SANCTIONS FOR RACIST ABUSE – Brian O’Neill QC and Paul Renteurs consider whether there is a role for the criminal law in stamping out racial abuse on the field of play.
UEFA’s decision to ban the Slavia Prague footballer Ondrej Kudela for ten matches having been found to have racially abused Rangers’ footballer Glen Kamara in the teams’ recent Europa Cup match has been widely criticised by leading figures in Scottish football and anti-racist campaigners.
Two of the highest profile examples of such behaviour in the English game occurred in the same month in the 2011/12 season. John Terry was banned for four matches and fined for racially abusing Anton Ferdinand during a match between QPR and Chelsea in October 2011. Terry was also the subject of criminal proceedings arising out of the same incident, but was acquitted. And, Luis Suarez was banned for eight matches and fined for racially abusing Patrice Evra during a match between Liverpool and Manchester United, also in October 2011. Why Terry was banned for half the length of time that Suarez was, remains one of football’s little mysteries.
FA’s and UEFA’s SANCTIONS
The FA’s current sanctions and guidelines for Aggravated Breaches came into force in August 2020. These are standard sanctions and guidelines for when disciplinary action is taken against individuals and set out the punishments an individual is likely to receive if they commit an offence.
A finding of an Aggravated Breach against a player, manager or technical area occupant will attract an immediate suspension of between six and twelve matches. A Regulatory Commission is required to take all aggravating and mitigating factors into account, including but not limited to those listed in the guidelines when determining the level of sanction within the Sanction Range. The lowest end of the Sanction Range (i.e. six matches) shall operate as a standard minimum punishment.
A Regulatory Commission may impose an immediate suspension in excess of twelve matches in circumstances where aggravating factors of significant number or weight are present. Aggravating factors include but are not limited to:
- Repeated use of discriminatory language or conduct during commission of the offence.
- The public nature of the offence (e.g. the commission of the offence in a public place, via broadcast media or a social media platform (particularly via an account on a social media platform with a high number of followers in relative terms)).
- The profile of the participant, including where they hold a position of responsibility within their Club or organisation (e.g. club captain, Chairman, member of senior management).
- The relative ages of the participant and the victim(s) at the time of the offence, particularly where the victim was a minor and the participant was not.
- Failure to co-operate with The Association.
- Previous disciplinary record of the participant.
- Any attempt to conceal the breach.
- The extent of any premeditation.
- UEFA’s regulations governing such behaviour.
In the case of a second or further offence there is a presumption that the sanction will be higher than the top end of the Sanction Range (i.e. twelve matches); however, the Regulatory Commission shall in any event impose an immediate suspension of no fewer than seven matches.
UEFA’s regulations governing such behaviour are to be found in Article 14 of the UEFA Disciplinary Regulations 2020. It provides that: “Any person under the scope of Article 3 who insults the human dignity of a person or group of persons on whatever grounds, including skin colour, race, religion, ethnic origin, gender or sexual orientation, incurs a suspension lasting at least ten matches or a specified period of time, or any other appropriate sanction.”
So as can be seen the sanction imposed upon Kudela was the minimum.
THE CRIMINAL LAW
Given, the ongoing problem which football in particular has with racist behaviour, especially in the sphere of social media, the question has to be asked whether there is a role for the criminal law in seeking to deter, prevent and punish such behaviour. And the answer must surely be yes.
The type of racist abuse displayed by Kudela could, if it had happened on an English football field (as opposed to a Scottish one – although Police Scotland are investigating whether any criminal offences may have been committed), have been prosecuted under the Public Order Act 1986 and the Crime and Disorder Act 1998.
Sections 4, 4A and 5 of the 1986 Act establish offences relating to the use of threatening, abusive or insulting words or behaviour, ranging in seriousness depending on the intention of the user of those words or that behaviour. The 1998 statute created a number of racially aggravated forms of those offences. For threatening, abusive or insulting words or behaviour to be considered “racially or religiously aggravated” such that they fall to be dealt with as offences under section 31 of the 1998 Act – as in the prosecution of John Terry – the legal test, set out at section 28 of the 1998 Act must be met. That is whether 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, the offence is motivated wholly or partly by hostility towards members of a racial or religious group based on their membership of that group.
One might expect that racial insults of the type used by Kudela against Glen Kamara would ordinarily meet this test, provided, of course, that the use of such language can be proven to the criminal standard.
Given the understandable consternation at UEFA’s decision to impose the minimum sanction on Kudela, at a time when racism in football is once again proving to be a persistent stain on the game, the sanctions of the criminal law, including custodial sentences and / or football banning orders, might offer a more effective deterrent towards stamping out such behaviour.
The maximum sentence for such offences is two years’ imprisonment (for the racially aggravated form of offences under sections 4 or 4A of the 1986 Act). The latest sentencing guidelines for public order offences, which came into effect in January 2020, provide guidance as to how the racial aggravation of the offences should be reflected in any sentence passed. They do so by grading the level of racial aggravation into high, medium or low. Both high and medium levels of racial aggravation can lead to a court imposing a custodial sentence for an offence which, but for the racial aggravation, would fall to be dealt with other than by way of imprisonment.
Obviously, given the different types of basic offences, and the different levels of racial aggravation, a great deal will depend on the circumstances of any given case. But in a situation where a player used threatening, abusive or insulting words or behaviour towards another player, intending to cause that player harassment, alarm or distress, and the racially aggravated nature of the offence caused some fear and distress throughout the local community or more widely (and who could claim that this was not the case in a high profile instance of racism in sport?) then a sentencing court might well contemplate imposing a custodial sentence.
The deterrent effect of such sentences surely has a role to play in eradicating the scourge of racism from the beautiful game.
Brian O’Neill QC and Paul Renteurs
 Rule E3.1 of The FA Handbook states as follows:
A Participant shall at all times act in the best interests of the game and shall not act in any manner which is improper or brings the game into disrepute or use any one, or a combination of, violent conduct, serious foul play, threatening, abusive, indecent or insulting words or behaviour.
Under Rule E3.2:
A breach of Rule E3.1 is an “Aggravated Breach” where it includes a reference, whether express or implied, to any one or more of the following – ethnic origin, colour, race, nationality, religion or belief, gender, gender reassignment, sexual orientation or disability.