverhampton Wanderers in the premier division.  That match was a regulated football match within the meaning of Part 2 of the Football Spectators Act 1989.  There was no incident of any adverse kind on the way down or during the match which affected any of these defendants.  However, about 15 minutes after the end of the match they were walking in search of their coach which was not, it would appear, in the expected place.  Their walking took them past a public house not far from the stadium at Molyneux, where, in that public house, large numbers of Wolverhampton supporters were gathered, both inside and outside.  Since it was still about 15 minutes from the end of the match, that was within what the Act calls "the relevant period" for the purposes of schedule 1 paragraph 4 sub‑paragraph (2) ‑‑ in other words the various provisions of the Act still applied to events although the match was recently over.  
9.	Somewhat more of the Wolverhampton supporters engaged the defendants.  The defendant Boggild was seen on CCTV recording to move towards the Wolverhampton supporters and to shout towards them whilst waving his arms.  There followed an outbreak of disorder.  The defendants, and indeed others unidentified, moved towards the Wolverhampton fans.  Some of the Wolverhampton fans threw glasses, and traffic cones were picked up and thrown by both sides.  There were some, but not many, punches and kicks exchanged.  What happened was subsequently described accurately as a brief skirmish which was over within a minute.  The Everton group was heavily in the minority in terms of numbers and came under assault from people who ran from the public house to oppose them.  They made off, did the defendants, and found their transport back to Liverpool.  
10.	In due course all seven of these defendants pleaded guilty to affray.  Whether any of the Wolverhampton fans who had apparently started it were identified and prosecuted history does not relate and it does not matter.  
11.	The sentences passed by the judge were either custodial sentences but suspended, or were community orders where the defendants were youths ‑‑ they were youth rehabilitation orders.  In addition to those orders, in every case the judge imposed substantial orders requiring the defendants to do unpaid work for the community.  Thirdly, he ordered all the defendants except the 16‑year‑old who had no money to make a substantial payment by way of costs.  Lastly, he made it a condition of the suspended sentences and the youth rehabilitation orders, that the defendants should be forbidden to attend any professional football match, domestic or international, except for home games at Everton's home ground, Goodison Park, for the period of two years.  He no doubt took into account the fact that by the time he sentenced them the defendants had been on bail for a year with a condition preventing them from attending any football matches at all, and had obeyed the condition.
12.	The provisions for making a football banning order now reside in sections 14 to 14H of the Football Spectators Act and subsequent provisions of the same Act contain consequential rules for the carrying into effect of the orders.  A football banning order may be made broadly in two circumstances.  The first is following conviction of a football related offence.  In that event the relevant section is section 14A.  The second is where complaint is made to the Magistrates' Court by the police seeking an order in the absence of conviction.  In that event the relevant section is 14B.  
13.	Whichever it is, the statutory test for making the football banning order is expressed in the same language.  This was a conviction case and so we set out the language from section 14A(2): 
"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." 
Subsection (3) immediately following provides that if the court is not satisfied of that, it must in open court state that fact and give its reasons.
14.	The consequences of a football banning order are potentially far‑reaching.  First, they last, if they are attached to an immediate sentence of imprisonment, for a minimum of six years up to a maximum of ten.  If they are attached to a sentence (as in this case) which is not an immediate sentence of imprisonment, they still must last for a minimum of three years and may last for up to five.  Next, as the name suggests, such orders prohibit the defendant from attending any regulated football match anywhere in the United Kingdom during the period of the order: section 14(4)(a).  Additionally, however, and thirdly, they require the defendant to comply with a regime under which he can be called to a police station and made to surrender his passport at the time of any regulated football match which is occurring outside the United Kingdom and which has any, in many cases very remote, connection with an English club: section 14(4)(b).  Such matches are not confined to those where English clubs are competing.  The regime works in this way.  The football banning order makes the defendant susceptible to a further notice delivered by the police under section 19 of the Act requiring him to report and surrender his passport.  The police can serve that notice whenever they think that there is a risk that he may travel abroad to any match.  If they do, the effect is to prevent him travelling anywhere ‑‑ not simply to the match, but anywhere.  The only modification to that is that under section 20 if he can demonstrate that he is not going to the match but is going to some completely different country for an innocent reason he can ask for exemption and if refused can appeal to the Magistrates' Court.  Fourthly, in order to support these various prohibitions, the order and the Act require the defendant against whom such an order is made to present himself to his local police station within five days of it being made and to provide them with any names by which he is known, any address where he lives for anything beyond four weeks, with the details of any passport or travel documents that he may have, and (importantly) with his photograph.  
15.	There can be no doubt that strong provisions of this kind were and remain necessary to achieve some control of the phenomenon of football hooliganism and violence.  The judge rightly referred to the scourge which this behaviour constitutes.  As everybody knows, it has very badly damaged this country's reputation abroad.  It has had a serious impact on the willingness of other countries to compete with British teams and it is obvious that the violence and disorder is such sometimes as to carry enormous danger that innocent people are hurt, and if not hurt that they are deterred from attending what ought to be sporting occasions.  It is also worth reminding oneself that those who are guilty of such conduct, although they are sometimes people with a history of violent behaviour unrelated to football, may sometimes be, and not infrequently are, otherwise hardworking and unconvicted persons.
16.	The contention of the Crown in this case is that given the circumstances of the case and his own findings, the judge erred in not making a football banning order.  It is the Crown's contention that the intention of Parliament to be gathered from the statute was "that those who were convicted of relevant offences would in the normal case be made the subject of a football banning order."  It is the Crown's contention that the imposition of such an order should normally follow from the conviction alone.  On behalf of the Crown the supplemental submission of Mr Altman QC is that the judge having said what he did about the scourge of football violence and the appropriateness of sentences reflecting deterrence of others, ought to have concluded in consequence that the statutory test in section 14A(2) was met.  
17.	This judge was, it is perfectly clear, very well aware both of his powers to make a football banning order and indeed for that matter the Crown having applied for one to be made.  It is completely clear that he considered making such an order and decided against it.  Instead he constructed his sentence in the multifaceted way which I have explained.  
18.	The judge did err in not expressly saying at the time that he passed his sentences why he had not made a football banning order.  That was an error because it is required by section 14A(3).  However, that omission was repaired a few days later when application was made to him for leave to appeal.  In refusing such leave, he gave a short summary of the facts.  He added, as was the case, that he had not only dealt with the pleas of guilty of these seven defendants, but had also presided over the trial of an eighth co‑accused who had been acquitted.  Accordingly, he had had ample opportunity to immerse himself in the facts of the offence and in the circumstances of the individual defendants with whom he was dealing.  Moreover, the entire incident, lasting something under a minute, had been recorded on conveniently sited CCTV and the judge had been able to see everything that had happened for himself.  
19.	The judge's findings, which are unassailable in those circumstances, were these.  These defendants had not been, as many football supporters unhappily are, looking for trouble.  They had simply passed the group of home supporters while they were looking for their bus.  The defendants had responded to a disturbance begun by the home supporters.  That by itself is of course not particularly unusual.  Responding to taunt or provocation is as much an offence as creating the violence in the beginning and in many cases it is almost impossible to tell how it started anyway.  But it is the fact that in this case the judge could tell and reached the conclusion that I have set out.  Moreover, the judge concluded that each of the defendants that he was dealing with was either of good character or of few and minor previous convictions.  Not one of them had any previous conviction relating to football misbehaviour.  Nor, as I understand it, was there in this case the kind of evidence which is frequently adduced in these cases by way of football related intelligence of observations of the defendant in potentially explosive situations on past occasions.  The judge then said this:  
"I was asked to make a football banning order and I considered that.  I looked at the legislation but decided that a banning order is appropriate in cases where there is a future risk of football violence and it is essentially a preventative measure rather than a punitive element of the sentence.  
From everything that I have heard about the defendants I was satisfied that there was no future risk of football related violence in any of their cases.  They had, to put it bluntly, it seemed to me learnt their lesson and the process of prosecution had brought it home to them that they must behave more responsibly on future occasions.  
Accordingly I decided against making a football banning order and used my powers pursuant to the provisions of the Criminal Justice Act 2003 to make a prohibited activity requirement in the case of each defendant."  
He then set out the terms of the orders that he had made and he added this:  
"This requirement was imposed as part of the punishment element of the sentence rather than as a preventative measure."
20.	The short answer to the first two contentions advanced by the Crown is that it is palpably not the scheme of the Act to make a football banning order the inevitable consequence of a football related conviction.  By contrast, what the Act does is to pose a test for the judge to address and require an order only if that test is met.  This is a statute which has been in existence now in one form or another since 1986.  The original football banning order was introduced by the Public Order Act 1986 which provided for the test in identical language.  The 1989 Act has itself been amended on numerous occasions.  There has thus been ample opportunity, both at the outset and subsequently, so to frame the Act as to make a football banning order a mandatory consequence of a football related conviction.  That opportunity has plainly deliberately not been taken.  I am not surprised for myself that it was not thought necessary or desirable, but in any event that decision is not for this court but for the legislature.
21.	Mr Altman's supplemental submission is that once the judge had said what he did about the scourge of hooliganism and, when passing sentence, about one purpose of his sentence being to deter others from behaving as these defendants had behaved, it ought to have followed that the statutory test was satisfied.  I do not agree.  I assume in favour of the Crown that notwithstanding Gough v The Chief Constable of Derbyshire [2002] EWCA Civ. 351, deterrence of football hooligans generally is a legitimate factor in the decision to make a football banning order, certainly where it follows upon conviction.  The Court of Appeal (Criminal Division) so held in R v Hughes [2005] EWCA Crim 2537 and the Divisional Court Queen's Bench followed that decision, as of course it ought to have done, in R (White) v Blackfriars Crown Court [2008] EWHC 510 (Admin).  However, all that those courts were saying was that general deterrence was a legitimate factor.  It does not follow that it is the determinative factor and thus that an order ought to follow for reasons of general deterrence.  
22.	The Court of Appeal (Criminal Division) has indicated on more than one occasion that individual consideration is needed in a conviction case as in a complaint case.  That follows from Gough and was emphasised by the Criminal Division in R v Curtis [2009] EWCA Crim. 1225.  The fact that deterrence of others may be a relevant consideration enables the judge to take it into account when deciding whether making an order would help to prevent violence or disorder and thus that the statutory test is met.  It is however a matter for the judge to reach a conclusion in each case.  The more serious and prolonged the football related violence, or the more prominent the role of the offender, no doubt the greater the scope for the satisfaction of the statutory test on reasonable grounds.  In this case, the features of what happened to which the judge drew attention and the absence of any adverse information about the offenders to the contrary, entitled him to reach the conclusion that he was not satisfied that there were reasonable grounds that a banning order would help to prevent violence.  For my part, I am quite satisfied that he was entitled to reach that conclusion and for the reasons that he gave; the possibility that others might have been deterred if an order was made did not carry the consequence that he was bound to have made the order.  Indeed, if it were otherwise I am unable to see that the Crown's position differs in any realistic way from a contention that a football banning order must inevitably follow a conviction for a football‑related offence and that, as I have said, is palpably what the statute does not say. 
23.	It is important that judges who are considering the rather complex provisions of the Football Spectators Act 1989 should have in mind the nature of the regime for which it provides.  They ought also to address their minds to the differences between the consequences of a football banning order on the one hand and a prohibited activities requirement attached either to a suspended sentence or a community order on the other.  They are not to be treated as equivalents and the judge in this case of course did not do so.  
24.	There is some difference between the two kinds of order as to sanction.  That, as it seems to me, is not a large difference.  Disobedience to a football banning order is itself an offence, whereas disobedience to a prohibited activity requirement is not.  But there is ample sanction for disobedience to a prohibited activity requirement because if it is attached to a suspended sentence the suspended sentence can be activated for breach, and if it is attached to a community order then on breach the court can re‑sentence for the original offence and that may well involve loss of liberty.  The principal difference between the two forms of order lies in the regime which exists.  It is apparent, from the description that I have endeavoured to give at the outset of this judgment, that there is quite a sophisticated regime for the co‑ordination of intelligence relating to those who are subject to football banning orders.  Where such an order is in contemplation, judges who are addressing the test of whether making an order would help to prevent violence or disorder ought, as it seems to me, to have in mind the extent of the regime as well of course as its potentially draconian effect.
25.	For all these reasons, for my part I would dismiss the Crown's appeal.  I would urge that those responsible for the legislation look again at the structure of the statutory right of appeal with a view to considering whether or not it ought not to be brought in line with other criminal appeals allocated to the Court of Appeal (Criminal Division) and supported by the necessary ancillary powers.  I should add that we have had in the course of a very helpful series of submissions today some discussion about the significance of the remaining provisions in the Act, particularly section 22 in relation to a "Declaration of Relevance".  Section 22 appears to be extant and indeed to have been added to by the insertion of subsection (5) when the membership scheme originally contemplated by sections 2 to 7 has not been thought necessary and those sections have not been implemented.  Nobody present has been able to identify any purpose in a Declaration of Relevance in the present state of the legislation and those who are looking at the Act may wish to consider whether there is any continued usefulness in that provision.  For the time being, as we understand it, some but not all police forces take the view that notice of an intention to seek a Declaration of Relevance can serve a useful function by way of alerting a defendant to the fact that a football banning order may be sought.  Notice that a football banning order may be sought is certainly desirable, if not essential.  But it is not logical that it should be accomplished indirectly, however conveniently, by the means of a notice of intention to seek an order which so far as we at least have been able to be told seems to have little or no purpose.  I say, however, no more about that, as I am conscious that we have not necessarily heard everything that can be said about it and confine myself simply to drawing the attention of those responsible for the legislation to the need for consideration of what needs to be done.  
26.	There is one remaining quirk to this case.  In imposing the prohibited activity requirements which he did and in making them of two years' duration, the judge inadvertently overlooked the fact that his suspended sentence and community orders (as the case may be) were for 18 months and accordingly the duration of the prohibited activity requirement had to be limited to 18 months.  The Court of Appeal (Civil Division), in which I am currently delivering this judgment, has no power to do anything about that.  The appropriate course is for this court to reconstitute itself immediately after my Lords have delivered their judgments as a Court of Appeal (Criminal Division), to give leave to the defendants to appeal against their sentence and to vary the sentence by limiting the various prohibited activity requirements to a duration of 18 months.  If my Lords agree, I propose that we should do that immediately.  
27.	MR JUSTICE BEAN:  I agree.  
28.	MR JUSTICE BLAKE:  I also agree. 
29.	THE VICE PRESIDENT:  We now sit as a Court of Appeal (Criminal Division).  Mr Haygarth, we give you leave to appeal against sentence.  We vary the sentence of each defendant to the extent only of reducing the period for which the prohibited activity requirement is made to 18 months. 
30.	MR HAYGARTH:  My Lord, I am grateful.   My Lord, I fear I had a representation order to appear in the Court of Appeal (Criminal Division).  I am not seeking two fees in relation to this hearing, but I do not believe I have a representation order to deal with the ancillary matter that was added to the end of your Lordship's judgment.  Can I just say I seek one fee.  I am quite happy for that to be done under the criminal legal aid. 
31.	THE VICE PRESIDENT:  It has to be actually because the powers of the Court of Appeal (Criminal Division) to grant representation orders are not mirrored in the Civil Division.  So you had better stick with what you have, Mr Haygarth, but we make it clear for the sake of those who are taxing it that what you have done unexpectedly in front of us in the Civil Division counts for the purposes of taxation and, although it will make no difference, we extend it of course to deal with the appeal against sentence.