These updates were last reviewed in July 2013

On the 23rd December 2013, a little heralded though potentially historic arrangement was brokered between the Crown Prosecution Service, the Association of Chief Police Officers and the football associations of England and Wales. The ‘Protocol on the appropriate handling of incidents falling under both criminal and football regulatory jurisdiction’ seeks to operationalise the Court of Appeal’s decision in R v Barnes [2004] EWCA Crim 3246 (see further, 6.2.2). It begins by noting that in some cases, the level of financial penalty available to the two FAs and their ability to suspend a player may constitute more effective punishment than that available from the courts. Having made it clear that prosecution may not always be appropriate, the Protocol then states that early consultation between the police and football authorities is essential to ensure that each incident is dealt with appropriately. Such consultation will enable the police to determine whether the matter is one that should be dealt with by the football authorities alone or, at the other extreme, whether the relevant FA should suspend its own investigation and proceedings whilst the criminal process takes place.

Perhaps the key statement in the document is at the start of section five:

The overriding principle is the requirement of fair and efficient justice, which is carried out expeditiously, proportionately and in a transparent manner. In this context, justice is to be given a wide meaning, covering both criminal prosecutions and disciplinary proceedings. If at the conclusion of either criminal or disciplinary proceedings the confidence of the public is maintained, then it is likely that the overriding principle will have been appropriately applied.

Where possible, it is generally desirable for The FA and FAW (as applicable) to deal exclusively with all football regulatory matters and to sanction their Participants appropriately for breaches of their Rules and Regulations. However, there will be instances where the breach is so serious that it will also be appropriate for a criminal investigation and prosecution to take place. Each case needs to be considered on its own facts

Factors that are more likely to result in prosecution include its seriousness, whether it occurred ‘off the ball’, whether it could be classified as a ‘hate crime’, the availability and willingness of the victims and witnesses, the differing rules relating to the admissibility of evidence and the respective sentencing powers of the court and the FA tribunal. Regarding this latter point, it was noted in particular that where a custodial sentence was likely on conviction, then a criminal investigation was likely to be appropriate.

Finally, the Protocol envisages closer cooperation and evidence sharing between the prosecuting and football authorities. Both sides agreed to ensure that consent was secured wherever possible so that evidence gathered by one body could be passed on to the other for use in its investigation.

The Protocol puts into practice the underlying rationale of Barnes, as well as promoting closer working relationships between the signatories. With reported prosecutions for during-the-game violence remaining low, the impact of the Protocol may be in the proposed formalisation of evidence-sharing commitments, which could in turn lead to a clarification of the jurisdicational boundaries between sport and the criminal law. The Protocol will be reviewed after 12 months.

An amateur footballer was jailed for 12 months after admitting headbutting a referee in what was described as an entirely unprovoked attack, R v Roberts (unreported, Caernarfon Crown Court, 16 September 2013). The defendant was booked for dissent and then sent off for encroachment at a free kick. In response, he headbutted the referee leaving him requiring dental work on his injuries. The judge stated that the defendant had used his head as a weapon and had intended to cause more serious injury than was ultimately inflicted on his victim.

Asif’s appeal against conviction was rejected by the Court of Appeal, R v Asif [2013] EWCA Crim 1153. After criticising the grounds of appeal as being, ‘difficult to follow…individually and cumulatively’ (para.6), the Court went on to dismiss the appeal on three specific grounds: (1) there was no misdirection to the jury on the applicable standard of proof; (2) there was no misdirection on the law of conspiracy; and (3) there was no substance in the claim that Mr Sawani was insufficiently qualified to act as an expert witness in the original trial. Thus, there were no arguable grounds for attacking the safety of Asif’s convictions.