Prosecution authorities are becoming more involved in sporting incidents, but is the judicial stick being wielded uniformly? Derek Douglas reports.
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JUST six years ago the spectacle of a footballer appearing in a court of law for a crime committed on the playing field was so rare that one of Scotland's senior Queen's Counsel involved in just such a courtroom drama referred to it as a unique test case.
Donald MacAulay QC was appearing for his client, the ex-Rangers footballer Graham Roberts. It was 1988 and Roberts, along with fellow Ibrox stars Terry Butcher and Chris Woods were standing trial on breach of the peace charges at Glasgow Sheriff Court alongside Celtic's Frank McAvennie.
The Old Firm four were said to have committed the offence as they jostled each other during a highly charged clash between the two great Scottish rival clubs.
''No football player in this country has had to face a charge of this nature. It is a test case. Footballers are not immune from the law but the action complained of was totally within the field of play and not calculated against the crowd,'' said Roberts's lawyer who, as Lord MacAulay of Bragar, is now the Labour Party's Scottish legal spokesman.
MacAulay served his client well, the case against Roberts being found not proven. Butcher, however, was fined #250 and Woods #500. Frank McAvennie was found not guilty.
Woods and Butcher took the matter to appeal and lost again. However, the dissenting but minority opinion of Lord Murray, who found in favour of the footballers, raised some of the questions which, to many minds, have not yet been satisfactorily answered.
Lord Murray said the central issue raised by the appeals was whether the footballers' conduct constituted not only an infringement of the laws of the game but also a criminal breach of the peace.
The appeal judge accepted that what might constitute a breach of the peace in the ordinary context of the offence was not necessarily the case within the context of a contact sport.
''Once it is accepted that violent physical contact can be legitimate under the rules of a particular sport, subject no doubt to further rules which limit the legitimacy of that violence, I consider that a radically different context is set up from the ordinary public street or other public place.''
But the decision by Lord Justice Clerk Ross and Lord Allanbridge that the convictions should stand has acted as a pointer for prosecutors ever since.
As a result of the huge publicity the case attracted and the growing awareness among police and prosecutors that the sporting arena was no longer a ''law-free zone'', there has been an increased willingness on the part of the legal authorities to expose sporting miscreants, and not just footballers, to the full majesty of the law.
In October last year Sheriff Francis Lummy jailed Hamilton Accies' winger Scott Henderson for 60 days after he had admitted head butting an Uddingston opponent.
The Crown Office, while accepting at face value the contention that more sportsmen are being prosecuted, is adamant that there has been no policy decision to treat sporting offenders in the same manner as are participants in a street brawl.
''There hasn't been a change of policy. Cases are still dealt with strictly on a case-by-case basis but the circumstances in which the alleged offence has been committed is also taken into account and in cases involving offences in a big public stadium the possibility that the offence might have an inflammatory effect on the crowd would also be taken into account.
''I don't know what we can attribute the apparent increase in these cases to. It is not for me to say that sport is becoming more violent and I wouldn't do so, but whatever the reason it isn't because of a policy decision by the Crown Office and prosecuting authorities,'' says a Crown Office spokesman.
There is no doubt, though, that with special allowance for the exceptional nature of a highly charged footballing encounter, the police wish to see upheld the same standards of decency and propriety that they would expect to be observed outside the stadium.
Strathclyde Police has the vast majority of Scotland's top football clubs within its jurisdiction and the Strathclyde policeman with overall responsibility for policing these grounds at the time of the Ferguson incident was Assistant Chief Constable (Operations) Peter Gibson.
Mr Gibson said: ''No specific guidelines are laid down in respect of police involvement in 'sporting incidents'. The conduct of sport participants on the field of play is governed and controlled by the rules of the game, the sports' governing bodies and associations and, on the day, by the referee.
''Nevertheless, in the event of the police receiving a complaint alleging that an offence or crime has been committed, then in the normal course the police would carry out a full investigation and report all the circumstances to the procurator fiscal. Thereafter, it is a matter for the procurator fiscal to decide whether those involved are proceeded against through the courts. It is certainly true to say that complaints of this nature to the police, including complaints made by spectators, have increased over recent years.''
Chief Superintendent Alan Naylor is secretary of the Lothian branch of the Association of Scottish Police Superintendents. Leith, the Edinburgh police division which he oversees, includes the Hibernian football stadium at Easter Road.
He says: ''Our main objective is ensuring public safety. In the context of a big football match any incident on the field of play which might endanger public safety will be looked at very closely. What we have been trying to do is to encourage football to become the kind of family entertainment which it used to be.
''Common sense has to be employed. If we were to report everyone who swore at a football match then I would be locking up 20,000 every Saturday at Easter Road. If, however, we see a violent incident on the field of play then we will stand back and await the outcome. If there is a complaint of assault from a player or a complaint from a spectator that the player's action has amounted to a breach of the peace then we will prepare a report and it will go to the procurator fiscal.''
Chief Superintendent Naylor adds that, as a football match commander, he briefs the match officials. ''I tell referees that they are responsible for the green bit in the middle and that will remain the case until we see an event which so overpowers them that we have to become involved. Happily, unlike other countries, that happens very rarely here.
''If I am a match commander and the two managers are swearing at each other in their dug-outs and I receive a complaint from a spectator who says that their language is disgraceful and upsetting his five-year-old boy then we have an obligation to act,'' says Chief Superintendent Naylor.
But here another problem arises. Because of the quasi-independent nature of the procurator fiscal service it is apparent that fiscals are not dealing even- handedly with sporting ''crimes''.
In the Ferguson case, the Glasgow procurator fiscal, Mr Andrew Normand, ordered an investigation and, when that investigation was complete, decided that there was a case to answer.
Meanwhile, last August, two Heart of Midlothian players, Craig Levein and Graeme Hogg, fell out in spectacular fashion during a ''friendly'' match against Raith Rovers at Stark's Park.
Eyewitnesses say they saw Hogg push his skipper Levein who, they claim, twice lashed out at his fellow defender, the second blow connecting and sending Hogg to the ground. Both men were sent off by the referee, Hogg making his exit on a stretcher.
Subsequently, the Tyncecastle management decided that condign punishment was in order. Levein was stripped of the Hearts' captaincy and both men were suspended, fined and placed on the transfer list.
But neither Levein nor Hogg faced prosecution? Kirkcaldy procurator fiscal Frank Crowe told The Herald that the police did not submit a report, he did not ask for a report and therefore no action was intended.
No doubt the fact that both men were from the same team, and as a result one set of supporters did not have their passions inflamed, played a part in the decision not to prosecute. Nevertheless, here we had an apparent assault which went unpunished by the law of the land.
Another sport, another procurator fiscal. Last autumn the Hawick and South of Scotland rugby forward Brian Renwick was playing for the Combined Scottish Districts in a showcase game at Mansfield Park against top the New Zealand province Auckland.
In the course of a not particularly bad-tempered game Renwick was felled by a vicious blow from one of the Auckland forwards. The punch shattered Renwick's jaw and the young Hawick player was hospitalised as surgeons rebuilt his face. The blow was caught on camera by the BBC who were video-taping the match.
As a rugged Border forward, Renwick is used to the rough and tumble which accompanies top-class rugby. But he felt the assault went beyond the bounds of acceptability. ''This is different,'' he said as he reported to matter to the police.
Renwick was hoping his assailant would be charged with common assault but he was disappointed. The procurator fiscal in Jedburgh decided to take no action.
The Hawick forward, for one, would welcome uniformity of approach throughout the land and wishes, too, that the same willingness to prosecute which saw Duncan Ferguson in the dock at Glasgow Sheriff Court had been displayed when he found himself on the receiving end of an Aucklander's right hook.
SPORTSMEN BROUGHT TO BOOK BY THE PROSECUTOR
* May, 1995: Amateur footballer Robert Crooks, of Telford United, had sentence deferred until May 24 for background reports after admitting a breach of the peace during a match in Union Park, Edinburgh, by shouting and swearing at the match referee and threatening violence.
* Mr Crooks also admitted possessing an offensive weapon -- a piece of wood -- and another breach of the peace by driving a car on to the pitch and putting the referee in fear for his safety.
* January, 1995: Norman Lawson, who was playing for a Safeway shop staff team in a friendly football match at Saughton Park, Edinburgh, was fined #250 and ordered to pay his victim #100 compensation after admitting assaulting an opponent by butting him on the face.
* December, 1994: Plumber Gary Whitehead was ordered to pay an opponent #500 compensation after being found guilty of assault by head-butting him during a match between Port Seton Wemyss and Dalkeith Horseshoe Bar in Port Seton, East Lothian.
* October, 1994: Hamilton Academicals rugby player Scott Henderson jailed for 60 days at Hamilton Sheriff Court for head-butting opponent in local derby against Uddingston. Freed pending appeal.
* August, 1994: Glenrothes Covenanters' footballer Graeme Harper jailed for four months at Kirkcaldy Sheriff Court after admitting assault on referee during Covenanters v Glenrothes Tokheim match. Punch left the referee with fractured cheekbone. SAFA banned Harper for 50 years.
* July, 1994: After Old Bailey trial, rugby player William Hardy is found not guilty of manslaughter following death of opponent in West Drayton Centaurs v Hendon match.
* May, 1994: Preston Lodge rugby forward Scott McMillan who head-butted Musselburgh opponent Stanley Ross is jailed for nine months after Haddington Sheriff Court assault trial. Mr Ross suffered smashed jaw and cheekbone.
* May, 1994: Strathclyde Police interview two footballers after fracas in televised Scottish Junior Cup final at Ibrox between Glenafton Athletic and Largs Thistle. Largs player apparently head-butted. Four sent off. No report sought by Glasgow fiscal Andrew Normand and no action taken.
* April, 1994: Footballer Jorge Louriero fined #140 at Edinburgh Sheriff Court after admitting head-butt assault on referee during amateur match at the Pitz Super Soccer complex in Edinburgh.
* March, 1994: Football linesman acquitted at Reading Crown Court of assault on 13-year-old player during match between Theale Tigers and Forest Hill Dynamos. Game abandoned after pitch invaded and general punch-up.
* February, 1994: At Portsmouth court martial, Royal Navy rugby player Ian Russell, accused of grievous bodily harm, receives four-month suspended sentence and ordered to pay victim #1500 compensation following incident in match between Navy and Havant.
* February, 1994: Inverness Sheriff Court trial of Kincraig shinty player Leslie Anderson abandoned due to lack of evidence. In shinty's first criminal court case the Kincraig player was accused of striking an Inverness opponent on the head with his stick.
* December, 1993: Ian Cook, Alnwick, appears at Berwick Magistrates' Court accused of inflicting grievous bodily harm on former Berwick Rangers' player-manager Eric Tait during North Northumberland League match.
* November, 1993: Hawick and South of Scotland No 8 forward Brian Renwick has jaw broken by punch while playing for Scottish Districts against Auckland. Renwick reports alleged assault to police but procurator fiscal takes no action.
* October, 1993: Stoke City striker Mark Stein receives conditional discharge at Shrewsbury Crown Court for punching Stockport County player in flare-up after Second Division match.
* August, 1993: Longside FC striker Jim Bain acquitted at Peterhead Sheriff Court after ruling that a tackle which broke the leg of Aberdeen Lads' player did not amount to a criminal offence.
* May, 1992: Perth Sheriff Court trial of football managers Walter Smith of Rangers and Alex Totten of St Johnstone on breach of peace charges after dug-out disagreement during Premier League clash. Totten fined #250. The case against Smith was found not proven.
* October, 1988: Aberdeen procurator fiscal to take no action against Rangers' captain Terry Butcher following police investigation into alleged damage to referee's changing room door at Pittodrie.
* April, 1988: In what the defence team claimed was a test case, Old Firm players Terry Butcher, Chris Woods, Graham Roberts and Frank McAvennie, appear at Glasgow Sheriff Court on breach of peace charges arising from Old Firm match. Woods fined #500, Butcher fined #250. Case against Roberts not proven and McAvennie found not guilty.