Football Related Offences and Football Banning Orders

• Introduction
• Liaison with the Police, Courts and Media
• Football-Related Offences
• Football Banning Orders on Conviction
• Football Banning Orders on Complaint
• Length of Football Banning Orders
• Effects of Football Banning Orders
• Breaches of Football Banning Orders
• Applications to vary or terminate Football Banning Orders

Introduction

The CPS and Police are committed to taking a robust stance towards tackling football-related offending, including disorder, hooliganism and hate crime.

Prosecutors dealing with football-related offending should be familiar with the joint National Police Chiefs' Council and CPS Prosecution Policy for Football Related Offences.

This guidance covers the following:

• Liaison with the police, courts and media. This can be significant given that football-related offending often occurs in the context of large-scale events.
• How to approach charging offences which are related to football.
• How to deal with Football Banning Orders (FBOs) under the Football Spectators Act 1989 (FSA 1989), which can be obtained either on conviction or by a free-standing application to the magistrates’ court. Such orders can have a powerful deterrent effect, potentially much more than the sentence that could be imposed for an offence, and should be pursued where possible.

This guidance does not address incidents which may be both criminal and football regulatory matters. The CPS has an agreement with the National Police Chiefs' Council, the Football Association and the Football Association of Wales about the handling of such matters.

Liaison with the Police, Courts and Media

Each police force will have one or more Dedicated Football Officers (formerly Football Intelligence Officers). National football policing policy is coordinated by the United Kingdom Football Policing Unit, which maintains and can provide a list of Dedicated Football Officers. The Football Policing Unit includes the Football Banning Orders Authority, which manages all FBOs. The Football Banning Orders Authority maintains a central register of FBOs; it is essential that this is kept up-to-date so that extant orders can be properly enforced, to avoid enforcing orders that no longer exist, and so that the Football Banning Orders Authority can provide accurate information to assist with applications and appeals. Accordingly, prosecutors should ensure that the FBOA is notified of court decisions to make or decline to make an FBO, appeals against such decisions, and applications to vary or terminate an FBO.

All Areas should have at least one nominated lead football prosecutor to liaise with the Dedicated Football Officers. Best practice is for there to be one nominated prosecutor attached to each Premier League and Football League club with one lead as overall coordinator for the Area, although it is accepted that this may not always be practicable. Each lead and nominated prosecutor should work closely with the corresponding Dedicated Football Officer. A list of lead prosecutors will be maintained by the CPS National Lead for sports-related offences and will be shared with the United Kingdom Football Policing Unit.

Where there is a major operation, this may cause considerable pressure on short term court listing. CPS Areas will need to liaise with the relevant court for an agreed strategy to deal with large number of offenders in custody and on bail. Additional security may be required to safeguard the court and officials.

Enforcement action in connection with football matches will be of interest to the media. A good media strategy will boost public confidence in local criminal justice agencies. Prosecutors should discuss the media strategy with Area Communication Managers and the CPS Press Office.

Football-Related Offences

Selecting charges

Most offences that are football-related will be covered by legislation that prosecutors are already familiar with, such as the Offences against the Person Act 1861 and the Public Order Act 1986.

Prosecutors should ensure that the offences charged provide the court with the power to impose a Football Banning Order on conviction where it would be appropriate to impose such an order (see below, under ‘Football Banning Orders on Conviction’).

Where there is evidence that the offending is racially or religiously aggravated, the specific racially/religiously aggravated offences contained in sections 29-32 of the Crime and Disorder Act 1998 should be charged. In cases where these specific offences do not cover the criminality, then other more general criminal offences should be charged but the prosecutor should seek a sentence uplift under section 66 of the Sentencing Act 2020 to reflect the element of racial/religious aggravation. Where the offences demonstrate hostility towards or are motivated by a person's sexual orientation, disability or transgender identity, this should be outlined to the court and a sentence uplift sought under the provisions of section 66 of the Sentencing Act 2020. See the legal guidance covering hate crime for further details.

There are a number of offences that are specific to football matches (and sometimes other events).  However, it will normally be preferable to charge one of the offences under more general legislation where there is sufficient evidence to do so, as the football-specific offences are summary only and non-imprisonable, limiting the court's sentencing powers. They are:

Football (Offences) Act 1991:

• throwing of missiles onto the playing area or into the crowd (section 2)
• racialist or indecent chanting at a football match (section 3)
• going onto the playing area (section 4)

Maximum sentence: fine not exceeding level 3.

Criminal Justice and Public Order Act 1994:

• unauthorised persons ("ticket touts") selling or otherwise disposing of a ticket to a designated football match (section 166)

Maximum sentence: fine not exceeding level 5.

Sporting Events (Control of Alcohol etc.) Act 1985:

• carrying alcohol in vehicles on route to designated sporting events (subsection 1 and 1A)
• possession of alcohol at or upon entering a designated sporting event (section 2(1))
• being drunk at a designated sporting event (section 2(2))
• having a flare or firework etc. during the period of a designated sporting event when in a designated sports ground from which the event may be directly viewed, or while entering or trying to enter such a sports ground (section 2A)

Maximum sentence: fines; see section 8 of the 1985 Act for details.

Abuse based on footballing tragedies

In some instances, footballing tragedies such as Hillsborough or the Munich air disaster (and sometimes tragedies not related to football) may be referenced in a football context, directly or indirectly, in such a way as to amount to abusive or insulting words or behaviour.

Such conduct may amount to an offence under the Public Order Act 1986, notably under section 5 (harassment, alarm or distress) or section 4A (intentional harassment, alarm or distress). See the Public Order Offences guidance for details of these offences.

Although a decision whether to charge and, if so, what to charge will depend on the facts of each case, prosecutors should bear in mind the following:

• References may be verbal (for example, in chants), in writing (for example, on signs, flags or shirts) or by way of gestures.
• Whether references to tragedies are abusive or insulting will depend on the words used and the circumstances in which they are used. References will often be widely understood and their meaning will not be in dispute, but if the meaning of the reference is disputed by the defence the prosecutor should liaise with a Football Lead for advice.
• Where a reference is abusive or insulting, this can itself be evidence of an intent to cause harassment, alarm or distress, as required for section 4A offences.
• Proof that a person was caused harassment, alarm or distress, as required for a section 4A offence, does not necessarily require evidence from that person; it may be provided, for example, by evidence from a person who witnessed the harassment, alarm or distress, such as a police spotter at a match.
• If it is not possible to obtain evidence that a person was caused harassment, alarm or distress, the section 5 offence requires proof only that a person was likely to be caused harassment, alarm or distress.

A football banning order may be available for such offences (see below, under ‘Relevant Offences’), and should be sought where available.

When such abuse takes place online, it may constitute an offence under section 1 of the Malicious Communications Act 1988 (sending a letter, electronic communication or article with intent to cause distress or anxiety) or section 127 of the Communications Act 2003 (improper use of public electronic communications network).

Public Interest Considerations

Football-related offending causes direct harm to law-abiding supporters, those who are involved in football professionally, and the communities surrounding football grounds. It has an indirect but no less serious impact on the reputation of English and Welsh football at home and overseas. When making public interest decisions, prosecutors should note the contents of the NPCC and CPS Prosecution Policy for Football-Related Offending.

In the highly unlikely event that a prosecution does not proceed on public interest grounds, prosecutors should consider discussing their decision with the police at the appropriate level (including the Dedicated Football Officer, where appropriate).

Out-of-Court Disposals

Simple Cautions or Penalty Notices for Disorder will rarely be appropriate for football-related offences.

Conditional cautions may be available where the suspected offence is not a hate crime. Conditional cautions should be reserved for minor offences committed by persons who have no previous record of football-related, public order, assault or criminal damage offences. ‘Previous record’ is not confined to previous convictions, but can include penalty notices for disorder, stop checks and intelligence that indicates that action is needed to prevent football-related violence and disorder.

FBOs on conviction cannot be obtained if there is an out-of-court disposal. Where, however, an offender fails to comply with a conditional caution received for a football-related offence, an application for a FBO can be made if the original offence is prosecuted. Alternatively, the fact that a conditional caution was imposed could also be used as evidence to support a civil application on complaint for an order. Where a person is suspected of an offence for which a FBO is available and it appears that the test for making a FBO on conviction will be satisfied, a conditional caution would not be appropriate.

Prosecutors should also have regard to the Director's Guidance on Adult Conditional Cautioning in deciding whether such a disposal is appropriate.

Suitable conditions to be included in a conditional caution may include:

• Not to attend any regulated football match or a particular football ground, with the additional condition to report to a particular police station at kick off times. The period should never exceed 3 months and should be for as short a period as is necessary and proportionate in relation to the offence and the offender; for example, for a minor infraction a period of a month may be appropriate.
• Not to approach an individual or go to a particular location; for example, a public house close to a football club.

Conditional cautions may also be appropriate for anti-social behaviour in and around football matches that could not be properly classified as football related.

Whenever a conditional caution is under consideration for a football related offence, the prosecutor must ensure that the Dedicated Football Officer is consulted before a final decision is made. This consultation should be recorded in the prosecutor’s review to the effect that the offender is not considered a ‘risk supporter’.

Youths

Where appropriate, consideration should be given to diversion by way of a Youth Caution. If the offending cannot be satisfactorily addressed by a Youth Caution, then consideration should be given to a Youth Conditional Caution. For further information, prosecutors should consider the separate legal guidance on Children as suspects and defendants and the Director's Guidance on Youth Conditional Cautions.

There is a potential conflict between the duty to remit young offenders to the youth court for sentence (under section 25 of the Sentencing Act 2020) and the requirement that any application for a post-conviction FBO be dealt with by the court by or before which the offender is convicted unless committed to the Crown Court for sentence (section 14(6) of the FSA 1989). This conflict has resulted in youths convicted of football-related offences being remitted to their local youth court and subsequent applications for FBOs being rejected.

To avoid this conflict, it is recommended that youths being released on bail should normally be bailed to their local court, even when the offence charged was committed away from where they live. However, where the case is likely to be contested and there are potentially a number of civilian witnesses, then it may be necessary to bail the youth to the court for the area in which the offence was allegedly committed. After conviction, it will be necessary for the prosecutor to make representations that it would be undesirable to remit the case to the youth's local youth court, as it would deprive the prosecution of the ability to apply for a banning order (citing section 25(2) of the Sentencing Act 2020 where the convicting court is the Crown Court).

Careful consideration should be given before a youth is jointly charged with an adult, to avoid the potential problems dealt with above. In relevant cases, such as those involving large-scale disorder, it is good practice for youths to be charged to their local court and adults to be charged to the court for the area where the offence was allegedly committed.

Football Banning Orders on Conviction

When to seek an order

FBOs can have a deterrent effect significantly greater than any sentence imposed for an offence, and prosecutors must pursue an FBO on conviction whenever one is available unless there are exceptional reasons for not doing so.

The test for making an order

Where a person is convicted of a relevant offence (see below, under ‘Relevant offences’), the court must impose an FBO in addition to any sentence or conditional discharge unless it "considers that there are particular circumstances relating to the offence or to the offender which would make it unjust in all the circumstances to do so" (section 14A(1) and (2) of the FSA 1989).

In respect of offences committed before 29 June 2022, a different test is applicable, namely whether 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" (section 14A(1) and (2), as in force at that time). This is similar to the test for imposing an FBO on complaint, and prosecutors dealing with offences committed before 29 June 2022 should refer to ‘Football Banning Orders on Complaint’, below, for further details of the relevant test.

The facts of the offence before the court may be sufficient to obtain an order, particularly given the presumption in the new test. However, in deciding whether to make an FBO the court may consider evidence from both prosecution and defence, and may consider evidence whether or not it would have been admissible in the proceedings in which the offender was convicted (section 14A(3A) and (3B)). Prosecutors should always consider calling additional evidence to establish the defendant's history of misconduct associated with football, whether or not it has resulted in prosecution or conviction. Prosecutors should also ensure that the Court is made aware of the impact of misconduct at and around football matches. What might appear to be an isolated incident by a person of good character (e.g. running on the pitch) could be the trigger for more widespread disorder. Such evidence may be provided by way of a statement from a Dedicated Football Officer.

The caselaw relating to FBOs on conviction concerns the old test for making an order. Some relevant cases are set out below in the event that prosecutors are dealing with an application under the old test. They may also have some limited relevance to applications under the new test, such as to rebut defence arguments opposing an order.

In R v Hughes [2005] EWCA Crim 2537, it was held that the fact that the defendant was convicted of a relevant offence would usually be sufficient to satisfy a court that an FBO was appropriate. For example, in R v Curtis [2009] EWCA Crim 1225 an FBO was upheld in respect of an offender with no previous convictions and who was not known to the police as a trouble-maker at football matches, but who was involved in a large scale disturbance. However, in R v Doyle (Ciaran) and Others [2012] EWCA Crim 995 it was held that whilst it is possible for an isolated offence to meet the requirements for making an order, an FBO will not inevitably follow every conviction for a relevant offence and the requirement for reasonable grounds for believing that an order might prevent further violence or disorder contemplated a risk of repetition of the violence or disorder (although this would not be applicable to the new test for an FBO on conviction).

In R (White) v Blackfriars Crown Court [2008] EWHC Admin 510 it was held that the court was entitled to give significant weight to deterrence, including the deterrence of others besides the person on whom the order is imposed. However, deterrence is only a factor to be borne in mind in determining the application; it is not a decisive factor, so an order will not inevitably follow from a conviction for a relevant offence for reasons of general deterrence (R v Boggild and Others [2011] EWCA Crim 1928).

Relevant Offences

A relevant offence is one which is listed in Schedule 1 to the FSA 1989 (section 14(8)). The offences generally relate to violence or public disorder, but include other offences, such as possession of Class A drugs whilst at a football match or while entering or trying to enter the ground. Prosecutors should check that a relevant offence has been charged where possible.

For some of the offences listed in Schedule 1, an FBO will always be available or will always be available if they are committed in certain circumstances, such as at a particular place or during a particular period. For other of the offences listed in Schedule 1, an FBO will only be available if the court makes a “declaration of relevance” (section 23(5)).

There are different types of declarations of relevance; the type of declaration that is available varies between offences and is set out in Schedule 1. A declaration of relevance is a declaration for the purposes of Schedule 1 of one of the following types (section 23(5)):

• That the offence related to football matches or to one or more particular football matches. “Football match” means a regulated football match (paragraph 4(1) of Schedule 1), which is defined by a combination of section 14(2) of the Football Spectators Act 1989 and article 3 of the Football Spectators (Prescription) Order 2022. It can be summarised as covering:
• Matches in England or Wales which: involve a team that is a member of a nationwide English league (men's or women’s), the Cymru Premier League or the Scottish Professional Football League; involve a team from a club outside England and Wales; involve a national team; or, are FA Cup matches (other than in a preliminary or qualifying round); and
• Matches outside England and Wales which: involve an English or Welsh national team; involve a team which is a member of a nationwide English league (men's or women’s), the Cymru Premier League, or the Scottish Professional Football League; or, involve a FIFA national team or a club team from a FIFA national football association wherethe match is part of a FIFA or UEFA competition in which an English or Welsh national team or a team which is a member of a nationwide English league (men's or women’s), the Cymru Premier League or the Scottish Professional Football League could or has participated.
• That the offence related to a football organisation. "Football organisation" means a regulated football organisation (paragraph 4(1A) of Schedule 1), which is defined by a combination of section 14(2A) and article 4 of the Football Spectators (Prescription) Order 2022. It can be summarised as covering:
• The companies Football Association, Football Association Premier League, Football League, Football Conference and Football Association of Wales;
• A club which is a member of a nationwide English league (men's or women’s) or the Cymru Premier League; and,
• An English or Welsh national team.
• That the offence related to a person whom the defendant knew or believed to have a prescribed connection with a football organisation. “Prescribed connection” is defined by article 5 of the Football Spectators (Prescription) Order 2022. It can be summarised as covering:
• Players, pitch-side staff, officers of a club and match officials, including people who were in one of these categories at any time in the six months leading up to the offence; and,
• Members of the media reporting or commenting on a regulated football match involving a club which is a member of a nationwide English league (men's or women’s) or the Cymru Premier League or involving an English or Welsh national team, or otherwise reporting or commenting on such a team or a player of such a team, including members of the media who were in one of these categories at any time in the 14 days leading up to the offence.

A notable effect of declarations that the offence related to a football organisation or to a person whom the defendant knew or believed to have a prescribed connection with a football organisation is that the offence could be committed online and still result in an FBO. Such declarations are available for the following offences:

• offences under Part 3 or 3A of the Public Order Act 1986 (relating to hatred on the grounds of race, religion or sexual orientation) not otherwise covered by Schedule 1;
• offences under section 31 of the Crime and Disorder Act 1998 (racially or religiously aggravated public order offences); and,
• offences under section 1 of the Malicious Communications Act 1988 (sending a letter, electronic communication or article with intent to cause distress or anxiety) or section 127(1) of the Communications Act 2003 (improper use of public telecommunications network) not otherwise covered by Schedule 1, where the court has stated that the offence is aggravated by hostility of any of the types mentioned in section 66(1) of the Sentencing Code.

Where a declaration of relevance is required, prosecutors should ensure that there is sufficient evidence to prove that the offence related to a football match or to one or more particular football matches or to a football organisation or a person whom the defendant knew or believed to have a prescribed connection with a football organisation, as applicable. In respect of matches, prosecutors should not feel limited to incidents arising at or near the ground. The courts have stated that it is a matter of judgement whether any of the offences are related to football matches (see R v Doyle (Ciaran) and Others [2012] EWCA Crim 995) and it is possible for the alleged behaviour to include incidents some considerable distance away from the ground and where the offender is not a supporter of either team playing. FBOs have successfully been sought for offences over two miles from the ground and five hours after the end of the game, as well as for offences on the national rail network some distance from the game. The court may conduct a hearing analogous to a Newton Hearing to determine the question of relevance. Prosecutors should be properly prepared for such hearings. Evidence in support of conduct being football-related may include match/season tickets, programmes, fanzines, football-related paraphernalia (e.g. pin badges, 'calling cards', tattoos showing team/group allegiances etc.) and photographs of the person wearing team colours. The use of CCTV evidence may be very persuasive. Prosecutors should view CCTV material, with the intention of minimising the number of police officers attending court to give evidence.

Procedure

The relevant procedure for applying for an FBO on conviction is found in Part 31 of the Criminal Procedure Rules.

Section 23 contains additional procedural provisions regarding declarations of relevance. Section 23(1) provides that a court can only make a declaration of relevance if satisfied that the prosecutor has served a notice on the defendant at least five days before the first day of the trial indicating that the prosecution proposes to show that the offence was a relevant offence. The court can waive the requirement for full notice to be given if satisfied it is in the interests of justice or if the defendant consents (section 23(2)). It is important to ask the court to waive the requirements if an offender appears in custody and is dealt with at the first hearing. Prosecutors should agree with the police that a notice will be served on the defendant at the time of charge, and provision made for proving service so as to satisfy the court. It is likely that the court will require a copy of the notice.

Prosecutors should notify the Football Banning Orders Authority by e-mail where a FBO is granted or refused.

Appeals

If a court decides not to make an FBO where a person is convicted of a relevant offence, it must give its reasons in open court (section 14A(3)). Prosecutors should take a full note of such reasons.

The prosecution may appeal against such a refusal to the Crown Court or the Court of Appeal, as appropriate (section 14A(5A)). An appeal to the Court of Appeal can only be lodged if the Court of Appeal gives permission or if the judge who decided not to make an order grants a certificate that the decision is fit for an appeal (s.14(5B)). Where it is considered that good grounds exist for making an FBO and the court has refused to do so, urgent consideration should be given to lodging an appeal. It is advisable for prosecutors to seek advice from the Area lead football prosecutor before lodging an appeal.

The relevant procedure for appeals to the Crown Court is contained in Part 34 of the Criminal Procedure Rules, and the relevant procedure for appeals to the Court of Appeal is contained in Part 39 of the Criminal Procedure Rules. For an appeal to the Crown Court, an appeal notice must be served not more than 15 business days after the refusal to make the order (rule 34.2(2)(b)). For an appeal to the Court of Appeal, the appeal notice must be served not more than 28 days after the refusal to make the order (r39.2(1)(a)).

A person may appeal against a declaration of relevance as if it were part of the sentence (s23(3)).  

Football Banning Orders on Complaint

When to seek an order

Prosecutors can apply for an FBO on complaint to a magistrates’ court (section 14B(1) and (3)).

If there is insufficient evidence to prosecute a football-related offence or if the defendant is acquitted, it may still be possible to apply for an order on complaint. Prosecutors should discuss this with the police to establish whether there is enough evidence to support the complaint.

It may be appropriate to apply for an FBO on complaint as a result of a person's conduct abroad, such as during an overseas tournament. If a person has been deported from another country in circumstances which justify the making of an FBO, it may be necessary to act quickly to have a court consider the application, or at least impose bail conditions before that person goes abroad again eg. for the rest of an overseas tournament (see below, under ‘Procedure: general’ and ‘Procedure: special procedure during the control period for matches or competitions outside the UK’).

The test for making an order

Prosecutors may only make an application if it appears that the respondent has at any time caused or contributed to any violence or disorder in the United Kingdom or elsewhere (section 14B(2)).

On such an application, the court must make an order if satisfied that the respondent has at any time caused or contributed to any violence or disorder in the UK or elsewhere and that there are reasonable grounds to believe that an order would help to prevent violence or disorder at or in connection with any regulated football matches (section 14B(2) and (4)).

This is a civil application, and so the standard of proof is the civil standard i.e. the balance of probabilities.

‘Regulated football matches’ has the same meaning as for declarations or relevance, see above under ‘Declarations of relevance’.

In respect of ‘violence or disorder’:

• ’Violence’ means violence against persons or property and includes threatening violence and doing anything which endangers the life of any person (section 14C(1));
• ’Disorder‘ includes stirring up hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins, or against an individual as a member of such a group; using threatening, abusive or insulting words or behaviour or disorderly behaviour; or, displaying any writing or other thing which is threatening, abusive or insulting (section 14C(2)); and,
• ‘Violence’ and ‘disorder’ are not limited to violence or disorder in connection with football (section 14C(3)).

The courts are given a wide discretion as to what they can take into account when deciding whether to make an order under section 14B. This can include decisions of foreign courts, evidence of deportation from another country, removal from football matches wherever this occurred, and visually recorded evidence such as CCTV (section 14C(4)).

In respect of the first part of the test (whether the respondent has at any time caused or contributed to any violence or disorder in the UK or elsewhere): Evidence should be adduced of the past conduct of the respondent, whether or not it has led to any criminal prosecution or convictions. There is no requirement in the legislation that the respondent has previously been prosecuted or convicted of football-related offences.

However, reliance on past conduct is subject to two restrictions: the court may not take into account any conduct of the respondent more than ten years before the application was made, apart from circumstances ancillary to a conviction (s14C(5)(a)); and, before taking into account any conviction for a relevant offence, the court must consider the reasons given by the sentencing court for not imposing an FBO on conviction, if applicable (s14C(5)(b)).

Prosecutors should also adduce evidence of the impact of the respondent’s conduct eg. on the community around a football stadium. This impact may be from the respondent’s conduct on its own or in combination with the conduct of others.

In respect of the second part of the test (whether there are reasonable grounds to believe that it would help to prevent violence or disorder at or in connection with any regulated football matches)

• there is no requirement that an order is necessary to prevent violence or disorder
• it is not necessary to show that the respondent would commit football-related offences in future
• the court may take into account the deterrent effect of an order, including the deterrent effect on others besides the person who will be subject to the order (R (White) v Blackfriars Crown Court [2008] EWHC Admin 510)

The Dedicated Football Officer preparing the evidence in support of the application should provide a statement addressing both parts of the test.

Procedure: general

The relevant procedure is found in Part II of the Magistrates' Courts Act 1980 and Part 31 of the Criminal Procedure Rules.

A court may remand a respondent if the proceedings are adjourned (section14B(5)), in which case the court may impose bail conditions requiring the respondent not to leave England and Wales and/or (in certain circumstances) to surrender their passport (section 14B(6)).

Given that this is a civil application, prosecutors should be aware that the Police will need to serve a hearsay notice to identify evidence which, pursuant to Section 2 of the Civil Evidence Act 1995 and the Magistrates Court (Hearsay Evidence in Civil Proceedings) Rules 1999, should not require a witness to be called. It is likely that key witnesses and witnesses giving contentious evidence will need to be called at any contested hearing.

Procedure: special procedure during the control period for matches or competitions outside the UK

During control periods for regulated football matches outside the UK or for football competitions which include regulated football matches outside the UK, a special procedure is available for making applications for FBOs on complaint at short notice. This procedure may be used to make urgent applications and prevent persons from travelling to such matches and competitions where there are grounds to make an FBO against them but they are not already subject to one. This may be helpful shortly before an overseas tournament or when fans are returned to England and Wales at short notice by overseas authorities due to their conduct abroad.

For a regulated football match outside the UK, the control period begins five days before the day of the match and ends when the match finishes or is cancelled (section 14(5)). For a football competition which includes regulated football matches outside the UK, the control period will be specified in an order made by the Secretary of State (section 14(6)).

During control periods, constables gain certain powers which are exercisable if the constable:

• Has reasonable grounds for suspecting that a person has at any time caused or contributed to any violence or disorder in the United Kingdom or elsewhere; and
• Has reasonable grounds to believe that making an FBO in that person’s case would help to prevent violence or disorder at or in connection with any regulated football matches.

(Section 21A(1))

A constable may, if authorised by an officer of at least the rank of inspector, give that person a notice in writing requiring them:

• To appear before a magistrates’ court at a specified time,
• Not to leave England and Wales before that time; and
• To surrender their passport to the constable.

(Section 21(B)(1) and (2))

This notice is treated as an application for an FBO on complaint under section 14B (section 21B(4)).

A constable may detain a person for limited periods for the purpose of deciding whether to issue them with such a notice (section 21A(2), (3) and (4)), and a constable may arrest a person to whom they are giving such a notice if there are reasonable grounds to believe that it is necessary to do so to ensure that the person complies with the notice (section 21B(5)).

The time specified for appearance at the magistrates’ court must be within 24 hours of the giving of the notice or the start of any period of detention under the power mentioned above (section 21B(3)).

The combined effect of these provisions is that the respondent is required to attend a magistrates’ court shortly after being issued with a notice, and the prosecutor and court will need to be in a position to deal with the application for an FBO.

The expectation is that both the notice and the evidence supporting the application will be provided by the police to the prosecutor, court and respondent prior to the hearing in the same way as for an overnight remand file. It is also expected that a Dedicated Football Officer or other representative from the relevant police force will be in attendance at court to assist the prosecutor.

The decision to serve a notice and therefore to make an application should have been endorsed by an ‘on call’ football lead prosecutor, who should be satisfied that the test for making an FBO on complaint is met (i.e. that the respondent has at any time caused or contributed to any violence or disorder in the UK or elsewhere and there are reasonable grounds to believe that an FBO would help to prevent violence or disorder at or in connection with any regulated football matches). The rationale for pursuing an application is that, after full consideration of the relevant law and evidence, an FBO should be made in this case. Ideally, the prosecutor who made that decision will be available to conduct the first hearing. Where this is not possible, that decision should be made available to the prosecutor in court. In any event, the prosecutor in court should have the notice and evidence provided by the police, which should be sufficient for them to be able to assess whether the relevant test is met.

If respondent fails to attend court, the court will need to be satisfied that the notice and the relevant evidence supporting the application have been properly served on the respondent. That information will need to be available from the police at the first hearing. In the event of non-attendance by the respondent, then, subject to proof of service, prosecutors should invite the court to hear the substantive application in the respondent’s absence.

If the respondent attends and indicates that the application for an FBO is not contested, then the prosecutor should invite the court to consider the evidence and make the order.

If the respondent attends and indicates that the application will be contested, then it is likely that the case will be adjourned and a substantive hearing fixed. In this event the prosecutor at court should:

• Submit that it is appropriate for the respondent to be bailed to his local court with conditions of the continued surrender of their passport and not to apply for any travel documentation, to alleviate the risk of the respondent travelling abroad for the purposes of a football match or tournament (the power to impose bail with these conditions is contained in section 14B(5) and (6));
• Endeavour to confirm which witnesses will need to give live evidence at the contested hearing; and,
• Obtain the email address for the Dedicated Football Officer or other officer dealing with the case, who should have attended the first hearing.

Following the hearing, consideration will need to be given to the instruction of an advocate for the substantive hearing.

The United Kingdom Football Policing Unit and the Area football lead should be notified of the hearing outcome i.e. whether an order was made or not (with the court’s reasons for declining to make an order, if applicable) or whether the case was adjourned for a contested hearing.

Costs

Prosecutors should be aware that unsuccessful applications on complaint could trigger a costs application by the respondent.

Prosecutors should note the case of  R (on the application of Perinpanathan) v City of Westminster Magistrates' Court [2010] EWCA Civ 40, in which the court endorsed the principle that “in determining the exercise of a magistrates' court's discretion to make an order for costs, there was a need to encourage public authorities to make and stand by honest, reasonable and apparently sound administrative decisions made in the public interest without fear of exposure to undue financial prejudice if the decision was successfully challenged” (from the headnote). Prosecutors should argue that the principle applies to applications for FBOs and that according, if “a public authority's action had been properly made, the starting point and default position in relation to costs was that no order should be made […] A successful private party to proceedings to which the principle applied might nonetheless be awarded all or part of his costs if the conduct of the public authority justified it” (also from the headnote).

Appeals

Appeals against the making of an FBO on complaint or a refusal to do so should be made to the Crown Court (section 14D).

The relevant procedure is found in Part III of the Crown Court Rules 1982. Notice of appeal must be given not later than 21 days after the day on which the decision appealed against was given (rule 7(3)).

The United Kingdom Football Policing Unit and the Area football lead should be notified of the outcome of any appeal.

Length of Football Banning Orders

When made following conviction under s.14A:

• If immediate imprisonment is imposed, then an FBO may be for up to 10 years and must be for at least 6 years (section 14F(3)); or
• If immediate imprisonment is not imposed, then an FBO may be for up to 5 years and must be for at least 3 years (section 14F(4)).

When made on complaint under the section 14B: the maximum period of the order is 5 years and the minimum is 3 years (section 14F(5)).

Effects of Football Banning Orders

In respect of regulated football matches in the UK, an FBO prohibits the person who is subject to the order from entering any premises for the purpose of attending such matches (section 14(4)(a)). Note that it is not possible to make an order limited to particular matches or to matches involving particular teams (R v Doyle (Ciaran) and Others [2012] EWCA Crim 995).

In respect of football matches outside the UK:

• A person who has been given a FBO must report to a specified police station within five days (suspended until release if they are in custody) (section 14(4)(b)and section 14E(2) and (6));
• On so reporting, the officer responsible for the station may make such requirements of that person as are determined by the Football Banning Orders Authority to be necessary or expedient for giving effect to the FBO in respect of matches outside the UK (section 19(2));
• If, in connection with any match outside the UK, the enforcing authority is of the opinion that it is necessary or expedient in order to reduce the likelihood of violence or disorder at or in connection with that match, the authority must give the person subject to a FBO a notice requiring them to report at a specified police station at a specified time, and to surrender their passport (section 19(2A) and (2B)and section 14E(3)); and
• A person subject to an order must give notification to the Football Banning Orders Authority of various events e.g. a change of address, within seven days of the event (section 14E(2A) and (2B)). Note that this includes requirements for the person to give notification if they appeal against an order or the making of a declaration of relevance or if they apply to terminate the order.

Notices issued by the enforcing authority may only require a person to report to a police station and surrender their passport during a control period in relation to a match outside the UK or an external tournament (section 19(2E)(a) and (b); regarding control periods, see above, under ‘Procedure: special procedure during the control period for matches or competitions outside the UK‘). Passports must be returned as soon as practicable after the end of that period (section 19(2F)). The notice must also require the person to notify the enforcing authority within a specified time of each address at which they will be staying during the control period (section 19(2E)(c)).

Section 14G(1) provides that FBOs may include additional requirements. FBOs can be made more effective by the use of schedules containing additional restrictions, such as a restricted zone around a ground for a period of two hours before to two hours after a match, or a prohibition on using the national rail network during certain periods without the prior approval of the British Transport Police. The police, especially the relevant Dedicated Football Officer, may have views on what restrictions would be effective for particular individuals.

Where an FBO has additional requirements, in the case of any regulated football match the Football Banning Orders Authority may by notice require any person subject to a banning order to comply with the additional requirements in the manner specified in the notice (section 19(2C)).

A person subject to an FBO may apply to the Football Banning Orders Authority for exceptions to any requirements of the order (section 20).

Under section 35 of the Public Order Act 1986, the court may, on application by the prosecutor, order a person on whom an FBO has been imposed to attend a specified police station at a specified time within seven days to have a photograph taken. If the person fails to comply, they may be arrested without a warrant in order for the photograph to be taken.

Breaches of Football Banning Orders

A person subject to a banning order who fails to comply with any requirement of the order or any requirement under a notice issued by the Football Banning Orders Authority under section 19(2B) or (2C) commits a summary-only offence punishable by imprisonment for up to six months (section 14J).

There is no power to extend an existing banning order for breach, so if a court wishes to extend the duration of an FBO in response to a breach it must make a new order.

Applications to vary or terminate Football Banning Orders

Additional requirements imposed under section 14G(1) (see above, under ‘Effects of Football Banning Orders’) may by varied on application by either the person subject to the order or the person who originally applied for the order (section 14G(2)).

Once an FBO has been in effect for at least two-thirds of its set period, the person subject to the order may apply to the court by which it was made to terminate it, and the court may terminate the order as from a specified date or refuse the application (section 14H). An applicant is required to notify the Football Banning Orders Authority of their application to terminate an order (section 14E(2A) and (2B)(i)). Prosecutors may seek to adjourn proceedings where this has not happened so that the Football Policing Unit has the opportunity to provide the up-to-date information to inform the application.

In any event, upon notification of an application to vary or terminate an order, prosecutors should inform the Football Banning Orders Authority, seek the views of the relevant Dedicated Football Officer, and request any material that might have a bearing on the application, such as details of the applicant's conduct since the order was imposed.