Lilley v Director of Public Prosecutions

The domestic classification of proceedings and the autonomous classification of a sanction under article 7 of the Convention are distinct questions. Proceedings may be criminal domestically although the sanction imposed is not a criminal penalty for article 7 purposes. That distinction does not convert an appeal from a sanction imposed in criminal proceedings into a civil appeal where the applicant argues that the sanction is an article 7 penalty. The Court of Appeal therefore has no jurisdiction to entertain such an appeal under section 18(1) of the Supreme Court Act 1981. The hybrid nature of football banning orders, and the existence of separate civil proceedings for other banning orders, cannot alter that conclusion.

Mark Lilley pleaded guilty at Leeds Magistrates’ Court to threatening behaviour contrary to section 4 of the Public Order Act 1986. He received an immediate custodial sentence and a six-year football banning order under section 14A of the Football Spectators Act 1989, as amended by the Football (Disorder) Act 2000.

The increased minimum period had come into force after the offence. Mr Lilley argued that applying it infringed article 7 of the Convention because the banning order was a penalty. The Crown Court dismissed his appeal, and the Divisional Court dismissed his case stated appeal. He then sought to appeal to the Court of Appeal, arguing that the banning order was ancillary to the criminal proceedings and that the appeal was not itself in a criminal cause or matter.

1. Application adjourned. The Court of Appeal had no jurisdiction to hear the proposed appeal because it was an appeal in a criminal cause or matter within section 18(1) of the Supreme Court Act 1981.
2. The court distinguished between the domestic character of proceedings in which a sanction is imposed and whether that sanction is a criminal penalty for the autonomous purposes of article 7 of the Convention. It is possible for criminal proceedings domestically to result in a sanction which is not an article 7 criminal penalty.
3. That distinction did not assist the applicant. Where a sanction was imposed in proceedings which were criminal for domestic procedural purposes, and the applicant relied on article 7 by asserting that the sanction was a criminal penalty, the appeal remained an appeal in a criminal cause or matter. The proposed appeal could not be recharacterised as civil merely because the legal issue concerned the Convention classification of the banning order.
4. The court noted that football banning orders under section 14B of the Football Spectators Act 1989 were made on complaint and therefore outside criminal proceedings. The separate appeals concerning such orders did not alter the jurisdictional position in the present case. The hybrid character of the statutory scheme, like the comparable scheme under the Company Directors Disqualification Act 1986, could not overcome the statutory bar.
5. The application was adjourned rather than dismissed on that occasion.

• Court of Appeal (Civil Division): The application to appeal was adjourned. The court held that it had no jurisdiction to hear an appeal in a criminal cause or matter under section 18(1) of the Supreme Court Act 1981.
• Divisional Court: On 13 July 2001, Laws LJ and Poole J dismissed the appeal by way of case stated. The court held that the football banning order was not a penalty for article 7 purposes.
• Leeds Crown Court: On 1 December 2000, the Crown Court dismissed Mr Lilley’s appeal and stated a case for the opinion of the High Court.
• Leeds Magistrates’ Court: On 12 October 2000, Mr Lilley was convicted and sentenced to eight weeks’ imprisonment, with a six-year football banning order.