Boggild & Ors, R. v

A football banning order under Football Spectators Act 1989, section 14A(2), is not an automatic consequence of conviction for a football-related offence. The court must make an individual assessment of whether reasonable grounds show that the order would help to prevent football-related violence or disorder.

General deterrence may be relevant, but it is not decisive. The judge may consider the seriousness and duration of the disorder, the offender’s role, any prior football-related conduct, and the order’s substantial preventive consequences. A prohibited activity requirement is not equivalent to a football banning order.

Seven Everton supporters, aged between 16 and 23, pleaded guilty in the Crown Court to affray after a brief disorder outside a public house shortly after an Everton match at Wolverhampton. The sentencing judge imposed suspended sentences or youth rehabilitation orders, unpaid work and costs. He imposed prohibited activity requirements restricting attendance at football matches, but declined the Crown’s application for football banning orders.

The Crown sought permission to appeal under Football Spectators Act 1989, section 14A(5A). The central issues were whether the Court of Appeal (Criminal Division) had jurisdiction over that appeal and whether the statutory test for a football banning order was met. A further issue arose because the two-year prohibited activity requirements exceeded the 18-month duration of the underlying orders.

1. The Crown’s appeal against the refusal to make football banning orders was dismissed. The statutory test in section 14A(2) of the Football Spectators Act 1989 is not met merely because an offender has been convicted of a football-related offence. The court must be satisfied that reasonable grounds show that making an order would help to prevent violence or disorder at, or in connection with, regulated football matches.

2. General deterrence was a legitimate consideration, consistently with R v Hughes [2005] EWCA Crim 2537 and R (White) v Blackfriars Crown Court [2008] EWHC 510 (Admin). It was not determinative. Individual consideration was required, as indicated by Gough v The Chief Constable of Derbyshire [2002] EWCA Civ. 351 and emphasised in R v Curtis [2009] EWCA Crim. 1225.

3. The sentencing judge was entitled to find no future risk of football-related violence. The disorder was a brief skirmish following provocation by home supporters. The defendants had no previous football-related convictions or adverse intelligence, and the judge had directly assessed the CCTV evidence and their individual circumstances. His initial failure to state reasons in open court under section 14A(3) was remedied when he gave reasons while refusing leave to appeal.

4. Judges should take account of the full football-banning-order regime, including its duration, match prohibitions, reporting duties and potential passport restrictions. Those preventive measures are materially different from a prohibited activity requirement imposed as part of sentence.

5. Although the Court of Appeal (Criminal Division) lacked jurisdiction over the Crown appeal, the court was properly constituted as the Civil Division. It had the Crown Court’s powers under the Senior Courts Act 1981, section 15(3). The court then reconstituted itself as the Criminal Division, granted the defendants leave to appeal against sentence, and reduced each prohibited activity requirement from two years to 18 months.

• Court of Appeal: The court, sitting as the Civil Division for the Crown’s statutory appeal, dismissed the challenge to the Crown Court’s refusal to make football banning orders. It then sat as the Criminal Division, granted the defendants leave to appeal against sentence, and varied the prohibited activity requirements to 18 months.

• Crown Court: Following guilty pleas to affray, the judge imposed suspended sentences or youth rehabilitation orders and prohibited activity requirements, but refused the Crown’s application for orders under section 14A of the Football Spectators Act 1989.