Examining the new FA hearing into alleged misconduct of John Terry

A few weeks ago I wrote an article regarding the outcome of the criminal case against John Terry and the Twitter furore that emerged as a result of his acquittal at Westminster Magistrates Court in July 2012. The Football Association have since instigated a disciplinary proceeding against Terry regarding the same matter. This began on Monday 24th September 2012 with Anton Ferdinand giving evidence, and continued today with John Terry’s.

Terry is a player that divides opinion amongst football fans, generally along the lines of whether you are a Chelsea supporter or not. If you have read my previous post you’ll no doubt be aware that I am not a Chelsea fan, nor indeed a fan of John Terry personally, but that did not stop me from defending chief magistrate, Senior District Judge Howard Riddle, from finding him not guilty of an offence contrary to section 28 of the Crime and Disorder Act 1998, and contrary to Section 5 of the Public Order Act 1986 and section 31(1)(c) and (5) of the Crime and Disorder Act 1998.

However, the fact that John Terry is John Terry means that many out there in the blogosphere or Twittersphere see the FA hearing as a second chance for him to get his comeuppance, or alternatively, that the FA are for some reason just out to get “JT” (depending upon your point of view/club allegiance). There is therefore a lot of misinformation flying around the internet and the mainstream media, which I hope this blog will help to eliminate.

The full FA charge from the 27th July 2012 can be found here. Terry has retained the use of his Counsel from the previous criminal proceeding, Mr George Carter-Stephenson QC. Terry’s evidence will be the same as in the criminal proceeding, as will that of Anton Ferdinand and Ashley Cole. Their testimonies are public knowledge and it would be surprising if any of them changed their evidence for the FA hearing. What is certainly different between the criminal proceeding and the FA hearing is the burden of proof. As I alluded to in my earlier article, the burden of proof in a criminal trial means that the prosecution must prove their case (i.e. Terry’s guilt) beyond all reasonable doubt. That is not the case in the FA hearing which takes the civil standard. Under regulation 7.3 of the FA’s Disciplinary Regulations it must only be proved that Terry committed the offence on the balance of probabilities (i.e. is it more likely than not that Terry ‘used abusive and/or insulting words and/or behaviour towards Queens Park Rangers’ Anton Ferdinand, contrary to FA rules.’)

Many at the time of the criminal case drew comparisons between Terry’s case and that of Luis Suárez and failed to take into account the comparative difference in the respective burdens of proof. The current FA hearing will provide a direct comparison between the two cases.

Now before all the John Terry haters or Suárez supporters get excited that the lower burden of proof will be bound to result in Terry being found “guilty” of the FA charge, please hold your horses. It is worth remembering the following comments made by Senior District Judge Howard Riddle in his judgment:

  1. “There is no doubt that John Terry uttered the words “fucking black c***” at Anton Ferdinand. When he did so he was angry.”
  2. “It is a crucial fact that nobody has given evidence that they heard what Mr Terry said or more importantly how he said it.”
  3. Terry’s evidence was given…“without significant contradiction.. [it was] undoubtedly a factor in favour of the defence.” Furthermore “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.”
  4. While there were inconsistencies with Ferdinand’s evidence, “it is unlikely that on the central point [Ferdinand] is lying.”
  5. “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’s defence does seemingly hold some weight. It is plausible. Even with the lower burden of proof there may well be enough doubt to ensure he is acquitted a second time round. The football fan in me might groan a little at being unable to enjoy a good dose of schadenfreude at Terry’s expense but the law graduate, like with the criminal trial, would probably see this as the correct outcome.

I would not like to speculate as to which way the hearing will actually go. As Daniel Geey points out in his brilliant blog post, (which I would encourage you all to read) without sitting in and observing all the evidence personally it is an impossible task to predict an outcome for or against Terry.

Regardless of the result it is important that justice is seen to be done, whether it be in the criminal courts or in a more civil action brought before the FA.

Disclaimer: The views expressed are those of the writer and this article does not constitute legal advice.

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