John Terry should remember, it’s a game of two halves.

16 May 2013

Whilst District Judge, Howard Riddle, must have considered his appointment to this trial to be expected given his position as Chief Magistrate, the case must surely have been a 'poisoned chalice'.  After all, insofar as a verdict was concerned, he was always going to be 'damned if he did and damned if he didn't'.

Those who have read the various reports of the evidence will no doubt be stunned at the infantile nature of the dispute as a whole, but of course the introduction of Mr Ferdinand's race, in whatever context, was unnecessary and unacceptable.  Mr Terry said he was merely repeating an accusation he believed had been made against him.  Mr Ferdinand denies making the accusation.  Mr Riddle found Mr Terry's explanation 'unlikely' although mainly consistent, and said that Mr Ferdinand's evidence had 'discrepancies'. He found that both Mr Ferdinand and Ashley Cole were witnesses who would have 'preferred not to be here'. It was, of course, the Crown Prosecution Service who prosecuted the case, not Mr Ferdinand himself.

The law rightly requires the prosecution to prove their case, and it is not for a defendant to prove his defence.  It requires the tribunal deciding the case, whether a Magistrate or a jury, to be satisfied so that they are sure of a person's guilt, a standard of proof that is more popularly known as 'beyond reasonable doubt'.  Having heard the sometimes baffling evidence, and heard more f and c words than he no doubt would care to recall, Mr Riddle concluded that he could not be sure, and therefore, was compelled to find Mr Terry not guilty.  A verdict of not guilty in English law is not a finding of 'innocence' as such, but in reality it is a finding of uncertainty.

Needless to say there have been numerous expressions of shock and disbelief at the verdict. John Amaechi OBE, a former professional basketball player, tweeted "John Terry verdict is a travesty. Thanks football – you set entire country back a decade." Indeed it may well be difficult for many of those who saw the footage on the television at the time to understand how the not guilty verdict could be reached, but the application of the law itself combined with the burden of proof set a high standard.

So, although Mr Terry has been acquitted by the criminal law as the prosecution case did not meet the criminal standard of proof, he surely cannot escape censure in the court of public opinion, and possibly elsewhere.  

The 'first half' is now over.  The 'second half' now begins, and the FA now have to decide what their reaction will be, given their claimed zero tolerance policy to racism in the game. It is understood that their enquiries into the incident (following a complaint by a member of the public) were almost complete at the time the police became involved, when they were at that point rightly suspended.  As no new evidence is understood to have come to light since, they have to decide whether to bring their own charges, which if proved, could lead to a ban. What could prove to be the crucial difference is that the burden of proof in any FA disciplinary proceedings is that of 'the balance of probabilities' as in the civil courts, far less than the near certainty required for a criminal conviction. Given the evidence of both players and their admissions as to what they both said, there is also the possibility that Mr Ferdinand could face charges too.

We like to think that our country leads the way in eradicating racial abuse from our national game, but this incident is a real step backward, and frankly embarrassing given the stand we have taken on the global stage.  Perhaps the focus was too much on the terraces and not enough on the pitch.

Having taken the stance that they did in the recent Luis Suarez case, the FA must be consistent and also give a clear reasoned justification for whatever decision they make. Failure to do so could lead to a impression that such language is acceptable on the pitch provided it is during the course of a match, when it becomes  'banter' or 'handbags'.  It could conceivably mean that players who are the target of racial abuse in the future feel they cannot or should not complain.  Failure to do so could set back the goal of eradicating racism from the sport by a generation.

Then just when we really did think it was all over, Rio Ferdinand, not content with his extremely unfortunate use of Twitter earlier in the trial, has once again used this social medium to score what could easily be seen to be an own goal.  A tweeter sent him a message making a derogatory comment about Ashley Cole, appearing to focus on Mr Cole's race, and instead of taking issue with it and the person who sent it, he seemed to adopt it and, even worse, find it funny.  He has since tweeted  "What I said yesterday is not a racist term, it's a type of slang/term used by many for someone who is being fake."   Ashley Cole has responded by  issuing a statement saying that he "has been made aware of the discussion following comments appearing on Twitter and wishes to make it clear that he and Rio Ferdinand are good friends and Ashley has no intention of making any sort of complaint.  Ashley appreciates that tweeting is so quick it often results in off-hand and stray comments."  

These incidents raise yet again the questions about young males, whose main asset in life is how well they can kick a football, being such prominent 'role models', when they display such an alarming lack of dignity, self respect and judgement.  Mr Terry perhaps had an opportunity to regain some credibility when the prosecutor, Mr Penny asked in the course of cross-examination "Have you thought about apologising to Mr Ferdinand?".  Sadly Mr Terry's response was "Why would I apologise to Anton when all I said was what he said to me?"

Having read the evidence given by the parties involved, it is surprising how easily two grown men resorted to childish insults. But Mr Terry cannot get away from the fact that in the course of the row he uttered a deeply unpleasant phrase, whether it was merely a repetition of someone else's words or not, and which given his other well documented lapses of judgement does tend to suggest that his removal as captain of the national team was appropriate.

Paul Hayward says in the Telegraph "In no circumstances… should any citizen think he can use the phrase Terry employed with impunity. Even to deny saying it in the first place, most sensible people would not throw it back at the "accuser", because they would recognise the words to be toxic, dehumanising".

Dan Roan, the BBC sport correspondent commented "This trial was not just about what one player said to another – and why – in a fiercely contested Premier League match back in October. It was seen as a landmark case around the national sport's efforts to improve race relations, tolerance and respect, raising serious questions over what is deemed acceptable behaviour on the field of play."

"The trial exposed the unedifying reality of the professional game; a world littered with foul language and crude insults. The FA's Respect campaign, designed to ensure top players are role models for the millions of youngsters who look up to them, has suffered a major blow.  Terry will move on from here – able to resume his career – but football faces a major challenge to recover from one of the most troubling years in the game's history."

Whatever Mr Terry's explanation as to why he said those three words, and despite the fact that he was found to be not guilty, he and others on the field of play will continue be judged.

The above article is not legal advice; it is intended to provide information of general interest about current legal issues.