s5 Public Order Act 1986
1 A person is guilty of an offence if he
(a) uses threatening, abusive, or insulting words or behaviour or disorderly behaviour
(b) displays any writing, sign or ostensible representation which is threatening, abusive or insulting
within the sight of a person likely to be caused harrassment, alarm or distress thereby
s31 Crime & Disorder Act 1998
1 A person is guilty of an offence under this section if he commits
(c) an offence under s5 Public Order Act
which is racially aggravated for the purpose of this section
s28 Crime & Disorder Act 1998
1 An offence is racially or religiously aggravated for the purposes of s31 if –
(a) at the time of the offence or immediately before or after doing so the offender demonstrates towards the victim of the offence hostility based on the victims membership (or perceived membership) of a racial or religious group
(b) the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group
This week saw the trial of John Terry at Westminster Magistrates Court charged with a single allegation of using threatening, abusive or insulting words or behaviour or disorderly behaviour and that behaviour was racially aggravated. We all know what is was alleged that he said, I’m not going to repeat any of the language here, there’s no need whatsover. Suffice to say that during a football match it is alleged that he used racially abusive language towards another player.
In a country obsessed by the world of football; the game, the players and their action on and off a pitch it was always going to a trial that would attract a lot of media attention. Hours of television and radio coverage, pages and pages of print media devoted to the issue and pretty much everyone knew that it was a certainty that he would be found guilty wouldn’t he. You didn’t have to be an expert lip-reader to work out what he said captured from multiple angles in glorious HD. So, a five day trial conducted by highly qualified lawyers for both the prosecution and defence and presided over by a very experienced Judge was all just a waste of time.
Throughout the course of the trial there was speculation that the inevitable punishment that was coming to Terry, a fine of £2500, was ridiculously low and he should punished far more harshly. I saw comments in the press, and on my twitter feed suggesting prison, a ban from the game of football, doing work for the community in Brixton and the like. All forgetting or choosing to ignore the fact the Judge was bound to follow the law, sentencing guidelines and personal mitigation and the maximum penalty he could ever impose was a fine of £2500. They also forgot more importantly that he had yet to be found guilty.
Friday 13th, a portentous day no doubt for Mr Terry. Having reserved his judgement following the
closing submissions yesterday. The press gathered, the media hovered and waited expectantly for the guilty verdict to be handed down…
Except it didn’t come.
Howard Riddle the Senior District Judge who presided over the case found Mr Terry not guilty.
How? Why? It’s an outrage! Did the Judge not hear the evidence put before the court? Was he bunged, knobbled, got at?
The world of Twitter, always one step away from being a mob armed with a pitchfork went mad. Comments were made about it being a mistake, an injustice, an outrage, a green light for any player to racially abuse another player on the pitch. I suspect that the vast majority of the persons making a comment decrying the judgment passed down had not read it, or at least I hope that they had not read it. I hope that the people who made those comments were not lawyers, although I did see some.
So how did the Judge reach such an absurd decision.
Two things, evidence and the burden of proof.
Where a defendant has pleaded not guilty then the Crown Prosecution Service “…has to prove the whole of its case, the identity of the accused, the nature of the act and the existence of any necessary knowledge or intent” Sims  KB 531
The prosecution not only have to prove the whole of the case, they have to prove their case beyond reasonable doubt Ewing 77 Cr. App.R 47 CA. In other words “satisfied so they are sure” Walters v R  2 AC 26.
That meant that Riddle had to be certain not only that the defendant had said the words but and this is the very important bit, that he had meant the words to be abusive and insulting. If he was not sure about either of those elements of the offence then he could never find the defendant guilty.
What the Judge did find was that there was no doubt that Terry had said the words. Terry has always admitted that. What Terry denied and what the CPS failed to prove was that Terry had said the words intending them to be racially abusive and insulting. The Judge found that Terry evidence was credible and remained so when he was “…expertly and forcefully cross-examined…”, he found some of the other evidence far from compelling corroboration. He heard no direct evidence that anyone heard what Terry said or how it was said. He, in essence, did not hear enough evidence to make him sure that Terry had said the words intending them to be racially abusive or insulting.
Whatever you might think of Terry; whatever he might have done or not have done in his personal life was not on trial.
A trial is not conducted in the media, by vox pox, sound bites or by taking a straw poll in the pub. The evidence is put before a court and if the CPS can prove the case so that the tribunal are certain that all the elements are proven, the defendant will be found guilty. In the case of Terry he was found not guilty, the case was not proven and he walked from court an innocent man.
So before you all say, “yeah, but he’s guilty really” remember he was found not guilty by a court of law and comments, allegations and assertions to the contrary are simply wrong. The decision does not mean you can go around using the words and you will not be guilty of an offence. It means that in the context of the case Terry was not guilty of the offence.
Read the judgment of Howard Riddle here http://www.judiciary.gov.uk/media/judgments/2012/r-v-john-terry-judgment