Football fans need fair trials

Attempts to restrict the movements of unconvicted football supporters could have serious implications, write Gary Markham and Karen Purdy

The result of the parliamentary vote will mean that unconvicted football supporters could have serious restraints placed on their freedom of movement.

Under the proposed section 14B, those who have not been convicted of a crime can be subject to a banning order.

This order can impose the surrender of passports to the police for the duration of an overseas tournament - which could last for up to a month.

Although the aim of reducing football hooliganism is clearly desirable, legislation should not impose disproportionate restrictions upon our civil freedoms.The knee-jerk reaction of the government to violence at Euro 2000 is of concern.

Those facing these draconian measures should be considered in two capacities - both under English law and as workers across EU member states.It is fundamental to justice that sanctions are not imposed without a fair trial.

This is embodied in the Human Rights Act 1998.

The Act states that 'no one shall be deprived of his liberty save...

after conviction by a competent court...

or...

for non-compliance with the lawful order of a court'.

The European Convention on Human Rights also contains provision for freedom of movement.

Protocol 4, article 2 states: 'everyone shall be free to leave any country, including his own'.Although a magistrates court will make the decision to issue a banning order, and there is an appeal procedure, it has been suggested that the evidence required for such an order to be made will be minimal.

As a consequence, there is potential for innocent supporters to have their freedom restricted without recourse to a fair trial.Although there is no absolute right to free movement, citizens of the EU do have the right to move to engage in genuine economic activity.

If the proposals have the effect of restricting movement for economic reasons then there may be a conflict with European law.

Article 39 is written in broad terms so that a court would not have to use an overly liberal approach to apply it in the circumstances envisaged.

Supporting legislation in the form of Directive 68/360/EEC, relating to frontier workers, may also limit the ability of domestic law to restrict the movement of their own citizens.Domestic law may be able to avoid conflict with its European obligations, provided that the limitation is justified on the grounds of public policy or public security.

It is likely to be the government's argument that it is permitted on public policy grounds.

Such argument must be based on the individual concerned and should not be taken on the grounds of previous criminal convictions in themselves.

A conviction should be relevant only as evidence of personal conduct that forms a threat to public policy; a propensity to re-offend must be shown.This may well be sufficient to cover those who have already been convicted of an offence, but the Home Secretary is proposing to prevent those who are merely suspected of committing crimes from leaving the country.It is unlikely that in such circumstances this will be enough to provide an exception to the general rule.

The potential length of time whereby a supporter will be subject to such an order is likely to offend the issue of proportionality.

Consideration is needed to ensure that any domestic law does not offend our European obligations.

Failure by the government to consider this issue could mean a serious setback in the fight against football hooliganism.

The public is entitled to protection, not just from hooligans, but from government itself.

There might be a successful challenge to this proposed legislation.

Gary Markham is the academic manager and Karen Purdy a solicitor and law editor at the Institute of Legal Executive's Tutorial College