Will the enforced break result in Football Banning Orders being a thing of the past?

Will the enforced break result in Football Banning Orders being a thing of the past?

BCL Associate, Daniel Jackson, reviews the future of Football Banning Orders and the implications for offenders.

As a football fan, I have missed attending the new Tottenham Hotspur Stadium with my family whilst games have been played behind-closed-doors during the Covid-19 pandemic.

With fans allowed to return to stadiums following the end of lockdown, albeit in limited numbers, one has to wonder whether the minority of attendees who previously struggled to conduct themselves appropriately, will now appreciate the opportunity and lead to a reduction in unlawful behaviour at or in connection with football matches.

As a timely reminder, those persons convicted of a relevant offence or following a complaint (by the police or the Crown Prosecution Service), risk being subjected to a Football Banning Order (‘FBO’), which was established by the Football Spectators Act 1989 (‘the Act’).

What is a Football Banning Order?

Such an order prohibits an individual from attending a regulated football match in the UK and must be made (there is no discretion) if a court is satisfied (there are ‘reasonable grounds’) that it would help to prevent violence or disorder at or in connection with any regulated football match(es). If a court is not satisfied of the aforementioned, then it is required to state that fact and provide the reasons.

An offender would be required to report to a police station within five days of the FBO being made and when certain matches are played outside the UK, as well as possibly surrendering his or her passport and other regulated football match-specific conditions.

A ‘relevant offence’ is set out in schedule 1 to the Act, which lists a large number of offences, including but not limited to: violence, possession of weapons/firearms, public order, criminal damage, alcohol/drug-related and road traffic, but only if they were committed at or in connection with a football match (including travel to and from – whether or not the individual attended or intended to attend the match, and also covers breaks in the journey, as well as overnight breaks).

Where an offender is sentenced to a term of immediate imprisonment, the FBO must be for a minimum of six years and a maximum 10 years. For any other sentence, the FBO must be for a minimum of three years and a maximum of five years.

If a FBO has been in place for at least two-thirds of the period imposed, the individual subjected to the FBO may apply to the court to terminate it, which the court can do from a specified date or refuse the application. When considering the application, the court must have regard to the character of the applicant, the conduct since the FBO was made, the nature of the offence or behaviour that led to the FBO and any other circumstances that the court considers relevant.

Breach of any requirement of a FBO is an offence, with a maximum sentence of up to six months imprisonment and/or an unlimited fine.

Approach of the CPS

According to the CPS legal guidance, prosecutors and the police are ‘committed to taking a robust stance towards tackling football related disorder and hooliganism’.

The legal guidance also details that prosecutors must apply for a FBO whenever an individual is convicted of a relevant football-related offence, unless there are ‘exceptional reasons’ for not doing so.

The CPS also acknowledge that for the majority of supporters it is the thought of receiving a FBO that they ‘fear most’ and, so its ‘deterrent effect’ cannot be underestimated.

Impact of the Covid-19

The Home Office published statistics on 24 September 2020 relating to ‘Football-related arrests and banning orders, England and Wales: 2019 to 2020 season’[1], which addressed Covid-19 and how the restrictions relating to football matches, including the more general restrictions, impacted the number of FBOs and football-related arrests / incidents over the relevant period.

Football was suspended in March 2020 due to the restrictions relating to the Covid-19 pandemic, but whilst a large number of fixtures were cancelled, some remaining fixtures were completed behind-closed-doors during June to August 2020.

You will not be surprised to learn that figures were down in terms of FBOs being issued last season (2019/2020). Interestingly, the statistics show a downward trend in the number of FBOs in force in England and Wales for the seasons 2010/11 to 2019/20, falling by nearly 50% over this period.

In the 2019/20 season, Stoke City supporters possessed the highest amount of FBOs with 52, followed by West Ham United (51), Mansfield Town (50), Birmingham City (49) and Grimsby Town (49). It should be noted that a FBO may be made by a court during the subsequent football season, so some relate to incidents from the previous season (2018/2019). Mansfield Town (34) supporters were given the most ‘new’ FBOs last season.

The substantially reduced capacities (including the absence of away fans) and adherence to the government’s tier system will clearly significantly reduce the amount of new FBOs issued. It remains undecided as to whether fans be allowed to sing/shout and drink alcohol in the stadiums – if the latter is prohibited, then this will surely impact the FBO figures.

There is no way of telling when football stadiums will return to full capacity, but when they do, there is optimism that unlawful behaviour at or in connection with football matches will continue to decline.

[1] https://www.gov.uk/government/publications/football-related-arrests-and-banning-orders-england-and-wales-2019-to-2020-season/football-related-arrests-and-banning-orders-england-and-wales-2019-to-2020-season

Daniel Jackson is a solicitor at BCL specialising in serious and general criminal litigation. He has considerable experience of acting for individuals being investigated and prosecuted for sexual, dishonesty, violence, drugs and road traffic offences. He defends professional clients facing high-profile and complex criminal matters.