- The judgment of the criminal case at Westminster Magistrates’ Court (Mr Howard Riddle presiding) between – R v. John Terry (13 July 2012) will be referred to as [WMC].
- The ruling of the regulatory commission hearing between the Football Association v. John Terry (24th-27th September 2012) will be referred to as [RegComm].
The incident between Chelsea defender, John Terry (JT) and QPR defender, Anton Ferdinand (AF) occurred during the course of an FA Premier League match between Chelsea FC and Queens Park Rangers (QPR) on 23rd October 2011. From an initial altercation, both players attempted to wind each other up through the exchange of a number of ‘industrial’ phrases. JT suggested that AF’s breath smelt, while AF responded with a slow fist pump gesture and made abusive allegations about JT sleeping with his “team mate’s missus”. It was following this latter gesture, that JT made the now infamous statement:
“F*** off, F*** off…[missing disputed words]… f***ing black c**t, f***ing knob-head.”[RegComm: 1.5]
On 22nd December 2011, after an unidentified member of the public lodged a formal complaint, JT was charged with a racially aggravated public order offence:
“using threatening, abusive or insulting words or behaviour or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress and the offence was racially aggravated in accordance with Section 28 of the Crime and Disorder Act 1998, contrary to Section 5 of the Public Order Act 1986 and Section 31(1)(c) and (5) of the Crime and Disorder Act 1998.”
As the criminal case, took priority, the FA disciplinary proceedings were stayed until the conclusion of the criminal case (itself temporarily delayed due to a Chelsea FC request to have it heard after the European Football Championships). It was therefore not until the 27th July 2012 that The FA charged JT with:
“Misconduct pursuant to Rule E.3(1) of it rules and regulations which included a reference to the ethnic origin and/or colour and/or race of Mr Ferdinand within the meaning of Rule E.3(2).”
Although AF admitted that he used abusive and insulting words and behaviour towards JT contrary to FA Rule E.3(1), he was not charged alongside JT as the FA Policy is to only apply on-field sanctions to breaches of E.3(1) rather than take retrospective action, unless the conduct is directed at a match official or third party (spectator) [RegComm: 3.5].
When is a question a question?
While all parties agree that JT spoke those words, the crux of both the civil and criminal cases hinged on the disputed words in the middle of the sentence. JT argued that AF had accused him of racial abuse first, and therefore his statement should merely be seen as a forceful rebuttal to AF’s initial comments rather than any new insult [RegComm: 3.4 / 6.2]
JT’s account was corroborated by Ashley Cole (AC), indeed JT even went as far as saying that AF was “not telling the truth in denying that he had used the words first” [RegComm: 6.2]
By contrast, both The FA and the Crown argued that JT had spoken the words to insult or abuse AF.
Unfortunately, despite expert analysis from lip-readers in the criminal trial, it was not possible to definitively identify the exact words used in this middle part as although the match was televised live (and clips subsequently uploaded on the internet), two Chelsea players (John Obi Mikel and Ashley Cole) obscured JT’s face during the disputed part of the sentence. There was similarly no clear camera view of what AF had said immediately prior to JT’s statement.
Interestingly, JT was acquitted in the criminal case, but was subsequently found guilty by the FA Regulatory Commission and received both a four match ban and an index-linked financial penalty of £220,000 plus costs.
So why were there different results on what were ostensibly the same facts?
The Criminal Case
While the Chief Magistrate (Mr Riddle) made it clear that he felt that:
- the prosecution had a ‘strong case’
- there was enough evidence for the case to go to trial [WMC: Page 7]
- that JT’s explanation was ‘unlikely’ [WMC: Page 6]
- and that it was unlikely that AF accused JT on the pitch of calling him a ‘black c**t’ [WMC: Page 14]
ultimately he accepted that “it was possible that Mr Terry believed at the time, and believes now, that such an accusation was made” [WMC: Page 14] and given the lack of hard evidence to rebut this view, this doubt was enough to militate a not guilty verdict.
Had this case been brought in Scotland, this may have been a Not Proven verdict, as Mr Riddle’s comments do not exactly represent a glowing endorsement of either JT or AC’s evidence. Indeed, the Regulatory Commission perceptively note at [RegComm: 6.7] that the Chief magistrate’s analysis was couched in terms of “possible” rather than “probable”.
That said, Mr Riddle does also point to inconsistencies and discrepancies in AF’s evidence [WMC: Page 5] and makes the suggestion that despite his evidence to the contrary, it was possible that AF could have been aware of what JT said at the time “but found it easier to say that he wasn’t” [WMC: Page 6] and when AF went to away team dressing room to meet JT & AC, it could have simply been to put the incident behind him.
The Regulatory Commission of the FA
Although the Regulatory Commission case adopts a very similar approach, it is worth highlighting a number of important issues.
JT not only denied the substance of the charge, but challenged the very validity of the charge letter and the jurisdiction of the FA suggesting that the case was an abuse of process and procedurally barred under Regulation 6.8 of the FA Disciplinary Regulations [RegComm: 3.2]
This argument was however rightly dismissed by the Commission. In doing so, they made an important clarification that this was not the FA having a second bite of the cherry, but rather its first bite since “the purpose of the criminal proceedings that were brought by the Crown was not to regulate football” [RegComm: 5.16].
In practical terms, this meant that the Commission was not bound by any of the findings of the Chief Magistrate and could revisit the existing evidence, or consider new evidence in light of the lower civil standard of ‘balance of probabilities’ rather than the stricter criminal test of ‘beyond all reasonable doubt’. This is a longstanding convention, and has been applied worldwide to cases as diverse as OJ Simpson to doping and hooliganism. In this case however, the Commission laid out 4 potential scenarios for sports regulators who considering bringing a disciplinary case after a civil or criminal action [RegComm: 5.14]. For ease of understanding, I have converted these scenarios into a matrix:
The FA could therefore simply resubmit identical evidence from the criminal trial to be considered by the Regulatory Commission. Ironically, the high-profile nature of JT actually counted against him in this regard, as usually the only clearly known facts that are discernible from a criminal case are the acquittal or conviction, unlike the full narrative verdict given in a civil case. In JT’s criminal trial however, the Chief Magistrate prepared a 15 page written verdict which provided a number of material findings.
For me, this provided one of the undoubted highlights of the Disciplinary Panel ruling at [RegComm: 5.8] where the Panel noted that:
“Mr Carter-Stephenson [JT’s counsel] argued that the only “facts and matters” in the judgment that are relevant to the result are those that favoured Mr Terry in the decision that was reached and not those that were adverse to him” – bonus points for effort I suppose!
Perhaps the biggest difference between the criminal and civil (disciplinary) approaches was in relation to the evidence.
For example, the Regulatory Commission allowed newspaper and video evidence of a match against Barcelona in order to rebut evidence given in the criminal trial that JT had “unusual qualities of self-control and leadership” [WMC: Page 8]. In doing so, the Regulatory Commission treated hearsay evidence as:
“being inclusionary and can be given such weight as the court thinks fit, unless and until any other issue as to its admissibility is raised which might limit its exclusion.” [RegComm: 7.15]
In this particular case, the video evidence showed “matters that are relevant to our overall assessment of disposition, demeanour and conduct during the critical phase of the match against QPR.” [RegComm: 7.18] by undermining JT’s credibility and character.
This was very much a theme throughout the disciplinary hearing as the Regulatory Commission took a much more hostile view of the witness testimony, and in particular JT’s decision not to give evidence. While the Panel was at pains to stress that it did not make adverse findings against him for not giving evidence, by allowing inconsistencies and criticism to go unchallenged, this is essentially what happened.
The Commission also effectively all but accused JT, AC and the Chelsea Club Secretary, David Barnard (DB) of lying:
- “…we are driven to conclude not just that it is ‘highly unlikely’ that Mr Ferdinand accused Mr Terry on the pitch of calling him a ‘black c**t’, but that he did not.” [RegComm: 7.7(i)]
- “That Mr Terry did not hear, and could not have believed, understood or misunderstood Mr Ferdinand to have used the word ‘black’, or any word(s) that might have suggested that he was accusing Mr Terry of racially abusing him” [RegComm: 7.7(ii)]
- “That Mr Cole did not hear, and could not have believed, understood or misunderstood Mr Ferdinand to have used the word ‘black’ or any other word beginning with the word ‘B’ that had any reference to, or context with skin colour, race or ethnicity…” [RegComm: 7.7(iii)
- “There are then further aspects of Mr Terry’s defence that the Commission finds improbable, implausible and contrived…” [RegComm: 7.8]
- “All of this causes the Commission to have very real concerns about the accuracy of Mr Barnard’s recollections and the motivation for the assertions that he makes in his witness statement about what Mr Cole said in during the FA interview” [RegComm: 7.37]
- “….shows Mr Barnard’s recollections to be materially defective.” [RegComm: 7.38]
Learning Points for the FA
Of possible note for the FA disciplinary team is that the Commission report highlights two learning points. The first is that the debate over whether AC’s evidence had ‘evolved’ or had been misquoted by the FA investigators could have been avoided had the interview been taped and transcribed and this is something the FA may wish to consider for future investigations.
The second relates to concerns about the inadequacy of the disclosure of FA evidence [RegComm: 8.1]. In particular, the Commission was scathing about the lack of “any kind of established system, procedure or protocol for dealing with the type of disclosure order that was made in this case.” [RegComm: 8.2]. Although the Commission did note that it was reasonably satisfied that the FA had complied with its disclosure obligations, this may be something the FA may wish to revisit to avoid any difficulties in future cases.
What constitutes Racism?
Finally, at times both the Magistrates Court and Regulatory Commission seemed to perform linguistic somersaults and contortions worthy of a place on an Olympic Gymnastics team:
“It is not the FA’s case that JT is a racist” [RegComm: 3.4]
And similarly at [WMC: Page 2]: “The issue for this Court to decide is not whether Mr Terry is a racist, in the broadest sense of the word. I have received a substantial volume of unchallenged evidence from witnesses, both in person and in writing, to confirm that he is not…..the issue between the defendant and the Crown is whether Mr Terry uttered the words “f***ing black c**t” by way of insult. If he did then the offence is made out, regardless of what may have motivated him.”
Readers may remember that this was very much a theme that arose in the earlier Suarez incident. It is perhaps worth considering going forward that if using racially aggravated words does not constitute racism, what exactly does? Can one incident be excused or is once one time too many?
For all the media hype surrounding the perceived witch-hunt of John Terry, this case is notable for the confirmation that sport is not above the law, but rather that difficulties in establishing the quality of evidence may mean that internal sporting bodies are better placed to robustly deal with disputes, it is just a shame that on this occasion it has taken so long to do it.