Jack Grealish and the Media Response

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By Matt Hall

Over the last week or so, football has been the focus of much negative press attention stemming from incidents of fan/player altercation. In Scotland, Glasgow Rangers captain James Tavernier was approached by a spectator in a game versus Hibernian. Shortly after in England, Aston Villa player Jack Grealish was hit from behind during a game against Birmingham City. The incident involving Jack Grealish was highly reported across the media and perpetrator, Paul Mitchell, was subsequently sentenced to 14 weeks imprisonment.

The defendant was charged with battery contrary to s 39 Criminal Justice Act 1988 and the football-specific offence of ‘pitch encroachment’ contrary to s 4 Football Offences Act 1991. As the blog by The Secret Barrister helpfully outlines, the maximum sentence for battery is 6 months, and taking in to account the guilty plea at the earliest opportunity and the then entitled one third deduction, the magistrates could have gone to 17 weeks. The maximum sentence for ‘pitch encroachment’ is a fine. Therefore, 14 weeks was certainly the top end of the scale and on the face of it, the sentence appears stern. Moreover, the defendant was also handed a 10-year Football Banning Order contrary to s 14a Football Spectators Act 1989.

On a note regarding the sentence handed down to Mitchell, many police officers took to Twitter to highlight the swift justice ( just a little over 24 hours) and the severity of the sentence when compared to those who assault police officers. For example, a defendant recently convicted of assault under the 2018 Assaults on Emergency Workers (Offences) Actwas fined £120 and ordered to pay £50 compensation to the police officer he punched (see here). It has been suggested (in the absence of Sentencing Remarks) that the severity of the sentence handed to Mitchell was driven by the need for a deterrent, a legitimate aim of sentencing. Clearly, police officers may have a point here in asking where the deterrent is for those who assault officers going about their job. It is hard to imagine that a similar attack away from a football stadium would have resulted in a 14-week custodial sentence.

Despite the severity of the sentence, it is the knee-jerk and, to quote Stuart Hall, ‘short, simplifying and brutal’ media coverage and commentary that often follows disorder related to football that has been concerning. Following the incident involving Grealish, The Guardian reported that ‘football is urged to protect players’ whilst ex-footballer and current England Women’s manager Phil Neville drew the comparison to tennis player Monica Seles who was stabbed in the back during a tennis match in Hamburg in 1993, outlining his fears that if things do not change ‘a player will end up stabbed.’ The idea of fences returning to the stands was also mentioned and ex-footballer David Cotterill went one step further and suggested that armed police were needed at football matches to assist stewards. Whilst ex and current footballers are well within their rights to worry about their safety, some of the reporting and suggestions that the media give credit to are clearly ill-thought and nonsensical. Indeed, the media has often contributed to the moral panic that ensues when incidents such as this occur at football.

Photo by Vienna Reyes from unsplash.com

Emma Poulton has argued that the ‘hysterical headlines, emotive language and graphic imagery’ that often follow football related disorder contribute to the public viewing all fans of football as ‘hooligans,’ again, a concept that lacks a universal definition and is a construct of the media whom use it to cover an array of behaviour within the football context. What follows, and is true in this instance, is then an outburst for ‘collective punishment’ and headlines such as that in The Guardian that football needs ‘to do more’ to protect players or that armed police are necessary. Indeed, when alcohol was seen as a partial cause in 1985 to the Heysel Tragedy, again, fuelled by newspaper headlines, Parliament were quick to pass legislation that criminalised alcohol possession in direct view of the pitch. In similar vein following the Grealish incident, one media outlet published the opinions of a police officer who believes that cocaine is now a cause of much disorder at football.

Regarding Grealish, some perspective is clearly needed. The individual who attacked him was acting alone. Moreover, football fans are heavily policed and regulated in terms of legislation. As noted above, ‘pitch encroachment’ is a football specific offence and The Home Office’s own statistics demonstrate that arrests for ‘pitch encroachment’ are minimal; 188 arrests in 2015-16; 204 in 2016-17 and; 191 in 2017-18. I would argue many of these arrests take place during times of goal celebrations and not spectators running on the pitch to attack players. Moreover, and taking into account the millions who attend football, this is clearly a minute percentage. This was an isolated innocent and one that does not warrant the knee-jerk responses and ‘hysterical’ headlines that have followed.

It must not be forgotten that football is not unique in attracting disorder; many other sporting and social events attract disorderly behaviour, yet very rarely, if at all, do they attract such stigmatising or emotive headlines or suggestions. A prime example of this would be disorder at horse racing (see disorder involving 40-50 people here) or the 71 people arrested at the 2017 Glastonbury Festival for various offences ranging from drug offences, ABH and possession of an offensive weapon. The point here, is that football is targeted by the media and some members of society in a manner that no other events are.

Clearly, the media and commentators play a role in how football and its fans are perceived. The moral panic that ensues football is unique, in that no other sporting or societal event attracts such condemnation; condemnation that has led to an abundance of football-specific legislation being implemented. Therefore, and despite the media soundbites, football is heavily protected. There is no need to return to fencing in front of the stands, and clearly no need for officers at football to be armed. Statements like this by the media are irresponsible and indicative of what football and its fans have had to witness since the mid twentieth century. The result is a moral panic and a tarnishing of all spectators who pay a lot of money to watch football. As commented by Chief Superintendent Owen West of West Yorkshire Police, ‘one person did an idiotic and criminal act.’ This should not be forgotten, and you cannot legislate for the actions of one mindless individual.

Photo by Tom Grimbert from unsplash.com

Read more from Matt Hall in his previous blog post Matthew Hall presents “Thatcher’s Legacy on the Narrative Surrounding Fans of Football” at the Football Collective Conference.

The Criminal Justice Research Unit share their latest scholarly writings

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The Criminal Justice Research Unit organised on 12 November a Staff Research Seminar giving colleagues the opportunity to talk about their latest scholarly writings.

Matt Hall launched the seminar by presenting a fascinating and highly topical research piece on the legal framework relating to alcohol consumption in airports. This topic is not far off from his own PhD that examines the (ab)use of alcohol at football events and the law that governs it. As Matt pointed out, drunkenness at airports is not a new phenomenon, though it is not causing as much trouble as the media would like to portray it. What seems however new is the fact that individuals, particularly those about to embark on hen/stag/18-30’s etc., arrive at airports in a state of drunkenness which is indicative of the ‘pre-loading’ phenomena that is popular amongst many drinkers. Moreover, over indulgence in unregulated access to free alcohol in some departure lounges is also a concern. The abuse of alcohol at airports is a source of unease for the safety of the aircraft and of the passengers. It leads to disruptions to passengers, (including the planes having to be diverted) for which the airlines incur costs.

So, how is alcohol consumption regulated within society and at airports? As Matt explained, the most important piece of legislation relating to alcohol is the Licensing Act 2003. Its objectives are to prevent crime and disorder as well as public nuisance, ensure public safety and protect children. Anyone selling alcohol must comply with the Act’s principles. The system works on the basis of a licence which must be renewed and thus can also be lost. When applying for an application renewal, representations can be put forward to the relevant Licensing Authority from members of the public or the authorities, highlighting any concerns that the aforementioned principles are not being adhered to. The Act also lists a number of offences such as the sale of alcohol to drunk persons on the relevant premises, the failure to leave the relevant premises when requested to do so, obtaining alcohol for a drunk person on the relevant premises and the sale of alcohol to an individual under the age of 18, etc. The key problem is the enforcement of these offences, as for example, drunk people are regularly still being served alcohol. Remarkably, the Licensing Act 2003 does not apply to airside bars within airports as they are exempt under Section 173 which lists several designated airports. Two justifications are adduced for this exemption: a licensing officer would need to obtain airside security clearance, as well as any ‘sting’ personnel who ‘test’ licensed premises by sending in under 18’s to ‘test purchase’ and secondly, the exemption is in line with practice at airports in other countries. There is thus no surprise that in 2017 the House of Lords Select Committee on the Licensing Act 2003 recommended the repeal of Section 173.

Another important piece of legislation is the Civil Aviation Act 1982 which lists as offences entering the aircraft drunk, endangering an aircraft, endangering the safety of a person, etc. Yet, it turns out that the enforcement is poor here too as drunk individuals are very rarely stopped when boarding an aircraft. There are however on average 40 prosecutions per year which result in anything from a fine of £2000 up to 13 months custody.

Matt highlighted the fact that one problem resides in the definition of drunkenness, thus raising the issue of legal certainty. At which point is an individual deemed drunk? To explain this Matt referred to the situation of drunkenness in public places and at football events. In the former case, offenders are often ‘dispersed’ and told to go home; in the latter, they are prevented from accessing the football stadium as arresting drunk individuals is not a priority for law enforcement officers. Discretion is the key word here. A similar situation is happening at airports as fighting drunkenness is not a priority for airport officials and so enforcement of the law is low.

How can the issue be tackled? Matt went through a number of possible solutions. First, Section 173 could be repealed thus allowing airside bars to be licensed and thereby adhering to the Licensing Act’s principles. There could also be a blanket ban on alcohol consumption at airports and on board of aircraft, however, this would be unlikely given the financial interests of various stakeholders and also, issues of jurisdiction such as when an aircraft leaves UK airspace. Alternatively, individuals who are drunk could be barred from entering an aircraft, which would require a stricter approach in applying the law. In his opinion, the thrust of the problem is that there is no clear definition of the concept of ‘drunk’.

The second presentation held by Dr Noëlle Quénivet focused on the defence of duress and whether it was a justification or an excuse under international criminal law. Her presentation is based on a chapter of a book she is co-writing with Dr Windell Nortje (University of Western Cape, South Africa) on child soldiers and the defence of duress (to be published by Palgrave). Noëlle started by highlighting that, as strange as it may sound, defences are an essential component of international criminal law: individuals who have committed war crimes, acts of genocide or crimes against humanity are allowed to raise defences. The possibility to use defences should be welcomed as a sign that international criminal law is not about victor’s justice and human rights standards, and particularly the right to a fair trial, are complied with. After all, the use of defences does not mean that the act finds approval; it however does not merit condemnation and punishment.

Duress is one of the defences available to alleged perpetrators prosecuted before the International Criminal Court (ICC). It is usually understood as the compulsion of perpetrator to commit a crime because he/she fears for his/her life and limb, the threat stemming from another person (see Article 31(1)(d) of the ICC Statute). As a result, the perpetrator is placed in a position where his/her freedom of will and decision-making abilities are restricted to such level that he/she is not able to make a moral choice.

Noëlle explained that to understand how the defence of duress is applied one needs to examine the Anglo-American common law tradition in as much as the latter has been key in influencing case-law in international criminal law, namely via the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY). Under national law criminal law defences are often subdivided into justifications and excuses to distinguish between wrongfulness and blameworthiness. A justified action is not criminal because the conduct, although unlawful, is permissible or tolerated as its benefits outweigh the harm or evil of the offence. Here the focus is on the act. An excuse involves an action that is produced by the impairment of a person’s autonomy. Here the focus is on the actor.

Duress is a highly controversial defence in international criminal law. In common law countries it is a justification whilst it is an excuse in Romano-Germanic (civil law) systems. Moreover, duress is not admitted as a full defence in common law countries which means that it can never be invoked in the case of killing. To illustrate the issues relating to the application of duress Noëlle recounted the facts of the Erdemovic case and how the ICTY had come to the conclusion that ‘[d]uress does not afford a complete defense to a soldier charged with a crime against humanity and/or war crime involving the killing of innocent human beings.’ (para 19)

She then suggested that the ICC Statute might have overruled this jurisprudence since duress is accepted as a ground excluding responsibility that applies to all crimes and does not stipulate that it cannot be pleaded when taking a person’s life. Whether it is an excuse or a justification remains to be seen as the criteria for duress have been amalgamated with that of necessity (usually viewed as a justification) in a single provision and the fact that the provision requires the actor to carry out a lesser evil test seems to indicate that the defence is considered a justification.

Noëlle then explained that she would prefer the defence of duress to be an excuse. First, it ensures that the wrongful acts are viewed as such, the message being that such acts cannot be tolerated. Second, it allows to understand the act in its wider context, the focus being on the actor and his/her lack of autonomy in the given circumstances. Third, it can be used as a full defence, including killing though at this stage she indicated that she supported the application of the principle of proportionality, rather than a balance of harms test, as a limit to using duress as the defence.

Alcohol and Football Spectators: Time for a Choice?

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Matt Hall, Associate Lecturer at UWE Law School, recently published this article on the proposals of the Welsh Rugby Union to introduce ‘dry zones’ within Cardiff’s Principality Stadium following increased reports of anti-social behaviour during Welsh international rugby matches. The article also discusses alcohol legislation at football and the Licensing Act 2003.

image of three red feathers above the letter W R U for

Spectators of football have long been subject to
strict alcohol curtailment via s 2(1)(a) Sporting Events
(Control of Alcohol etc.) Act 1985. Yet, despite its repeal by the Licensing Act2003, no Commencement Order has been forthcoming. To tackle issues with alcohol related disorder at rugby, the Welsh Rugby Union have proposed their own response in a manner that, unlike s 2(1)(a), will not blanket ban alcohol from all. Even in its absence, an abundance of legislation exists to tackle alcohol related disorderly behaviour without the need for specific legislation.

Alcohol, its consumption and effects have long been a concern to the legislature who in turn, have introduced numerous legislative measures. For example, The Defence of The Realm Act 1914 was enacted shortly after the outbreak of World War One. The government, believing alcohol consumption would negatively impact the war effort curtailed the times publicans could trade. The Licensing Act 1964 (LA 1964) introduced new permitted hours for venues, 11am until 1030pm with a break in between of two and a half hours.  24 years later, the Licensing Act 1988 (LA 1988) removed the ‘two and a half-hour rule’ and extended opening times until 11pm. Football has also been subject to legislative alcohol curtailment. Introduced following the deaths of 39 spectators preceding a European Cup Final in Heysel, Belgium to make stadiums “safer places for decent people” was The Sporting Events (Control of Alcohol etc.) Act 1985, with s 2(1)(a) forbidding the possession of alcohol in ‘direct view’ of the event.

The introduction of the Licensing Act 2003 (LA 2003) was advocated in the White Paper as a liberalising departure from the, to quote Jack Straw, ‘complex and anomaly riddled licensing systems’ of LA 1964 and LA 1988. Concern surrounded binge-drinking, where many indulged in as much alcohol as possible before the 11pm closures followed by a systematic mass exodus into city centres where disorderly behaviour was becoming common.

Yet, despite similar consequences of binge-drinking and congregation being prevalent at football, the liberalisation of the licensing laws changed nothing. The LA 2003 did repeal S 2(1)(a), but 15 years later, no Commencement Order giving effect to this has been forthcoming. Therefore, this article discusses the similar issues faced at football that the LA 2003 sought to address within the Night Time Environment (NTE) and outlines alternative options available to the authorities should spectators of football ever be permitted to consume alcohol within view of the event.

Unintended Consequences
The LA 2003 aimed to reduce drunkenness and disorderly behaviour within the NTE by allowing some establishments to operate under 24-hour licences. By spreading the ‘kicking-out’ of revellers gradually rather than systematically and allowing customers to consume alcohol in a more moderate manner, this would lessen mass congregation in city centres and the culture of binge-drinking before the regular 11pm closure times.

In the football context, there are similar connotations. The s 2(1)(a) restrictions mean many spectators who are aware that alcohol availability is hampered binge-drink prior to the game. When in the stadium, many spectators congregate in the concourse bars at half-time, out of ‘direct view’ of the playing area and within the boundaries of the law. In similar fashion to the NTE, many spectators find themselves decanting systematically to one area where jostling, spilled beer and outbreaks of fights are known to occur. Liberalising the availability of alcohol by allowing football spectators to consume alcohol within view of the playing area could be one way of lessening half-time congregations and pre-match binge-drinking. That said, whether the LA 2003 has had the desired effect of reducing binge-drinking and/or alcohol related disorderly behaviour within the NTE is still a matter for debate.

In 2017, The Licensing Act 2003: Post-Legislative Scrutiny outlined that since 2005, alcohol related disorder has “gradually decreased.” The 2013/14 Crime Survey of England and Wales records that in 2005, there were 2m violent incidents in which 1.3m (53%) victims believed the offender to be under the influence of alcohol. In 2013/14, 1.1m violent incidents had been recorded with 704,000 (53%) perpetrators perceived to be under the influence of alcohol. Also seeing a decrease in arrests, is football. The Home Office outlined that in season 2016-2017 there were 1,577 arrests (excluding friendlies and under-21 matches) amongst the 39.9m spectators who attended (0.004%). The low proportion of arrests clearly brings into question the requirement of such draconian legislation aimed solely at football spectators.

Changes in consumer behaviour have also seen a new challenging phenomenon emerge in that today, the lower prices in supermarkets and off-licences mean they account for 70% of alcohol sales. With this has what has come to be termed “pre-loading.” Like binge-drinking in that now, many enter the NTE highly intoxicated from alcohol consumed in private. This has similar undertones to the culture of many match going football spectators.

Therefore, if a Commencement Order were forthcoming, and s 2(1)(a) SE 1985 was removed from the statute books, whether this would reduce pre-match alcohol indulgence or concerns surrounding half-time congregation and disorderly behaviour is undetermined. Supermarkets and off-licences would still provide an alluring alternative given the higher price of refreshments in sports stadiums, something that rugby can attest to.

Blanket Bans
Rugby, which permits alcohol consumption within view of the event is not immune from alcohol related disorderly behaviour. “Pre-loading” and indeed half-time congregation to the bars is common despite it being legal to consume alcohol within view of the pitch. South Wales Police have often been critical of the behaviour of some spectators before, during and after international matches in Cardiff. So much so, that the Welsh Rugby Union (WRU) are considering implementing “dry zones” within Cardiff’s Principality Stadium to address issues of excessive language and anti-social behaviour that many spectators have reported.

The difference however, between football and the WRU’s proposal is that the criminal law will not enforce this. Clearly, football has a tainted history and the deaths of 39 Juventus supporters in Belgium provided the catalyst for the SE 1985 enactment. Nevertheless, critics have argued that the blanket nature in which the SE 1985 operates treats all football spectators to be problematic. Not all spectators who consume alcohol engage in disorderly behaviour. The majority are law-abiding citizens who will have their alcohol consumption curtailed for the actions of a small minority. The WRU may very well find this argument made to them should areas of the Principality Stadium become “dry zones.” Nevertheless, spectators retain the choice to consume alcohol, albeit in certain sections of the stadium, something spectators of football do not have.

The WRU proposal only encapsulates parts of one stadium as opposed to a blanket curtailing across the sport, meaning in regional matches alcohol would remain readily available. This would be an option to the English and Welsh Football Associations and their associate clubs, should s 2(1)(a) be removed. “Dry zones” for example, within family stands and enforced as part of terms and conditions of entrance could be a plausible option, thus, removing the need for the criminal law to enforce a blanket restriction and liberalising football from the SE 1985. If disorderly behaviour did occur, legislation is in place for the authorities to utilise.

Alternative Legislation
A 2001 report into disorder associated with cricket considered specific legislation mirroring that of football. It concluded that the existing public order legislation should be tested in the first instance. Should it ever be permitted for football spectators to consume alcohol within view of the pitch, this same legislation would be available to the police should alcohol related, or indeed non-alcohol related disorder occur.

The most obvious choice appears to be drunk and disorderly contrary to s 91 Criminal Justice Act 1967. Any person in a public place who is drunk and acting in a disorderly manner is liable to arrest. This includes premises that the public are permitted access, whether for payment or otherwise (s 91(4)). In essence, a football, rugby or cricket stadium. S 5 Public Order Act 1986 is also available to capture threatening words or disorderly behaviour that is likely to cause an individual to be harassed, alarmed or distressed whether alcohol related or not. Alternatively, it is an option not to allow drunk spectators into stadia via terms and conditions of entrance. This is common within the NTE where staff will often refuse entry to anyone they deem drunk. The justification for this is that s 141 LA 2003 forbids the selling of alcohol to anyone who is knowingly drunk. Thus, the door staff play the role of protecting the bar staff from drunk consumers. At sporting events, stewards are well placed to follow suit and refuse entry on this basis.

The issue here, however, is what amounts to “drunk”? The Post Legislative Scrutiny outlined concerns that s 141 was being “routinely flouted,” evidenced by the fact that since 2005 there have only been 92 prosecutions and 44 convictions. Evidence also pointed out that whilst it is obvious to determine that someone has had a drink, it is less obvious to determine the point at which someone becomes drunk. R v Tagg ([2001] EWCA Crim 1230) heard similar submissions, James Turner QC arguing that “drunk” was a vague concept, too vague to satisfy the requirements of precision that the ECHR requires. Rejecting this argument, Rose LJ confirmed the everyday meaning laid down by Goff LJ in Neale v RMJE ((1985) 80 Cr App R 20) satisfied precision requirements, that being; ‘someone who has taken intoxicating liquor to an extent which affects his steady self-control.’ Notwithstanding, to what extent self-control must be affected is not sufficiently determined.

Whether the LA 2003 has had the desired effect on NTE disorderly behaviour is still a matter for debate. For football spectators and despite the repeal of s 2(1)(a), it is certain that the liberalisation of alcohol legislation changed nothing. Rugby and cricket experience disorder amongst some if its spectators, both rely on existing legislation and the WRU is demonstrating ways in which to accommodate those who want to consume alcohol and those who do not. With this, spectators of rugby will have something football spectators do not: a choice.

In the absence of s2(1)(a), existing legislation is in place to ensure that football stadiums remain “safe places for decent people.” Much has improved with football; modern stadia; better stewarding; CCTV; and even the attitudes of many spectators themselves. The low proportion of arrests also demonstrate that football is changing for the better. The WRU proposal is sensible and could easily be adopted at football stadia where most spectators are law abiding. The time has clearly come to give football spectators a choice and allow them to consume alcohol as part of the match-day experience.

[1] Matt Hall, Associate Lecturer, UWE Bristol

UWE’s Centre for Applied Legal Research to be well represented at the SLSA Conference 2018

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The Annual Conference of the Socio-Legal Scholars Association is one of the high points of the legal academic calendar and this year UWE’s Centre for Applied Legal Research (CALR) will be out in force showcasing current research. Bristol University is hosting the conference this year from March 27 – 29.

Emma Whewell is presenting a paper in the mental health stream entitled “Pre-proceedings and capacity: the impact of professional language and other barriers on parents with learning disabilities”. Emma has undertaken research into pre-proceedings protocols in Family Law and this paper will showcase some of her research. Laura Walker has done research on resilience and mental health, but for the SLSA she is presenting a paper in the Law and Emotion stream entitled “The Role of Empathy in the Sentencing of Women in England and Wales”, one of several papers from the Centre for Legal Research that looks at criminal justice either directly or indirectly.

Ed Johnston will be presenting his paper entitled “The Defence Lawyer in the Modern Era and the Evolving Criminal Trial” reporting on his research in the criminal justice field. He is not the only UWE researcher presenting on criminal justice topics as Professor Phil Rumney is chairing two panels in the Sexual Offences stream and is presenting a paper with Duncan McPhee (Criminology) entitled “Exploring the Impact of Multiple Victim Vulnerabilities on Rape Investigations in England and Wales”. Tom Smith will be reporting on a pilot study undertaken at the Bristol Magistrates Courts looking at the lack of local newspaper reporting of the courts. Tom will be presenting with Marcus Keppel-Palmer and the partners from the Journalism Department, Sally Reardon and Phil Chamberlain. An early report was made to the Society of Editors and quoted by John Whittingdale MP.

Looking at criminal offences in the context of sports law is Matt Hall who is presenting a paper based around his PhD research into the offences around alcohol and drunkenness at football stadia. Matt will be arguing the case for liberalising the laws which apply only in the context of football and not other sports. Matt will also be co-presenting a second paper in the Sports law stream with Marcus Keppel-Palmer reporting on their content analysis of sports photographs in national newspapers in a paper entitled “The Connoted Message of Sports Photography in National Newspapers”. Marcus will have a busy conference as he is also presenting a paper in the Law and Music stream entitled “Law, Outlaw and Deviancy in Bro Country“.

The week before Easter also sees the Association of Law Teachers Conference, to be held at Keele University, and amongst UWE’s researchers presenting papers there are Kathy Brown, Rachel Wood and Thomas Webber.