Violence on the Football Field and Outside of It - Essay Example

Football related violence Introduction: On 15th April 1989, 96 football fans died at Hillsborough, due to improper management of the event and due to the mass hysteria of fans.(www.news.bbc.co.uk). In other instances, football hooliganism has been the cause of deaths of large numbers of fans, such as that which occurred when English teams competed abroad in Marseilles in 1998, or Charleroi in 2000 and one of the notable instances of football hooliganism that occurred with the U.K. was a clash between football supporters of rival teams occuring during the match between Everton and Manchester United in 2005 (www.liv.ac.uk). Another tragedy involving the Liverpool football team from England occurred on 29th May 1985 when fans of the rival teams clashed and an intervening wall collapsed, which resulted in 39 spectators losing their lives (www.hooliganshomesteadfootball.com). Football matches tend to be rowdy events characterized by volatile football fans who sometimes tend to be abusive or violent under the influence of drugs or alcohol, thereby placing other innocent football fans in danger. In Italty in particular, there is an inextricable link between sports and politics, as a result of which football matches often become the venue for the unleashing of violence between political and sports rivals. For example, the Italian Football Federation recently suspended all matches for an indefinite epriod after a policeman was killed in a violent outburst during a football match. (www.news.bbc.co.uk,2007). In response to such incidents of violence, and especially after the Hillsborough tragedy which caused the death of so many football fans, stringent legislation has been introduced in order to avoid such tragedies. The objective of such legislaiton is to ensure that such incidents of violence are prevented and therefore the goal is to take pro-active steps to ensure that outbursts of violence do not take place at all. However, in this context, the quesiton that arises is whether such legislative measures are too harsh and restrictive of human liberties. In order to prevent violence during football matches, legislative measures have also enhanced police powers to detain and arrest individuals who are suspected of being prone to violence. However, this also raises questions about the legiitimacy of the criteria for admissibility of evidence, since circumstantial evidence is permissible in making a determination about potential involvement of a suspect. Moreover, under the new legislative provisions, suspected individuals may be extradited or their passports seized on grounds of preventing violence on football grounds, that is perpetrated by groups that support particular teams. On this basis therefore, the questions that must be considered in the case of Ricky Marciano are: (a) the legitimacy of the evidence on the basis of which he has bene arrested (b) his rights to a fair trial, especially in view of his hearing handicap and the fact that he is a foreign national (c) his rights to be protected from inhuman or degrading treatment. Legislation: In relation to football, the Public Order Act of 1986 was significant in that it inlcuded a new legislative provision1, known as the Football Banning order, which seeks to prevent those individuals indicted on pruior occasions of football related violence from attending football matches in England. Breaching an FBO is akin to a criminal offence and can lead to imprisonment. These Orders were further supplemented by allowing magistrates the power to prevent those guilty of prior football related offences from leaving the UK when the national team was playing abroad.2 The powers of these magistrates were extended even up to the point of requiring suhc prior offenders to surrenbder their passports when English teams were playing abroad.3 In further legislaiton imposed subsequently in order to prevent football related offences, police were provided the power to summarily detain suspected individuals during and around the rime of a football match.4 The fictitious Football Aggression Abatement Act of 2005 may therefore be seen to supplement the prior legislaiton as detailed above, that is geared towards the prevention of violence on football grounds, and this Act includes the specific proviison that action may be taken against anyone causing violence of any kind within a football ground. Rocky Marciano, as Chairman of the Millbrick Football Supporters Club has protested against the provisions of the 2005 Act, including Section 2 that enables the prosecution of anyone guilty of provoking violence. In view of the dangers of misinterpretation of the chants of its members and the possibility that too much enthusaism may be miscontrued to be violence, Rocky’s group has protested against this Act on grounds of its being too harsh and retsrictive of human liberties. Such a position has also been adopted by other experts, who are of the view that football banning orders violate individual human rights and freedoms that are mandated by the European Convention of Human Rights. For example, Deards has raised the issue of serious civil liberties violations of the rights of those individuals purported to be football hooligans.(Deards 2002). In specific reference to the football banning orders, Pearson contests the legitimacy of such orders in the context of human rights (Pearson 2005), and has also opposed the provisions of the Football (Disorder) Acts on the grounds of violation of human rights and freedoms of those individuals convicted of being football hooligans and perpetrating disorder and violence on football grounds.(Pearson 2006). Therefore, by applying the views of these experts, it may be seen that the new 2005 Act may also be in violation of the European Convention of Human Rights, since it allows the arrest of individuals merely on being suspected of inciting violence. Another aspect that is significant is the fact that Rocky Marciano and his group are originally Italians, therefore the harsh legislative provisions could result in banning of people such as him who are arrested on charges of provoking or being suspected of possible violence on football grounds. The European Convention of Human Rights deals with such incidents where multi racial or ethnic groups may be involved and in incidents that involve international communities and where individual rights may have to be protected. The provisions of the European Convention of Human Rights: Article 3 of the European Convention of Human Rights protects every individual from “inhuman or degrading treatment or punishment” and this also includes prisoners who are in police custody or under detention (www.hri.org). Moreover, the ramifications of this right are such that they also extend to protection of individuals who may be tortured or subjected to the death penalty in their home countries if they are extradited (www.hri.org). Article 5 of the ECHR mandates the right to liberty of every individual, except those who are lawfully arrested or detained (www.hri.org). However, the rights of such individuals are also protected because they are to be informed in a language that they understand, why they are being arrested or detained and the charges against them, as well as their right to a fair trial and judicial proceedings in their favor, in order to protect their rights. Moreover, this Article also protects against indefinite detention and the right to a trial within a reasonable period of time, including the right to be compensated if wrongfully arrested or detained in violation of Article 5 (www.hri.org). Article 6 specifically provides every individual the right to a fair trial before an imparital tribunal within a reasonable period of time. Moreover, every individual is presumed to be innocent until proven guilty and facilities are to be provided to defendants to have access to a lawyer, reasonable time periods to prepare their defence and examine witnesses (www.hri.org). Moreover, Article 6 specifically provides for free assistance through provision of the services of an interpreter if the defendant is unable to understand the language of the Court. Therefore, the major requirements under this Article of the ECHR include “reasonable time” requirement in court proceedings the “presumption of innocence”, the requirement of impartiality through an “independent tribunal” and the “confrontation clause” which allows for cross examination of witnesses (www.hri.org). The case of Rocky Marciano: On the basis of the provisions above, it may be noted that there may be a clear case for violation of Rocky’s rights. In the first instance, the issue that needs to be examined is the admissibility of the case. In the case of football banning orders where police action, including arrest and detainment as in Rocky’s case is permissible, there is first of all a requirement that evidence be provided of prior violent acts or hooliganism to substantiate the claim that the suspect may be a football hooligan. Such evidence may also be circumstantial, such as the fact that the suspect may have been seen to be frequently in the company of football hooligans5. On this basis, the police may claim that an individual fits the profile of a football hoooligan, thereby making it permissible to arrest him. Such profiles are in fact dossiers maintained by the police with details of individuals who have been involved in earlier incidents of hooliganism. Moreover, actions that could fall within the range of potentially criminal activity liable to prosecution also include the unauthorized sale of tickets, as was the case in R (on the application of Brown)6 where the defendant was convicted on the grounds that such sale of tickets could itself constitute a breach7 of the peace and create disorder. Since Rocky is the Chairman of the Millbrick Football Supporters Club in which members are often too passionate in their support to their teams, it appears feasible that there could be some grounds to fit him into a profile of a person who could potentially create violence. However, it must be noted that Rocky is well within his rights to protest against what he considers to be an unduly restrictive act. The evidence that is being used against him appears to be purely circumstantial, because there is no probative value that links him to criminal activity. For example in the case of Funderburk8, the issue in question was whether the defendant had sexually assaulted the plaintiff. The defendant sought to cross examine on her sexual encounters with other men, however such evidence was dismissed on account of lack of probative value to the subject matter of the proceedings. In a similar manner, the allegations against Rocky of his involvement with the murderous gangs do not have probative value, since they have not been substantited with evidence of discovery of skull tattoos during strip searches. Moreover, no relevant evidence has been provided either in this case, and lack of relevance of the evidence was also the grounds for rejection of the case against defendant in the case of Ocelan and Another v the European Council. In a criminal trial, one of the most important rights that will accrue to any person accused of a crime is the constitutional right to every aspect of the due process of law that will ensure that his or her guilt is established by proof beyond a reasonable doubt.(Clark-Stapelton, n.d). The due process of law is the right accorded to every person alleged to have committed a crime to be treated fairly when involved in a legal action. The notion that defendants are presumed to be innocent until proven guilty is a fundamental principle of English law. Therefore, the manner of arrest and detention of Rocky appear to contravene the due process of law, since Rocky is being unlawfully detained. The ECHR has emphasized that human rights should not be subverted in any case, as spelt out under its anti-subversion doctrine. (Ashworth 2004). As a result, the European Court is required to exercise its interpretative powers to proceed beyond domestic legislation to examine the severity of the offence committed and how proportional the penalty is to the offence9. A similar criterion was also laid out by the English Courts in R (on the application of Mann)10 where the Court held that the standard of proof required for successful prosecution of a defendant was that his/her guilt needs to be established beyond a reasonable doubt. This is not so in the case of Rocky, since no tattoos have bene found and his mere association with a foorball supportive group would only constitute circumstantial evidence rather than probative evidence that establishes guilt beyond a reasonable doubt, therefore admissibility and relevance of evidence appears to be an issue in this case. Furthermore, it must be noted that Rocky’s rights to a fair trial under Article 6 have almost certainly been violated. In the recent case of Stretford v Football Association Ltd and Another11, the provisions of this Article were held to apply even to arbitration proceedings. Therefore Rocky’s right to a fair trial will include all the provisions of Article 6, which must also take into account his language and hearing handicap in arriving at a determinaiton of the nature of his offence and the severity of the punishment that must be administered. For example, in the recent case of Young v the United Kingdom12 the applicant suffered from cerebral palsy, as a result of which she required special assistance by way of communication in simple language with enough time being allowed to her for her full comprehension of what was being said. Moreover, in this case, the applicant was also not allowed adequate legal representation and cointested the proceedings on the basis of Article 6. The Court held that there had been a violation of her rights under Article 6(1) in impartiality of the tribunal and the proceedings. The precedent set in this caes will also apply to Rocky. He is hard of hearing and therefore the question of his full comprehension and compliance with the proceedings is in doubt. Since he cannot hear the proceedings, the question that arises is whether or not he is fully aware of the charges against him. Moreover, the impartiality of the tribunal that has bene set up to hear his case is seriously in doubt, since one of the judges has also admitted to being prejudiced against Italians and therefore, allowing him to continue as a jury member will prejudice Rocky’s interests and compromise the impartiality of the tribunal. Since Rocky has bene convicted, there will always be the question of whether it was the prejudice of the members of the jury against Italians that led to such a conviction. Moreover, although Rocky has been provided legal representation, his lawyer’s failure to pay adequate attention to his lack of hearing will also impact upon the impartiality of the trial. Article 5 has also been violated in this case, since Rocky has the right to be informed in a language he understands as to the reasons for his arrest and detention. Moreover, adequate grounds have to be established for the suspicion of the authorities that he is involved with the mafia. While Rocky is associated with a football supporters associaiton, there is no indication to support a link with the Italian mafia, merely because he is Italian. Moreover, his confinement in a windowless cell would be a violaiton of Article 3, which protects every individual from inhuman or degrading punishment. The manner in which Rocky is being subjected to strip searches, not being clearly inbformed of the grounds for arrest and then being confined in a windowless cell are akin to degrading treatment that may not be in proportion to the magnitude of his offence. Conclusions: With regard to the foregoing elements, it must be concluded that the arrest of Rocky Marciano is flawed in several respects and his rights may have been violated. In the first instance, the grounds for his arrest are not substantiated by sufficient evidence of a probative and substantive nature. The nature of his offence is that he has protested against the restrictive elements of the Football Aggression Abatement Act of 2005. Taken in isolaiton, such protests will fall into the realm of legitimate public protest and will not constitute an offence. The fact that Rocky is associated with a Football supporters groups that has a tendency for violent enthusastic support for its teams from its members is not conducive to Rocky and does not work in his favor, however it must be noted that many members have withdrawn from football matches altogether to avoid any violation of the Act. Moreover, Rocky has not actually engaged in any violent acts himself. He has been arrested for merely refusing to remove his sweatshirt and his rights to legal counsel to inform him of his rights before his arrest may have been violated. There is also a violation of Rocky’s rights to be protected from inhuman and degrading treatment under Article 3 of the ECHR, and his rights to be informed of the nature of the charges against him in a language he understands, which is a requirement under Article 5. Rocky’s handicap has not been taken into consideration and the fact that most of the trial proceedings have been beyond his understanding and comprehension due to his lack of hearing constitutes a definite violation of his rights. Furthermore, there is a clear violation of the specific requirement under Article 6 for an impartial tribunal, since one of the jury memebrs has openly admitrted that he is prejudiced against Italians. On the above grounds therefore, Rocky can appeal the decision that has convicted him and can ask for a re-trial or re-hearing under terms and conditions that will be in accordance with the provisions of the European Convention of Human Rights. He can also ask for a re-trial on the grounds that the nature of the evidence that has been presented against him is questionable, since there is no probative evidence to support the conclusion that has been made by the prosecution that Rocky has links with the Italian mafia. There are also not adequate grounds to support such a harsh, restrictive punishment for Rocky as being locked up in a windowless cage. As pointed out in the case of Engel, the punishment must be proportionate to the nature of the offence and irrespectivce of the domestic laws, the European Court is required to exercise its interpretative powers to examine how appropriate the punishment is to the nature of the offence. It appears very likely that on a re-trial, the Court might find that the punishment meted out to Rocky is disproportionate to his offence which has not been adequately proved. Moreover, the fairness of his trial itself is in question and a definite violaiton of article 6 of the ECHR will be deemed to have taken place. Bibliography: * Ashworth, A, 2004. “Social control and anti social behavior: The subversion of Human Rights” 120 LQR 263. * Clark-Stapleton, Karen Lesley, No Date. “Injustices within the System: Is the System fundamentally flawed?” [Online] Available at:http://www.portia.org/chapter13/KarenLCS/system.html * Deards, E, 2000. “Human Rights for Football Hooligans” 27(6) European Law Review 765 * BBC news report, 2007. “Italian league halted by violence” [online] available at: http://news.bbc.co.uk/sport2/hi/football/6326513.stm * “Fig fact-Sheet 4: Hooliganism” [online] available at: http://www.liv.ac.uk/footballindustry/hooligan.html * Jones, Mark, 1999. “Hillsborough tragedy remembered.” [online] available at: http://news.bbc.co.uk/1/hi/uk/319537.stm * “Major football related disasters” [online] available at: http://www.hooligansfootball.homestead.com/disasters.html * Pearson, G, 2005. “Qualifying for Europe? The Legitimacy of Football Banning Orders: On Complaint under the Principle of Proportionality” 3(1), Entertainment and Sports Law Journal * Pearson, G, 2006. “Contextualising the Football (Disorder) Act: Proportionality under the Hammer” IN Greenfield, S and Osborn, G (eds), “Readings in Law and Popular Culture”. Oxford: Routledge. * “The European Convention on Human Rights and its Five Protocols” [online] available at: http://www.hri.org/docs/ECHR50.html Cases cited: * Engel v The Netherlands (No. 1) (1976) 1 EHRR 647 * Garyfallou AEBE v Greece (1997) 28 EHRR 344 * Gough and Smith v Chief Constable of Derbyshire [2002] EWCA Civ 351 at [30]. * Lauko v Slovakia (1998) 33 EHRR 439 * Ocelan and Another v The European Council (Case C-229/05P) * R v Funderburk [1990] 2 All ER 482 * R (on the application of Mann ) v Crown Court at Manchester, hearing conjoined Clingham v Kensington and Chelsea Royal London Borough Council [2002] UKHL 39. * Stretford v Football Limited Association and Another (2007) EWCA Civ 238, (2007) All ER (D) 346 * Young v the United Kingdom, App. No: 60682/00, (2007) All ER (D) 49 Read More