John Terry and the Regulatory Commission

UPDATE 5th October:  The FA Regulatory Commission decision
Note para 4 of the decision for a point relating to the applicable standard of proof in the FA's hearing.
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Footballer John Terry has been found guilty of misconduct by an Independent Regulatory Commission - see the announcement on the FA website.  Mr Terry has rights of appeal and will, no doubt, await the Commission's written findings before taking further advice and making a decision.

The Regulatory Commission has authority in these matters because of the Football Association's Rules and Regulations.   See also Rules of the Association and Laws of the Game.

The Football Association charged Mr Terry on Friday 27 July 2012 with using abusive and/or insulting words and/or behaviour towards Queens Park Rangers’ Anton Ferdinand and which included a reference to colour and/or race contrary to FA Rule E3[2] in relation to the Queens Park Rangers FC versus Chelsea FC fixture at Loftus Road on 23 October 2011.

Rule E3[2] states: 

GENERAL BEHAVIOUR

3 (1) A Participant shall at all times act in the best interests of the game and shall not act in any manner which is improper or brings the game into disrepute or use any one, or a combination of, violent conduct, serious foul play, threatening, abusive, indecent or insulting words or behaviour.

(2) In the event of any breach of Rule E 3(1) including a reference to any one or more of a person’s ethnic origin, colour, race, nationality, faith, gender, sexual orientation or disability (an “aggravating factor”), a Regulatory Commission shall consider the imposition of an increased sanction, taking into account the following entry points:

For a first offence, a sanction that is double that which the Regulatory Commission would have applied had the aggravating factor not been present.

For a second offence, a sanction that is treble that which the Regulatory Commission would have applied had the aggravating factor not been present.

Any further such offence(s) shall give rise to consideration of a permanent suspension.

These entry points are intended to guide the Regulatory Commission and are not mandatory.

The Regulatory Commission shall have the discretion to impose a sanction greater or less than the entry point, according to the aggravating or mitigating factors present in each case.

Comment:

At first sight, it can look odd that Mr Terry can be acquitted in a court of law but found guilty by a professional tribunal.  However, a number of points need to be borne in mind: the different nature of the charges and, secondly, the standards of proof required.

The charges ~ 

When Mr Terry was tried at Westminster Magistrates' Court he was charged under the Public Order Act 1986 (racially aggravated - as defined by the Crime and Disorder Act 1998).  At the Commission hearing, he was charged with misconduct under the FA's rules.

Standards of Proof ~

The "golden thread" of English criminal law is that it is the duty of the prosecution to prove the guilt of the defendant and this must be done to the high criminal standard of proof.  Mr Terry was acquitted by District Judge (Chief Magistrate) Howard Riddle - see the earlier blogpost on Terry's acquittal.  A further post related to Criminal Cases - Burden and Standard of Proof.

The standard of proof on the misconduct charge is set by the FA Rules as "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."

In civil litigation, there has been considerable debate in recent years about what the civil standard requires.  However, the FA's statement about the standard seems to be a good reflection of the law which the civil courts would now apply.  There is a single civil standard (balance of probability - i.e. shown to be more likely than not).  However, the standard is flexible in its operation.  The more serious the allegation or consequences the stronger must the evidence be to prove it.

The civil standard is discussed in the context of child care proceedings in the House of Lords decision in Re B (Children)(Sexual Abuse: Standard of Proof) [2008] UKHL 35.  See the article at Family Law Week - Re B: The 'Heightened Civil Standard' laid to rest. 

In some instances, the courts have insisted on a very high cogency of evidence in civil cases.   In the case of Anti-social Behaviour Orders, the House of Lords even held that magistrates, in order to make their task easier, should actually apply the criminal standard - R(McCann) v Crown Court at Manchester [2003] 1 AC 787, HL.

Summary

The Magistrates' Court was dealing with a criminal offence defined in statute law.  The FA charges are a disciplinary matter.  Even though they arise from the same factual event, the difference is considerable.  Further, the criminal matter has to be proved to a very high standard whereas a lower standard of proof applies to the disciplinary matter.   Consequently, the acquittal of Mr Terry on the criminal case and the finding of the Disciplinary Commission are not necessarily inconsistent.

Mr Terry has the right to appeal the decision of the Independent Regulatory Commission to an Appeal Board. An appeal must be lodged within 14 days from receipt of the written reasons for the decision.  The penalty imposed by the Commission is suspended  until after the outcome of any appeal, or the time for appealing expires, or should Mr Terry decide not to appeal.