Man holding a flarePyrotechnics and flares are commonly used by supporters in football stadiums in continental Europe and further afield, often by groups colloquially known as “Ultras”.

However, those who regularly follow football in the UK will have found it hard to ignore the increased prevalence of pyrotechnics and flares at UK football stadia in recent years. Indeed, the issue appeared, once again, in media earlier this week.

As the teams made their way onto the pitch for the UEFA Champions League match between Leicester City and FC København, some supporters of the visiting Danish champions let off flares in the away section of the stadium. The following day, UEFA swiftly confirmed that, whilst the reigning English Premier League champions would not face UEFA charges, it had commenced disciplinary proceedings against the Danish Champions for the behaviour of its supporters at the King Power Stadium.

The relevant UEFA Disciplinary Regulation (“Disciplinary Regulations“) is Article 16.  To summarise, this states that:

  1. host clubs and national associations are responsible and liable for both (Art 16(1) DR):

(i)         order and security inside and around the stadium before, during and after matches; and

(ii)        incidents of any kind which may be subject to disciplinary measures and directives unless they can prove that they “have not been negligent in any way in the organisation of the match

  1. all associations and clubs are liable for a number of (non-exhaustive) examples of inappropriate behaviour on the part of their supporters and may be subject to disciplinary measures and directives as a result, even if they can prove the absence of any negligence in relation to the organisation of the match. One of the examples of inappropriate behaviour listed in the Regulations is “the lighting of fireworks or any other objects” (Art 16(2) DR).

Given that UEFA has not commenced disciplinary proceedings against Leicester City, the club may have successfully proved that its organisation of the match was not, in any way, negligent, thereby availing itself of the defence in Art 16(1) DR.  Alternatively, UEFA may have simply decided it was more appropriate to commence disciplinary proceedings solely against FC København, which will be pursued under Art 16(2) DR for the setting off of fireworks.

An important distinction between the two offences is that, unlike Art 16(1) DR, a breach of Art 16(2) is deemed to be a strict liability offence.  As a result, a club can still be held liable for the conduct of its supporters even if the club can show that it was not at fault.

During disciplinary proceedings, UEFA will consider the objective and subjective elements of each case, taking account of any aggravating and mitigating circumstances, with sanctions reduced or increased accordingly (Arts 17(1) & (3) DR). For example, a club faced with a sanction under Art 16(2) may attempt to show the efforts it has taken to mitigate the risk of the use of fireworks by their supporters, such as publishing the stadium regulations and a list of prohibited articles on its own website in advance of the fixture and/or sending those same details to each supporter who has purchased a ticket. Moreover, where a club can provide information that UEFA regards as “decisive in uncovering or establishing a breach” of the Disciplinary Regulations, then UEFA can scale down any sanctions or dispense with them entirely (Art 17(2) DR).

An interesting example of how the Disciplinary Regulations referenced above have previously been applied by UEFA was the disciplinary measures it took after Galatasaray fans threw flares onto the pitch, during their side’s away Champions League fixture with Arsenal in October 2014, an incident which led to the game being temporarily halted. Despite disciplinary proceedings initially being commenced against Arsenal for a failure to conduct sufficient body searches on the travelling support, the proceedings against Arsenal were subsequently closed and no sanctions imposed, with only Galatasaray sanctioned for their supporters’ pyrotechnic display.

Of course, such incidents are not solely the preserve of European fixtures. Indeed, the most recent figures from the UK Football Policing Unit confirm that football-related arrests for possession of pyrotechnics have increased markedly over a four year period, from just 8 arrests in the 2010 – 2011 season to 120 arrests in the 2014-2015 season, having peaked at 188 in 2013-2014.

In response to the surge in incidents, the English Football Association (in collaboration with the English Football League and the English Premier League) launched a supporter education programme on the dangers of pyrotechnic devices in December 2013, with a similar campaign launched by the Scottish Football Association in 2014.

There have also been a number of cases where supporters have been imprisoned for setting off smoke bombs at fixtures in England, with those individuals also given lengthy banning orders, thereby preventing them from attending any football grounds for as long as six years. Moreover, should an individual manage to avoid criminal proceedings, it is still open to the clubs themselves to impose their own bans on the individuals concerned. In doing so, clubs will no doubt be well aware of the possibility that, should repeated incidents occur, areas of their stadium could be temporarily, or permanently, closed, via the removal of the relevant safety certificate from the local authority.

Supporters and the atmosphere they generate are (and always will be) of crucial importance to football.  However, it seems that many spectators have serious reservations about whether the increased use of pyrotechnics enhances that atmosphere, with a 2013 survey conducted by the English Football Association finding that 87% of fans believe that the use of pyrotechnics at matches is dangerous.

Given that this issue appears to be firmly on the radar of the relevant UK football authorities, they may decide to implement disciplinary measures against clubs should there be a further surge in the use of pyrotechnics at football stadia. Unless supporters can somehow police themselves, the relevant authorities may determine that the only means by which they can reduce the use of pyrotechnics is the imposition of fines, on a strict liability basis, on the clubs concerned.

Notwithstanding the risk of supporters being prevented from attending games by virtue of criminal proceedings and/or a banning order, the imposition of financial penalties on their beloved club is surely something that would make any supporter who contemplates using a pyrotechnic device at a football stadium think twice before doing so.

It may be time for some football supporters to generate that all important atmosphere by different means.