Football banning orders are seen as one of the vital tools in maintaining order at football matches. Whilst widely used in England, they have been slower to be utilised in Scotland, although that appears to have recently changed.
Such an order can be made, it is generally understood, in connection with football related violence, or threats thereof. However, as is often the case perception and reality differ as is shown by the case discussed below.
The issue for the court was whether a “football-related” offence, being one clearly connected to football, but not necessarily to a specific football match, could result in the accused being the subject of such an order. In this case, the offence, admitted by the accused, was of committing a breach of the peace by sending a message of a threatening and offensive nature to a social media site.
The message was posted on Twitter on 14th February 2012. It read:-
“Lawwell needs a bullet. Simples”
Bearing in mind the tortuous definition of “football match” described below, it is of note to see the Appeal Court’s view of how far that extends, and more importantly, where it stops.
Today the decision of the High Court of Justiciary was issued in the case of MacDonald v PF Glasgow  HCJAC 133.
The Appeal Court, consisting of Lady Paton and Sheriff Principal Lockhart were considering the case of Ryan MacDonald who pled guilty in April 2012 to committing a breach of the peace by sending a message of a threatening and offensive nature to a social media site.
The message was posted on Twitter on 14th February 2012. It read:-
“Lawwell needs a bullet. Simples”
As the court noted:-
“Lawwell” was Peter Lawwell, the chief executive of Celtic Football Club. The message was posted after Rangers Football Club had gone into administration and just after a press conference given by Mr Lawwell during which he made certain comments about the situation. The gist of the comments was that Celtic did not need Rangers, and was not interested in what was going on. The appellant reacted angrily, as described above.
Mr MacDonald was sentenced to a Community Payback Order (level 1) of 70 hours, and to a 3-year football banning order in terms of section 51(4)(b) of the Police, Public Order and Criminal Justice (Scotland) Act 2006.
On sentencing him, Sheriff Wendy Sheehan stated, inter alia:-
“Ryan MacDonald, you pleaded guilty to posting a message of a threatening and offensive nature on a social media site to which the public had access and thereby committing a breach of the peace. This offence took place on 14 February at approximately 1am. It was the crown’s position that the message was viewed by the Head of Media & Publishing for Celtic FC and that the message was viewed and re-tweeted by 9 others. Fortunately the message does not appear to have incited any further response from members of the public and I am advised that you removed the message from Twitter the following day.
If you did not realise then, then I am sure that you realise now the unacceptability of your behaviour. The message you posted was of a highly threatening and offensive nature. There is no place for this type of behaviour in our society. Such remarks could lead others to act in a similar way and provoke hostility in others.
The Sheriff also noted he had lost his job as a result of his tweet.
Mr MacDonald appealed against the football banning order on the basis that the order was incompetent as the statutory provisions did not extend to the circumstances of the offence.
He also argued that there were no reasonable grounds to believe that the making of a football banning order would help prevent violence or disorder at or in connection with any football matches and that if the order was both competent and appropriate, the period selected by the sheriff was excessive.
The court was able to deal with the matter on the first ground of appeal.
The Police, Public Order and Criminal Justice (Scotland) Act 2006 provides inter alia as follows:
“51 Making of order on conviction of a football-related offence
(1) This section applies where –
(a) a person is convicted of an offence; and
(b) the person was aged 16 or over at the time the offence was committed.
(2) Instead of or in addition to any sentence which it could impose, the court which deals with the person in respect of the offence may, if satisfied as to the matters mentioned in subsection (3), make a football banning order against the person.
(3) Those matters are –
(a) that the offence was one to which subsection (4) applies; and
(b) that there are reasonable grounds to believe that making the football banning order would help to prevent violence or disorder at or in connection with any football matches.
(4) This subsection applies to an offence if –
(a) the offence involved the person who committed it engaging in violence or disorder; and
(b) the offence related to a football match
(5) Where the court does not make a football banning order, but is nevertheless satisfied that the offence was one to which subsection (4) applies, it may declare that to be the case.
(6) For the purpose of subsection (4)(b), an offence relates to a football match if it is committed –
(a) at a football match or while the person committing it is entering or leaving (or trying to enter or leave) the ground;
(b) on a journey to or from a football match; or
(c) otherwise, where it appears to the court from all the circumstances that the offence is motivated (wholly or partly) by a football match.
(7) The references in subsection (6)(a) and (b) to a football match include a reference to any place (other than domestic premises) at which a football match is being televised; and, in the case of such a place, then reference in subsection (6)(a) to the ground is to be taken to be a reference to that place.
55 “Football matches” and “regulated football matches”
(1) In this Chapter, reference to football matches –
(a) are to association football matches; and
(b) are to matches played or intended to be played.”
The Solicitor-Advocate for the appellant submitted that the case “demonstrated the dangers of social media. People could act impulsively without thinking, and post their views and thoughts on line for everyone to read.”
The court was told that the police had been alerted by staff at Celtic Football Club. The appellant had co-operated fully with the police when they called upon him, accepting that what he had done was foolish. He told the police “I was just being an idiot”. He had deleted the message 24 hours after it had been posted, having realised how foolish he had been.
The lawyer for the appellant argued that the Order was not competent.
It was accepted that the appellant’s behaviour was football-related. But it was going too far to say that the behaviour related to “a football match”. While there was a history between Rangers and Celtic in the context of football games played against each other, the present case involved the posting of a message about comments made by Celtic’s chief executive relating to Rangers’ financial difficulties and going into administration. Accordingly the conditions set out in sections 51(4) and (6)(c) had not been satisfied.
Even if the court took the view that the message was partly related to a football match, the message did not constitute conduct relating to a specific football match. There were no grounds to believe that the order would help to prevent violence or disorder at or in connection with a football match.
Finally he argued that, even if competent, the 3 year order was excessive as the appellant had no previous history of causing trouble or violence. He had co-operated with the police. He had expressed remorse, and might be thought to have learned his lesson. It was submitted that, as the maximum football banning order which could be imposed was 5 years, the 3-year ban was too high up the scale. As counsel submitted “While the comment made by the appellant had been a particularly nasty one, directed to an individual, his behaviour was nevertheless different from violence at matches”.
In reply the Advocate Depute for the Crown accepted first, that the words “football match” were to be construed as relating to a particular match on a certain date, and secondly that there was no particular football match to which the message had been directed. But the comments posted had to be viewed in context.
It was argued that the sheriff was entitled to conclude that the relationship between the two clubs centred on football matches, played or to be played. It was open to the sheriff to conclude that part of the appellant’s frustration related to Rangers’ ability to continue to participate in such football matches: that was, after all, the whole point of the organisation. It was not therefore possible to divorce the circumstances from participation in football matches.
Further, as the 2006 Act was designed, inter alia, to cover a situation where rival fans agreed not to attend a football match, but to go to an alternative location to indulge in violence this demonstrated that the focus of the dispute between the clubs was football matches. A football banning order could not prevent a posting on Twitter, but could prevent someone with a certain attitude (which could contribute to disorder at football matches) from entering football stadiums and inciting others. The wording of section 51(6)(c) was broad enough to cover the present circumstances.
The Crown accepted that, had a similar offence been prosecuted in England in terms of section 14(8) of the Football Spectators Act 1989 (an Act upon which some features of the Scottish legislation had been modelled), it would not have been competent to impose a football banning order. The English equivalent provisions required the identification of a particular football match, and a relevant period. However, as those provisions were not repeated in sections 51 to 56 of the Scottish legislation, the sheriff was entitled to impose an order in the circumstances.
In reply Mr MacDonald’s Solicitor-Advocate referred to the Explanatory Notes published with the Police, Public Order and Criminal Justice (Scotland) Act 2006, and in particular paragraph 87. The Notes, he submitted, tended to suggest that the Crown had to establish a link between the behaviour and a football match (and not “football matches” in the wider sense). In the present case, the motivation was wholly related to Rangers being placed in administration, and not to any particular football match.
Section 55(1) of the Police, Public Order and Criminal Justice (Scotland) Act 2006 provides that references to football matches are references to “matches played or intended to be played”. Section 51(1) to (4) provides that a football banning order may be made where a person is convicted of an offence involving violence or disorder, the offence being “related to a football match” (section 51(4)(b)). An offence relates to a football match where, inter alia, ” … it appears to the court from all the circumstances that the offence is motivated (wholly or partly) by a football match” (section 51(6)(c)). Paragraph 87 of the Explanatory Notes accompanying the 2006 Act explains inter alia:
” … the court will need to find some link between the behaviour and a football match. This could include, for example, where groups of rival supporters do not go to a football match but instead meet at a different place for a pre-arranged fight.”
In our opinion, the circumstances in the present case do not fall within sections 51 and 55 of the 2006 Act. The appellant’s posting of the message on Twitter could not be said to be an offence “related to a football match … played or intended to be played” (sections 51(4)(b) and 55(1)). Nor, in our view, could the offence properly be categorised as “motivated (wholly or party) by a football match … played or intended to be played” (sections 51(4)(b), 51(6)(c), and 55(1)). Thus the imposition of a football banning order was, in our view, incompetent.
In the result therefore, the appellant’s appeal against the football banning order succeeds on the basis of his first argument. It is unnecessary for us to decide the remaining two arguments.
I wonder how many banning orders have been granted in situations where a specific match could not be identified!
As there have been a number of convictions for football related sectarian activity on the internet and message boards, one assumes that, from now on, the Crown, when advising the Sheriff of the power to impose such an order, will show how the offence is related clearly to a football match, and not to football generally. A quick search of the Crown Office website reveals a number of cases where banning orders were made and, stranding the opinion of the court below, they may not actually have been competent.
However, unless any of the parties have already appealed, it is likely that an appeal following upon this case would be deemed to be out of time.
So, general football related violence or threats, which cannot be linked to a specific match, cannot result in a banning order, despite the suggestion from the Scottish Government’s Explanatory Notes, that it perhaps was intended to!
Posted by Paul McConville