Abstract
This chapter sets out the relevance and importance of human rights to football crowd policing and law. It argues that while rights and freedoms under the European Convention on Human Rights have been applied to the policing of protest, the freedoms of expression and peaceful assembly have been largely overlooked when it comes to the policing of football. However, both domestic and European Court of Human Rights (ECtHR) jurisprudence have made it increasingly clear that these freedoms also apply to socio-cultural gatherings such as football crowds. We set out the core human rights that should be protected by football policing operations, discussing the duties of police forces under the Human Rights Act s.6 and discussing the extent to which these can be limited, applying the principle of proportionality. We then assess the obligations that policing operations have to adopt a human rights-based approach to strategic and tactical decision-making. We conclude by arguing that a human rights-based approach to football policing, focussed on facilitating legitimate crowd intentions, can provide a strategic and tactical advantage for commanders, hel** them to achieve acceptable public order outcomes. In this sense, regardless of the immediate future of the Human Rights Act 1998 (HRA) and positive obligations, a human rights-based approach to football policing is advantageous far beyond simply limiting the risk of successful litigation against forces.
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Notes
- 1.
However, where legal disputes arise relating to ECHR, s.2 of the HRA requires domestic courts to “take into account” Strasbourg jurisprudence when considering a human rights question, although it does not require courts to mirror ECtHR decisions (Fenwick & Masterman, 2017), s.3 requires that domestic courts interpret domestic legislation in a manner that is “compatible with convention rights” (known as ‘reading down’ a statutory provision), and s.4 allows a court to declare primary legislation “incompatible” with ECHR. Although a literal reading of s.3 does not limit its scope to the courts, the White Paper that accompanied the Human Rights Bill appears to clarify this (Home Department, 1997). We have, however, come across examples of police documentation erroneously suggesting that s.3 has a direct effect on the police.
- 2.
For example, Ostendorf v Germany (2013) App 15598/08; S.V. and A. v Denmark (2018) App 35553/12.
- 3.
Bank Mellat v HM Treasury [2013] UKSC 39 para 71.
- 4.
Bank Mellat para 74.
- 5.
PWR v DPP; Akdogan and another v DPP [2022] UKSC 2 Para 70.
- 6.
R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55, para. 85 (Lord Rodgers).
- 7.
See Osman v United Kingdom (2000) 29 EHRR 245.
- 8.
R. (on the application of Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058, considering the use of Automatic Facial Recognition Technology. On private land, such as a football stadium, recording by the club (i.e. not a public authority) will not engage Article 8, and usually one of the standard terms and conditions of entering a football stadium is that you agree that you may be recorded and that your image could be used in the club’s marketing.
- 9.
Wood v Commissioner of Police for the Metropolis [2009] EWCA Civ 414.
- 10.
Catt v United Kingdom App 43514/15.
- 11.
In England and Wales there is no human right of free movement, as the UK has not ratified Article 2, Protocol 4.
- 12.
Austin v UK (2012) 55 E.H.R.R. 14.
- 13.
S.V. and A. v Denmark (2018), relating to anticipated violence before a Denmark v Sweden fixture, and Eiseman Renyard and Others v United Kingdom App 57884/17 (relating to arrests to prevent a breach of the peace by protesters on the day of a Royal Wedding).
- 14.
Eiseman Renyard paras 42–45. This decision relied heavily on the minority decision in Ostendorf (2013), which related to pre-emptive arrest of a suspected ‘hooligan’ who had refused to follow a police direction by hiding in a toilet cubicle.
- 15.
Muller and Others v Switzerland [1988] ECHR 5; Perinçek v Switzerland (2016) 63 EHRR 6.
- 16.
Kuznetsov v. Russia, App 10877/04, para 45.
- 17.
Ziliberberg v. Moldova, App 61821/00.
- 18.
See Schwabe and MG v Germany Apsp. 8080/08 and 8577/08.
- 19.
Öllinger v. Austria App 76900/01, para 38.
- 20.
Arrowsmith v UK App. 7050/75 (Report of the European Commission of Human Rights, 1978).
- 21.
W v United Kingdom App. 18187/91 (European Commission of Human Rights [Second Chamber] 1993).
- 22.
Perinçek v Switzerland (2016) 63 EHRR 6, para 196. The term “margin of appreciation” refers to the room to manoeuvre that the ECtHR (and other supra-national legal organisations) allows different national authorities to fulfil their obligations.
- 23.
R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55.
- 24.
DB v Chief Constable Police Service of Northern Ireland [2017] UKSC 7.
- 25.
Miller v College of Policing [2020] EWHC 225 (Admin).
- 26.
Wilson and the National Union of Journalists and Others v. the United Kingdom, Apps. 30668/96, 30671/96 and 30678/96, ECHR 2002-V Para 41.
- 27.
Ibid; Airey v Ireland, 11 September 1979; Artico v Italy [1980] ECHR 4; Kudrevičius and Others v. Lithuania App. 37553/05.
- 28.
Plattform “Ärzte für das Leben” v Austria (1988) 13 EHRR 204.
- 29.
Özgür Gündem v. Turkey [2000] ECHR 104; Kharaahmed v Bulgaria App 20587/13, paras 110–111.
- 30.
Bączkowski and Others v. Poland App. 1543/06.
- 31.
Berkman v Russia App. 46712/15, paras 50–58. They were also critical of the domestic courts for a similar narrow interpretation of ECHR obligations (para 53).
- 32.
Osman v United Kingdom, para 116, in relation to Article 2.
- 33.
R (Prolife Alliance) v British Broadcasting Corporation [2003] UKHL 23, para 6 (Lord Nicholls).
- 34.
DPP v Ziegler and others [2021] UKSC 23, para 86.
- 35.
City of London Corpn v Samede [2012] EWCA Civ 160, paras 40–41.
- 36.
X and Church of Scientology v Sweden (1979) App. 7805/77; McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277; Miranda v Secretary of State for the Home Department and Ors [2014] EWHC 255, 44–45.
- 37.
Samede [2012], para 41.
- 38.
Vajani v Hungary (2010) 50 EHRR 44; Donaldson v United Kingdom (2011) 53 EHRR 14.
- 39.
Anderson v United Kingdom (1998) 25 ECHRR CD172.
- 40.
The Gypsy Council and Others v The United Kingdom App. 66336/01. See also Javit An v Turkey App. 20652/92.
- 41.
[2007] UKHL 52.
- 42.
[2009] ECHR 2068.
- 43.
Friend v United Kingdom [2009] ECHR 2068.
- 44.
App. 59135/09.
- 45.
Berkman v Russia (2020) App. 46712/15, para 55.
- 46.
It is hoped that the new Public Order Public Safety APP, expected 2022–2023, will remedy this gap.
- 47.
Sáska v Hungary App. 58050/08, para 21.
- 48.
In Redmond-Bate v DPP [2000] HRLR 249 it was held that where there was a risk of public disorder between two groups expressing opposing views, the duty was to confront those posing the threat.
- 49.
Christians against Racism and Fascism v United Kingdom App.8440/78 (1980) 21 DR 138; Identoba and others v Georgia App. 73235/12; Platfform “Ärzte für das Leben” v Austria (1988) 13 E.H.R.R. 204.
- 50.
Commissioner of Met Police v Thorpe [2015] EWHC 3339 at 19.
- 51.
See Appleby v. United Kingdom [2003] ECHR 222, para. 47.
- 52.
[2022] EWHC 736 Admin. This case concerned Aggravated Trespass under s.68 Criminal Justice and Public Order Act 1994. The s.68 offence does not include the “lawful/reasonable excuse” defence that is contained in FOA 1991, so its applicability for FOA convictions for protest is unclear.
- 53.
App. 57818/09, para 405.
- 54.
s.4 FOA 1990.
- 55.
Appleby [2003]; Anderson and others v United Kingdom (1998) 25 ECHRR CD172.
- 56.
[2021] UKSC 23.
- 57.
Although they may also be committing Aggravated Trespass under s.68 Criminal Justice and Public Order Act 1994, which does not contain a “lawful excuse” defence.
- 58.
Paras 71–78.
- 59.
Para 39 Lord Neuberger MR.
- 60.
Ibid, paras 40–41. This judgment was upheld by the Supreme Court in DPP v Ziegler and others [2021] UKSC 23.
- 61.
In May 2021, around 2–300 Manchester United fans unlawfully gained access to the stadium and invaded the pitch hours before a planned match in order to protest against the club owners and their attempts to take the club into a “European Super League”. As the invasion of the pitch took place more than two hours before the scheduled kick-off, FOA s.4 did not apply, but the fans could have been charged with Aggravated Trespass under s.68 Criminal Justice and Public Order Act 1994.
- 62.
Jersild v Demark (1995) 19 EHRR 1.
- 63.
See, for example, The Queen (on the application of McClure and Moos) v Commissioner of Police [2012] EWCA Civ 12, Austin (2012), and S.V. and A. v Denmark (2018).
- 64.
[2007] 1 WLR 1420, para 31.
- 65.
[2007] 1 A.C. 100.
- 66.
Begum, Para 31.
- 67.
Miss Behavin’ Ltd, Para 37.
- 68.
Miss Behavin’ Ltd, Para 91.
- 69.
[2022] EWHC 527 (Admin).
- 70.
Leigh, para 107. See also Tan (2022).
- 71.
Elsewhere referred to as the “least restrictive alternative” test or, in de Freitas v Permanent Secretary of Ministry of Agriculture [1999] 1AC 69, “the means used to impair the right or freedom are no more than is necessary to accomplish the objective”.
- 72.
McClure, para 95 (Hughes MR).
- 73.
ibid, para 20.
- 74.
Austin (2012), particularly paras.66–67.
- 75.
S.V. and A. v Denmark (2018).
- 76.
Para 163.
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Pearson, G., Stott, C. (2022). Human Rights and Football Policing. In: A New Agenda For Football Crowd Management. Palgrave Studies in Risk, Crime and Society. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-16298-5_7
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