An Evaluation of Football Banning Orders in Scotland

EXECUTIVE SUMMARY AND RECOMMENDATIONS

Introduction
This report presents the findings from an evaluation of the operation and effectiveness of legislation relating to football banning orders ( FBOs) in Scotland. The evaluation involved a review of administrative data (including conviction records and case files) and relevant documentation (including legislation); and interviews and focus groups with strategic and operational stakeholders. The fieldwork was conducted between August 2010 and January 2011.

Key findings
The performance of the FBO regime

• The numbers of FBOs in Scotland are increasing, as is the proportion of FBO applications that are successful. As of December 2010, 101 FBOs have been issued. This is probably in no small part a reflection on the efforts of the FBO authority and other stakeholders to increase awareness of the FBO legislation, and to improve the operational processes that give effect to that legislation.
• There is a strong, and committed, strategic partnership overseeing the implementation of FBO legislation. The Scottish Government chaired Football Banning Order Monitoring Group has been the main focus for this. The group has clearly operated effectively in developing and steering improvements in the use of the legislation. For instance, the group successfully engaged with the Judicial Studies Committee to introduce measures to enhance judicial awareness of the legislation. The group also engaged with the Crown Office and Procurator Fiscal Service to develop a 'Football Liaison Depute Pilot' that aims to improve the identification and handling of FBO cases in court.
• The evaluation showed that FBOs are generally being appropriately targeted, with bans predominantly being issued to individuals who had a history of engaging in football related violence and disorder. There was also indicative evidence to show that banning orders may be reducing the intensity of offending amongst those subject to them.
• Whilst the number of FBOs issued in Scotland may look modest when compared to the numbers issued in England and Wales, our analysis concluded that the contrast is not as marked as headline figures suggest. The larger number of clubs, higher average attendances through the divisions, and the incentivising of FBO applications through pump-priming monies and target-setting, all provide grounds for anticipating much greater numbers of FBO in England and Wales.

Findings and recommendations
FBO performance - non Scottish Premier League clubs

• FBOs in Scotland are overwhelmingly (93%) focussed on followers of Scottish Premier League ( SPL) clubs. This contrasts sharply with England and Wales, where 64% of FBOs are targeted at followers of clubs outside the premier league. This difference could be due to low attendances and a lack of serious violence and disorder outside of the SPL, or it could be interpreted as indicative of a lack of awareness and engagement by those officials dealing with match security outside the SPL.

Recommendation 1 (R1)- Levels of violence and disorder in relation to non- SPL clubs and non-league clubs, and effective engagement with FBO legislation, needs to be examined.

R2 - If significant problems exist outside of the leagues, then consideration to extending the definition of a 'regulated football' match to encompass all club matches in Scotland could be considered.

FBO performance - police football intelligence

• For SPL clubs, the rates at which football banning orders were issued per 1000 spectators, whilst lower than the rates found in most English premier league clubs, did not lag that far behind.
• Respondents were uniformly appreciative of the work carried out by the Scottish FBO authority.
• Some respondents felt that detailed information on FBO subjects was not as readily accessible as it needs to be within the context of match day operations, though the current drive to roll-out the UK football policing unit's ( UKFPU) Minerva database should resolve this so long as the system is properly utilised.
• The contrast in resourcing both at the level of the FBO authority and in terms of the proactive resources for policing across Scotland, when compared to England and Wales, is marked. For instance, many clubs in England have full time dedicated Football Intelligence Officers. There is also often a football liaison officer operating at police authority level, who coordinates with the UK football policing unit ( UKFPU). The UKFPU also provides additional resource in terms of acting as the central point for collecting and collating football-related intelligence in England and Wales. In Scotland there is no equivalent central support provided around intelligence gathering and dissemination.

R3 - Further thought should be given to considering how football intelligence can be better coordinated and collated across Scotland.

FBO performance - effective targeting by the criminal justice system

• FBOs were - broadly speaking - being targeted at offenders with prior convictions for football-related offences
• That said there were an appreciable number of more serious offences that did not result in an FBO. It was notable that compared with violent offences sectarian offences appeared under-represented among cases that led to the issuing of an FBO. In particular, some serious sectarian, and indeed racial offences, did not result in FBOs being issued.
• Whilst there are significant differences in the gravity of sectarian offences examined as part of this research, some respondents were of the view that the indirect impact of such offences (in terms of reinforcing deep-rooted sectarian divisions in communities) merited a zero tolerance approach, with FBOs being imposed automatically.

R4 - The progress of British Transport Police in its current 'zero tolerance' approach to sectarian offending on public transport should be monitored, and if successful, transferable lessons should be identified.

FBO performance - the handling of cases by the authorities

• Whilst respondents were confident that appropriate cases for FBOs were identified within football stadia they were less confident about the identification of appropriate cases away from the stadia where offences may be dealt with by officers with limited knowledge of football-related matters.
• It was not viewed as practical to maintain awareness amongst all frontline officers of FBO legislation. Rather, it was more realistic, and resource-efficient, for Football Intelligence Officers ( FIOs) and/or case management personnel to scan for possible football-related cases on match days. However, a very widely held view amongst respondents in this research was that some FIOs - nearly all of whom acted as an FIO part time - were not given sufficient time to perform this role or indeed their other FIO duties.
• Successful FBO cases were generally supported by clear police summaries of the offence, police remarks that explained why an FBO was an appropriate measure, and a clear explanation of the context and impact of the offence. The quality of reporting was often dependent upon the arresting officers who again, didn't necessarily have enough expertise to present evidence effectively.

R5 - Consideration should be given to agreeing a standard minimum Football Intelligence Officer resource for all divisions hosting SPL clubs, and Intelligence Officers and case management personnel need to be given enough time to spot, and quality control, football-related arrests.

FBO performance - case handling by Procurator Fiscal deputes

• Police officers could improve the prospects of getting an FBO by liaising directly with the Procurator Fiscal depute rather than simply relying on the submission of papers.
• Given the volume of cases faced by a typical Procurator Fiscal's office, it is not realistic to expect all Procurator Fiscal deputes to have an in-depth knowledge of FBO legislation.
• The Glasgow Football Liaison Depute pilot seems to provide a productive, and resource-efficient solution here. The pilot involves the identification of one Procurator Fiscal depute with an existing interest and knowledge of football, who can act as a champion for FBOs. The depute is responsible for facilitating better liaison with partners around key cases, for marking and reviewing all FBO cases, for ensuring that clear instructions are given to deputes presenting cases in court, and generally for championing and raising awareness of FBO legislation within their division.
• Respondents perceived the football liaison depute pilot to be working extremely well. The approach seemed to be well thought out and to represent a highly efficient use of scarce resources.

R6 - The performance and statistics relating to the Glasgow depute pilot, should be reviewed at the end of the current season - and subject to favourable review - consideration should be given to rolling out the pilot to all 'high-demand' divisions.

FBO effectiveness

• There was plenty of anecdotal evidence to suggest that FBOs could be highly effective in some circumstances. There was some evidence to indicate that FBOs had an impact on recipients. Whilst FBOs did not eliminate future football-related offending, in Scotland they did potentially contribute to a reduction in the general intensity of future offending within the group that received them.

FBO performance - attaching conditions

• The conditions attached to FBOs by Sheriffs were not always well-targeted: in particular, risk supporters who had no particular interest in actually attending the football were given banning orders that included only basic stadia-exclusion conditions.
• If the focus of football-related violence is violence organised away from stadia, as is the case with some Scottish risk groups, then the FBO legislation needs to be invoked to its full extent, imposing match day conditions that exclude risk supporters from certain areas of towns, or from travelling to towns on match days where their team are playing away fixtures. That such violence occurs outside stadia, does not detract from the fact that violence is inextricably linked to match days.
• There seems a marked lack of confidence on the part of the police to ask for additional conditions, and very few have been asked for, or imposed. The concern amongst interviewed Procurator Fiscal deputes and Sheriffs regarding the use of additional conditions, with the perceived disproportionate restrictions on individual movement and freedom of association that such restrictions impose, may mean that this lack of confidence is justified. These concerns though were mostly expressions of principle rather than reservations based on experience, as few Procurator Fiscal deputes or Sheriffs have faced requests for conditions.
• Both the preventative and deterrent aspect of the FBO legislation are likely to be ineffective for this group of offenders if the legislation is only focussed on stadia-centred incidents and controls. This limit to FBO powers, as they are currently used, had led stakeholders in some areas to view the legislation as of limited value.
• One alternative to the imposition of tailored FBO conditions on the back of criminal convictions, would be the greater use of civil summary applications, where tailored packages of information on the antecedent history and patterns of disorder of high risk individuals could be presented to court and judged on the basis of a civil burden of proof. However, currently few forces had any willingness to fund such applications.

R7 - Work needs to be taken forward to establish when conditions may be imposed. The level of evidence required to support such restrictions needs to be firmly established.

R8 - If the legislation as currently drafted does not adequately support the imposition of conditions, then options for either amending the legislation, or using other legal remedies, should be considered.

Sheriffs

• Some Sheriffs remain unconvinced that the FBO regime is an appropriate tool for dealing with football-related violence in Scotland. It has been described as "an English Act with a kilt on" and there is a perception that banning orders were instigated in order to deal with a very different phenomenon to that pertaining in Scotland, principally the problem of English football hooligans causing trouble abroad.
• The fact that the legislation is not perceived to be an example of 'Scottish solutions to Scottish problems' has made some Sheriffs, especially those who are not football fans, wary of using it in anything other than the most egregious cases. Conversely, some Sheriffs with more engagement in football are more strongly supportive of the use of FBOs.
• FBOs were regarded as appropriate in the case of persons who have a conviction for at least one related offence or for first offenders who have committed a serious act of violence, invaded the pitch in an act of aggression (rather than over-exuberance), or thrown missiles.

R9 - If a Sheriff decides not to impose an FBO, it would be beneficial if they would mark the offence as football-related so that, in any future proceedings against the same individual, the Sheriff can readily discern patterns of previous behaviour which might warrant an FBO.

Prosecution and sentencing

• The question of whether FBOs are an appropriate way of dealing with sectarian offenders continues to be a subject for debate. All Sheriffs, not only those in Glasgow, are aware of the issue's importance, but most are not at all convinced that an FBO is a proportionate response to what may be a one-off utterance.
• There is no discernable benefit in changing the wording of the legislation as it stands. In particular, the idea that the word 'may' in s. 51(2) should be replaced with 'shall' (so that, in effect, the imposition of an FBO became mandatory upon conviction), as is the case with the legislation in England and Wales, was roundly decried as an unwarranted interference with judicial discretion and one likely to bring the law into disrepute given that most football-related offences are usually not perceived as being on the same scale of significance as, for example, knife crime or domestic violence ^[1], and given that considerable police resources would have to be dedicated to policing FBO holders if they are to be a meaningful sanction.
• In contrast, Procurator Fiscal deputes should be more robust in moving for an FBO. Rather than perceiving a usurpation of the judiciary's function it is quite likely that many Sheriffs would appreciate this approach - particularly in those courts where FBO applications arise infrequently.

R10 - Work should be taken forward to explore how Procurator Fiscal deputes can appropriately raise the issue of FBOs with Sheriffs to allay any concerns about being perceived to interfere with the sentencing process.

Going forward

• How football is being policed is subject to ongoing ACPOS review. It is not within the remit of this work to second-guess future developments. However, it seems probable that the existing trend to reduce the policing complement at low risk football matches will continue. There is some tentative evidence to suggest that such developments need not compromise the general effectiveness of match day security operations (Wright 2007)
• In a climate of reduced resources, making optimal use of FBO legislation may be a cost-effective way of controlling football related violence and disorder.
• This would necessitate though that a certain minimal level of commitment to the FBO regime is maintained. The integrity and effectiveness of the regime would be threatened if excessive cuts are made to those resources that generate intelligence on football related violence and disorder.
• If more responsibility for security within stadia is to be passed over to match officials and club stewards, it is important that arrangements are in place to ensure that these officials can work with the FBO regime as effectively as their police colleagues, in particular sharing relevant information and intelligence when appropriate. Club officials need to have usable information on who FBO subjects are, whilst conversely communicating details on club-imposed bans may provide the police and prosecutors with additional evidential material to support an FBO application ( e.g. if an individual has previously received club-based bans for lesser acts of violence or disorder, this record might be used in court to strengthen the case for an FBO).
• The robustness of the FBO regime in such changed circumstances also depends on the continuation of efforts to enhance the professionalism of club safety officials and stewards. Here, maintaining, and indeed strengthening, the working relationship with the Scottish Football Safety Officers' Association would appear to be vital.

R11 - Current efforts to work through appropriate mechanisms for sharing data and intelligence securely with accredited club-officials, needs to be maintained.

R12 - Clubs should continue to focus on opportunities for improving the quality and professionalism of their security operations and personnel.

Interpretation of legislation

• Finally, whilst there was some consensus amongst stakeholders regarding who FBOs were for (repeat and/or violent offenders), and what the FBO legislation could do (ban them from stadia), there was also a marked lack of consensus in other areas. For instance there was marked disagreement as to whether FBOs were appropriate for less serious sectarian and racial offences, and as to whether the legislation was intended to permit the widespread use of more sweeping banning order conditions ( e.g. town centre bans). There were, in short, marked differences in how the legislation was interpreted.
• The legislation establishing FBOs is not so prescriptive as to exclude any of these interpretations. Other respondents also pointed out that some variation in interpretation of the legislation is both welcome and healthy, as clearly for instance the seriousness of a particular offence for a small club in rural Scotland, may be quite different if the same offence was committed at a large city club. ^[2] Respondents were also aware however, that too much inconsistency in interpretation threatens the credibility of the legislation, whether in terms of irreconcilable expectations as to what the legislation should be achieving, or in terms of perceptions of fairness and justice when the legislation is applied inconsistently.
• Greater use of the legislation, and greater awareness of the legislation and case law that develops from the use of the legislation (which the FBO authority, and the Judicial Studies Committee in particular, were actively promoting), will in time help develop a greater consensus regarding what the legislation is intended to achieve and how. But, it is also very evident that some of the differences in current interpretation, are based not on the actual interpretation of the legislative instrument, its associated guidance, or policy pronouncements regarding FBOs, but in fact derive from much broader disagreements as to what fundamentally constitutes unacceptable behaviour in football, how such behaviour should be dealt with, and who should deal with it. These normative debates and disagreements need to be discussed and negotiated openly, if - going forward - greater consistency in the implementation of the FBO legislation is to be achieved.

R13 - Opportunities for hosting further events for raising awareness of FBO legislation amongst criminal justice professionals, and for discussing their appropriate use, should be identified.