SANCTIONS FOR RACIST ABUSE: AN UPDATE
Paul Renteurs considers the new legislation aimed at cracking down on those who spread racist abuse with the use of Football Banning Orders
In a previous article commenting on sanctions for the racist abuse of footballers, I suggested that the criminal law had a vital role to play in preventing and punishing racist behaviour within football. What that article did not envisage was the reinforcing of the criminal courts’ powers to impose football banning orders (FBOs) as a result of the coming into force of the Police, Crime, Sentencing and Courts Act 2022.
The 2022 Act has widened the scope of FBOs: a familiar part of the sentencing armoury in the context of criminal behaviour connected to football since the Football Spectators Act 1989. Perhaps most significantly, from the perspective of stamping out racist behaviour around football, schedule 1 of the 1989 Act, which defines what offences count as ‘relevant offences’ for the purpose of imposing FBOs, has been greatly expanded in respect of Parts 3 and 3A of the Public Order Act (offences of inciting racial hatred or hatred against persons on grounds of religious belief or sexual orientation).
Whereas previously, such offences attracted banning orders only if they occurred within 24 hours of a football match, the amended provisions (paragraph 1(v), Schedule 1 of the 1989 Act) allows FBOs to be imposed in respect of such offences whenever they relate to a football match, a football organisation, or any person whom an accused knew or believed to have a prescribed connection with a football organisation. The latter category includes players, managers, coaches, referees and match officials, club officer and journalists.
Offences under section 31 of the Crime and Disorder Act 1998 (racially aggravated public order offences) have been made relevant offences, as have offences under the Malicious Communications Act 1988 and the Communications Act 2003, which cover the sending of racist material online. Those offences will also attract FBOs wherever the court declares that they relate to football matches, to football organisations, or to the prescribed individuals set out above. This expansion of the kind of offences covered by FBOs is a clear indication of a desire to target individuals whose behaviour despoils the ‘beautiful game’ with online hate.
Moreover, the test for when the courts must impose FBOs has also been overhauled. Whereas courts were previously required to impose FBOs only where they were satisfied that there were reasonable grounds to believe that making an order would help to prevent violence or disorder at or in connection with any regulated football matches, they must now impose an FBO unless they consider that there are circumstances relating to the offender or the offence which would make it unjust to do so. By removing the reference to violence and disorder, and effectively reversing the burden such that an order must be imposed unless unjust, the amended legislation gives far greater scope for imposing FBOs.
The new regime has now undergone its first test. In October 2022, Brentford FC striker Ivan Toney posted on Twitter a screenshot of a direct message he received on Instagram containing racist abuse following his team’s 2-0 win over Brighton FC. The culprit – Antonio Neill from Northumberland – pleaded guilty to sending a grossly offensive message under section 1 of the Malicious Communications Act 1998. As well as being sentenced to four months’ imprisonment, suspended for two years, Neill was subjected to an FBO banning him from attending any football ground in the UK, and from travelling abroad to attend international games, for a period of three years. Simply put, an FBO would not have been possible in respect of this kind of offence prior to the 2022 Act coming into force.
FBOs have the potential to carry a significant deterrent effect. No football fan worth their salt can easily tolerate the thought of being banned from all football matches for years. The expansion of the catchment of those orders to include offences involving abuse online and in person is surely a welcome step in combating hatred and discrimination in football. Whether prosecuting or defending, all involved should be alive to the greatly widened potential for these rightly onerous orders to be imposed, and the provisions of the legislation governing their use.
 See section 5 of the Football Spectators (Prescription) Order 2022.
 See section 14A(2) of the Football Spectators Act 1989, amended by section 192 of the Police, Crime, Sentencing and Courts Act 2022.