Off the ball...

Yesterday, the Scottish Government published a report An Evaluation of Football Banning Orders in Scotland.  The conundrum is this. Despite the Act coming into force in September 2006, as of the 7th of December 2010, only 101 football banning orders have been made since, 44 in Strathclyde. By contrast, in England and Wales, about 1,000 equivalent orders are made per annum. During the English football season of 2008 - 2009, for example, 3,241 orders were in force across the country. Although differences in the population of the two jurisdictions is clearly relevant - England and Wales' 53,000,000 to Scotland's 5,200,000 - the researchers note...

3.11 ... in key SPL clubs the size of the risk support groups was often quite comparable to the risk groups in the English premier division. For instance, most of Manchester United's 74 active FBOs are civil applications targeting some of its 30 to 40 core risk supporters (with roughly a further 150 'hangers on' or 'peripherals'). Several key SPL clubs have risk groups that can readily match this both in terms of core group and peripheral numbers."

The report includes a number of interesting bits and pieces. Given the broad terms of the Act, and the significant number of folk we might envisage being caught and banned if the legislation was ruthlessly enforced, why have relatively few orders been made here? What implications might this study have for the Offensive Behaviour at Football etc. (Scotland) Bill? And what sort of folk have found their enjoyment of the sport curtailed anyway? However, I'm getting ahead of myself. It would helpful, albeit briefly, to explain the legislative background, the nature of a football banning order, how it may be obtained against an individual - and highlighting along the way some of the findings of the research which particularly caught my interest or attention...

The legislation...

Want of interest keeps me off the football terraces. No order of any court is required. However, under Part 2 of the Police, Public Order and Criminal Justice (Scotland) Act of 2006, Scottish courts are empowered to constrain even the most die-hard fitba fans from setting foot in their cherished stadia, using so-called football banning orders, if they misbehave themselves. Such orders can be imposed where an individual has been convicted of an offence - where that offence involved "violence or disorder" and "related to" a football match.  Such a relationship is substantiated where the offence was committed at the match, while the malefactor was entering of leaving the ground, was on their journey to or from a football match or "where it appears to the court from all the circumstances that the offence is motivated (wholly or partly) by a football match" [§51(6) 2006 Act]. If the game is being televised in any place other than domestic premises, violence or disorder there can be taken to "relate" to a football match too. Pub villainies, for example, are caught.

Moreover, for the purposes of a football banning order, the Act's reference to "disorder" includes "stirring up hatred against a group of persons based on their membership or presumed membership" of a group, based on their colour, race, nationality, ethnic or national origins, membership of a religious group or of a social or cultural group with a perceived religious affiliation, sexual orientation, transgender identity or  disability [§56(5) 2006 Act]. "Disorder" also includes "displaying any writing or other thing which is threatening, abusive or insulting". Those of you who read the first draft of Roseanna Cunningham's now delayed Offensive Behaviour at Football etc (Scotland) Bill will likely recognise this legislative language.  

Where a sheriff is convinced that the convict's offence relates to football and represents violence or disorder, she may make an order, banning the individual from entering football grounds and such other premises as the sheriff decrees, "if the court ... considers it would help to prevent violence or disorder at or in connection with any football matches". The orders can vary in their length, but may not exceed 10 years (if accompanying a conviction which sends the convicted person to prison) and 5 years where the football banning order is itself the penalty, or accompanies a non-custodial sentence. Additional conditions may also be attached - for example, banning the ordered individual from stumping up at pubs in the city centre during match days - but as the research identifies, additional conditions have not been used in Scottish cases...

 3.22 One final aspect of orders, that hasn't been examined in detail to date, is the conditions associated with those orders. Beyond a basic ban on attending football matches, or individual stadia, or the standard additional ban on travelling abroad during certain match periods, what other measures are put in place to control the behaviour of misbehaving supporters? Here the contrast with England and Wales is at its most stark, because the answer to date for Scotland is that with literally two or three exceptions, additional conditions have not been imposed on any convicted FBO-recipient.

3.23 If an individual is passionate about attending football, or only misbehaves within football stadia, then a ban on attending matches may be effective either in terms direct preventative control, or in terms of deterring that individual from misbehaving away from the stadia in the future. But, if the individual concerned, as is characteristic of a significant number of risk supporters (though by no means all), has no interest in attending the match, but rather uses match days and bonding over club-allegiances as a way of accessing opportunities for recreational violence well away from the stadia, then FBOs without conditions (for instance banning them from city centre pubs on match days, or stopping them from visiting towns, and going on trains to towns, where 'their team' are playing away) are going to have no plausible impact. "No impact on them whatsoever, because they can't go to the football match. So what! They can still go to the city centre, they can still meet with their chums in the bar, he can still travel" (Police Respondent 4)

In addition, the chief constable of a police force may apply to the Sheriff Court under §52 of the Act, seeking a banning order against an individual.  Sheriffs may impose banning orders if they are satisfied that the person proceeded against by the force has "at any time" contributed to any violence or disorder in the UK or elsewhere and there are reasonable grounds to believe that making the order would help prevent violence or disorder with any football matches [§52(4)]. An order made under this section lasts, at most, for three years. No conviction is required. To breach a football banning order is an offence, liable on summary conviction to imprisonment of a term not exceeding six months, a fine, or both.

Anyone who followed the SNP's "anti-sectarianism" in Holyrood before the recess will be familiar with political concerns about behaviour at, around and concerning football matches.  One response to the Scottish Government's hasty Offensive Behaviour at Football etc (Scotland) Bill was to argue, we've got effective tools of criminalisation already. If only these were properly enforced, we'd have no need of new laws this new statute substantially only adds a new statute, not new powers. Incidentally, I don't entirely agree with this analysis - but it was a familiar enough refrain in some skeptical analysis of the proposals. For my present purposes most importantly, that argument tended to focus on existing criminal offences, such as breach of the peace or threatening or alarming behaviour under s38 of the Criminal Justice and Licensing (Scotland) Act 2010, rather than existing punishments and civil penalties such as banning orders.  This aspect of the researchers' findings is particularly interesting.

All police forces in Scotland have the power to take our civil proceedings against individuals and seek to persuade a sheriff that the individual should be subject to a banning order. Across Scotland, only thirteen of these s52 orders have been sought by police forces and granted, Strathclyde constituting 11 of them.  Interestingly, since the Act came into force, all but one of these civil applications by the police have been granted. This, in stark contrast with criminal cases under s51, where sheriffs seem far more reluctant to impose football banning orders in addition to or instead of other penalties. In the context of the SNP Government's interest in conduct around football, and given that "sectarian" type abuse is explicitly included in the football banning legislation, the failure of the police to use their civil powers to identify troublesome sorts starts to looks politically problematic, and certainly raises still further questions about the practical utility of the SNP's new Bill, when the authorities aren't availing themselves of existing laws.

 4.27 Finally, it should be noted that outside of Strathclyde officers gave limited consideration to the use of civil summary applications ( e.g. the equivalent of civil orders in England and Wales). A few had been made. They had exclusively been targeted at risk supporters, and all but one of these had succeeded with little difficulty. One force had even temporarily employed a civilian worker to help develop intelligence packages on all their major risk supporters with a view to pursuing summary applications against all of them. However, the resources were not available to develop further intelligence packages that would support summary applications. Nor were most forces on the whole prepared to consider funding such applications.

Not using powers they already have because of - yes you guessed it - being cash strapped. The researchers report that this exceedingly limited "propensity to use summary orders in Scotland", is "primarily due to budgetary constraints. Bluntly put "there is no money for civil applications in this force" (Police Respondent 2). For obvious reasons, new legislation will not alleviate these difficulties nor lead to a more stringent use of these civil bans.

Shrieval doubts: football bans a draconian penalty?

Significantly, in the criminal sphere, it is clear that the police and procurator fiscal are asking courts to impose such bans, but the shrieval bench is not granting the orders. Why this apparent reluctance? The researchers attempt to provide some insight into the phenomenon, interviewing ten sheriffs and soliciting their views on imposing FBOs. As the researchers note, this is a small number of respondents. There are, after all, some 142 permanent sheriffs sitting across the country. However, despite their (rather surprisingly limited) number of respondents, they have still generated some interesting data on judicial attitudes...

5.2 In the context of this small sample, the one issue that seemed most germane to the Sheriffs' and Fiscals' approach to FBOs was whether they regarded themselves as football fans. Seven of the ten Sheriffs and all four Procurator Fiscal deputes defined themselves as such, usually being supporters of particular clubs and longstanding season-ticket holders. They were particularly knowledgeable about the history of their team, the 'problem' of football hooliganism and sectarianism, and the scope of the legislation. Indeed, one particular Sheriff who has granted "at least a dozen" FBOs since the regime came into force was quite explicit about how his knowledge of the game has impacted upon his approach to football-related cases: "I'm a football man so I understand the dynamics of football behaviour, and I'm really against a lot of the behaviour that goes on... When there has been an opportunity, I have never not imposed an FBO. I'm very aware of them, I don't need to be told about it and it surprises me that there aren't more imposed." (Sheriff 1)

5.3 This approach, where the granting of a banning order even for relatively trivial offences is the default position - and where a one-year ban is merely a starting-point - stands in marked contrast to the perceptions of all the other Sheriffs, most of whom had never imposed an FBO of more than one year's duration and all of whom felt a banning order would be unnecessary in the absence of aggravating factors. In every Sheriff interview the words 'Draconian' and 'disproportionate' were repeatedly used, regardless of where the interviewees were based or whether they regarded themselves as 'football fans' or not. They were certainly not comfortable with the idea that FBOs should be the norm upon conviction for all football-related offences:

"There's a distinction to be drawn between people who are involved in football clearly for the purpose of causing violence...and the majority of cases which tend to involve generally law-abiding people who've had a little too much to drink and have started behaving in a silly, childish way and done things they'd never do sober or if they weren't at the football. These people probably learn their lesson by being hauled before the court with a conviction for sectarian-aggravated breach of the peace or whatever...I don't think they necessarily require to have the full force of an FBO imposed on them." (Sheriff 2)

"Banning Orders are a fairly Draconian response to what is pretty low-level stuff - sectarian chants, verbal abuse. I think they are too high up the scale unless that person has a history (of previous convictions)." (Sheriff 3)

Source.