The FA and John Terry double jeopardyTim Coles
The recent and well publicised decision of the Football Association's Regulatory Commission against Chelsea footballer John Terry has presented an interesting reflection of Regulatory bodies' jurisdiction to consider disciplinary allegations after a respondent has been acquitted of criminal allegations. This article analyses the Regulatory Commission's decisions on the key jurisdictional points of this case, and assesses them in a Regulatory law context.
Whilst the FA's decision to bring disciplinary charges against Mr Terry before its Regulatory Commission, despite his acquittal by the criminal court, appeared to some commentators as a case of double jeopardy, it is in fact well established in Regulatory law that acquittal of criminal charges does not:
- Preclude a Regulatory or disciplinary body from bringing similar allegations against a respondent arising from the same facts as the criminal case; and
- Preclude a Regulatory or disciplinary panel from a finding of misconduct, despite the court finding similar charges not proved1.
Mr Terry was initially charged with a racially aggravated public order offence after complaints were made to the police that he had allegedly racially abused Queens Park Rangers' Anton Ferdinand during a match between QPR and Chelsea on 23 October 2011. After a week-long trial, Mr Terry was acquitted by Westminster Magistrates' Court on 27 July 2012.
The FA charged Mr Terry with misconduct, specifically use of abusive, insulting words and/ or behaviour, including reference to Mr Ferdinand's skin colour and/ or race, contrary to Association Rules E3(1) & E3(2). Mr Terry denied the charge and, in light of his acquittal by the court of an offence on the same facts, challenged the jurisdiction of the FA to bring disciplinary proceedings against him.
The FA's Disciplinary Regulations, at 6.8, states that,
"In any proceedings before a Regulatory Commission, the Regulatory Commission shall not be obliged to follow the strict rules of evidence, may admit such evidence as it thinks fit and record such evidence such weight as it thinks appropriate in all the circumstances. Where the subject matter of 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."
Mr Terry argued that his acquittal by the court acted as a procedural bar to the FA's pursuit of a disciplinary case against him and that doing so was therefore an abuse of process. The Regulatory Commission disagreed and found as follows:
- As the FA is the governing and regulatory body of English football, there was a public interest in "a proper and effective system of regulation to investigate and discipline those who are subject to its Rules and Regulations", which protected victims of racial abuse, ensured such behaviour is shown to be unacceptable, and protected the reputation of the game; and
- Because of the different standards of proof in criminal and disciplinary proceedings (these proceedings requiring the civil standard of proof), there was no such bar in disciplinary allegations being brought against a respondent where the subject matter was identical to criminal proceedings of which the respondent was acquitted. Rather, such disciplinary proceedings were subject to the rules and regulations of the disciplinary body.
The latter point reflects the respect the court holds for disciplinary bodies' integrity and independence in exercising their own judicial processes. The court is reluctant to interfere with these, despite a respondent's acquittal of criminal proceedings, and will do so only where "weighty circumstances" suggest this would be inappropriate2. The stress and prejudice a respondent might face by having to defend himself against similar allegations of which he has previously been acquitted have been previously ruled to be insufficiently 'weighty' in this sense3.
Mr Terry argued also that without new evidence which had not been put before the court, the FA would have an impermissible "second bite of the cherry" (implying double jeopardy) whilst only needing to rely on the lower, civil standard of proof. The Regulatory Commission considered that this was only the FA's "first bite" and stated, furthermore, that "the purpose of the criminal proceedings that were brought by the Crown was not to regulate football". To this effect, the court and the Regulatory Commission each had open to them very different potential sanctions; a guilty verdict delivered by the former could only have been accompanied by a maximum fine of £2,000, yet the Regulatory Commission could (and did) impose a far more substantial fine and a period of suspension on Mr Terry.
Whilst the facts being tried were identical to those before the court, a racially aggravated public order offence and misconduct under the FA's Rules are not the same offence; effectively, therefore, it was viewed that Mr Terry necessarily faced a new set of proceedings which would be determined in a different context, albeit on the same facts.
The rationale for this stance is illustrated by the following example: a doctor might not commit a criminal offence in borrowing money from an individual; if the individual was their patient, however, then they would likely have breached the standards set by their own disciplinary body (in this example, the General Medical Council). In light of the public interest which the FA upholds (outlined above), acquittal by a criminal court cannot, therefore, simply oust the necessity of subsequent disciplinary proceedings being convened.
Mr Terry also claimed that the fact of his acquittal, and the facts which had supported it, were all that the Regulatory Commission needed to consider from the criminal trial. The Regulatory Commission found differently, however, and stated that it should have regard to all of the findings material to the Court's decision to acquit Mr Terry. Only by judging such evidence in its full context could the Commission come to a balanced view of the Chief Magistrate's decision. Furthermore, the Regulatory Commission considered that it was permitted to admit both existing and new evidence under Regulation 6.8 (which could include evidence put before the court, and the court's judgement, in any event). Indeed, the FA later added weight to both the reasoning in the court's judgement and documents obtained during its own investigation in arriving at its own conclusion.
The case underlines the independence with which Regulatory bodies are generally free to bring and conduct their own disciplinary cases, regardless of the verdict of a criminal court.
1 See Bhatt v General Medical Council 
The FA's stance is consistent with and mirrors the authority of Bhatt v General Medical Council  on the question of whether a Regulator can bring disciplinary proceedings against a respondent after the respondent has been acquitted of criminal proceedings arising from the same events. The case establishes that there is no bar to disciplinary proceedings being brought against a respondent despite them previously being acquitted of similar or identical criminal charges.
The High Court disagreed with Dr Bhatt's submissions in that case and decided ultimately that it was not an abuse of process for a disciplinary panel to revisit matters in the course of professional regulation upon which a respondent had been acquitted in the criminal court. The High Court's reasoning was as follows:
- The purpose of disciplinary proceedings, to maintain proper standards in the profession in the best interest of the public and the profession, is different than that served by the criminal courts;
- The 'significantly' different standards of proof in civil and criminal proceedings prevents potential inconsistency between acquittal by a jury and a finding by a disciplinary panel that allegations are proved;
- The admissible evidence before a disciplinary panel may differ to that put before a criminal court, and furthermore the rules of evidence were likely to differ between the two;
A disciplinary panel's integrity and independence in exercising its jurisdiction over its own affairs is accorded great respect by the Court; citing R (Phillips) v GMC , "responsibility for deciding whether its procedures have been abused should, unless weighty circumstances point to another conclusion, be decided by [the disciplinary panel]". It was held that the Panel had correctly considered that the prejudice that would be caused to Dr Bhatt and his family in facing his accusers once more did not constitute sufficiently "weighty circumstances" here. See also: R (Redgrave) v Commissioner of Police for the Metropolis , Ziderman v General Dental Council 
2 R (Phillips) v GMC 
3 Bhatt v General Medical Council 
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