The issue of racism, The FA hearing & John TerryDaniel Geey
In case it matters to people, I should state up front that I am a Liverpool fan.
The aim of this blog is not to go into the press storm about whether the FA was right to remove Terry's captaincy prior to the criminal trial but to highlight a number of important points set out in the Magistrates Court decision ahead of the FA Independent Regulatory Commission (IRC) Hearing. The FA Hearing takes place after Terry's criminal acquittal in the Magistrates Court. Similarly, this blog is not full dissection of what came to light in the Magistrates Court but rather to assess some of the conclusions that were made and their significance for the FA Hearing.
Language Warning: This assessment does quote the exact phrases used by the Magistrate in his decision and as such may not be suitable for anyone who is easily offended by the use of strong language.
Briefly, Terry faced criminal charges of using insulting, threatening or abusive words/behaviour which was racially aggravated. On the 23rd October 2011 it was alleged that Terry mid-match shouted the words 'fucking black cunt' in the direction of Anton Ferdinand. The Magistrate's description of the incident, Terry's defence and the question the Magistrate considered were instructive and is set out below:
"The defendant does not deny that he used the words, "fuck off, fuck off", "fucking black cunt" or "fucking knobhead". His case is that his words were not uttered by way of abuse or insult nor were they intended to be abusive or insulting. He says they were used after a perceived false accusation made by Mr Ferdinand, the accusation being to the effect that the defendant had used the term "black cunt" during their exchanges with each other.
There is also no dispute that John Terry directed the words "black cunt" in the direction of Anton Ferdinand. If he did that to insult or abuse him then he is guilty of the offence. The question for me is whether I am sure that the words were used as an insult, or whether it is possible, as the defence assert, that he was, or believed he was, merely repeating an allegation made to him, and dismissing it."
Salient Points from the Magistrates Court Judgment
The Court heard from Terry and Ferdinand as well as Ashley Cole among others. The Magistrate's Judgment is well articulated and takes the reader through the pertinent pieces of the evidence and how that informs his ultimate conclusions. The Judgment can be found here. Some of the points that struck me whilst reading it were as follows:
- The lip readers who gave evidence to the Court were not clear about whether Terry's words were phrased as a question and what tone of voice it was expressed in;
- The Magistrate stated that "There is no doubt that John Terry uttered the words "fucking black cunt" at Anton Ferdinand. When he did so he was angry."
- No-one apart from Terry gave evidence about hearing what was actually said. Ferdinand stated that he did not hear what Terry said. Ferdinand denied that he accused Terry of calling him a black cunt.
- The Magistrate was categorical that "It is a crucial fact that nobody has given evidence that they heard what Mr Terry said or more importantly how he said it." Neither Ferdinand or Cole (or anyone else on the pitch who made a statement) heard the words Terry used. By comparison, in the Suarez IRC case, Evra set out what he believed Suarez said. Although Suarez denied saying all but one of the comments, there is a witness nonetheless stating what they heard. That is not the case in the current situation. Ferdinand denies using language that Terry claims he responded to (i.e. "a black cunt") and Ferdinand claims he did not hear what Terry said had to him. Quite rightly, it is difficult for Ferdinand to prove two negatives (i.e. that he did not say something and that he did not hear something) without any other witnesses.
- Ashley Cole did confirm Terry's own evidence that he had been told during the final minutes of the game that Mr Ferdinand had accused him of racial abuse. It should be noted that the Magistrate believed such corroborating evidence was "far from compelling". Cole however, did not hear the words spoken by Ferdinand to Terry but claimed he saw them.
- Reliability of Terry. The Magistrate set out that Terry had been fully cooperative throughout the process, had been forcefully cross-examined, had answered every question posed by the FA and police whilst maintaining a relatively consistent account albeit with some inconsistency as pointed out by the Magistrate on p10 of the Judgment.
- Specifically on the consistency point, Terry issued a press release soon after the incident occurred. Terry stated that he had been advised to wait for all of the TV footage available before making a statement. The Magistrate explained that it would have been a high risk strategy for Terry to have issued a press release if conclusive evidence had emerged which contradicted his earlier statement. As a result, the Magistrate concluded that as Terry had made an immediate statement which has been consistently maintained throughout the process, "without significant contradiction.. [it was] undoubtedly a factor in favour of the defence." Ultimately, the Magistrate considered that "his account has been subject to the most searching and thorough questioning on at least three occasions. Nobody has been able to show that he is lying.. I have assessed John Terry as a credible witness."
- Reliability of Ferdinand. The Magistrate pointed to various inconsistencies in Ferdinand's statements, most interestingly that he did not provide details of the words he used to Terry shortly before Terry's comments that form the basis of Terry's defence in the trial. Even when prompted to add to his police statement, Ferdinand did not. The inconsistencies set out in page 5 will no doubt be held against Ferdinand in the IRC hearing. The magistrate however found that whilst there were discrepancies "it is unlikely that on the central point [Ferdinand] is lying."
- The Magistrate stated nonetheless that "Terry's explanation is, certainly under the cold light of forensic examination, unlikely." Similarly, "Weighing all the evidence together, I think it is highly unlikely that Mr Ferdinand accused Mr Terry on the pitch of calling him a black cunt. However I accept that it is possible that Mr Terry believed at the time, and believes now, that such an accusation was made..." and "It is therefore possible that what he said was not intended as an insult, but rather as a challenge to what he believed had been said to him. In those circumstances, there being a doubt, the only verdict the court can record is one of not guilty."
Terry was cleared of using racially abusive words and/or behaviour. The Magistrate believed it highly unlikely that Ferdinand accused Terry on the pitch of calling him a 'black cunt' but accepted it was possible for Terry to believe at the time that such an accusation was made. Therefore it is possible that what was said to Ferdinand was intended not as an insult but as a challenge to what Terry believed had been said to him.
Without any direct corroborating evidence, whilst taking into account the TV footage, it was not proven beyond a reasonable doubt by the prosecution that Terry's comments said were said by way of insult. The high evidential standard, as one would expect for a criminal charge, could not be overcome. Accordingly the verdict reached by the court was that John Terry was not guilty of racial abuse.
The FA charged Terry on 27th of July. The FA's press release is set out below:
"It is alleged that Terry used abusive and/or insulting words and/or behaviour towards Queens Park Rangers' Anton Ferdinand, contrary to FA rules. It is further alleged that this included a reference to the ethnic origin and/or colour and/or race of Anton Ferdinand. This charge is the result of The FA's long-standing enquiries into this matter, which were placed on hold pending the outcome of the criminal trial, and relates to rules governing football only. During this period John Terry remains available to play for England. Terry has until 3 August 2012 to respond"
Terry denied the FA charge. He has reportedly retained barrister George Carter-Stephenson who successfully defended Terry in the Magistrates Court to fight the FA charge.
FA Proceedings Comparison: Standard and Burden of Proof
By way of comparison, the standard and burden of proof is set out in detail in paragraph 31 of the IRC Suarez Decision where the Commission sets out whether "on the balance of probabilities, is the account of Mr Evra [as the witness to the comments by Suarez] true and reliable?". In effect, the IRC was asking "whose account was more probable" (Suarez decision para 345).
Without wanting to go into intricate detail about the appropriate standards, the below section of the Suarez IRC Decision is instructive and relevant for the current scenario (paragraphs 76-79):
"Regulation 7.3 of the Disciplinary Regulations is in these terms:
"The applicable standard of proof shall be the flexible civil standard of the balance of probability. The more serious the allegation, taking into account the nature of the Misconduct alleged and the context of the case, the greater the burden of evidence required to prove the matter."
There are two different standards of proof which can apply in legal cases. One is the criminal standard which applies in criminal cases. The jury must be satisfied beyond a reasonable doubt, or as it is sometimes put, so that it is sure, that the accused committed the alleged crime.
The other standard is the civil standard on the balance of probability. This is enshrined in Regulation 7.3 set out above, and applies to this case. It is a lower standard than the criminal standard. It is for the FA to satisfy us on the balance of probability that Mr Suarez breached the Rules. Alternative formulations for the civil standard are sometimes used, such as more likely than not to be correct, or probably correct. Regulation 7.3 includes an important reference to the civil standard of proof being flexible. This means, as the Regulation states, that the more serious the allegation, taking into account the nature of the Misconduct alleged and the context of the case, the greater the burden of evidence required to prove the matter....
Burden of proof: "It is not for Mr Suarez to satisfy the Commission that he did not breach the Rules. Rather, it is for the FA to satisfy us to the required standard that Mr Suarez did breach the Rules." Standard of proof: The applicable standard of proof shall be the flexible civil standard of the balance of probability. The more serious the allegation, taking into account the nature of the Misconduct alleged and the context of the case, the greater the burden of evidence required to prove the matter."
If you substitute the Suarez references in the above for Terry, it is possible to get a clearer picture about the standard and burden of proof. Therefore it is for the FA to satisfy the IRC that Terry on the balance of probabilities breached the FA rules.
At this point it is important to note the specific question that the Magistrate stated. His question was "whether I am sure that the words were used as an insult, or whether it is possible, as the defence assert, that he was, or believed he was, merely repeating an allegation made to him, and dismissing it." The distinction between this reasonable doubt test (i.e. being sure) and the FA's balance of probabilities test (i.e. being more likely than not) is stark. Whilst the magistrate has to ensure that "a defendant is found guilty only if the court... is sure of guilt" the IRC has a lower threshold. If the IRC believes on the balance of probabilities that Terry "used abusive and/or insulting words and/or behaviour towards.. Ferdinand" Terry will be found guilty by the IRC. The FA will point to the Magistrate's comments that Terry's explanation was "unlikely", his words were not "the most likely response" and that it was "highly unlikely.. Ferdinand accused Terry on the pitch of calling him a black cunt."
Without wishing to speculate, it would have been less likely that Suarez would have been found guilty of the additional six negro references he did not admit to saying in a criminal court because there would have been doubt that he said those statements. This would have been the case because there was no one to corroborate Evra's statement. Just as in this case, no eye witnesses apart from Terry have so far given real time evidence about what was actually said and more importantly how it was said. It is therefore likely in the absence of corroboration, bar Cole's corroboration of what Terry told him, that the IRC will use the evidence presented to it to look for credibility or unreliability in witness statements in order to reach their decision. As stated above, it appears there were more inconsistencies in Ferdinand's evidence.
Interestingly, in a recent Guardian article Daniel Taylor questions why referee Chris Foy was not asked to give evidence in court. He argues this is important because "Terry told the court Foy had heard Ferdinand's alleged words. Yet Foy has told the Premier League he heard nothing. Foy was the nearest person to Ferdinand and his account should be key." If Foy gives evidence to the IRC, any statement if consistent with the above quote may be likely to strengthen the FA's case that 1. Ferdinand did not make the initial accusation thus potentially weakening Terry's defence and 2. Terry's evidence on that specific point would be somewhat discredited.
This can be seen in the Suarez case where without any corroborating evidence (in relation to the six additional negro references), Suarez was found guilty of breaching the FA Rule because parts of Suarez's evidence was seen as unreliable whereas Evra was believed to be a credible, consistent witness. Just as occurred in the Suarez judgment, the credibility of Terry and Ferdinand will be significant in the IRC coming to their decision. On this question of credibility the Magistrate's decision would appear to paint Terry as a more reliable and consistent witness than Ferdinand.
Some Unanswered Questions
Two final points are worthy of further consideration that were raised in the Guardian article.
- The prosecution in the Magistrates Court reportedly asked Ashley Cole, whether a 'cover up' had taken place after the players started getting messages about Internet footage of Terry's comments in the changing room after the game. Cole believed there was no mobile signal in the Loftus Road dressing rooms to receive text messages. It has been reported that QPR say there was a signal. The phone records of certain players would then be of use to the FA:
- a least to show that Cole, as an important witness for Terry, is less credible and thus the strength of his evidence should be downgraded;
- at best to demonstrate that players were receiving text messages and an alleged 'cover-up' to get stories in order took place. Why Cole would side with Terry if Terry wished to cover up his mistake would be another question entirely.
- A number of senior black Chelsea players (bar Cole) including Drogba, Malouda, Obi Mikel and Anelka all of whom played in the game did not provide a statement in Court in support of Terry's character. The Magistrate said that such statements "did not help" him in reaching a verdict but it is somewhat strange that those players did not provide any type of statement in support of Terry. It may be a silent protest or simply that they were not asked. The point is whether the FA may call them as witnesses and ask why they did not provide statements.
Comments on FA Regulation
It was recently reported in a Mirror article that Terry's legal team will argue that FA Rule 6.8 (see below) provides a loophole for Terry to claim that as he has already been acquitted of a similar charge in the Magistrates Court he should not have to defend himself in the current IRC hearing. It states:
"Where the subject matter of a complaint or matter before the Regulatory Commission has been the subject of previous civil or criminal proceedings, the result of such proceedings and the facts and matters upon which such result is based shall be presumed to be correct and the facts presumed to be true unless it is shown, by clear and convincing evidence, that this is not the case."
(See p418 of The FA Rules & Regulations)
My understanding of the above rule is to allow the IRC to rely on the facts as set out in the previous proceedings without prejudicing the IRC from coming to any decision it wishes to take. If the rule was that an IRC would be bound by a previous civil or criminal court decision, it would have presumably been expressly set out as such. The fact that the standards of proof differ between the two proceedings is further grounds to suggest it is unlikely such an argument will succeed.
We will all await the IRC decision with interest in the next week or so. Whilst many will have believed, once they saw the TV clip, that Terry's comments were racially abusive, the Magistrate's Judgment sheds light on the nuances of Terry's defence. The IRC's evidential threshold is however not as high as in the Magistrates Court. There is little point stating which way I believe the case will go. Without any of the evidence to be presented to the IRC, it would be an impossible task. However, if you were Ferdinand, you would no doubt be frustrated. He says he did not use the phrase that is Terry's defence and did not hear Terry's comments aimed in his direction. Alternatively, if Terry believed he heard such an accusation from Ferdinand, it may seem appropriate to question the initial accusation which makes his defence in the IRC proceedings plausible.
Whilst there was little evidence in the Magistrate's Judgment which countered Terry's belief that an accusation had been made, the Magistrate believed Terry's explanation was "unlikely". The IRC may take the same view whilst also preferring Ferdinand's evidence over what Terry says. If that is the case, on the balance of probabilities they are likely to find Terry guilty. Of course, the IRC, as the Magistrate set out, may have enough doubt in the evidence presented as well as side with Terry as a more credible witness which would leave the very real possibility of a not guilty verdict.
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- Tags: Criminal Law | Discrimination | Football | Governance | Premier League | Racism | Regulation | The FA | United Kingdom (UK)
About the Author
Daniel is a Partner in the Sport Group.
Daniel’s practice focuses on helping clients in the sports sector, including rights holders, leagues, governing bodies, clubs, agencies, athletes, sports technology companies, broadcasters and financial institutions.