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John Terry and the law of 'strict liability': why the FA's rulebook defies the logic of our legal system.
The Chelsea captain was this week convicted by the FA of an offence carrying a great social stigma, and one which may change his life forever.
Terry's offence is to make ‘a reference to ethnic origin and/or colour and/or race’ of another person while on the pitch.
That is, in legal terms, what is know as a 'strict liability offence'.
English criminal law has a basic belief that, for the most part, criminal offences are made up of a doing part (known as the 'actus reus' – Latin for 'guilty act') and a thinking part (the
'mens rea' – Latin for 'guilty mind').
The theory is, with some exceptions, you cannot be criminally culpable unless you are guilty in the mind.
As well as the obvious form of guilty mind, intent, this can also include recklessness or knowledge of the offence being committed.
As recently as the 1970s, the Law Lords who shape our legislation insisted there should be a presumed need for a guilty mind in any case where the outcome may have a social stigma.
But changes in that decade to the way we saw industrial accidents meant we had to move away from that: after all, if a company is to be found guilty in relation to a death in a factory, it cannot have a mens rea - as it does not have a mind that can be guilty.
So a series of regulatory offences were created that required only guilty actions.
These 'strict liability' offences were never supposed to be extended to individuals on a wider scale.
There are some exceptions: the best known being statutory rape, where a man who has sex with an under-age girl is guilty whether or not he knows she is under age.
While strict liability offences are relatively common in the USA (mainly for lesser crimes), the English legal system has always shied away from them.
Which is why it seems so bizarre to many people the position in which Terry finds himself.
The case, as presented by him in court, is that he used certain words but that no malice was intended.
This was good enough for the criminal law, because it could not be proved that Terry had a guilty mind.
But the FA has decided there is no need for a guilty mind in cases where someone mentions race.
Racism, the crime some have erroneously accused Terry of having committed, is an offence of the mind: it is where an individual acts detrimentally to a member of a certain race because of an inferior opinion of them.
Terry may be the first man in English legal history to be found guilty of an offence of the mind, without any need for his mind to be guilty.