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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Fotheringham, Re Judicial Review [2008] ScotCS CSOH_170 (12 December 2008) URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_170.html Cite as: [2008] ScotCS CSOH_170, [2008] CSOH 170 |
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OUTER
HOUSE, COURT OF SESSION [2008] CSOH 170 |
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P1476/08 |
OPINION OF LORD PENTLAND in the Petition of KEVIN FOTHERINGHAM Petitioner; For Judicial Review of a decision of the Scottish
Football Association Discipline Appeals Tribunal ________________ |
Petitioner: Dunlop;
Simpson & Marwick
Respondents: O'Neill QC;
Burness
Introduction
[1] At the First Hearing of this petition
for Judicial Review on 20 and
The Facts
[2] The petitioner is described in the
petition as a semi-professional footballer contracted to East Fife Football
Club ("
[3] On
[4] At the end of the match there occurred
what is referred to in the petition as an altercation involving a number of
players from both teams. This incident
appears to have started at the side of the pitch and to have spilled into the
tunnel leading to the changing rooms. A
number of players, officials from both teams and supporters were in the tunnel
at the time.
[5] A flavour of the heated atmosphere in
the tunnel is given in the match report provided by the assistant referee, Mr
Alasdair Ross. This report later came to
play an important part in evidence before the Disciplinary Committee as I shall
explain in due course. Part of Mr Ross'
report reads as follows:
"The dressing room doors are almost opposite each other
in the tunnel at New Bayview Stadium . . . . The players of both clubs headed
towards their respective dressing room doors, but only half entered their
dressing rooms, stopping to stand in their respective doorways and continue to
pass verbal comments to each other in a confrontational and aggressive
manner. While standing in the tunnel,
directly between the sets of players, I shouted to all the players to get into
their respective dressing rooms. By this
time, other players and officials from both clubs were making their way into
the tunnel from the field of play and heading towards their respective dressing
rooms, and the tunnel area was becoming very congested. With Stranraer FC players having to pass the
home dressing room door to get to their own dressing room, various heated
exchanges were taking place, although little of what was being said or shouted
was audible. However, I did hear the
phrase "black bastard" coming from the direction of the home dressing room
door, although I could not identify who said the words. At the same moment as this, the Stranraer FC
number 15, Andrew Gibson, headed very deliberately towards the home dressing
room door, instead of walking past it, and he violently kicked at the first
home player that he could get to. This
incident happened directly in front of me and I had a very clear view of it....."
[6] After the match one of the Stranraer
players, Mr Gregory Tade, who is originally from the
[7] By letter dated
[8] In his statement dated
"After the game was over I felt that I had to speak
with (the petitioner) and have him try to explain his actions towards me. As I spoke to him he seemed to lose his
temper and called me a "black bastard".
Andrew Gibson was closer to (the petitioner) and he made towards him;
someone put their arms round Andrew Gibson's and he kicked out at (the
petitioner) striking him on the lower buttocks."
[9] In his statement of the same date Mr
Gibson said:
"After the game was finished and we were leaving the
field of play making towards the dressing room (Mr Tade) approached (the
petitioner) asking him to explain his treatment of him. (The petitioner) called (Mr Tade) a "black
bastard". I took exception of (sic) this and lunged towards (the
petitioner) but someone put their arms around me resulting on (sic) my foot being raised and
striking (the petitioner) on the lower abdomen."
[10] In his statement of the same date Mr Mullen
said:
"(The petitioner) called (Mr Tade) a "black bastard"
and a melee (sic) ensued
resulting in Andrew Gibson kicking out at (the petitioner)"
[11] On
"The players who have provided statements will be
called to the hearing to give evidence, the referee and assistant referee are
similarly being called to attend. All
parties will be provided with copies of all correspondence prior to the
hearing."
[12] The Disciplinary Committee duly met at
[13] What transpired at the meeting of the Disciplinary
Committee can be seen from the minutes which Mr Herbertson prepared in early
March 2008 and from the reasons (drafted by him at around the same time) which
were later produced and intimated in light of the appeal taken by the
petitioner against the Disciplinary Committee's decision. For present purposes the important points are
as follows. The petitioner was
accompanied during the hearing by Mr Sydney Collumbine, the Chief Executive of
East Fife and Mr Paul Stewart, a fellow player from
[14] The reasons eventually issued by the Disciplinary
Committee some seven days before the appeal hearing record that it was clearly
evident that there were conflicting sides to the story - strong conviction from
Mr Tade and from Stranraer that the racist comment had been made and an equally
strong denial of that by the petitioner and East Fife. The reasons go on to say that the Committee
was of the opinion that Mr Tade was sincere in his giving of evidence and note
that it was established in questioning of him that he was 100% certain that it
had been the petitioner who had made the comment to him. He had been precise in his description of the
incident and its locus. I shall have
more to say about the quality and content of the reasons later.
[15] To reflect what it regarded as the serious
nature of the petitioner's Unacceptable Conduct, the Disciplinary Committee
decided to suspend him from playing in the next eight
[16] The SFA wrote to the petitioner on
[17] There was some delay in arranging an
appeal hearing due to illness of an SFA official. The hearing originally fixed for
[18] In their judgment issued on
1. Should Mr
Shaw have recused himself (withdrawn) from the committee business on
2. Was the
overall process fair and, specifically, should the player or his representative
have been given the opportunity to cross-examine all those who provided
statements implicating him?
3. Were the
reasons of the Committee sufficient and, specifically, did they leave the
reader with real, substantive doubt (cf Koca
v Secretary of State for the Home
Department 2005 SC 487) about the process and outcome of
[19] At the end of its judgment the Appeals Tribunal
set out the following conclusions:
"1. We are not
convinced that Dick Shaw was biased or potentially biased as was alleged, but,
even if he had been, we are persuaded that he was not in a position to
influence the outcome of the Committee's decision our having had the benefit of
information about the votes cast by the committee members (9:1 in favour of
upholding the complaint). We are
fortified in this view by the case of Pullar
v
2. We consider
that the overall process was fair. We
are satisfied that no right to cross-examine witnesses exists in the
procedures, nor that any such general right can be derived from the case law
cited to us.
3. The reasons
of the Committee were sufficient. Whilst
we feel that it is regrettable that there was such a delay in producing those
reasons, we do not see anything improper, far less sinister in that delay. We consider that those reasons more than
adequately reveal the deliberations of the Committee and, moreover, that those
reasons leave us with no real, substantive doubt about the process and outcome
on
In
the circumstances the Appeals Tribunal decided unanimously to refuse the
appeal.
The grounds of challenge
[21] The petitioner challenged the decisions
referred to on the following grounds. He
said that the chairman of the Disciplinary Committee, Mr Shaw, ought to have
recused himself because he was not objectively impartial. The decision of the Appeals Tribunal on this
issue was flawed because the presence of nine other members was insufficient to
overcome the problem arising from Mr Shaw's lack of objective
impartiality. Further, the appeal itself
could not cure the difficulty because it too was not decided by an impartial
hearing due to the involvement in it of the President of the SFA as one of its
members. This was said to involve a lack
of objective impartiality in view of the fact that the Disciplinary Committee
had chosen to participate in the appeal hearing. Even the right to seek judicial review could
not save matters because this did not allow for a full re-hearing of the case
with the result, according to the petitioner, that unless the decisions in
question were reduced, there would never have been a fair and proper
adjudication by an objectively impartial tribunal of the central issue, namely
whether or not the petitioner had in fact racially abused an opponent.
[22] The petitioner also challenged the
fairness of the procedure before the Disciplinary Committee on the ground that
Mr Gibson and Mr Mullen had not been present to give evidence and to be
cross-examined. This was said to be
contrary to a legitimate expectation aroused by the statement contained in the
SFA's letter to the petitioner of
[23] Finally, the petitioner argued that the
reasons provided by the Disciplinary Committee for its decision were
insufficient. Because they were produced
at a late stage and, in particular, after the grounds of appeal had been
intimated, the reasons had to be closely scrutinised. Especially when read in that way, they were
not such as to leave the reader with no substantial doubt as to the basis for
the decision. In particular, the
treatment of what was said to be the exculpatory evidence given by
Mr Stewart was inadequately reasoned.
The role of the court in relation to
disciplinary decisions by sporting bodies
[24] The SFA did not seek to argue that the
present proceedings were incompetent on the ground that decisions made by the Disciplinary
Committee or the Appeals Tribunal were not, in principle, amenable to judicial
review merely because they were decisions made by a sporting association. It was clearly correct for the SFA to take
this stance, as a number of Scottish cases amply show. In the course of the First Hearing reference
was made to St Johnstone Football Club
Limited v Scottish Football
Association 1965 SLT 171;
[25] Of all the many authorities cited to me, I
consider that the opinion of the Privy Council in Calvin v Carr [1980] AC 574 provides the most helpful guidance as to the approach which the court should
take when considering an application to its supervisory jurisdiction arising
from a challenge to disciplinary decisions made by a sporting association in
circumstances where an initial hearing has been followed by an appeal. In Calvin
the appellant was the part-owner of a horse which ran in a race in
"There are, however, a number of typical situations as
to which some general principles can be stated. First there are cases where the
rules provide for a re-hearing by the original body, or some fuller or enlarged
form of it. This situation may be found
in relation to social clubs. It is not
difficult in such cases to reach the conclusion that the first hearing is superseded
by the second, or, putting it in contractual terms, the parties are taken to
have agreed to accept the decision of the hearing body, whether original or
adjourned....
At the other extreme are cases, where, after
examination of the whole hearing structure, in the context of the particular
activity to which it relates (trade union membership, planning, employment,
etc) the conclusion is reached that a complainant has the right to nothing less
than a fair hearing both at the original and at the appeal stage. This is the result reached by Megarry J in Leary v National Union of Vehicle Builders [1971] Ch.34. In his judgment in that case the judge seems
to have elevated the conclusion thought proper in that case into a rule of
general application. In an eloquent
passage he said, at p. 49:
'If the rules and the law combine to give the member the
right to a fair trial and the right of appeal why should he be told that he
ought to be satisfied with an unjust trial and a fair appeal?....As a general
rule....I hold that a failure of natural justice in the trial body cannot be
cured by a sufficiency of natural justice in an appellate body.'
In their Lordships' opinion this is too broadly
stated. It affirms a principle which may
be found correct in a category of cases: these may very well include trade
union cases, where movement solidarity and dislike of the rebel, or renegade,
may make it difficult for appeals to be conducted in an atmosphere of detached
impartiality and so make a fair trial at the first - probably branch - level an
essential condition of justice. But to
seek to apply it generally overlooks, in their Lordships' respectful opinion,
both the existence of the first category, and the possibility that,
intermediately, the conclusion to be reached, on the rules and on the
contractual context, is that those who have joined in an organisation, or
contract, should be taken to have agreed to accept what in the end is a fair
decision, notwithstanding some initial defect.
In their Lordships' judgment such intermediate cases exist. In them it is for the court, in the light of
the agreements made, and in addition having regard to the course of
proceedings, to decide whether, at the end of the day, there has been a fair
result, reached by fair methods, such as the parties should fairly be taken to
have accepted when they joined the association.
Naturally there may be instances when the defect is so flagrant, the
consequences so severe, that the most perfect of appeals or re-hearings will
not be sufficient to produce a just result.
Many rules (including those now in question) anticipate that such a
situation may arise by giving power to remit for a new hearing. There may also be cases when the appeal
process is itself less than perfect: it may be vitiated by the same defect as
the original proceedings: or short of that there may be doubts whether the
appeal body embarked on its task without predisposition or whether it had the
means to make a full and fair enquiry, for example where it has no material but
a transcript of what was before the original body. In such cases it would no doubt be right to
quash the original decision. These are
all matters (and no doubt there are others) which the court must consider. Whether these intermediate cases are to be
regarded as exceptions from a general rule, as stated by Megarry J, or as a
parallel category covered by a rule of equal status, is not in their Lordships'
judgment necessary to state, or indeed a matter of great importance. What is important is the recognition that
such cases exist, and that it is undesirable in many cases of domestic
disputes, particularly in which an enquiry and appeal process has been
established, to introduce too great a measure of formal judicialisation. While flagrant cases of injustice, including
corruption or bias, must always be firmly dealt with by the courts, the tendency
in their Lordships' opinion in matters of domestic disputes should be to leave
these to be settled by the agreed methods without requiring the formalities of
judicial processes to be introduced."
[26] The approach set out by the Privy Council
in Calvin was applied by the Court of
Appeal in Modahl v British Athletic Federation Limited
[2002] 1WLR 1192. At paragraph 61 Latham
LJ said this, after referring to the passage I have cited from Lord Wilberforce:
"It seems to me that in cases such as this, where an
apparently sensible appeal structure has been put in place, the court is
entitled to approach the matter on the basis that the parties should have been
taken (to) have agreed to accept what in the end is a fair decision. As Lord Wilberforce said, this does not mean
that the fact that there has been an appeal will necessarily have produced a
just result. The test which it is
appropriate to ask is whether, having regard to the course of the proceedings,
there has been a fair result. As Lord
Wilberforce indicated, there may be circumstances in which by reason of
corruption or bias or such other deficiency the end result cannot be described
as fair. The question in every case is
the extent to which the deficiency alleged has produced overall unfairness."
At
paragraph 115 Mance LJ (as he then was) said:
"For my part, I would endorse the view that the present
parties were implicitly agreeing to be bound by the ultimate outcome of the
disciplinary process, taken as a whole and therefore including the independent
appeal panel's determination....A conclusion that the process should be looked at
overall matches the desirable aim of affording to bodies exercising
jurisdiction over sporting activities as great a latitude as is consistent with
fundamental requirements of fairness....".
Was the
Disciplinary Committee biased because it was chaired by Mr Shaw?
[28] Parties
were agreed that the modern test for bias was authoritatively set out in the
speech of Lord Steyn in Lawal v Northern Spirit Limited [2003] ICR 856
at paragraph 14:
"14. In Porter v. Magill [2002] 2 AC 357 the
House of Lords approved a modification of the common law test of bias
enunciated in R v Gough [1993] AC 646. This modification was first put forward in In
re Medicaments and Related Classes of Goods (No. 2) [2001] 1 WLR 700. The purpose and effect of the
modification was to bring the common law rule into line with the
'102. . . . The Court of Appeal took the opportunity in In
re Medicaments and Related Classes of Goods (No. 2) [2001] 1 WLR 700 to
reconsider the whole question. Lord
Phillips of Worth Matravers MR, giving the judgment of the court, observed, at
p 711A-B, that the precise test to be applied when determining whether a
decision should be set aside on account of bias had given rise to difficulty,
reflected in judicial decisions that had appeared in conflict, and that the
attempt to resolve that conflict in R v Gough had not commanded
universal approval. At p 711B-C he said
that, as the alternative test had been thought to be more closely in line with
Strasbourg jurisprudence which since 2 October 2000 the English courts were
required to take into account, the occasion should now be taken to review R
v Gough to see whether the test it lays down is, indeed, in conflict with
Strasbourg jurisprudence. Having
conducted that review he summarised the court's conclusions, at pp 726-727:
'85. When the Strasbourg jurisprudence is taken into
account, we believe that a modest adjustment of the test in R v Gough is
called for, which makes it plain that it is, in effect, no different from the
test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the
circumstances which have a bearing on the suggestion that the judge was biased.
It must then ask whether those
circumstances would lead a fair-minded and informed observer to conclude that
there was a real possibility, or a real danger, the two being the same, that
the tribunal was biased.'
103. I respectfully suggest that your Lordships should
now approve the modest adjustment of the test in R v Gough set out in
that paragraph. It expresses in clear
and simple language a test which is in harmony with the objective test which
the
The House unanimously endorsed this proposal. In the result there is now no difference
between the common law test of bias and the requirements under Article 6 of the
Convention of an independent and impartial tribunal, the latter being the
operative requirement in the present context. The small but important shift approved in Magill
v Porter has at its core the need for "the confidence which must be
inspired by the courts in a democratic society": Belilos v
[29] In Helow v Secretary of State
for the Home Department 2008 SLT 967 Lord Hope of Craighead summarised the
assumed attributes of the fair-minded and informed observer in paragraphs 2 and
3 of his speech in the following terms:
"2. The observer who
is fair-minded is the sort of person who always reserves judgment on every
point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as
Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not be confused with that of
the person who has brought the complaint. The "real possibility" test ensures
that there is this measure of detachment. The assumptions that the complainer makes are
not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge
must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have
their weaknesses. She will not shrink
from the conclusion, if it can be justified objectively, that things that they
have said or done or associations that they have formed may make it difficult
for them to judge the case before them impartially.
3. Then there is the
attribute that the observer is "informed". It makes the point that, before she takes a
balanced approach to any information she is given, she will take the trouble to
inform herself on all matters that are relevant. She is the sort of person who takes the trouble
to read the text of an article as well as the headlines. She is able to put whatever she has read or
seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate
that the context forms an important part of the material which she must consider
before passing judgment."
[31] Under
reference to the speech of Lord Browne-Wilkinson in R v Bow Street Metropolitan
Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [2000] 1AC 119 at
page 135, Mr Dunlop argued that Mr Shaw was not objectively impartial as a
result of his involvement in "promoting the same causes in the same organisation"
as Southern Counties. He contended also
that because of the "associations that he had formed" (a reference to paragraph
2 of Lord Hope's speech in Helow) Mr
Shaw ought to have recused himself. Mr
Dunlop submitted that the fair-minded and informed observer would have had a
number of factors in mind when considering whether it was appropriate for Mr
Shaw to sit as chairman of the Disciplinary Committee. The factors propounded by Mr Dunlop may be
summarised as follows:
(a) A serious allegation of
racist abuse had been made by Stranraer following the match against
(b) At the material time (and
indeed through most of the season)
(c) Only one team was promoted
from the third division.
(d) Following the match of
(e) A finding of guilty was
likely to result in a lengthy ban.
(f) A lengthy ban would harm
(g) It was very much in
Stranraer's interests to have the petitioner found guilty; both as a result of
the promotion race, and as a result of the desire to have their player's
complaint vindicated.
(h) The chairman of the
committee, Mr Shaw, is (and was at the material time) the elected secretary of
Southern Counties.
(i) Southern Counties is an
association one of whose primary purposes is to represent the interests of nine
football clubs in South West Scotland.
(j) One of those nine, and the
third largest of the nine, is Stranraer.
(k) Mr Shaw was not only the
elected secretary of Southern Counties; he was also their nominated
representative in terms of the SFA Articles of Association (Article 46) responsible
for representing their interests on the Council of the SFA.
(1) Stranraer were the
complainers.
(2) Stranraer are (and were at
the material time) a constituent member of Southern Counties, which is an organisation
designed to promote Stranraer's interests (as well as those of the other clubs)
generally and not merely on the SFA Council.
(3) Mr Shaw is and was at the
material time the elected head of Southern Counties.
[33] In my
opinion, a fair-minded and informed observer, having considered all the facts,
would not conclude that there was a real possibility that the Disciplinary Committee
was biased because its chairman was the elected secretary of Southern Counties. It seems to me that such an observer would understand
that Mr Shaw was not closely linked to Stranraer. In particular, he held no
position with that club as an employee or an official and it is not suggested
that he was a Stranraer supporter. The association, such as it was, between Mr
Shaw and Stranraer arose only from his role as the elected representative of
that club, along with another eight clubs, on Southern Counties. In these
circumstances, I consider that a fair-minded and informed observer would be
minded to regard the link between Mr Shaw and Stranraer as too weak and
insubstantial to give rise to any serious doubt over Mr Shaw's ability to act
independently and objectively as chairman of the Disciplinary Committee. No doubt it can be said that Mr Shaw had a
responsibility to represent and promote the interests of Stranraer through
Southern Counties, but he was the elected representative also of all the other
football clubs making up the membership of that association. A fair-minded and informed observer would
not, as it seems to me, be likely to regard Mr Shaw as owing any strong degree
of loyalty or affiliation to Stranraer in these circumstances. In my view, such
an observer would also appreciate that Mr Shaw had been elected to represent
the interests of a number of football clubs from South West Scotland in their
dealings with the SFA and more generally.
The fair-minded and objective observer would, therefore, be likely to
see Mr Shaw as a man who had been placed in a position of trust and
responsibility by the football clubs from a particular part of the country with
a view to representing their various and, no doubt, sometimes conflicting
interests in an appropriately detached and independent manner, as would be
expected of any elected representative. Mr
Shaw had been elected to represent all the clubs from a certain region; such a
person could be expected to act fairly and impartially in relation to any SFA
matters, including chairmanship of its Disciplinary Committee.
[34] I
consider also that a fair-minded and objective observer would take the view
that Mr Shaw's representative position at a high level in the governance and
administration of Scottish football would mean that he would be likely to strive
to ensure that the values of fairness and impartiality expressed in the SFA's
disciplinary procedures would be properly reflected in any decisions he was
called upon to make or participate in. It
seems to me that a fair-minded and informed observer, knowing that Mr Shaw held
this important representative role, would be likely to conclude that he was the
sort of person who possessed suitable qualities of independence of mind and
objectivity to enable him to put aside any possible personal prejudice in
discharging his responsibilities properly. Such an observer, in my view, would
be likely to accept that Mr Shaw in carrying out his responsibilities as chairman
of the Disciplinary Committee would be capable of ignoring any sense of loyalty
he might conceivably feel towards one of the members of Southern Counties when
he came to act as chairman of the Disciplinary Committee.
[35] Looking
at the petitioner's lists of factors as set out above (whether in their
original or truncated forms), I consider that they tend to betray the type of
unduly sensitive or suspicious attitude with which the fair-minded and informed
observer is taken not to be afflicted. It seems to me to be stretching
credulity too far to assert that a fair-minded and informed observer would
seriously conclude that Mr Shaw would allow his rather weak and indirect
connection with Stranraer to taint his assessment of a disciplinary complaint
made by that club with a view to procuring the unjustified suspension of a
player from a rival club so that the promotion prospects of the former club
were advanced to the detriment of the latter. The assumption made by the petitioner that the
suspension of one
[36] I
consider also that the fair-minded and objective observer would have attached
importance to the fact that Mr Shaw was merely one member, albeit the Chairman,
of a Disciplinary Committee comprising a total of ten people. Lord Rodger of Earlsferry drew attention to
the significance of this consideration, in the (obviously more serious) context
of juries in criminal trials, in a passage in his partially dissenting speech
in R v Abdroikov [2007] 1WLR 2679 (at paras 32-34). His Lordship observed that the assumption is
that among an English criminal jury of twelve men and women the twelve will be
able to neutralise any bias on the part of one or more members and so reach an
impartial verdict - by a majority, if necessary. In my view, any unconscious bias to which Mr
Shaw may have been subject would be likely to have been far outweighed by the
admittedly unbiased views of the other nine members of the Disciplinary
Committee. I note that this consideration weighed with the Appeals Tribunal in
the present case and in my view understandably so. It is a factor to which regard was also had
by the majority in the European Court of Human Rights in Pullar v United Kingdom
(1996) 22 EHRR 391 at para 40. I acknowledge that in Abdroikov Lord Bingham of Cornhill (at para 17) described Pullar as a very borderline decision,
but in the circumstances of the present case, in particular as one is concerned
with the disciplinary processes of a sporting association and not with a
criminal trial, it seems to me that the fact that Mr Shaw was merely one
amongst ten is highly relevant.
Procedural
unfairness
[38] Under
this heading Mr Dunlop argued that the procedure before the Disciplinary Committee
was unfair because of the cumulative effect of the absence of Mr Gibson and Mr
Mullen from the hearing and the consequential inability on the part of the
petitioner to cross-examine them. He
said that, having regard in particular to the sharpness of the factual dispute
between Mr Tade and the petitioner on the crucial issue, the Disciplinary Committee
ought not to have taken account of the written statements provided by Mr Gibson
and Mr Mullen. In support of the last
proposition Mr Dunlop submitted that the disciplinary rules applicable to cases
of Unacceptable Conduct, in contrast to the rules governing other categories of
disciplinary cases, did not permit the Disciplinary Committee (at least in the
circumstances of the present case) to take account of the written statements
from the witnesses referred to.
[39] It is
true that the petitioner was informed by the SFA in the letter of
[40] Mr Dunlop
argued that, correctly interpreted, the procedural rules did not permit this to
happen. Section 6 of the SFA's Disciplinary
Procedures for Players' Misconduct is entitled "General Provisions". The General
Provisions are stated to apply to all sections of the Disciplinary Procedures. Paragraph 3.3 deals with "Misconduct of a
sectarian, racist, sexual or other discriminatory nature ("Unacceptable Conduct")". Paragraph 3.3.5 provides as follows:
"The Disciplinary Committee may
require the referee and/or assistant referee/assistant referees and/or fourth
official, or any other witness, to attend any such hearing."
Paragraph 3.3.7 provides as follows:
"The procedures for the
conducting of the hearing will be in accordance with the Procedures detailed in
Appendix 2. In the event of any
inconsistency between the terms of Appendix 2 and this paragraph 3.3; this
paragraph 3.3 shall prevail."
[41] Appendix
2 sets out the Procedures for the Conducting of a Player's Disciplinary Hearing. Paragraph 1 provides as follows:
"The Disciplinary Committee
shall have the power to regulate the procedures at a disciplinary hearing as it
considers appropriate and expedient to enable a case to be determined."
Paragraph 3 provides as follows:
"The committee may require the
attendance at the hearing of any witness.
In any case where a witness required by the committee to attend the
hearing refuses or fails to attend, the committee shall be entitled to take
account of that witness' evidence as is made apparent to it in any other form."
[42] Mr Dunlop
argued that paragraph 3 of Appendix 2 was inconsistent with paragraph 3.3.5 in
Section 6 insofar as the latter provision did not say anything about the Committee
being entitled to take account of a witness' evidence where the witness refuses
or fails to attend the hearing "as is made apparent to (the Committee) in any
other form". He maintained that in view
of this inconsistency, paragraph 3.3.5 prevailed and, since there was no
provision anywhere in paragraph 3.3 to allow the Disciplinary Committee to have
regard to written evidence, it was not entitled to take account of written
statements given by a witness or at least by any witness whom the Disciplinary Committee
had required to attend the hearing.
Mr Dunlop said that his argument on this branch of the case was not
intended to be understood as referring to the powers of the Disciplinary Committee,
but was rather to be seen as an attack on the overall fairness of the procedure
which the Committee adopted in the particular circumstances of the present
case.
[43] In my
opinion, Mr Dunlop's submissions on this aspect of the case are unsound. In the first place, I do not consider that
there is any inconsistency between paragraph 3.3.5 of Section 6 of the Disciplinary
Procedures and paragraph 3 of Appendix 2 to those procedures. The two paragraphs can be read and applied
together without difficulty, as it seems to me.
As Mr O'Neill argued, there is nothing in paragraph 3 of Appendix 2
which is contradictory of the rule set out in paragraph 3.3.5. The latter provision makes specific reference
to certain categories of prospective witness, but it says nothing which is
inconsistent with the last phrase of paragraph 3 of Appendix 2 where reference
is made to the Committee being entitled to take account of a witness' evidence
"as is made apparent to it in any other form".
Secondly, paragraphs 3.3.2 and 3.3.3 in Section 6 appear to me clearly
to contemplate that the Disciplinary Committee will take into account written
material submitted to it by the complainant club and by the respondent player
(and his club) in connection with the case.
I note, in particular, that paragraph 3.3.3 states that prior to any
hearing all parties shall be provided with copies of all written representations. Paragraph 3.3.4 provides that the complainant
club or player shall have the right to attend the meeting when the case is to
be considered by the Disciplinary Committee and make further
representations in support of the complaint.
This too, as it seems to me, envisages that the written representations
submitted prior to the hearing will be taken into account by the Disciplinary Committee
at the hearing. Moreover, I note that
paragraph 1 of Appendix 2 confers upon the Disciplinary Committee extensive
power to regulate the procedures at a disciplinary hearing as it considers
appropriate and expedient to enable a case to be determined. Mr Dunlop submitted that this was concerned
with procedures as opposed to evidence, but I am not persuaded that there is
any real substance in this distinction.
It seems to me that the intention was to confer upon the Disciplinary Committee
a wide discretion to do whatever it considered necessary and just to enable a
case to be properly decided; I can see no reason why the reference to procedure
in the context of this provision should not extend to the procedure which the Disciplinary
Committee considers it appropriate to adopt in regard to consideration of
written material. All of these
provisions, read fairly and in their proper context, seem to me to point
clearly towards the intention having been to allow the Disciplinary Committee
to operate as flexibly and informally as it considers necessary, just and
appropriate in order to take account of all the material (including written
witness statements) submitted to it in a particular case. I conclude,
therefore, that the Disciplinary Committee was entitled to take account of the
written statements submitted by Mr Mullen and Mr Gibson, even though those
witnesses did not attend the hearing.
[44] So far as
the question of cross-examination is concerned, paragraph 11 of Appendix 2
provides as follows:
"The opportunity of cross
questioning shall be given to those who have presented evidence"
[45] At the
hearing before the Disciplinary Committee neither the petitioner nor any of the
representatives of
"... on balance not to do so as
it was felt that, if this course of action was taken, there was no definite
likelihood of being further forward in its understanding of the case and in its
ability to decide on the case."
[46] It is
true, of course, that a failure to allow cross examination may, depending on
the particular circumstances of the case and the context in which it arises,
amount to a failure to give a fair hearing to a party who wishes to challenge
the evidence on which the other party seeks to rely (R v Board of Visitors of Hull Prison, ex parte St Germain (No 2) [1979]
1 WLR 1401; Errington v Wilson 1995 SC 550). In the present case, however, I do not consider that the Disciplinary
Committee can be said to have proceeded unfairly in this respect. The
petitioner did not seek the opportunity to cross examine Mr Mullen or Mr Gibson
at the hearing and appears to have raised no objection or concern in the course
of the hearing to their absence. In particular, the petitioner did not request
an adjournment of the hearing so that efforts could be made by the SFA or
Adequacy of Reasons given by the Disciplinary
Committee
[47] As I have already explained, following the
marking of an appeal against the decision of the Disciplinary Committee, a
hearing before the Appeals Tribunal was initially set down for
[48] I accept, as Mr Dunlop argued, that the
timing of the reasons, which appear to have been drafted in light of the
grounds of appeal, means that the reasons should be closely scrutinised (Nash v
[50] The evidence which Mr Stewart gave at the
hearing before the Disciplinary Committee was summarised in the minutes which Mr Herbertson prepared in early March
2008. These explain that Mr Stewart "proceeded to review his statement" and
indicated that:
·
Mr Tade was acting aggressively.
·
Mr Stewart had urged the petitioner to go up the tunnel.
·
Mr Tade was trying to confront the petitioner.
·
At no time did Mr Stewart hear any racist remarks.
·
Stranraer player Steven Bonar had forced Mr Tade into the Stranraer
dressing room.
·
Mr Stewart considered that a riot would have ensued if such a comment had
been made.
[51] Mr Dunlop said it was clear from this evidence that if the
petitioner had called Mr Tade a "black bastard" this would have been overheard
by Mr Stewart who was standing beside or very close to the petitioner at the
material time. It seems to me, however, that Mr Stewart's evidence did not go
as far as this. Mr Stewart did not say that he would have been bound to hear
the petitioner making such a remark if he had uttered it. What the evidence in
fact amounted to, in relation to the critical issue, was that Mr Stewart did
not hear a racist remark being made in the tunnel. Yet there was clear
evidence, not least from the assistant referee, that such a remark had been
made. The scene in the tunnel was clearly a heated and confused one and, in
these circumstances, it is understandable that Mr Stewart did not hear the
words "black bastard" being uttered by anyone. Properly analysed, it seems to
me that Mr Stewart's evidence on the critical question was neutral and of no
assistance to the Disciplinary Committee in resolving the fundamental contest
between the petitioner and Mr Tade. It seems to me that this approach explains
why the Disciplinary Committee contented itself with expressing the view that
Mr Stewart's evidence was well presented and did not consider it necessary to
discuss it in any greater detail. In the circumstances, I consider that the
reasons given dealt adequately and intelligibly with Mr Stewart's evidence. The
Disciplinary Committee did not reject his evidence; on the contrary the
Committee accepted it insofar as it went, but did not regard it as of
assistance when it came to resolving the critical issue.
[52] I should
mention that before the First Hearing the petitioner lodged as a production an
affidavit from Mr Stewart apparently containing an account of his evidence. The
SFA objected to this being considered by me on the ground that the affidavit
had not been before the Disciplinary Committee or the Appeals Tribunal. I agree
that there is now nothing to be gained by considering any further version of Mr
Stewart's evidence. The signed statement, which he submitted before the
disciplinary hearing, is available and the minutes of the meeting contain a
summary of what he said at the hearing. In the circumstances, there is nothing
to be gained by referring to an affidavit setting out Mr Stewart's evidence.
[53] Mr Dunlop
advanced a range of further criticisms of the reasons. He said that they were
inconsistent on a number of points with the minutes; for example the minutes
say that the petitioner stated that he never said anything (to Mr Tade in the
tunnel) whereas the reasons say that much of what the petitioner had to say in
evidence related to the build up and aftermath. Even giving the reasons an
appropriately close degree of scrutiny, I consider that this criticism is
unduly narrow. I note, in particular, that in his signed statement the
petitioner did go into the events preceding the incident and also, to some
extent, what happened later.
[54] Mr Dunlop
also maintained that there were inconsistencies between the accounts of Mr
Collumbine's evidence given in the minutes as compared to the reasons. The
reasons go further than the minutes in the sense that they expressly reject
certain aspects of Mr Collumbine's evidence on the ground that they were
"unconvincing and flawed", but I do not consider that this renders the reasons
unintelligible or inadequate. The minutes and the reasons were not intended to
serve exactly the same purpose: the former were intended to be a record of what
happened at the hearing whilst the latter were intended to provide an
explanation for the Disciplinary Committee's decision.
[55] Mr Dunlop
submitted that it was unsatisfactory that the reasons contained reference to
the Disciplinary Committee having considered whether it was appropriate to
adjourn because of the failure by Mr Gibson and Mr Mullen to attend whereas
there was no reference in the minutes to the possibility of an adjournment. I
do not consider that any sinister inference can be drawn from this. Since there
was no motion made for an adjournment at the hearing, it is unsurprising that
the minutes do not mention this matter. It should also be recalled that the
petitioner made no complaint at the hearing about the missing witnesses. The
grounds of appeal did, however, raise the absence of the witnesses as an issue.
It is, therefore, understandable that the Disciplinary Committee thought it right
to explain in the reasons that they had given consideration to the possibility
of an adjournment as a means of addressing this issue.
[56] Finally,
Mr Dunlop said that the reasons were unclear when they stated that the case
essentially boiled down to one person's word against another's and that there
was no sufficient explanation as to why Mr Tade's account was preferred to that
given by the petitioner.
[57] The
essence of the Disciplinary Committee's reasoning is contained in the following
passage:
"The committee was in no doubt that the comment complained of by Stranraer
FC had been said. The issue was: by whom? From an analysis of the evidence
presented during the interviews and on the basis of the written submissions,
the committee decided that, on the balance of probabilities, it had been (the
petitioner) who had made the comment, despite his strong denial. The factors
which contributed to the decision were: the locus of the incident, the persons
identified to have been in the vicinity, the evidence of (Mr Tade) and of the
assistant referee, and the reaction of the player Andrew Gibson who had reacted
to the comment being made by kicking (the petitioner)."
[58] In my
view, this intelligibly encapsulates the approach taken and contains a
sufficient explanation of the basis for the Committee's decision. It correctly
identifies the issue which the Committee had to resolve and that the standard
of proof was on the balance of probabilities. It acknowledges that the
petitioner strongly denied having made the alleged racist comment. The passage
then goes on to refer to the fact that the incident allegedly took place in the
tunnel and that both the petitioner and Mr Tade were, on the evidence, in the
tunnel at the material time. Then there is mention of Mr Tade's evidence. This,
of course, was clearly to the effect that the petitioner called him a "black
bastard". It seems to me to be clear from this that the Committee was persuaded
to accept and believe Mr Tade's evidence on this critical point. The reasons
and the minutes both record him as having stated, in response to questioning,
that he was 100 per cent certain that it was the petitioner who
had racially abused him. The reasons also state that Mr Tade had been precise
in his description of the incident and its locus. The critical passage in the
reasons then mentions the evidence of the assistant referee; this was of
importance because it represented independent confirmation that the alleged
racist comment had indeed been made. Finally, reference is made to the reaction
of Mr Tade's team mate, Mr Gibson, to the comment made by the petitioner. This
seems to me to be a matter of some importance because, as the minutes explain,
at the hearing the assistant referee was able to identify the petitioner as the
person whom Mr Gibson had kicked as an immediate reaction to the making of the
racist remark. The evidence about the directing of the kick at the petitioner
therefore served to corroborate Mr Tade's evidence that it was the petitioner
who had uttered the comment.
[59] In the
circumstances, I consider that the reasons do contain an intelligible and
sufficient explanation of the evidence relied upon by the Disciplinary
Committee in reaching its decision to accept Mr Tade's account of events and to
reject the petitioner's denial that he had called Mr Tade a "black bastard".
The Appeals
Tribunal
[60] Since I
have rejected the petitioner's complaint of bias on the part of Mr Shaw as
chairman of the Disciplinary Committee and the petitioner's other complaints of
unfairness at first instance, it is unnecessary for me to consider whether the
fact that the petitioner exercised his right to appeal to the Appeals Tribunal
would have cured any unfairness in the procedure before the Disciplinary
Committee. For completeness I shall,
however, briefly indicate my views on the point.
[61] Mr Dunlop
argued that the appeal could not cure the existence of bias or other unfairness
at first instance because the Appeals Tribunal itself was tainted by apparent
bias. This arose, he said, because the Disciplinary Committee had chosen to
participate in and be represented at the appeal as a party to the proceedings.
In these circumstances, a fair-minded and informed observer would have taken
the view that that there was a real possibility of bias on the part of the
Appeals Tribunal arising from the fact that the President of the SFA was a
member of the Tribunal.
[62] The
composition of the Appeals Tribunal is governed by paragraph 4.5 of the
Disciplinary Procedures. This states that the Appeals Tribunal shall be formed
of an independent chairman, the President of the SFA or his appointed deputy
and the secretary or committee member of the Scottish Professional Footballers'
Association, unless otherwise precluded by a prior involvement in the case in
question.
[63] I do not
consider that a fair-minded and informed observer would regard the presence of
the President of the SFA on the Appeals Tribunal as giving rise to a real
possibility of bias. It seems to me that such an observer would regard the composition
of the Appeals Tribunal as fairly balanced in view of the involvement of the
President of the SFA and a representative of the Scottish Professional
Footballers' Association. Such an observer, in my opinion, would also attach
importance to the fact that the Appeals Tribunal is chaired by an independent
person. In my view, the mere fact that the President of the SFA is a member of
the Appeals Tribunal in circumstances where the Disciplinary Committee is
represented would be insufficient to cause a fair-minded and informed observer
to conclude that there was a real possibility of bias. Such an observer would,
I believe, take the view that an individual holding the office of President of
the SFA would be likely to display the appropriate degree of independence and
objectivity in dealing with a disciplinary appeal. In any event, the
involvement of the two other members of the Appeals Tribunal would, as it seems
to me, persuade the fair-minded and informed observer that any tendency to bias
on the part of the President would be neutralised.
[64] Given
that I do not consider there to have been a real possibility of bias or any
other unfairness on the part of the Appeals Tribunal, the next question (had I
been satisfied that there was apparent bias or other unfairness at first
instance) would have been to consider whether, looking at the entirety of the
process within the SFA, the petitioner had received a fair hearing. In my
opinion, the petitioner would have received a fair hearing even if it could be
said that there had been apparent bias or other unfairness at the stage of the
Disciplinary Committee. In reaching that view I am influenced, in particular,
by the fact that the petitioner had the right to request that the appeal
hearing should be conducted as a re-hearing of the case. Paragraph 4.1 of the
Disciplinary Procedures provides that an appeal hearing shall not be conducted
as a re-hearing except with the permission of the Chairman of the Appeals
Tribunal. In the present case the petitioner did not make a request for the
appeal to be conducted as a re-hearing. In these circumstances, it seems to me
that the petitioner cannot now be heard to complain that there was not a full
and fair consideration of his case by the Appeals Tribunal, even if the decision
of the Disciplinary Committee was tainted by apparent bias or other unfairness.
I would therefore have held, had it been necessary for me to do so, that having
regard to the course of the proceedings as a whole, the petitioner had received
a fair hearing by the SFA in relation to the complaint of Unacceptable Conduct
brought against him by Stranraer.
The significance
of Judicial Review
[65] In the
event that I had been persuaded to hold that there had been unfairness in the
proceedings before the SFA (viewed as a whole), Mr O'Neill argued in his
written submissions that the availability of judicial review would have been
sufficient to cure any deficiency. After some discussion, however, Mr O'Neill
(rightly in my view) acknowledged that this argument was unsound in view of the
fact that a re-hearing on the merits of the complaint could not take place
before this Court. Mr O'Neill accordingly departed from this aspect of his argument
and I need not consider it any further.
Conclusion
[66] In the
result, I conclude that none of the challenges advanced by the petitioner to
the decision of the Disciplinary Committee is well-founded. It follows that the
decision of the Appeals Tribunal upholding the ruling at first instance is also
sound. I have, therefore, sustained the First Respondents' second plea-in-law,
repelled all the petitioner's pleas and refused the petition. I shall leave it
to parties to enrol whatever motions they consider appropriate as to expenses.