John Terry, public order offences, sport and the law

For Halsbury's Law Exchange
England football captain John Terry has been charged over alleged racist comments said to have been made during a Premiership football match in October. The details of the charge, set out in a CPS press release, are:


“On 23 October 2011 at Loftus Road Stadium, London W12, you used threatening, abusive or insulting words or behaviour, or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress which was racially aggravated in accordance with section 28 of the Crime and Disorder Act 1998.

Contrary to section 31 (1) (c) of the Crime and Disorder Act 1998”

As the case has not been heard I will say nothing more about its facts. Instead I will offer some observations on two related general issues prompted by the incident. The first concerns another aspect of s 28 of the 1998 Act, not raised in Terry’s case. The second concerns the general interplay between sport and the law, and the substitution of self-regulation for the criminal law.

Section 28 provides:

An offence is racially or religiously aggravated for the purposes of sections 29 to 32 below if—

(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial or religious group; or

(5) In this section “religious group” means a group of persons defined by reference to religious belief or lack of religious belief.

It might be suggested that abuse is abuse; and made none the better if it happens not to be directed at someone’s race. But human history is full of examples of the most appalling examples of abuse specifically based around race. There is therefore some justification in the context of the public order offence of harassment for special condemnation of abuse directed at someone’s race.

The more substantive controversy about s 28 concerns the inclusion of religious grounds on an equal basis with race. Certainly human history is at least as riddled with abuse of religions as it is with abuse of racial groups. Also, one of the world’s great religions, Judaism, classifies its adherents on matrilineal grounds, rendering it akin to a race (a factor which tied the courts in knots in the well-known JFS case), though nothing is offered here on whether Judaism is a race or religion or both.

The usual distinction offered is that religion is a set of ideas, which one may choose, modify or abandon, whereas one has no choice over one’s race. As a result, the right to freedom of speech in the form of the right to discuss, debate and indeed lampoon religion is a fundamental feature of a free society, but the same arguments cannot be applied to discussion of race. (That said, in the United States the right to free speech is valued so strongly that even banning racist hate speech is highly contentious.)

The counter is that for some people their religion is so intimately tied to their personal identity it has an equivalent status to race. This may be true for some, but it is not true for all, and more to the point it also has to be seen in the context of the sort of theocratic oppression found in other countries (and in the history of this country) which is inimical to a free society. Recognising that, and the importance of free speech generally, Parliament came up with the following when introducing the religiously aggravated element of the offence in the Racial and Religious Hatred Act 2006:

"Protection of freedom of expression


Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.”


(Section 29J in Sch 3 to the 2006 Act)

The problem should be immediately apparent. Very little that might be said to be an offence under the religious aspects of s 28 will not be plausibly argued to constitute protected speech under s 29J of Sch 3 to the 2006 Act. Then one has to factor in the right to free expression under Art 10 of the European Convention on Human Rights, though s 28 would likely fall within the state’s margin of appreciation.

Much the better option would have been not to have introduced the offence in the first place, and left any unjustifiable harassment to the general law. This would have meant aggressive harassment of an individual would have remained illegal, but there could be no attempted prosecution of satirical works of art or literature, and no attempt to suppress general public debate about the role of religion in society. Moreover, having fewer laws of this type would in some instances work in favour of religious believers who wished to advance controversial opinions based on their faith, such as the late Harry Hammond.

Turning to the second issue, where the divide falls between the right of a sporting body to self regulation and the application of the general law – including of course criminal law – is another classic grey area. Abusive behaviour on the pitch in the form of harassment of opposition players or the referee is hardly unknown in many sports. Then there are the occasional out-and-out physical assaults: for example, the footballer Roy Keane claimed in his autobiography that he had once deliberately injured the player Alf-Inge Haaland. That sort of conduct would constitute prima facie evidence of assault. Either way, self regulation of sportsmen could hardly be said to encompass a case of a sportsman attacking a spectator, such as Eric Cantona’s infamous kung-fu kick (though I cannot resist adding that it gave rise to one of the tabloids’ greatest headlines: The sh*t hits the fan), given that the spectator never signed up to the jurisdiction of any sporting body simply by attending a match.

Even if Keane’s actions might be appropriately punished by the football authorities themselves, it is hard to argue why an actual brawl such as the Kevin Tamati/Greg Dowling encounter known to all antipodean rugby league followers, which took place off the pitch after both had been sent to the sin bin, should not attract the interest of the CPS if public order offences under the 1998 Act do. Admittedly most rugby league players, especially of that era, would have thought it demeaning to refer their disputes to the police, but as the law student favourite of R v Brown [1993] 2 All ER 75 held, consent is no defence to an assault occasioning actual bodily harm (though it does seem to be in the case of boxing ...).

Next one might consider actions such as blatantly faking a penalty. A player might be disciplined for doing so, but would that be adequate punishment – let alone sufficient redress for the opposition – if it altered the result of the match (say it was an extra time penalty in a knock-out competition) with huge financial consequences?

There is neither space nor time to discuss the issues fully here, and I would stress again that I have offered no opinion on Terry’s case, which has to be conducted according to the law as it stands at present. All that one might conclude is that the dividing line between self regulation by sporting bodies and the general law is somewhat less than logical or principled.