by Sam Jones

The FA, and their legal representatives will doubtless be relieved that in the aftermath of the release of their written reasons for the outcome they reached following the charges brought against Luis Suarez, that so much time, effort and emotion has been spent by so many people on completely missing the point.

Much has been made of the issue of “is Luis Suarez a racist”. The Daily Mirror think so. Manchester United fans seem to think so too, although many Liverpool fans don’t. It doesn’t matter. The question hasn’t even been addressed.

A lot of time and effort has been spent debating how the FA arrived at the conclusion that Evra is a more reliable witness than Suarez. Doesn’t matter, they are entitled to make whatever findings of fact that they like. The decisions of juries are far more serious and don’t undergo this scrutiny.

The only real remaining issue, in so far as it affects “what next” is the basis for an appeal. The FA’s rules say you can lodge an appeal for the following reasons;

(vii) The appeal may only be allowed on one or more of the following grounds:

(a) The Regulatory Commission misinterpreted or failed to comply with the rules or regulations relevant to its decision; and/or

(b) came to a decision to which no reasonable such body could have come; and/or

(c) the penalty, order or sanction imposed was excessive.

So this means that an appeal can be because they got the law wrong, the decision was clearly perverse or the sanction is too harsh.

Do any of these apply?

In spite of the feelings of many, the decision is not clearly perverse, nor is the sanction too great, assuming the validity of the outcome is accepted.

This leaves points of law. What points of law applied, and what points of law did the FA consider when reaching its verdict?

First is the “burden of proof”. This is the issue of who has to prove what. This rests with the FA, they have to prove Suarez’s guilt, not he his innocence.

Secondly, the “standard of proof”. This is the extent to which it needs to be proven. In criminal cases this is “beyond reasonable doubt”, for the purposes of the FA commission it is, as with civil law, “the balance of probabilities” so, is it more likely than not. Critically though, it is the “flexible civil standard”, so the more serious the allegation the more proof needed.

The final, and most controversial issue, is the matter of whether the FA’s disciplinary rule E 3(1) should have an “objective” i.e. do the panel feel the act has been committed, or “subjective” i.e. was the act intended, test applied. This is the issue on which the whole case turned.

The FA made a number of points relating to the applicable law. Their representative, Mr Paul Greaney QC is a barrister, a Queen’s Counsel no less. A QC is the elite amongst barristers, the Fernando Torres 08/09 of legal representation. He made their arguments, covering the area of law that is crucial to the case.

He made the assertion that the FA rule E 3(1) should be tested objectively. That is, it doesn’t matter what Suarez intended, only what the panel felt he had done.

In order to justify this he claims that it is analogous to some pieces of criminal law. This then, needs a little background.

In criminal law there a two principles, mens rea the guilty mind, and actus reus, the guilty act. Fitting perhaps that bad Latin creeps into the discussion of bad Spanish.

In order to be convicted of a crime it must be established that, not only have you done the act, but also that there is some element of intent. This may be outright intent, it may be negligence or even recklessness, but there is a mental component.

The are some exceptions to this, strict liability offences, but they are few and far between and include things like speeding or statutory rape. For these offences there can be no excuse of “I didn’t mean it”.

The FA made the case that rule E 3(1) was to be tested objectively – was strict liability. They likened it to an offence under the Public Order Act, Liverpool’s lawyer, seemingly the Christian Purslow of legal representation, noted this, but doesn’t seem to have pursed it very vigorously.

In effect the FA state that rule E 3(1) is analogous to a crime under the Public Order Act 1986. The part of the statute they quote is:

5 Harassment, alarm or distress.

(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 other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

They say the wording of this is similar enough to E 3(1) to use it as an analogy, and that because later in the same act it says;

(4)A person is guilty of an offence under section 5 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly.

The FA reasoned that because this is separate to section 5 that section 5 therefore does not have an inherent intention for a mental element for the offence.

All well and good, you might say. But they left out another part of section 5;

(3) It is a defence for the accused to prove—

(a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or

(b) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or

(c) that his conduct was reasonable.

So section 5 expressly provides for a mental element but the FA ignore it. So, either the FA’s QC is not legally competent, or, in order to make a case against Suarez they have resorted to outright mendacity in their legal reasoning.

There is a further issue here. If you are convicted of an offence under section 5 you are facing a fine of up to up to £1000, level 3.

In the same act there is a more serious version of this offence, providing for up to 6 months in prison, and a £5000 fine, the maximum a magistrate can issue. The wording is almost identical to the section 5 offence. The difference? Intent.

4A Intentional harassment, alarm or distress.

(1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour,


(b)displays any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress.

Now, the FA reckon Suarez has committed a serious offence. They have banned him for 8 games and fined him £40,000. They say it’s serious, “wholly unacceptable” yet, the analogy they use in criminal law is the lesser of two almost identical offences. Incompetence, or again, mendacity?

In seeking to establish that a subjective test should be used they cite the House of Lords in a 1973 case. They ignore though, the following guidance from the same court on the issue of strict liability offences in the case of Sweet v Parsley [1970];

  1. Wherever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, words importing mens rea must be read into the provision.
  1. It is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.
  1. The fact that other sections of the Act expressly require mens rea is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence. It is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament.

So, the highest court in the land basically forbids their line of reasoning?

And what do the FA do?

I’ll leave it to you to decide what the FA were trying to achieve here, suffice it to say, there appears to be, even to the untrained eye, more than grounds for appeal on a number of issues in law, and it would be fair to say the FA won’t really want this playing out in a real court with proper legal representation for Luis Suarez.

I wonder what Grabiner would make of it all?