It is a commonplace that, in civil actions, the standard of proof is that of the balance of probabilities, sometimes spoken of as the balance of the evidence, while the standard in criminal proceedings is popularly said to be that of the absence of reasonable doubt. A more modern expression of the criminal standards requires a jury to be, “certain so that you are sure”, a rather circular definition which nevertheless conveys the feeling required – the conviction for conviction, so to speak. “Satisfied so that you are sure” is a similar form.
There are circumstances in which a civil action can be successful where a criminal prosecution was not. One is where there is a paucity of evidence but circumstances make it likely that the defendant did as has been asserted. Another is where the mind of the defendant is a factor. To establish criminal liability is, in most cases a matter of establishing a guilty mind, mens rea. (So-called “absolute offences” are an exception but then they are an exception to the very principles of justice.)
Put simply, Mr Terry was charged, at his trial, with saying certain things to Mr Ferdinand with the intent of upsetting him. As this writer understands the matter, the fact of what was said was accepted. Mr Terry’s defence was that he was repeating words spoken by Mr Ferdinand himself. The Court must have found as a fact, albeit reluctantly, that Mr Ferdinand probably may have spoken those words, although it did not need the higher standard of proof, because a defendant does not need to prove his innocence, only to show that the prosecution cannot create the appropriate satisfaction in the minds of a jury.
Because Mr Terry was on trial, and not Mr Ferdinand, the question of Mr Ferdinand’s intention did not arise. Nor should it arise at any hearing by the FA, although those concerned may, no doubt, speculate. As will my readers.
I may be wrong, but it looks as if the FA appears to have decided the outcome before the hearing. Mr Terry was stripped of his captaincy of the England team over it. One is reminded of the trial in Alice in Wonderland:
Queen of Hearts: Now then, are you ready for your sentence?
Alice: But there has to be a verdict first.
Queen of Hearts: Sentence first! Verdict afterwards.
Whatever Mr Ferdinand’s intention may have been, the writer will not speculate here. The consequences, however, have been serious enough.
Strictly speaking, the hearing to which Mr Terry has been summoned after he has been stripped of his captaincy, to justify that decision and to apply other sanctions in pursuit of the FA’s public agenda, is not of the FA itself but of an “independent”regulatory commission [IRC] engaged by the FA. Be the IRC never so distinguished a fig-leaf its function is to implement the policy or the FA. The success of the IRC or IRCs is evidenced by results. The FA found a total of two not-guilty verdicts out of the 473 cases it heard in 2011. Res ipsa loquitur, as lawyers used to say – the thing speaks for itself.
The logic underlying the question of proof is simple enough, or so it seems to the writer. Whoever makes an assertion has the responsibility of proving it. In civil proceedings inter partes, that is to say in disputes between parties, the judge or other person responsible for deciding between those parties does so on his or her judgement of who is making what assertion and whether the evidence is more likely than not to favour that assertion. There is a practical element of proportionality. The greater the consequence of the decision, the greater the preponderance of evidence required to “tip the scales”, so to speak.
Hearings of the kind in question, disciplinary tribunals and the like, often hide behind their private or contractual nature to argue that they are not bound by rigorous standards of proof. In the writer’s opinion that cannot be right. They are not proceedings inter partes; they are proceedings in which an individual is summoned before his or her community to answer charges, often of material consequence to their career or interests. Proceedings which share some of the characteristics od criminal proceedings even if they are not.
It’s the purpose of this note to suggest that the members of such a panel, when an individual is arraigned before them, ought only declare a serious accusation proved if they are sure that it has been established. That’s an obvious truth. If one is not sure of something, one cannot declare it safely, not unless one is satisfied. The more grave the accusation, the more one must be sure, that’s commonsense.
The commission that hears Mr Terry’s case ought to apply a commonsense standard. Any accusation must be proved to their satisfaction. The policy or PR requirements of the FA should have no bearing. The simple balance isn’t enough. The dispute isn’t between Mr Terry and Mr Ferdinand, there’s another place for that. This is Mr Terry being accused by the community (or a subset of it). That is what should guide the commission.
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