It is unsurprising that, following coverage of Wednesday's seemingly unprovoked attack in Woolwich which resulted in the death of a young soldier, the country is in a state of uproar. Despite the fact that this incident only happened on Wednesday, it seems that the nation is already in possession of 'all the facts', with both local and national media footage of the aftermath of the incident and proclamations by the same of this being an act of terrorism; a view, it would seem, that is shared by the Prime Minister and the Home Secretary. Witnesses were being interviewed almost immediately, not just by the police but by local radio stations and the national media. I heard this morning a lady giving an account to the radio host of how she approached one of the suspects whose hands were bloody and who was carrying a 'machete'. She attempted to find out what had happened and tried to convince the man to hand over 'what was in his hand'. Indeed, lying next to my laptop is a copy of Thursday's 'The Times' which, on the front page, pictures one of the suspects with bloodied hands carrying a meat cleaver. In the background, we see the young soldier lying near the middle of the road with a number of onlookers close by. The headline reads 'Soldier hacked to death in London terror attack' with the lead paragraph stating 'A soldier was hacked to death on a street in London yesterday in an Islamist terrorist attack'. The main article (on pages 6 and 7) goes into greater detail, providing further pictures and quotes from the suspects and some of the witnesses. Last night, the young soldier was named and a statement from his family was read out.
There are a number of things that could be said about what has happened so far as regards the investigation of this matter and the way in which it has been handled both by the media, the government and the security services. However, the focus of this brief post is on the way in which this incident has been classified as an act of terrorism and why I consider that to be an irresponsible and potentially inaccurate way to deal with the matter; the repercussions of which could be, and I would in fact suggest already have been, considerable.
First and foremost, murder is a crime. It is an offence which has been known to the common law for many years. Sadly, it is committed all too often with terrible repercussions not just for the victim but for the families and society as a whole. Murder is not, however, synonymous with terrorism. Sometimes, it is true, the two go hand in hand but most acts of murder which are committed in the UK have nothing whatsoever to do with 'terrorism' in the sense in which the word is widely used. When looking at whether an act of murder is also an act of terrorism, the critical feature is often considered to be the reason behind the murder, i.e. the motive. Why was this person (or people) killed? It may very well be the case (and some may argue demonstrably so given the footage that has been shown repeatedly by the press) that Wednesday's killing was motivated by some misguided politico-religious belief. It may well be accurate to describe it as 'an act of terror'. However, here is why I suggest horrific acts such as these should not be so classified:
1. The offence of murder, carrying with it a mandatory sentence of life imprisonment upon conviction, is a crime. It does not require to be labelled as a terrorist act in order to make it so;
2. Let us assume that an individual commits a killing which is said to be in the name of religion or political belief. He does so because he wishes to make a statement. He wants the publicity and, quite often, is prepared to die in support of his cause. By seizing upon the incident, as the press and some members of the government have done in Wednesday's case, as an act of terrorism, the killer achieves his purpose. He has killed, his message has been delivered (in this case globally) and others, perhaps, are motivated to act in a like-minded way.
3. A national panic ensues. When a murder is reported, people completely unconnected with the case and the deceased often feel upset. They feel upset because they recognise the horrific nature of the crime, they empathise/sympathise with the friends and family of the victim, and they want to see justice for the crime that has been committed. However, when a murder is described as an act of terrorism, whilst people may go through the same emotions as described above, the overwhelming sense is one of fear. They worry about what will happen next. Will there be further attacks? If so, when? Where? What form will they take? Whilst there is nothing wrong with a vigilant society, achieving vigilance through fear is not the way forward.
4. Reprisals. After Wednesday's killing, the English Defence League were out in force with reports that they threw bottles at police. In addition, mosques were attacked with arrests having been made for racially aggravated criminal damage, possession of an offensive weapon and attempted arson. These are just the reported matters. It goes without saying, although is worth noting, that these 'reprisals' are not against the suspects (who are both in hospital having been shot by police) but are against innocent people, including the police.
5. Religion and Culture. Attacks such as Wednesday's, widely reported as having been committed 'in the name of religion', deepen cultural and religious divisions. The ill-informed condemn Islam and, as noted above, sometimes go as far as to physically attack religious buildings. The Muslim Council of Britain feel obliged to make a statement to the press condemning the attack fearing, no doubt, that if they remain silent they will somehow be considered complicit. A caller to LBC Radio who identified himself as a 'black Muslim' stated that he felt frightened after what had happened for fear of a backlash against Muslims in general, a sentiment expressed by others according to the BBC.
No doubt there will be a lot more to come about this horrific incident, particularly in relation to what the security services already knew about these two men. At some point, after the press, the government and the general public have already determined what happened and why, and the men are out of hospital, the matter will finally get to Court.
I would not wish to leave this post without congratulating Boris Johnson, a man whom I have never before said a positive word about. However, in an interview, he commented as follows:
"This is not a question now of blaming the religion of Islam, it is certainly
not a question of blaming any aspect of British foreign policy or what our
troops do in operations abroad when they risk their lives...the fault for this lies exclusively, wholly and entirely in the minds of
those who were responsible for this crime and they are going to be brought to justice."
Quite so.
One final thought. Nothing in this brief post suggests that a single act of murder, committed in circumstances such as Wednesday's attack, cannot necessarily be characterised as an act of terrorism. The question is whether it is right to do so and what the consequences of doing so may be.
Saturday 25 May 2013
Thursday 7 February 2013
Attempted Battery; R v Gary Nelson [2013] EWCA Crim 30
The idea that the offence of Attempted Battery is an offence known to the law of England and Wales would cause most lawyers to laugh (sad I know). But the reason for this is straightforward. Section 1(1) of the Criminal Attempts Act 1981 provides as follows:
"If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence." (Emphasis added)
Section 1(4) sets out, in clear terms, those offences to which the section applies:
"This section applies to any offence which, if it were completed, would be triable in England and Wales as an indictable offence, other than-
(a) conspiracy (at common law or under section 1 of the Criminal Law Act 1977);
(b) aiding, abetting, counselling, procuring or suborning the commission of an offence;
(c) offences under section 4(1) (assisting offenders) or 5(1) (accepting or agreeing to accept consideration for not disclosing information about a relevant offence) of the Criminal Law Act 1967." (Emphasis added)
Archbold and Blackstone's each make similar points about the ambit of section 1. Blackstone's states categorically "Where an offence is triable only summarily, it cannot be the object of a criminal attempt under s.1". This is hardly surprising. Section 4(1) of the 1981 Act provides as follows:
"A person guilty by virtue of section 1 above of attempting to commit an offence shall:
(a) if the offence attempted is murder or any other offence the sentence for which is fixed by law, be liable on conviction on indictment to imprisonment for life; and
(b) if the offence attempted is indictable but does not fall within paragraph (a) above, be liable on conviction on indictment to any penalty to which he would have been liable on conviction on indictment of that offence; and
(c) if the offence attempted is triable either way, be liable on summary conviction to any penalty to which he would have been liable on summary conviction of that offence."
Note, that whilst there is reference to an indictable offence and an offence which is triable either way, there is no reference to a summary offence. Again, hardly surprising.
That Battery is a summary offence is illustrated by s.39 of the Criminal Justice Act 1988:
"Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both."
So, why go in to all this detail simply to state the obvious? The reason follows the extraordinary decision of the Court of Appeal in the recent case of R v Gary Nelson [2013] EWCA Crim 30 where the Court concluded that the offence of Attempted Battery is one which is known to the law.
The facts of the case are largely unimportant albeit that the Crown Court falls into error by leaving to the jury consideration of the offence of Common Assault as an alternative to the offence of Battery which it was not entitled to do for the reasons given by the Court of Appeal. On that basis, the appeal should have been allowed (indeed it ultimately was) and no more should have been said about it. Unfortunately, the Court of Appeal decided to undertake an exploratory exercise as to whether or not a person, in the position of the Appellant, could be guilty of the offence of Attempted Battery. Had the exploratory exercise amounted to more than three short paragraphs, the Court may have come to a different conclusion. As it was, this is what the Court said at paragraphs 10-12 of its Judgment:
"But that is not quite the end of the story. When the Full Court granted the appellant leave to appeal, it raised the question whether the appellant would have had any defence to a charge of attempted battery. It had in mind, of course, the Court of Appeal's power under section 3 of the Criminal Appeal Act 1968 to substitute a verdict of guilty for a different offence from the one on which an appellant was convicted if the jury must have been satisfied of those facts which would have proved him guilty of the different offence. The prosecution have decided to run with that ball. They now ask for the court to take that course, and instead of allowing the appeal, to substitute for the appellant's conviction for the offence of common assault a conviction for an offence of attempted battery.
The difficulty here is that section 1(4) of the Criminal Attempts Act 1981 provides that a defendant can only be guilty of attempting to commit an offence where the offence, if it had been completed, "would be triable in England and Wales as an indictable offence", subject to certain exceptions, none of which are relevant here. The question therefore is whether the offence of battery would be triable in England and Wales as an indictable offence. The answer, at first blush, is "no": section 39 of the 1988 Act made the offence of battery a summary offence. But although it is a summary offence, there is at least one situation in which it may be tried on indictment. Section 40(1) of the 1988 Act provides that an offence of "common assault", which the Court of Appeal in Lynsey [1995] 2 Cr App R 667 said should be construed as including an offence of battery, "may be included in an indictment if the charge … (b) is part of a series of offences of the same or similar character as an indictable offence which is also charged …". There then follows a proviso which is not material to the present case.
In our opinion, an offence of battery in relation to Mr Hammond would have been part of a series of offences of a similar character as the indictable offence of assault on Mr Goldthorpe occasioning him actually bodily harm with which the appellant was charged. It follows that the offence of battery was one which was triable in England and Wales as an indictable offence, and it is open to the court to substitute a conviction for the offence of attempted battery for the conviction for the offence of common assault."
Ultimately, the Court of Appeal concluded that it would not be just, on the facts of this case, to substitute an offence of Attempted Battery and so they did not. However, does their reasoning as regards the existence of such an offence stand up to scrutiny? I would suggest that it does not.
The Court acknowledges the wording of section 1(4) of the 1981 Act and section 39 of the 1988 Act. However, it seizes upon the phraseology contained within section 40(1) of the 1988 Act, the relevant part of which provides as follows:
"A count charging a person with a summary offence to which this section applies may be included in an indictment if the charge:
(a) is founded on the same facts or evidence as a count charging an indictable offence; or
(b) is part of a series of offences of the same or similar character as an indictable offence which is also charged" (Emphasis Added)
The Court of Appeal determined that, once the Battery featured on the indictment, it became an offence which was "triable as an indictable offence" and therefore subject to the provisions of section 1 of the 1981 Act.
It seems to me that the Court has failed to distinguish between an offence which is "triable as an indictable offence" (section 1(1) of the 1981 Act) and an offence which "may be included in an indictment" (section 40(1) of the 1988 Act). Section 40(1) of the 1988 Act makes clear that it applies to a count charging a person with a summary offence, of which the offence of Attempted Battery is not as it does not exist as a summary offence in its own right. Thus, and following the Court of Appeal's reasoning, you could never have a state of affairs where a Defendant was charged with the single offence of Attempted Battery before a magistrates' court. The only way the offence could ever manifest itself is in the circumstance where the Defendant faced trial on indictment, a Battery was included as a count (providing, of course, that it satisfied the test in s.40(1) of the 1988 Act), then, once it was in the Crown Court, an offence of Attempted Battery was substituted or left as an alternative.
That would be an extraordinary state of affairs indeed. It could not possibly have been the intention of Parliament that the offence of Attempted Battery can only arise in the situation described above. Nor, I would suggest, is that the outcome of a literal reading of the existing law.
There is one argument the Court of Appeal could have mustered to support its conclusion but it did not do so. Section 40(2) of the 1988 Act provides as follows:
"Where a count charging an offence to which this section applies is included in an indictment, the offence shall be tried in the same manner as if it were an indictable offence; but the Crown Court may only deal with the offender in respect of it in a manner in which a magistrates' court could have dealt with him."
It could be argued that this section bolsters the Court of Appeal's reasoning that the presence of the summary only offence on the indictment transformed it into an indictable offence. But a careful analysis of this section would show that to be incorrect. First, the phrase "as if it were an indictable offence" makes it very clear that the presence of a summary only offence on an indictment does not turn it into an indictable offence, it simply allows it to be tried in the same manner as if it were. Does this mean you can therefore turn it into an attempt? I suggest not. The section makes it clear that when dealing with the offender (i.e. if it came to sentencing him or her) the Crown Court could only do so in a manner in which a magistrates' court could have done so. A magistrates' court would have had no power to deal with an offender for the offence of Attempted Battery as, even if one accepts the reasoning of the Court of Appeal, the offence could only manifest itself as part of an indictment!
What is particularly frustrating about this 'development' is that it was needless. The Court of Appeal allowed the appeal and should have just left it at that. Now we are left in a peculiar state of affairs and I rather suspect that the matter will need to be argued again at the first available opportunity.
I am particularly interested in views on this topic so I encourage people to share their thoughts!
"If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence." (Emphasis added)
Section 1(4) sets out, in clear terms, those offences to which the section applies:
"This section applies to any offence which, if it were completed, would be triable in England and Wales as an indictable offence, other than-
(a) conspiracy (at common law or under section 1 of the Criminal Law Act 1977);
(b) aiding, abetting, counselling, procuring or suborning the commission of an offence;
(c) offences under section 4(1) (assisting offenders) or 5(1) (accepting or agreeing to accept consideration for not disclosing information about a relevant offence) of the Criminal Law Act 1967." (Emphasis added)
Archbold and Blackstone's each make similar points about the ambit of section 1. Blackstone's states categorically "Where an offence is triable only summarily, it cannot be the object of a criminal attempt under s.1". This is hardly surprising. Section 4(1) of the 1981 Act provides as follows:
"A person guilty by virtue of section 1 above of attempting to commit an offence shall:
(a) if the offence attempted is murder or any other offence the sentence for which is fixed by law, be liable on conviction on indictment to imprisonment for life; and
(b) if the offence attempted is indictable but does not fall within paragraph (a) above, be liable on conviction on indictment to any penalty to which he would have been liable on conviction on indictment of that offence; and
(c) if the offence attempted is triable either way, be liable on summary conviction to any penalty to which he would have been liable on summary conviction of that offence."
Note, that whilst there is reference to an indictable offence and an offence which is triable either way, there is no reference to a summary offence. Again, hardly surprising.
That Battery is a summary offence is illustrated by s.39 of the Criminal Justice Act 1988:
"Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both."
So, why go in to all this detail simply to state the obvious? The reason follows the extraordinary decision of the Court of Appeal in the recent case of R v Gary Nelson [2013] EWCA Crim 30 where the Court concluded that the offence of Attempted Battery is one which is known to the law.
The facts of the case are largely unimportant albeit that the Crown Court falls into error by leaving to the jury consideration of the offence of Common Assault as an alternative to the offence of Battery which it was not entitled to do for the reasons given by the Court of Appeal. On that basis, the appeal should have been allowed (indeed it ultimately was) and no more should have been said about it. Unfortunately, the Court of Appeal decided to undertake an exploratory exercise as to whether or not a person, in the position of the Appellant, could be guilty of the offence of Attempted Battery. Had the exploratory exercise amounted to more than three short paragraphs, the Court may have come to a different conclusion. As it was, this is what the Court said at paragraphs 10-12 of its Judgment:
"But that is not quite the end of the story. When the Full Court granted the appellant leave to appeal, it raised the question whether the appellant would have had any defence to a charge of attempted battery. It had in mind, of course, the Court of Appeal's power under section 3 of the Criminal Appeal Act 1968 to substitute a verdict of guilty for a different offence from the one on which an appellant was convicted if the jury must have been satisfied of those facts which would have proved him guilty of the different offence. The prosecution have decided to run with that ball. They now ask for the court to take that course, and instead of allowing the appeal, to substitute for the appellant's conviction for the offence of common assault a conviction for an offence of attempted battery.
The difficulty here is that section 1(4) of the Criminal Attempts Act 1981 provides that a defendant can only be guilty of attempting to commit an offence where the offence, if it had been completed, "would be triable in England and Wales as an indictable offence", subject to certain exceptions, none of which are relevant here. The question therefore is whether the offence of battery would be triable in England and Wales as an indictable offence. The answer, at first blush, is "no": section 39 of the 1988 Act made the offence of battery a summary offence. But although it is a summary offence, there is at least one situation in which it may be tried on indictment. Section 40(1) of the 1988 Act provides that an offence of "common assault", which the Court of Appeal in Lynsey [1995] 2 Cr App R 667 said should be construed as including an offence of battery, "may be included in an indictment if the charge … (b) is part of a series of offences of the same or similar character as an indictable offence which is also charged …". There then follows a proviso which is not material to the present case.
In our opinion, an offence of battery in relation to Mr Hammond would have been part of a series of offences of a similar character as the indictable offence of assault on Mr Goldthorpe occasioning him actually bodily harm with which the appellant was charged. It follows that the offence of battery was one which was triable in England and Wales as an indictable offence, and it is open to the court to substitute a conviction for the offence of attempted battery for the conviction for the offence of common assault."
Ultimately, the Court of Appeal concluded that it would not be just, on the facts of this case, to substitute an offence of Attempted Battery and so they did not. However, does their reasoning as regards the existence of such an offence stand up to scrutiny? I would suggest that it does not.
The Court acknowledges the wording of section 1(4) of the 1981 Act and section 39 of the 1988 Act. However, it seizes upon the phraseology contained within section 40(1) of the 1988 Act, the relevant part of which provides as follows:
"A count charging a person with a summary offence to which this section applies may be included in an indictment if the charge:
(a) is founded on the same facts or evidence as a count charging an indictable offence; or
(b) is part of a series of offences of the same or similar character as an indictable offence which is also charged" (Emphasis Added)
The Court of Appeal determined that, once the Battery featured on the indictment, it became an offence which was "triable as an indictable offence" and therefore subject to the provisions of section 1 of the 1981 Act.
It seems to me that the Court has failed to distinguish between an offence which is "triable as an indictable offence" (section 1(1) of the 1981 Act) and an offence which "may be included in an indictment" (section 40(1) of the 1988 Act). Section 40(1) of the 1988 Act makes clear that it applies to a count charging a person with a summary offence, of which the offence of Attempted Battery is not as it does not exist as a summary offence in its own right. Thus, and following the Court of Appeal's reasoning, you could never have a state of affairs where a Defendant was charged with the single offence of Attempted Battery before a magistrates' court. The only way the offence could ever manifest itself is in the circumstance where the Defendant faced trial on indictment, a Battery was included as a count (providing, of course, that it satisfied the test in s.40(1) of the 1988 Act), then, once it was in the Crown Court, an offence of Attempted Battery was substituted or left as an alternative.
That would be an extraordinary state of affairs indeed. It could not possibly have been the intention of Parliament that the offence of Attempted Battery can only arise in the situation described above. Nor, I would suggest, is that the outcome of a literal reading of the existing law.
There is one argument the Court of Appeal could have mustered to support its conclusion but it did not do so. Section 40(2) of the 1988 Act provides as follows:
"Where a count charging an offence to which this section applies is included in an indictment, the offence shall be tried in the same manner as if it were an indictable offence; but the Crown Court may only deal with the offender in respect of it in a manner in which a magistrates' court could have dealt with him."
It could be argued that this section bolsters the Court of Appeal's reasoning that the presence of the summary only offence on the indictment transformed it into an indictable offence. But a careful analysis of this section would show that to be incorrect. First, the phrase "as if it were an indictable offence" makes it very clear that the presence of a summary only offence on an indictment does not turn it into an indictable offence, it simply allows it to be tried in the same manner as if it were. Does this mean you can therefore turn it into an attempt? I suggest not. The section makes it clear that when dealing with the offender (i.e. if it came to sentencing him or her) the Crown Court could only do so in a manner in which a magistrates' court could have done so. A magistrates' court would have had no power to deal with an offender for the offence of Attempted Battery as, even if one accepts the reasoning of the Court of Appeal, the offence could only manifest itself as part of an indictment!
What is particularly frustrating about this 'development' is that it was needless. The Court of Appeal allowed the appeal and should have just left it at that. Now we are left in a peculiar state of affairs and I rather suspect that the matter will need to be argued again at the first available opportunity.
I am particularly interested in views on this topic so I encourage people to share their thoughts!
Friday 25 January 2013
The Unexpected Hazard of a Football Match
Football. Many people love it, lots of people hate it, some people are just indifferent towards it. However, misbehaviour on the pitch (alleged or otherwise) is likely to get the whole nation talking. Why? Because high profile matches are watched by thousands and covered by most of the major news and sports channels; everybody hears about what is alleged to have happened whether they are interested or not. And, for the most part, everyone has an opinion on it.
This week saw Swansea City play Chelsea. It was a scoreless draw, the ramifications being that Swansea City are through to the final following a 2-0 aggregate win. The game will be remembered for one reason and one reason only- the sending off of Eden Hazard after he 'appeared' to kick a ball boy. I have watched the footage from three different angles. I have no doubt, reasonable or otherwise, as to what happened. Let's not dwell on that though. Let us instead consider the undisputed facts.
1. The ball went out of play.
2. Mr Hazard went after it.
3. The ball boy also goes for the ball and there is some physical contact between Mr Hazard and the boy.
4. The ball boy goes to the floor, lying on top of the ball in the process.
5. Mr Hazard reaches down to the boy in order (it can be safely inferred) to retrieve the ball. He is unsuccessful.
6. Having failed to retrieve the ball (and whilst the ball boy is still lying on the ground with the ball underneath him) Mr Hazard lifts his right leg back and kicks in the direction of the underside of the ball boy.
7. The ball boy rolls over on to his back and Mr Hazard picks up the ball.
8. There then follows remonstrations from the ball boy who is still on the ground. Other players go over to him.
9. Mr Hazard is given a red card and off he goes.
Now, if one watches the footage, I would suggest that it is determinative of whether or not Mr Hazard's foot makes contact with the boy. I will let others make up their own mind.
The police have issued a statement to say that they have interviewed Master Morgan (the ball boy), in the presence of his father, and that no complaint has been made. Thus, no further action has been taken by the police. End of story. Or is it? No, is the short answer. We are now in the stage where the nation (perhaps that's a slight exaggeration) is debating the rights and wrongs of what is said (and seen) to have happened. I have noticed a great plethora of press reporting that goes along the lines of 'well the boy hasn't pressed charges, so that's the end of the matter'. No it isn't. In a case such as this, I would venture to suggest that the evidence of the boy is neither here nor there. The 'best evidence' comes from the television footage. Indeed, I would suggest that if Mr Hazard was charged with Common Assault (in its manifestation as a Battery), the Crown would not need the evidence of Master Morgan in order to secure a conviction. A Tribunal that was in an extremely generous mood may, for example, conclude that Mr Hazard did not intentionally assault Master Morgan, but nevertheless conclude that his actions in kicking out (which he undoubtedly did) whilst Master Morgan was lying on the floor constituted reckless behaviour on his part. It is difficult to envisage what the defence could possibly be if a charge was laid, other than "I did not make contact with him". At this point, I again refer readers to the footage.
Some of my colleagues have said that because there was no injury sustained and because the behaviour of the ball boy was itself questionable, there is no public interest in prosecuting the matter. I do not agree. We all know that thousands of Common Assaults are prosecuted each year where there was no injury sustained by the complainant/victim. I tend to agree that cases where the complainant is said to have been 'pushed' should not generally be before the courts (although they frequently are) but this was not a push. If Mr Hazard was convicted of an offence of Common Assault, there would be some serious aggravating features:
1. This was a kick;
2. There was a significant degree of force used (the footage shows Mr Hazard raise his foot back before effecting the kick)
3. The kick was intentional (unless you have a generous Tribunal who conclude it was reckless);
3. The victim was lying on the ground at the time;
4. The victim was only 17; and
5. The Defendant is a professional footballer, considered as a role model by many, and committed this offence in front of thousands of people.
Some argue that the conduct of the ball boy would provide strong mitigation. I'd be inclined to disagree. A professional footballer such as Mr Hazard should be able to control himself. If the ball boy was being obstructive, the matter was one for the officials to deal with, not Mr Hazard.
We wait to see whether or not the FA take action. They may well do so. According to the BBC, the police have received complaints from members of the public about the incident. It's unlikely that they will take action now though having issued the statement they did following the interview with Master Morgan. The public may have to settle for 'FA justice' instead.
This week saw Swansea City play Chelsea. It was a scoreless draw, the ramifications being that Swansea City are through to the final following a 2-0 aggregate win. The game will be remembered for one reason and one reason only- the sending off of Eden Hazard after he 'appeared' to kick a ball boy. I have watched the footage from three different angles. I have no doubt, reasonable or otherwise, as to what happened. Let's not dwell on that though. Let us instead consider the undisputed facts.
1. The ball went out of play.
2. Mr Hazard went after it.
3. The ball boy also goes for the ball and there is some physical contact between Mr Hazard and the boy.
4. The ball boy goes to the floor, lying on top of the ball in the process.
5. Mr Hazard reaches down to the boy in order (it can be safely inferred) to retrieve the ball. He is unsuccessful.
6. Having failed to retrieve the ball (and whilst the ball boy is still lying on the ground with the ball underneath him) Mr Hazard lifts his right leg back and kicks in the direction of the underside of the ball boy.
7. The ball boy rolls over on to his back and Mr Hazard picks up the ball.
8. There then follows remonstrations from the ball boy who is still on the ground. Other players go over to him.
9. Mr Hazard is given a red card and off he goes.
Now, if one watches the footage, I would suggest that it is determinative of whether or not Mr Hazard's foot makes contact with the boy. I will let others make up their own mind.
The police have issued a statement to say that they have interviewed Master Morgan (the ball boy), in the presence of his father, and that no complaint has been made. Thus, no further action has been taken by the police. End of story. Or is it? No, is the short answer. We are now in the stage where the nation (perhaps that's a slight exaggeration) is debating the rights and wrongs of what is said (and seen) to have happened. I have noticed a great plethora of press reporting that goes along the lines of 'well the boy hasn't pressed charges, so that's the end of the matter'. No it isn't. In a case such as this, I would venture to suggest that the evidence of the boy is neither here nor there. The 'best evidence' comes from the television footage. Indeed, I would suggest that if Mr Hazard was charged with Common Assault (in its manifestation as a Battery), the Crown would not need the evidence of Master Morgan in order to secure a conviction. A Tribunal that was in an extremely generous mood may, for example, conclude that Mr Hazard did not intentionally assault Master Morgan, but nevertheless conclude that his actions in kicking out (which he undoubtedly did) whilst Master Morgan was lying on the floor constituted reckless behaviour on his part. It is difficult to envisage what the defence could possibly be if a charge was laid, other than "I did not make contact with him". At this point, I again refer readers to the footage.
Some of my colleagues have said that because there was no injury sustained and because the behaviour of the ball boy was itself questionable, there is no public interest in prosecuting the matter. I do not agree. We all know that thousands of Common Assaults are prosecuted each year where there was no injury sustained by the complainant/victim. I tend to agree that cases where the complainant is said to have been 'pushed' should not generally be before the courts (although they frequently are) but this was not a push. If Mr Hazard was convicted of an offence of Common Assault, there would be some serious aggravating features:
1. This was a kick;
2. There was a significant degree of force used (the footage shows Mr Hazard raise his foot back before effecting the kick)
3. The kick was intentional (unless you have a generous Tribunal who conclude it was reckless);
3. The victim was lying on the ground at the time;
4. The victim was only 17; and
5. The Defendant is a professional footballer, considered as a role model by many, and committed this offence in front of thousands of people.
Some argue that the conduct of the ball boy would provide strong mitigation. I'd be inclined to disagree. A professional footballer such as Mr Hazard should be able to control himself. If the ball boy was being obstructive, the matter was one for the officials to deal with, not Mr Hazard.
We wait to see whether or not the FA take action. They may well do so. According to the BBC, the police have received complaints from members of the public about the incident. It's unlikely that they will take action now though having issued the statement they did following the interview with Master Morgan. The public may have to settle for 'FA justice' instead.
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