Crossing the line - When sport becomes a crime

28/03/2012

Speech by Nick Hawkins, Chief Crown Prosecutor for CPS Wessex, to the University of Portsmouth on 28 March 2012.

Introduction

Thank you for the warm welcome, and for the opportunity of speaking to you this evening. Before I start can I make it clear that I will not be discussing the John Terry case, nor taking questions on it. 

I am sure that most of you are here this evening because you have a professional or academic interest in the law, and a passion for sport.  There are few people in our society who do not have views on both topics, and I want to explore the overlap between sport and crime.

I have been fortunate enough to travel the world playing and watching sport.  Sport brings people of different backgrounds and cultures together as equals, both as participants and spectators.  Tournaments such as a sporting world cup, or Olympics can bring a country together as never before.  Indeed sports events can lead to a reduction in crime there is certainly a reduction in crime in South East London on marathon day.

Similarly sportsmen and women can act as role models both for their general behaviour and for the mutual respect they show each other in victory and defeat.  One of my earliest sporting memories is of the England vs Brazil game in the World Cup in Mexico in 1970, and of the embrace between Pele and Bobby Moore after the game.

Those of you younger than me may similarly remember Flintoff and Brett Lee after the Edgbaston ashes test in 2005.

However, like any aspect of society there are those who do not want to play by the rules.  When their wrongdoing can be dealt with within the sport there is a strong argument that is the best place.   In many ways this is no different to any university or employer wanting to regulate the conduct of their members or employees, yet no university or employer would argue that the criminal law is suspended once a person enters their premises.  In exactly the same way the criminal law is not suspended once a player enters the field of play nor when a spectator enters a stadium.

The difficulty for us crown prosecutors, is deciding when the line has been crossed.  To do so, we have to apply the Code for Crown Prosecutors and the Full Code Test, which has two stages: The evidential stage followed by the public interest stage.
Therefore, any prosecutor confronted by these types of cases will need to decide whether there is sufficient evidence to provide a realistic prospect of conviction and if so, is it  in the public interest to bring a prosecution. Sounds easy, but it’s not.

Over the next 30 minutes or so I will explore three aspects of where sport crosses the line into crime: crimes on the field; crimes in and around the grounds; and hate crime in and around sport.  I will then consider where sports authorities can and should take a lead before concluding and taking your questions.  Finally by way of introduction I should warn you that you may find some of the behaviours shown on video to be offensive but I can find no better way to illustrate my talk than with actual examples of where sport has crossed the line into crime, and wherever possible with first-hand examples linked to Portsmouth.

Crime on the field

Rugby assault

I am going to start with rugby. One of the most physical contact sports played throughout the world.  Rugby players go onto the field consenting to physical contact, and knowing the risks of injury.  However, they play within a set of rules, enforced by a referee, which bans violent conduct and in particular “off the ball” punching and stamping.

Over recent years rugby union authorities have toughened up their sentencing regimes for players found guilty of punching and stamping, with the excuse “it’s part of the game” not holding water.  Bans for players found guilty at disciplinary hearings can have a major impact on a professional player’s career, and for an amateur player banned from the game they lose their social as well as their sporting life. 

Despite these assaults taking place on the rugby field, not infrequently they find their way into the criminal courts, and indeed a number of rugby cases find themselves in law books as authorities on the law of consent with regard to non-fatal offences against the person.  So the obvious question is where is the line drawn?

In late 1993 there was a rugby match, a few hundred yards from here, between United Services Portsmouth and Havant, who at the time were one of the top amateur teams in England. 

This was a local derby and a keenly contested game. Towards the end of the game a ruck broke up and the ball moved away.  The Havant second row found himself pinioned by the US second row, a naval physical training instructor.  Witnesses described what happened next as the aggressor looking around (presumably to check the referee was not looking) before punching the victim with full force in his face, rearranging his nose. What was unusual was that fans of both teams saw the incident the same way, as totally out of keeping with the laws and spirit of rugby.

At the time I was serving on the staff of the local Admiral as his legal adviser, and it fell to me to make the decision whether or not to prosecute the matter at a Court Martial (which is the equivalent of a Crown Court), and then to present the case.  One of this University’s law senior lecturers was the Judge Advocate for the trial which took place in February 1994 and I have checked my recollection of the case with him, to eliminate any prosecution bias! 

The defence that was run was a combination of self-defence (which appeared in reality to be based in getting his retaliation in early) and consent.  I had some difficulty with the idea that a rugby player or any sportsman would consent to having his nose broken in an off the ball incident whilst unable in any way to defend himself or try to avoid the assault.  Fortunately the Court agreed and he was duly convicted of GBH.

At the time, and since then, many have questioned my decision to prosecute, and it is one I would make again today.  I do not recall many of my closing speeches in trials, but I do recall that one because I suggested to the court that if the incident had happened in Guildhall walk on a Friday evening, or at Fratton Park on or off the field, then they would have no difficulty convicting, and therefore they should not treat an on-field rugby assault any differently.  And that for me goes some way to answering the question when sport becomes a crime, and that is when a sportsman behaves in a way that is both outside the laws of the game and in a way that would be criminal off the field.

Football assault

I would now like to turn to football, and play you a short video clip of a Scottish game between Rangers and Raith Rovers in 1994. 

Before telling you the result of this case, would anyone in this room on a show of hands like to suggest that this should have been left to the football authorities?
Audience reaction

In fact Duncan Ferguson received a three-month-prison sentence for this.  Like the rugby example I have just given, this was an off the ball incident, clearly outside the laws of the game and an assault that would have been prosecuted if it had happened elsewhere.

Horse Race Fixing

It is not just violence that brings sport into contact with the criminal law.  Vast sums of money are bet on the results of sports events, and from time to time sportsmen are encouraged to “throw” events in order that betting syndicates can make vast sums of money.

In December 2007 former champion jockey Kieren Fallon, two other riders and three other people were cleared of race-fixing after an Old Bailey judge directed the jury to clear them of conspiracy to defraud customers of betting exchange Betfair after a key witness was undermined.

The jockeys denied they had tried to make horses lose in 27 races between December 2002 and August 2004. The prosecution's main witness was Australian racing steward Ray Murrihy, who found fault with the jockeys in 13 of the 27 races, but also admitted he knew little about the rules and culture of British racing.

The judge, Mr Justice Forbes said: "It is abundantly clear that his evidence fell far, far short of establishing a prima facie breach of UK racing rules. “I have reached the conclusion that even if it was appropriate to admit Mr Murrihy's expert opinion... very little value can be attached to it."

There was much criticism of the prosecuting authorities at the time, and a suggestion that this should have been left to the horse racing authorities.

Last December Jockeys Paul Doe and Greg Fairley were banned from racing for 12 years for "not riding a horse to its merits" after an investigation into corruption by the British Horseracing Authority.

Two other jockeys were among 11 people barred from the sport following a British Horseracing Authority probe.  Jockies Quinn and Milczarek were both found guilty of corruption, but the latter was also found to have breached a rule forbidding jockeys passing on information in return for reward.

Owners Maurice "Fred" Sines and James Crickmore have been banned for 14 years for betting on their own horse to lose.
The BBC sports news correspondent Joe Wilston described the investigation as “the largest of its type ever undertaken in British racing”.  Interestingly in this case, money was gambled on horses losing as well as winning races which arguably is easier for corrupt jockeys, owners and trainers to deliver.

Do these two cases suggest that match fixing is best left to the sports authorities? 
Whilst congratulating the British Horseracing Authority on their robustness and their success I would suggest that this does not.  Corrupt betting has long been a matter for criminal courts, and will continue to be so.

Cricket

In August 2010, England played Pakistan in a series of test matches.  A News of the World sting led to the investigation and prosecution of three players, the captain and two bowlers for corruption.  All three pleaded not guilty, and were convicted at their trial which ended in November last year.

Rather than fixing the result of the game, this was an example of spot-fixing when bets are placed on aspects of the game, such as when a no-ball will be bowled, or how many runs will be scored in a particular over.  Vast sums of money are bet, particularly on the sub-continent, on such matters, and corrupt players can clearly deliver on these types of bets.
Salman Butt, the Pakistan captain during that Test and a man described by the judge as “the orchestrator of this activity", was jailed for 30 months. 

Mohammed Asif who bowled one of three pre-arranged no-balls at the centre of the conspiracy, was given a year in prison.
Mohammad Amir, who at the time of his crime was only 18 years old, was given a six-month sentence.

The judge’s comments when sending all three players to jail sum things up far better than I can. 

Mr Justice Cooke said: "The [essence] of the offences committed by all four of you is the corruption in which you engaged was in a pastime the very name of which used to be associated with fair dealing on the sporting field," said the judge. "'It's not cricket' was an adage."

Although Butt had falsely protested his innocence throughout, his ban from all forms of cricket issued by its world governing body and extending for at least five years led the judge to reduce his custodial sentence by 18 months. The two bowlers are serving similar minimum five-year bans from the International Cricket Council. "That is the punishment imposed by the cricket authorities," said the judge, "but these crimes of which you have been convicted require that a sentence be imposed which marks them for what they are and act as a deterrent for any future cricketers who may be tempted.

"These offences, regardless of pleas, are so serious that only a sentence of imprisonment will suffice to mark the nature of the crimes and to deter any other cricketer, agent or anyone else who considers corrupt activity of this kind, with its hugely detrimental impact on the lives of many who look to find good honest entertainment and good-hearted enjoyment from following an honest, albeit professional sport."

"Now, whenever people look back on a surprising event in a game or a surprising result or whenever in the future there are surprising events or results," said the judge, "followers of the game who have paid good money to watch it live or to watch it on TV will be led to wonder whether there has been a fix and whether what they have been watching is a genuine contest between bat and ball. What ought to be honest sporting competition may not be such at all."

Interestingly this is a case which shows the concurrent jurisdiction between the criminal law and the sports authorities, and I would argue that both have a role to play whenever a sportsman is convicted of a crime involving conduct on the field of play, whether it is an offence of violence or of dishonesty.

Crime around the ground

Football

Football hooliganism has generated thousands of words of academic journals, text books and comments in the media. Formerly known as the English disease, violence on the terraces has been directly and indirectly responsible for deaths and serious injuries.  Although possessing a reasonable amount of experience in this field I cannot do justice to the subject in a section of a single lecture.  Nonetheless no talk on crime and sport would be complete without a short look at violence and disorder around football, and I want to touch on the successes of government, police and prosecutors and the football authorities in significantly changing the face of English football.

For over 10 years, courts have been able to impose Football Banning Orders, lasting for a minimum three years, on offenders convicted of one of a number of specified offences of violence or disorder, or “on complaint” a civil application by the police based on intelligence.  At present there are around 3,000 bans in force and these have two effects.  Firstly, the offender cannot attend a regulated football match anywhere in the UK, and secondly they have to hand in their passport when England or their club play overseas. 

This has significantly reduced violence in stadia at home, and the number of arrests of English fans overseas.  Whilst there were football related offences in the World Cup in Germany in 2006, none of the offenders were subject to a Ban, and in South Africa there were no arrests of English fans for violence or disorder.

Locally we have had problems.  In March 2004 Portsmouth played Southampton in a “must win” game.  Although Portsmouth won 1-0 and there was no violence inside the stadium, a large crowd confronted the police after the game and there was disorder for two hours. 

A fantastic police investigation resulted in 98 prosecutions, convictions and bans for violent disorder.  The following year, not only did Portsmouth win 4-1 but there were only a handful of arrests, all of Southampton fans, and no significant violence.
Since then, although there have been incidents involving Portsmouth games, the numbers of arrests and levels of disorder have been minimal, suggesting that sensible policing, good investigations, robust prosecutions and banning orders have worked.

In 2010, Portsmouth again beat Southampton 4-1, this time in an FA cup tie at St Marys.  Unfortunately there was disorder after the game.

Again a successful investigation and prosecution followed, and again this has had a positive effect of on crowd behaviour in subsequent seasons.

We should never be complacent, especially with the clubs due to play each other on 7 April with the teams at opposite ends of the table, but the derby game in December 2011 passed off without a single arrest for violence or disorder. 

This was the first game between the teams in Portsmouth for six years and tensions were high, but a courageous decision by the police commander, who is in the audience tonight, to insist on all Southampton fans travelling in a bus convoy together with sensible use of the media to inform fans of both clubs what was happening, led to effective segregation inside and outside the ground.  Despite the inevitable grumblings about claims of restrictions of civil liberties and claims of having been treated like animals, everyone who went to that game could enjoy it free from violence.

An ongoing success in my view, is the partnership between the Association of Chief Police Officers and the Crown Prosecution Service, supported by the Home Office and the football authorities, and this has resulted in the publication of a prosecution policy, which sets out exactly what will and will not be tolerated. I would suggest that education of fans and the support of the games authorities (including clubs who ban offenders for life) can help ensure that sports fans do not cross the line into criminality.

Other sports

Although the focus of attention is always on football supporters, we should not overlook the fact that violence and disorder does take place at other sports.  Time precludes a long look at this but in the last two years I am aware of prosecutions for violence at rugby league matches, horse racing meetings and boxing matches (outside the ring).  Cricket suffers from pitch incursions and whilst exclusion from the ground (often without clothing) might be punishment enough when the purpose of the incursion is to threaten players or officials, or when a peaceful protest becomes disorderly then prosecutions follow. 

I am pleased to say that sports authorities do act closely with police and prosecutors to ensure the rights of spectators to enjoy themselves are balanced with a regulatory framework that ensures appropriate behaviour.  As an example in 2009 during the ICC cricket 20:20 World Cup, the tournament director allowed me to place an advisory notice in every programme explaining where good humour could cross the line into criminality, and one example of this is racist chanting, which brings me on to my last topic.

Hate Crime

I cannot believe there will be anyone in this audience who considers it reasonable to verbally abuse someone because of their colour, creed or sexuality.  No right minded member of society would consider the legal framework which creates offences aggravated by hate, to be an unfair restriction on the right to free speech.

However, I never cease to be amazed to read transcripts of police interviews, or indeed to speak to football fans who describe the vilest of chants as “banter”, and who defend the targeted abuse of individual players on the basis that they earn lots of money so they should “take it”.

Fortunately high quality CCTV inside stadia, together with good stewarding and the support of the overwhelming majority of decent football fans means we can tackle abuse when we come across it.  In this section of my talk, I am going to look at three aspects, illustrating with live examples:  abuse of individual players, chanting generally, and the use of social media.

Footballers will tell you that they know certain fans deliberately buy seats near the corner flag or just behind the goal, so they can abuse players.  Fortunately they often find themselves surrounded by decent fans, who make great witnesses. 

Unfortunately this has not stemmed the abuse totally.  One example of a successful prosecution is of the racial abuse of the former Pompey goalkeeper, Shaka Hislop in 2004.

There is of course a spectrum of chanting and comments that range from justified criticism and humour at one extreme to criminal behaviour at the other.  Knowing where the line is drawn is a difficult decision for a prosecutor, and understanding both the criminal law and football culture is essential.  I will now give you a few examples of chanting around the UK and want to ask you on a show of hands to say whether you think the chant is either acceptable, near the line, or across the line and a crime. I make no apology for the industrial language which follows:

Where’s the wanker with the bell  West Ham fans at Fratton Park
Audience asked whether they think it is a banter, borderline or crime?

F off back to Guildford Pompey fans to Man Utd fans at Fratton Park
Audience asked whether they think it is a banter, borderline or crime?

The famines over why don’t you F off home Rangers fans to Celtic fans
Audience asked whether they think it is a banter, borderline or crime?

You’re just a small town in Asia Forest fans to Leicester fans
Audience asked whether they think it is a banter, borderline or crime?

You’re just a town full of pakis in Oldham
Audience asked whether they think it is a banter, borderline or crime?

I now want to play you two clips, and again would ask if there is anyone in the audience that thinks we should not prosecute.

Clip of Chelsea fans
Sol Campbell clip

The Sol Campbell case resulted in a successful prosecution, yet there were still many who accused the prosecution of being the “thought police”.  I would suggest the decent Spurs fans who you can see shaking their heads at the chant know where the line is drawn, and were appalled at the conduct of their own fans who in my view did not just cross the line, but leapt over it.

We are now seeing the phenomena of fans abusing players on Twitter and other social media.  Harassment through social media is covered by existing legislation, such as the Misuse of Communications Act, and we have already seen successful prosecutions in this area.  Where the abuse is racist, we can bring that to the attention of the court as an aggravating feature.

Again, this is an area where I would suggest education, both of what not to do and of how easy it is to detect and prosecute these offences, might prevent the criminalisation of otherwise decent people, but I should stress I would never condone the misuse of social media to commit what would be a hate crime if said face- to- face.  Fortunately, we have had the support of clubs and the games authorities and we work with organisations such as Kick-it-out and through a combination of education, deterrence and robust action we hope to nip this in the bud.

The role of sports authorities

This, I hope leads me neatly on to the role of sports authorities.  There is ample evidence of sports authorities dealing appropriately with behaviour which crosses the line into criminality and with behaviour which is close to the line.  In many cases there are arguments either way between a prosecution in the criminal courts and a disciplinary hearing within the sport, and arguably what matters is that inappropriate behaviour is dealt with robustly and appropriately.

One area where I would argue we need more support from sports authorities is in dealing with inappropriate crowd behaviour and in particular chanting.  Making clubs play games behind closed doors hits them in their pockets, and deducting league points lessens a clubs chance of qualifying for Europe or promotion, again hitting them financially. 

Football authorities have dealt with violent crowd behaviour this way, not to mention deduction of points for going into administration.  I would strongly urge clubs to seek to stop their fans singing some of their more choice chants do Pompey fans really need to sing about “hitting scummers with a brick”  - and for the authorities to take action about clubs that fail to do so if these abusive chants become an habit?  Anyone who follows football and social affairs north of the border will have seen a real reduction in sectarian chanting this season, due to a concerted effort by all parties.

Turning to the more general question of the role of sports authorities I would suggest they have a number of roles.  Firstly, to educate players and fans as to what is and is not acceptable in their sport. Secondly to have a fair, transparent and where necessary robust disciplinary framework.  Where that is in place there will be less need for the police and prosecutors to become involved.  Thirdly, to support investigations and prosecutions, and not to try to misguidedly protect their own or the image of their sport.  Fourthly to take robust action after successful criminal prosecutions the recent cricket match fixing case is a good example of this.

I have been fortunate enough, along with police colleagues, to work with sports authorities in a number of major sports, and I can say that in every case they sign up to the roles I have just suggested.  If I have one plea for them, it is to do more about inappropriate chanting and to educate that the excuse “it’s football [or sport] so it’s different” is just wrong.
Media

Although not a formal partner, and whilst respecting their independence, the media have a role to play, and in my experience in the main do so.  Glorifying hooliganism, giving the oxygen of publicity to offensive chanting and broadcasting pitch incursions and other stadia disorder does not help. In contrast generating a debate, educating fans, publicising successful prosecutions and making video and other evidence available to investigators does help and invariably happens.

Conclusion

Like most advocates, I am going to finish as I started.  Again I would like to thank Portsmouth University for giving me the opportunity to talk to you in this great venue in a city which has three things going for it a great football team, a great university and a great prosecution team. 

Again, I would like to make the point that sport is a force for good, and that most sport takes place free from criminal activity or anti-social behaviour and that peoples’ lives are enriched by sport on a daily basis.
I hope I have done what I set out to do and that is to pose a question and hopefully start a debate on the question of when does sport become a crime.  For me it is relatively simple in principle and that is if something was a crime outside sport then it should be a crime inside sport, but applying principles when dealing with practicalities only takes you so far.

As I am in a place of education, and as I would like to both finish on a light hearted note and educate, let me share with you one piece of legal sporting trivia, which I have picked up in my role as the Crown Prosecution Service national lead on  sports matters.  You are five times more likely to be ejected from Headingley cricket ground on test match Saturdays if dressed as a nun!

Thank you for your attention and participation, and I am now happy to take questions.

Ends