There's nothing better to lift the spirits of a nation than a good football result against Germany. With Albania dispatched, only Greece stands in the way of a remarkable recovery. England's recent resurgence in the World Cup qualifiers has at last put the country's football skills onto the front pages, rather than the exploits of the country's army of soccer hooligans.

Football-related disorder, however, is unlikely to simply go away. The aim of the Football (Disorder) Act 2000 was to prevent the trouble-makers from even getting to the games, thus depriving them of the opportunity for disruption.

Freedom of movement was to depend, not on the commission of a new offence, but on past behaviour and the anticipation that the person was likely to mis-behave again. Whatever the view of football disorder, this was a legitimate subject for a civil liberties debate.

It would be prudent for police authorities and their insurers to look at their insurance position now, because this area of the law is still evolving.

The legislation was bound to be put to the test and, on July 13, 2001, the Divisional Court handed down a landmark judgment in the case of Gough and Smith v The Chief Constable of Derbyshire.

The ‘lunatic fringe'
On October 2, 2000, the Chief Constable of Derbyshire obtained football banning orders against Gough, Smith and other Derby County fans. They were forbidden to attend football matches at home and abroad.

There was evidence from previous convictions and intelligence that they had contributed to violence or disorder in the UK. There was also evidence they were involved with a group of football hooligans called the “Derby Lunatic Fringe”.

This name was a badge of honour for them. Similarly, exotic appellations can be found throughout the tribal world of English football. It was another sign the trouble that shamed the country had become dangerously institutionalised.

Gough and Smith appealed against the banning orders by way of case stated. John Riddell of Weightmans acted for the Chief Constable of Derbyshire in this matter and the lawfulness of the legislation was ultimately upheld.

It was alleged the Football (Disorder) Act contravened the Human Rights Act and the right to freedom of movement under EC law. In essence, there were four main contentions:

  • there was no right to prevent EU citizens leaving a member state
  • if there was such a right, it must be established that it was necessary to protect the fundamental interests of society in the state and this could not be shown
  • even if this was true, a two-year ban was disproportionate
  • the proceedings and evidential rules contravened Article 6 and Article 13 of the European Convention on Human Rights.

    The court rejected all of these claims – the judges decided the restrictions could be imposed and that they were necessary and proportionate.

    This attempt to have the legislation thrown out as a breach of EC law and the Human Rights Act has failed decisively. There is no doubt that police authorities can and should continue to seek banning orders.

    One note of caution should be sounded. It was accepted that the criminal standard of proof applied. Good evidence is needed to get football banning orders and the case will need to be proved beyond reasonable doubt.

    If the police fail to submit acceptable evidence, they could find the range of civil liability issues could be wider than before. For example, compensation claims relating to data protection, breach of confidence, and privacy under Article 8 of the Human Rights Convention could become more common.

    Striking a balance
    This type of legislation takes us to the heart of the ethos underlying the Human Rights Act. A balance has to be struck between the rights of the individual and those of the wider community.

    This is not to be taken lightly. It is too easy to stigmatise football fans as a sub-species and to say they deserve what they get. How we treat the “least deserving” or the least fortunate in our society is the true measure of our democracy.

    The case of Gough and Smith was decided by strong and robust appeal judges. It was not a triumph for politics, but for the court's rigorous testing of the legislation on our behalf. Other cases might not have the benefit of such an exalted tribunal, but all deserve to be scrutinised closely so that individual freedom is only compromised when the needs of the majority genuinely require it.

  • Kevin Fletcher is a partner at Weightmans and head of its police unit.