2 FOOTBALL BANNING ORDERS: AN OVERVIEW
Football banning orders
2.1 Football Banning Orders ( FBOs) are a preventative measure designed to stop potential troublemakers from engaging in football-related violence or disorder. The recipient of an FBO is prohibited from attending regulated football matches and, unless there are exceptional circumstances the order must also require the surrender of the person's passport when relevant overseas matches are to be played. Additional restrictions can also be imposed, such as prohibiting movements in areas around football grounds on match days. A 'regulated football match' is defined to include all teams playing in the Scottish Premier League and the Scottish Football League.
2.2 Football Banning Orders ( FBOs) in Scotland were introduced as part of the Police, Public Order and Criminal Justice (Scotland) Act 2006, and came into force on 1 September 2006. The Scottish legislation was based on legislation in England and Wales, principally the Football (Disorder) Act 2000. A key difference is that the Scottish legislation was originally driven by the then Scottish Government's 2006 'Action plan on Tackling Sectarianism in Scotland ' with the intention that FBOs would help tackle violence and disorder specifically associated with sectarian rivalries.
2.3 FBOs can be issued by the courts following a conviction for an offence instead of, or in addition to, any sentence the court could impose for the offence. In this case, the court must be satisfied that the offence involved engaging in violence or disorder and that it related to a football match; an offence is automatically regarded as related to a football match if it is committed at the match or on the way to or from a football match, and can be regarded as relating to a match if it appears that the offence was motivated by a football match. For a court to impose an FBO, the court must also be satisfied that there are reasonable grounds to believe that making the order would help to prevent violence or disorder at or in conjunction with any football matches (Police, Public Order and Criminal Justice (Scotland) Act 2006, S.51). An FBO issued by the courts following a conviction is known as a banning order on conviction.
2.4 An FBO issued alongside a conviction usually originates in the police requesting that an FBO be considered by the court. The police report on an offence that is submitted to the Procurator Fiscal's Office will usually contain the request, and this may in turn be conveyed in court by the attending Procurator Fiscal depute to the presiding Sheriff. The initial decision to request an FBO may rest with the arresting officer, or subsequent to the arrest, a match commander (the officer in charge of policing at the event), a football intelligence officer, or a case management officer, may decide that the offence was of seriousness that merits such a request being made.
2.5 The police can also make a summary application to a Sheriff court for an FBO to be imposed against an individual who has not necessarily been convicted of any offence, known as a banning order on complaint. Here, the police must evidence that a person has i) 'caused or contributed to' violence or disorder in the UK or elsewhere and ii) that the imposition of a banning order would help prevent football-related disorder occurring in the future.
2.6 An FBO can last up to 10 years and anyone who fails to comply with the terms of their FBO, or commits an offence while under an FBO, can be fined and imprisoned for up to 6 months.
The evolution of football banning orders
2.7 In England and Wales the origins of the legislation relating to banning orders lie in the mass disorder at and around football matches in the 1970s and 1980s. This was accompanied by a reduction in the number of spectators, and a national reputation for disorder at football matches both domestically and internationally (McArdle 2000).
2.8 The Public Order Act 1986 enabled those convicted of 'football-related' offences to be banned from attending matches in England and Wales. Before the Act came into force, keeping 'hooligans' out of grounds was dependent upon clubs using their own contractual powers to exclude known trouble-makers (McArdle 2000).
2.9 On the assumption that the use of banning orders had a positive effect the Football (Disorder) Act 2000 was introduced in England and Wales. After high-profile incidents involving England fans in (for example) Marseilles, Dublin and Charlerois, it had become apparent that the fans involved in acts of hooliganism while following the national side were often unknown to the police. England's hooligans seemingly regarded their endeavours as a patriotic duty, with club-level violence being deemed somewhat parochial and likely to draw unwanted attention to those involved (Stott and Pearson, 2006; 2007). These fans therefore often slipped under the authorities' radar because they were not involved in club-level violence and had thus avoided prosecution and/or club-imposed bans.
2.10 The 2000 Act circumvented this by allowing banning orders to be applied even if the violence did not meet the statutory definition of 'football-related' - they could now be imposed on conviction for any act of violence, if the court believed that the order would help prevent football-related violence too.
2.11 No less importantly, the 2000 Act also allowed the police to seek a banning order 'on complaint'. Under that provision (which is replicated in the Scottish legislation) a supporter who has not been convicted of any offence may still be susceptible to a banning order if the police can produce evidence they have i) 'caused or contributed to' violence or disorder and ii) that the imposition of a banning order would help prevent football-related disorder occurring in the future. So, video footage of supporters behaving badly, witness evidence, CCTV evidence, phone records, associating with known 'prominents' or otherwise behaving in a way which aroused suspicion (such as driving known hooligans to matches), could lead to an application for a banning order even if that evidence would not be sufficiently strong to justify its use in a criminal trial (James and Pearson, 2006).
2.12 Under both the English and Scottish regimes banning orders are civil matters, ostensibly designed to prevent violence rather than to punish the individual transgressor. If orders are issued in a criminal court, they are issued in addition to any sanction imposed by the court. However, they are sought by the criminal law agencies and there are criminal sanctions in the event of their being breached (in the form of fines or imprisonment).
2.13 In England and Wales there were over 3000 banning orders in force by the time of the 2006 World Cup and the Home Office initially set aside £5 million a year to develop evidential 'profiles' against what are now known as 'risk supporters .' These monies were channelled through the UK Football Policing Unit which monitors performance, coordinates and collates intelligence, and leads with the administration of orders .
2.14 In Scotland, whilst the responsibility for applying for, and enforcing, FBOs rests primarily with the police, and the responsibility for issuing orders lies with Sheriffs, the implementation and enforcement of the FBO legislation (what we shall hereafter refer to as the ' FBO regime') is supported by the Football Banning Order Authority. This essentially consists of a civilian FBO manager, who is located within Strathclyde police, but has a national remit.
2.15 The FBO manager within Scotland has operational, tactical and strategic roles ( ACPOS Football Banning Orders: Operational Guidance). Principally the manager:
- Monitors FBO applications as they arise, and provides support and assistance to police forces and COPFS in progressing cases as required.
- Has a lead role in the day to day administration of banning orders, including ensuring that banned individuals are appropriately registered when an order is issued, and individuals are notified when they are required to comply with a particular condition of the order (for instance surrendering a passport prior to an international game). This role is based on working with - and through - local police divisions.
- Monitors compliance with orders, and progresses breaches, again working with and through local police divisions, and through liaison with COPFS.
- Works at a tactical and strategic level with all relevant partners to identify challenges confronting the FBO regime, and developing solutions. This includes representing the FBO regime with relevant stakeholder groups ( e.g. the ACPOS football sub-committee) and with key partnership groups (principally the FBO monitoring group which is convened by the Scottish Government).
- Raises awareness, understanding, and appropriate engagement with the FBO regime through participating in the delivery of various accredited and ad hoc training programme and events.
- Monitors the overall performance of the FBO regime, and produces - for the purposes of accountability - performance statistics.
Patterns and trends in football violence
2.16 The performance of the Football Banning Order regime cannot be judged in isolation from background trends in the problems that it is intended to control. Furthermore the regime in Scotland was not intended to simply copy the English regime's focus on controlling organised violence by football hooligans and violence by fans attending matches abroad. Indeed, the Scottish legislation was introduced as part of the Scottish Executive's action plan for tackling sectarianism (Scottish Executive 2006).
2.17 There is unfortunately no reliable statistical data to give a precise account of trends in different forms of violence or disorder associated with football in Scotland, however there was a marked consensus amongst research participants regarding broad trends in recent years.
2.18 There was a widespread view that behaviour within stadia both in Scotland and in England and Wales, was significantly improved when compared with conditions that would have been experienced ten or twenty years ago. Controls, in terms of the stewarding and policing operations, were mostly viewed as extremely tight and professional. This, combined with a large number of regular season ticket holders for league fixtures who had allocated seats (and could therefore be readily identified if they did misbehave), was seen as creating an environment that was orderly and predictable and where everyone knew the standards of behaviour expected.
2.19 There were fewer problems with organised hooliganism. Whilst most of the notorious casuals firms still existed in some form or other, they were viewed as being less active than they had been in the past, in many instances focussing more on ritualised antagonism with rival supporters, rather than regularly initiating violent confrontations. There were also - at least in Scotland - few problems experienced with supporters travelling abroad. In particular travelling support for the national team was highly regulated, and had been viewed both here and abroad as markedly better behaved and less of a threat than the equivalent travelling support for the English national team (see Guilianotti 1994; 1995; 2005 and Scott et. al., 2001)
2.20 It is notable that, whilst problems of football related violence and disorder may have significantly declined in terms of scale and scope, there was a marked absence of complacency amongst those involved in the administration of the Scottish FBO regime. This lack of complacency, in part may also have been informed by the context of violence and disorder itself, both in terms of the most recent trends, and in terms of some enduring characteristics.
2.21 The last two seasons have seen something of a resurgence in football related violence and disorder, including organised violence. This resurgence appears to be associated with some clubs and some fixtures. Of the five clubs included in the Scottish case study areas, Football Intelligence Officers for two clubs didn't report any significant trend, whilst the remaining three officers noted an increase in problems. Whilst some groups of risk supporters continue to offer few problems, others have been notably active.
2.22 Many non-police research participants interviewed through this research had a tendency to conceive of football violence and disorder very much in terms of a problem occurring within stadia or immediately around stadia. This view of the problem of violence and disorder in turn informed their interpretation and understanding of what, and who, the FBO legislation was targeting. The difficulty that this presented is that few if any members of the risk groups, who may be seen as one of the primary targets for the legislation, actually went to a game to cause trouble. Indeed, many risk supporters didn't attend football matches at all.
"the football is the catalyst, but a lot of them don't go the football. It's just being.. the big attraction being part of a group, you know […] the football is just the very vague, central theme to it all"
(Police Respondent 5)
|Table 2.1: Risk, violence and disorder in three clubs|
|Problems in Stadia||Problems on the way to/from Stadia||Other problems on match days|
|CLUB 1||No significant problems. The majority of the risk supporters do not go to matches, and few are season ticket holders.||Problems with risk fans attacking risk and non-risk fans on the way to venues both home and away||Problems with risk supporters organising violence on, or around, match days away from the venue, or on routes to the venue|
|CLUB 2||No problems in stadia, the majority of the risk supporters go to the match and are season ticket holders. They are very committed fans.||A few problems with risk fans attacking risk on the way to venues at home, though occasional trouble for away matches||Some problems with risk supporters organising violence on, or around match days away from the venue, typically after the match|
|CLUB 3||Problems of disorder in the stadia, but not caused by risk supporters but by general supporters. Risk supporters don't attend matches.||Occasional problem with risk fans attacking other risk supporters on the way to matches at home, but not at away matches.||Some problem with risk supporters seeking violence on or around match days, but again rarely travel for trouble, but wait for opposing risk fans to come to them.|
In practice, as Table 2.1 demonstrates, how violence and disorder presents itself varies widely by club and fixture, and this in turn suggests that the FBO legislation needs to be flexible enough to cope with different risks in different contexts.
2.23 Volatility and opportunism continue to be a marked feature of risk groups, with new allegiances and grievances forming rapidly and often by chance. This complicates policing, and puts an onus on maintaining the intelligence picture to keep abreast of emerging types of risk.
2.24 Problematic trends also have the potential to emerge from non-risk groups of fans. For instance, both in Scotland and England, new fan-based groups, some modelling themselves on European 'ultras,' have emerged. This was mentioned both at Celtic and in Cleveland where young supporters have adopted a similar style to the Italian Ultras. These are 'super' fan groups who wear club colours (unlike the casuals) and often have large banners celebrating club triumphs. Whilst these groups are not currently considered risk groups as such, and have not been actively engaged in violence, there has been some involvement in Scotland in what is effectively  sectarian disorder. The growth and activity of these groups needs careful monitoring.
2.25 There were mixed views as to the prevalence of problems outside the Scottish Premier League ( SPL). Whilst some Scottish league clubs clearly had some quite significant issues with violence and disorder, whether these merited, or required, the application of more FBOs than are currently issued is unclear. It may be that the comparatively low attendance figures associated with non- SPL clubs provides other opportunities for dealing with such problems without recourse to FBOs. The presence of violence and disorder outside of SPL and Scottish league clubs remains unclear, though some respondents were of the view that there was an issue here to be addressed,
"Most clubs have a problem, how far you want to stick your head in the sand and say we don't have a problem?.. The problem only arises when there is a fight that takes place or an incident occurs […] If nobody identifies people as risk supporters, then you are not going to have a problem either"
(Police Respondent 2)
2.26 The FBO legislation as it stands, only encompasses SPL and Scottish League clubs, and for the purposes of the legislation these are defined as 'regulated football matches' (though there are in fact other matches outside the SPF and Scottish League which are nevertheless regulated by the Scottish Football Association).