Criminal Law sends a stark warning to football related offenders on or offlineKevin Carpenter
On Saturday 31 August 2013 I was assistant referee for Witton Albion v Kings Lynn Town in the Evo-Stik League Premier Division. This is a semi-professional football league in England.
With the score at 0-0 with around 15 minutes remaining the home team brought on a substitute striker. Upon taking his tracksuit off the home fans, of the 349 in attendance, gave him a standing ovation and cheered wildly. This is unusual at this level of football. He scored the winning goal with only three minutes remaining. After the game I enquired as to why he had received such a rapturous reception and was told by one of the supporters that he, Sean Tuck, had just come out of prison having served a short sentence for abuse he had sent via Twitter.1
This got me thinking about two recent sets of guidance that have been published by the Crown Prosecution Service (‘CPS’) (the body responsible for prosecuting criminal cases investigated by the police in England and Wales) in relation to football related offences. The first in June were “Guidelines on prosecuting cases involving communications sent via social media”2 (‘the Guidelines’) and the most recent in August was a “Prosecution Policy for Football Related Offences”3 (‘the Policy’). The latter is the principal of the two, it being issued partly in response to an increase in football related disorder at games in 2013.4 Indeed since the beginning of the new season there have been pitch invasions at the derby fixtures between Preston v Blackpool in the Football League Cup and Bristol City v Bristol Rovers last week in the Football League Trophy. There have also been concerns about the use of flares at English football matches which has not been seen for some years.
There is a significant volume of legislation in the United Kingdom covering a vast array of football related offences. The most popular sanction the CPS seeks is the issue of a Football Banning Order (‘FBO’) by the court which has, in the words of the Policy, “excluded offenders from the vicinity of football matches, [and] deterred others from becoming involved in violence and disorder and has enabled levels of policing at matches to be reduced”. However recent events and the impending FIFA World Cup in Brazil next summer has led to a renewed campaign to make it crystal clear to football supporters the consequences of their actions, “there will be a presumption of prosecution wherever there is sufficient evidence to bring offenders before a court on appropriate criminal charges and where an FBO is considered necessary”. The use of the words “presumption of prosecution” should be of concern to any lawyers or laymen with even a rudimentary understanding of the criminal law.
Of most interest to the media has been what was said in both the Policy and accompanying Press Release5 regarding offensive, racist and homophobic and discriminatory chanting and abuse, whether it be in the stands or via social media. Posts on social media have made front page news following some high profile convictions for tweets sent both in sporting and non-sporting contexts. One was a tweet by student Liam Stacey following the heart attack footballer Fabrice Muamba suffered, which subsequently led to Muamba’s enforced retirement from the game. Stacey was sentenced to 56 days in prison for his comments.6 The spate of prosecutions, and criticism levelled at the CPS from the public and celebrities led the Director of Public Prosecutions Keir Starmer Q.C. (the head of the CPS) to issue the aforementioned Guidelines.
It seems logical that these Guidelines will be used when assessing football related offences via social media. The Guidelines suggest there is an extremely high threshold to be applied to such posts given the lack of premeditation often involved and the stigma attached to a criminal prosecution. Perhaps most significantly the Guidelines make it clear that those posts which are considered grossly offensive, indecent, obscene or false will not be prosecuted. Furthermore even if the high evidential threshold is overcome, in many cases a prosecution is unlikely to be required in the public interest, “just because the context expressed in the communication is in bad taste, controversial or unpopular, and may cause offence to individuals or a specific community, this is not in itself sufficient reason to engage the criminal law”. Finally the Guidelines say that a prosecution must be both necessary and proportionate when considering the public interest. With the amount of ill thought out comments spilling not only from football supporter’s mouths, but also on social media, it will be interesting to see how the prosecutors balance the requirements of the Guidelines against the interests of general public decency and the Policy.
Following some notorious instances of racial abuse in the past couple of seasons, both on and off the field of play, there is heightened sensitivity to this issue which is reflected in the Policy. Although there is mention in the Policy of the role that humour has to play in football (cue the Northern Ireland fans chanting “you’re just a cheap Gareth Bale” at Cristiano Ronaldo in their recent match against Portugal) it is unlikely that any racist, homophobic or discriminatory chanting or abuse can be seen as anything other than offensive behaviour and that action would have to be taken regardless of the Guidelines.
Coming full circle back to sanctions, as regards FBOs, the Policy states that if any supporters in England and Wales were to receive an FBO for behaviour during the current season, then they would be precluded from travelling to Brazil for the World Cup next summer. What people may not realise is that not only would they be precluded from travelling to the World Cup, but it is also highly likely that they would be precluded from travelling anywhere at all, whether or not it is football related, for the duration of the tournament as their passport has to be surrendered. FBOs are highly controversial anyway as legally they are advertised as a civil sanction, with the CPS claiming them to be a preventative measure, yet in reality they are in fact punitive and more closely characterise a criminal sanction. Furthermore, the conditions attached to the FBO, if applied, cannot be said to be anything other than disproportionate in the majority of cases.7
Although football in England and Wales is a far more welcoming experience than it was prior to the 2000s recent tensions in wider society have led to football related offences rearing their ugly head again. It will be interesting to track the use of the Policy, particularly in conjunction with the Guidelines for social media offences, to see if disorder and bad behaviour around matches is stymied by the criminal law and the courts.
2 The Guidelines - https://www.cps.gov.uk/legal/a_to_c/communications_sent_via_social_media/index.html; Press Release - https://www.cps.gov.uk/news/latest_news/dpp_publishes_final_guidelines_for_prosecutions_involving_social_media_communications/
3 The Policy - https://www.cps.gov.uk/publications/prosecution/football_offences_policy.html ; Press Release - https://www.cps.gov.uk/news/latest_news/football_hooligans_face_ban_from_world_cup_and_euros_under_cps_guidelines/
5 See 3 above
7 For more information - Mark James and Geoff Pearson (2006) Football Banning Orders: Analysing their Use in Court. The Journal of Criminal Law: December 2006, Vol. 70, No. 6, pp. 509-530
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About the Author
Kevin is a advisor and member of the editorial board for LawInSport, having previously acted as editor. In his day-to-day work he has two roles: as the Principal for his own consultancy business Captivate Legal & Sports Solutions, and Special Counsel for Sports Integrity at leading global sports technology and data company Genius Sports.