Beyond Reasonable Doubt….


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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

or

(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 [1946] 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 [1969] 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

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Author: crimsolicitor

I am a Criminal Defence Lawyer, committed to providing the best defence I can for those who need it, regardless of their ability to pay...

19 thoughts on “Beyond Reasonable Doubt….”

  1. Perhaps you could point out where within S5 POA it requires an intent? . . The definition as you show it above merely requires that at (a) ‘uses’ threatening abusive etc . . At no point does it require proof of intent, merely evidence of the act done within sight hearing etc . More senior POA offences do require the proof of intent, not so S5
    @andy1277

    1. See section 6 of the public order act for the need to prove either intent or that he was aware his comments may have been threatening abusive or insulting. As a spurs fan i have no fondness of Terry. As a decent human I don’t like how he conducts his personal life. As a lawyer I am relieved the judge looked at the evidence and not at the defendants lifestyle, ignored the views of the media and those who had not heard the evidence and arrived at his decision based on it and the credabilty of those giving evidence.

  2. PS . . Yes I have read the judgement and I still don’t see how an acquittal is the result. It seems that nice Mr Terry and his QC managed to confuse the court into a 5000 word written summary that seems to suggest the offence made out but concerns over the unknown not charged not ‘relevant’ comments of the man subject of the offence charged. . Or as we call them ‘the victim’

    1. The judge could not be certain of Terry’s intention. Intention is necessary to prove the racially aggravated offence, and that is the whole point. Terry did not dispute saying the words, he disputed the context in how they were said. There was no evidence to disprove his contention, therefore the Judge could not be certain he intended to be racist.

      It had nothing to do with lawyers baffling the court, the lawyer put forward a legitimate defence, the CPS could not show evidence to the contrary.

      Same case, same instructions I would have run the same defence.

      1. But there was some evidence to contradict Terry; the same footage that showed him saying the offensive words. I thought the prosecutor’s point about looking at his expression / demeanour and deciding if it matched Terry’s account was a good one.

        I fear that Riddle, when perhaps less in the media glare, would not struggle to reach the required level of certainty as he did in this case. Having appeared before him numerous times, he is not one ordinarily to give defendant’s such a benefit of doubt.

  3. Would you not apply the below in prosecution?

    In DPP v McFarlane (2002) EWHC 485, Rose LJ found that once the “basic” offence was proved (in this case a public order offence) and that racist language was used that was hostile or threatening to the victim, it made no difference that the defendant may have had an additional reason for using the language. The test under section 28(1)(a) was satisfied.

    In DPP v Woods (2002) EWHC 85, the defendant used racially abusive language to a doorman at a nightclub when expressing anger and frustration over being refused admission. It was held, as in McFarlane, that the fact that the primary reason for the offence was other than a racist motivation, the use of racist abuse during the commission of the basic offence made out the test for racial aggravation in section 28(1)(a). The point was made that, ordinarily, the use of racially (or religiously) insulting remarks would, in the normal course of events, be enough to establish a demonstration of hostility.

    Surely McFarlane is applicable to this case.

    Andy

    1. It wasn’t my decision. I was simply trying to explain the verdict. The point stands that the Judge could not be certain that the words were intended as a racial insult, or simply repeating back what he had heard.

  4. “It is a crucial fact that nobody has given evidence that they heard what Mr Terry said” – meaning that the underlying crime under s.5 is not proved.
    On the other hand, I would have been very distressed at the insulting language used in the summing up, had I been in court today. #Guilty
    😉

  5. ‘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 “not guilty” verdict is premised on the presence of reasonable doubt. It doesn’t mean people can’t make up their own minds about what happened using (say) the civil standard of proof.

    And regardless of the niceties of standards of proof, why can’t people disagree with the verdict of a court? Try it the other way around; imagine we’re talking about the Birmingham Six before their convictions were overturned: ‘Before you all say “yeah, but they’re not guilty really” remember they were found guilty by a court of law and comments, allegations, and assertions to the contrary are simply wrong.’

    (As it happens, I don’t think this prosecution should have been brought — but people can make up their own minds.)

    1. I certainly wasn’t suggesting that people could not make up their own mind. I firmly believe that everyone is entitled to their opinion and in having an opinion are entitled to express it. The sentence I used was part of a writing style, no more no less and used to demonstrate the finding of the court.

      I have no opinion of the man, or the men involved one way or another. I neither know enough about them or care enough to find out about them. The piece was written to try and explain why he was found not guilty and shed some light onto the judgment that many seemed to misunderstand. It was I hope neither patronising or condescending and if generates debate on the actual issues and not celebrity and media puffery so much the better.

      1. You do a very good job of explaining what happened — I very much enjoyed the post until I reached the last paragraph!

      2. I’m sorry the last paragraph upset you. Perhaps I could have worded it better. I was in no way suggesting that people could not formulate their own view and opinions about what was said or done, you may think he was guilty but the point remains in the eyes of the court he was not guilty.

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