Gough v Chief Constable of the Derbyshire Constabulary (Lilley v Director of Public Prosecutions, R (Miller) v Leeds Magistrates’ Court)

A football banning order restricting foreign travel is compatible with Community law where it responds proportionately to a real risk of football-related violence or disorder. The statutory scheme requires individual consideration and strict proof of the conduct and future risk relied upon.

Although proceedings for an order are civil, the seriousness of the resulting restraints requires an exacting standard of proof which is practically indistinguishable from the criminal standard. A person seeking permission to travel during a prescribed period need prove only, on the balance of probabilities, that the proposed journey is not for attendance at the relevant match.

Following complaints by the Chief Constable, a deputy district judge made two-year football banning orders against the appellants under section 14B of the Football Spectators Act 1989, as amended. The orders excluded them from specified domestic matches and subjected them to reporting and passport-surrender requirements during prescribed overseas matches.

The Divisional Court rejected their challenge in [2001] EWHC Admin 554, reported at [2001] 3 WLR 1392. The appellants contended that the foreign-travel restrictions infringed Community free-movement rights, were disproportionate, and contravened articles 6 and 8 of the European Convention on Human Rights.

The central issues were whether Community law permitted restrictions on a state's own nationals on public-policy grounds, whether the statutory scheme was proportionate, what standard of proof section 14B required, and whether the individual orders had been lawfully made.

1. Appeal dismissed. Lord Phillips MR delivered the judgment of the court. Community law permits a Member State to impose non-discriminatory restrictions on persons leaving its territory where public policy, public security or public health justifies them. Article 8 of Council Directive 73/148/EEC recognises that power. Preventing English football hooligans from participating in violence abroad is an imperative reason of public interest.

2. The proportionality inquiry asks whether the objective is sufficiently important to justify limiting the right, whether the measure is rationally connected to that objective, and whether it impairs the right no more than necessary. Restrictions must also follow individual consideration, must not rest merely on previous convictions, and must be directed to preventing football-related violence or disorder abroad.

3. The statutory scheme was capable of proportionate operation. A banning order should be imposed only where strong grounds establish a propensity to participate in football hooliganism. It was proportionate to require a person presenting a real risk to obtain permission for foreign travel during prescribed periods. Considering the scheme as a whole, including its exemption procedure, no less restrictive workable scheme had been demonstrated.

4. Proceedings under section 14B of the Football Spectators Act 1989 are civil. They neither require proof of a criminal offence nor impose a penalty. Nevertheless, the serious restraints imposed mean that the flexible civil standard must be exacting and, in practice, hard to distinguish from the criminal standard. Both past violence or disorder and the conduct supporting the predicted risk of future football disorder must be proved to that strict standard.

5. The expression “special circumstances” in section 20(4) must be construed compatibly with Community and Convention requirements. Permission to travel cannot properly be refused where the proposed journey is genuinely for a purpose other than attending the prescribed match. The traveller need establish that purpose only on the balance of probabilities.

6. The statutory scheme did not violate article 6. A properly made order might engage private or family life under article 8, depending on the facts, but any interference would ordinarily be justified as necessary for preventing disorder. Although the deputy district judge appeared not to have appreciated the required strict standard, each appellant's cumulative intelligence profile unequivocally justified an order under that standard. The orders were therefore lawfully made.

1. Court of Appeal: The appeal was dismissed in [2002] EWCA Civ 351. The court upheld the Divisional Court's rejection of the statutory and human-rights challenges and held that the individual orders were lawful.
2. Divisional Court: The appellants' challenge was rejected in [2001] EWHC Admin 554, reported at [2001] 3 WLR 1392. Laws LJ held that compliance with Community law was acte clair and that there was no conflict with the Convention.
3. Magistrates’ Court: On 2 October 2000 Deputy District Judge Aujla made a two-year banning order against each appellant under section 14B of the Football Spectators Act 1989 and stated a case for the Divisional Court.