An own goal?

Lee Bowyer, the England and Newcastle United midfielder, is to be prosecuted for an alleged public order offence at St James’ Park on April 2, 2005 during the match against Aston Villa. If convicted he is liable to a fine and a prison sentence not exceeding six months. The incident surrounds his actions towards his team mate, Kieran Dyer, a minor scuffle witnessed by 54,447 spectators at the ground and relayed on television to millions of viewers in their living rooms and watering holes. Subsequently on April 22, Bowyer appeared before a Football Association Disciplinary hearing and was banned for seven matches and fined by the club through loss of wages amounting to an estimated £300,000.

The decision to prosecute – taken, it appears, by Northumbria Police but endorsed by the Crown Prosecution Service – has troubled sports journalists and understandably, the Professional Footballer’s Association. It demonstrably troubles Mr Bowyer, who intends to apply to the High Court seeking a judicial review on the grounds that the decision is irrational. The background to the prosecution stems from the entirely worthy political desire to make an example of those who engage in hooliganism and anti-social behaviour, regardless of their social or sporting status. Although there have been some prominent cases of footballers being convicted in court for on-field offences, they have been rare.

Duncan Ferguson served 44 days of a three-month sentence in Glasgow`s Barlinnie Prison in 1995, after being found guilty of headbutting Raith Rovers` John McStay during a match in 1994. Manchester United`s Eric Cantona was sentenced to two weeks in prison in 1995 for kung-fu kicking an abusive Crystal Palace supporter during a game, although the sentence was reduced to community service on appeal. El Hadj Diouf, then with Liverpool, was fined £5,000 by Glasgow Sheriff Court in 2003 after being found guilty of assault – by spitting – on a fan during a Uefa Cup match.

The recent change in CPS Policy was signposted on May 16 this year when Nazir Afzal, the sector director for the Crown Prosecution Service (CPS) in London West, said: “The growing feeling among the public is that players are getting away with crime – that footballers in particular escape punishment by criminal justice – and that is wrong.

“It is unlawful to assault or racially abuse someone on the street and we prosecute for that. But when it comes to events on the pitch, we don’t get involved, usually because there is no complaint and no police investigation.”

Should it trouble readers of Police Professional and the man on the Clapham Omnibus?

The prosecuting authorities are charged with bringing cases to the courts in order to enable the symbolic condemnation of behaviour viewed by society as criminal and deserving of punishment. The aims of punishment are principally deterrence and rehabilitation. In making the decision to prosecute the authorities are required to have regard to public policy and evidential criteria set out in the Code for Crown Prosecutors, to be found at www.cps.gov.uk/publications/docs/

code2004english.pdf.

Criminal behaviour must be dealt with, be it in the home, the public house, the boardroom or on a football pitch.

Let us agree that this case meets the tests of sufficiency of evidence and public interest and that had the offence been committed on a piece of waste land between two pub football teams the prosecution would have been appropriate. Let us also agree that the prosecution, in so far as it possible to do so, would, if a conviction followed, achieve the objectives of deterrence and rehabilitation. Let us also agree that, had the FA’s disciplinary hearing not taken place, a prosecution should proceed.

The fundamental distinction between the prosecution of Bowyer and a similar incident out of the media glare is not that it surrounds a highly paid Premiership footballer. It is one of due process.

Mr Bowyer has been punished and a prosecution is not deserving of public expenditure. Not only has he been punished in the e