Cricket-Match-Special ... A forum for discussion

Slipstream wrote:Hard to believe but it's been 3 months since the fight and Stokes doesn't know one way or another what is going to happen. Probably nothing this year (9 days left)

a) is he going to be charged?
b) if by some miracle he isn't, what penalty will the ECB give him?
c) by selecting him in the ODI squad you would imagine his penalty will be backdated
d) Hales will have to wait for the Stokes inquiry before he can play (Bairstow will have made the ODI spot his own)

Little did Stokes and Hales know what was to enfold that night out in Bristol on the 25 September. Costly in more ways than one.

They'll still be getting paid handsomely though, so I don't feel too sorry for them. Besides... they'll be much better players for not being part of the latest ashes shambles, so win/win really

Canterbury Cricket can confirm that Ben Stokes will return to the UK today for family reasons. He leaves with our gratitude for his time with us and for what he added to the squad during his time in Canterbury.

'England cricketer Ben Stokes has been charged with affray over an incident outside a Bristol nightclub. The disturbance in September left a man with a fractured eye socket and police sent their findings to the Crown Prosecution Service (CPS) in November. Stokes missed the Ashes series, with the England and Wales Cricket Board (ECB) saying he would not be considered for England "until further notice". The 26-year-old has been charged along with two other men.'

http://www.bbc.co.uk/sport/cricket/41798404

News breaks out before IPL auction scheduled on 27 & 28 Jan 2018. Think nobody will bid for him if he is unavailable. last time he broke the record of being highest paid foreign cricketer in IPL. Probably nobody will bid this year it seems due to availability issues.

i think he will be avliable for IPL, these things always take ages, and he isn't in custody so he is free to play etc

andy wrote:i think he will be avliable for IPL, these things always take ages, and he isn't in custody so he is free to play etc

If he is available to play then he will get more bids considering he had a fabulous IPL last year scoring tons and lot of wickets as well as Man Of Matches in few matches. His ton after Pune being 5 for 50 or something was just breath taking and one of the best in IPL history.

Also this year the team purse has been increased. So its going to be great for those who are T20 superstars.

So, no charge of assault or bodily harm, but instead an affray. Not 100% sure what that means, but to my lay understanding, it appears as if it is a difference in intent (mens rea): the former involves an actual intent to cause harm on somebody, whereas an affray is the intent to engage in violent behaviour. Obviously the two are often linked, but I guess the CPS have decided that whatever harm was caused to either party, it was not serious or intentional enough to carry a battery or aggravated assault charge. As ever, happy to be guided by the legal minds out there.

It sounds like a lesser offence, but carries up to three years in prison if found guilty in a jury trial. If heard before a magistrate it can be six months in prison or a fine if found guilty. Apparently the next step is an appearance before the Bristol Magistrate's Court, but that doesn't necessarily mean the trial will take place there - the Magistrates will have to determine which venue is appropriate to hear the case.

No idea what the backlog is in Bristol, but presumably it will be anything from a few months if the case is tried in the Magistrate's Court to over a year if heard before a jury. Even if he's found not guilty, the chances of Stokes being back before the summer seem slim, and there's still an ECB penalty to consider.

If he's found guilty and serves the punishment, should he come back to cricket, or will this hang over him forever?

bigfluffylemon wrote:So, no charge of assault or bodily harm, but instead an affray. Not 100% sure what that means, but to my lay understanding, it appears as if it is a difference in intent (mens rea): the former involves an actual intent to cause harm on somebody, whereas an affray is the intent to engage in violent behaviour. Obviously the two are often linked, but I guess the CPS have decided that whatever harm was caused to either party, it was not serious or intentional enough to carry a battery or aggravated assault charge. As ever, happy to be guided by the legal minds out there.

It sounds like a lesser offence, but carries up to three years in prison if found guilty in a jury trial. If heard before a magistrate it can be six months in prison or a fine if found guilty. Apparently the next step is an appearance before the Bristol Magistrate's Court, but that doesn't necessarily mean the trial will take place there - the Magistrates will have to determine which venue is appropriate to hear the case.

No idea what the backlog is in Bristol, but presumably it will be anything from a few months if the case is tried in the Magistrate's Court to over a year if heard before a jury. Even if he's found not guilty, the chances of Stokes being back before the summer seem slim, and there's still an ECB penalty to consider.

If he's found guilty and serves the punishment, should he come back to cricket, or will this hang over him forever?

I'm sure he will be back , just a question of when. He's already missed 5 tests and a few ODI's so the ECB could backdate the punishment - I guess the question now is whether or not they decide he's available for England before the legal proceedings are concluded.
Article in The Times suggests to me that even in the event of a guilty verdict a custodial sentence is not a realistic possibility :

Affray is a public order offence, under the Public Order Act 1986, in which two or more people use or threaten unlawful violence against another. It carries a maximum penalty when tried at magistrates court of a fine or up to six months in prison. If tried at crown court, the judge would have the option of sentencing him to three years in prison.

Sentencing guidelines state that a custodial sentence “must not be imposed” unless the offence or a combination of offences are so serious that neither a fine nor a community sentence can be justified. The guidelines stress that there is no general definition of this threshold and that even where it is believed to have been met, judges should consider a community order.

Thanks CC. So a fine and a few months teaching kids to play cricket seems the most likely outcome? I guess given a lack of prior conviction and the fact it was an isolated incident will count in his favour if he is found guilty.

Makes it much more likely in my view he'd be back, as opposed to if he ends up in prison for a while.

bigfluffylemon wrote:Thanks CC. So a fine and a few months teaching kids to play cricket seems the most likely outcome? I guess given a lack of prior conviction and the fact it was an isolated incident will count in his favour if he is found guilty.

Makes it much more likely in my view he'd be back, as opposed to if he ends up in prison for a while.

I think so. If The Times article is right about those guidelines the worst outcome would seem to be a non-custodial sentence so it's now down to the ECB to decide when they're going to bring him back.

bigfluffylemon wrote:So, no charge of assault or bodily harm, but instead an affray. Not 100% sure what that means, but to my lay understanding, it appears as if it is a difference in intent (mens rea): the former involves an actual intent to cause harm on somebody, whereas an affray is the intent to engage in violent behaviour. Obviously the two are often linked, but I guess the CPS have decided that whatever harm was caused to either party, it was not serious or intentional enough to carry a battery or aggravated assault charge. As ever, happy to be guided by the legal minds out there

Bit off topic, but....

You have actually got it completely the wrong way round, BFL!

The mens rea in both cases is identical, in that both require intent. "Causing harm" or "engaging in violent behaviour" are not elements of the guilty mind, they are the criminal actions that differentiate both offences, or the actus reus. So for a case of affray to be tried, you need someone to be engaging in violence (actus reus) while intending to do it (mens rea). For assault, you need someone to be causing harm (actus reus) while intending to do it (mens rea). Make sense? AS a rather silly example, if I stubbed my toe on the street and shouted to myself "you dickhead", and a passerby thought I was threatening them, the act is the same had it been someone I was threatening, but I didnt "intend" to cause that person harm or be violent. So I am not making an offence.

Battery is not serious. Common assault is not about the extent of harm, only that actions the offender takes makes the victim fear or apprehend further harm could lead on. So, if I gave you a shove while calling you a "D*ckhead", while the shove in itself does no physical damage, the act does make you think I am about to smash you in the face with a fist. That would be a battery. It only takes a touch thats deemed violent and unwanted (but not sexual, thats sexual assault). If I didnt shove you but just screamed in your face "d*ckhead" that is assault. It makes you maybe think I might shove you, or punch you. You fear violence in the future. I can even call you a dic*head on the phone with you in another country, but I am still making you fear future violence when we meet, so its assault.

You also mention "not intentional enough", but intention is the highest form of standard. In legal terms, intention is wider then simply wanting to do an act with a specific outcome. For example, I push you and call you a d*ckhead, its battery and assault (both together are termed common assault). In shoving you, you lose your balance and fall down a curb, smashing your head and ending in a coma. I merely wanted that five quid you owed me and had no intention to turn you into a vegetable.... the law would say the act that lead to your coma, the push, was intended, so I did in fact intend to put you in a coma. Or was reckless enough to engage in actions where other consequences were foreseen (only really murder requires specific intention as the word is usually used, with recklessness going to manslaughter). Once the extent of injury is a question, then we are talking other forms of assault such as wounding, GBH and ABH. Hope that clears up your understanding.

Moving it to this case specifically, the difference between affray and a charge under the offences against the person (assaults) is that with assault, there is essentially an identifiable victim. The crime is specifically committed "against the person", and you are tried in connection with the physical harm you cause and intended to inflict on that person. Affray is a public order offence, and as such there is no actual victim. The damage is done to public order and to the great conscious of society in keeping law and order. Someone guilty of affray intends to act in a violent way that makes a random witness to the event react to that violent event, even if they themselves appreciate they are not the victim and are unlikely to be so.

Considering the fact that there is video evidence of Stokes hunting down a very specific person, and knocking him violently to the ground with a punch, I find it quite extraordinary that the CPS charged him with affray. Without a victim, of course these cases tend to end as warnings and a waste of time. No great deal of damage to anyone, no one complaining, etc.

Charging with affray usually is the result of an even scuffle or fight that breaks out, and usually involves groups. Its a common lads night out scenario. Say if I were to call you a "d*ckhead" in a pub, and we both ended up trying to land a few blows as tables and chairs got knocked over around us. Neither of us hurt each other, and the incident once seperated and kicked out the bar is unlikely to lead to a threat of further violence between us. Id wake up with you next to me and wouldnt know who you were, let alone the fight we attempted to start over a girl I cant remember the name of...... yet every single person in that bar has had their night ruined by us knocking a pint all over their nice jeans in the melee. These are the types of situations that lead to affray. Usually actually they are group fights where no serious injury has been inflicted, but where the actual evidence of who did what is impossible to work out (ie witnesses just see 10 people wrestling each other).

Got to be nice to be a celebrity. I assume that the person Stokes knocked out didnt make a complaint, because if they had, then Stokes would have been charged with an offence against the person. Considering the charge of affray will also relate to those in the fight, not complaining would result in them also being charged with affray.....

Guessing some money exchanged hands ?

sussexpob wrote:

bigfluffylemon wrote:So, no charge of assault or bodily harm, but instead an affray. Not 100% sure what that means, but to my lay understanding, it appears as if it is a difference in intent (mens rea): the former involves an actual intent to cause harm on somebody, whereas an affray is the intent to engage in violent behaviour. Obviously the two are often linked, but I guess the CPS have decided that whatever harm was caused to either party, it was not serious or intentional enough to carry a battery or aggravated assault charge. As ever, happy to be guided by the legal minds out there

Bit off topic, but....

You have actually got it completely the wrong way round, BFL!

Once again I only display my ignorance on this topic. Thanks for setting me straight! Really interesting (in an 'I hope I never actually need to know this' sense).

sussexpob wrote:Got to be nice to be a celebrity. I assume that the person Stokes knocked out didnt make a complaint, because if they had, then Stokes would have been charged with an offence against the person. Considering the charge of affray will also relate to those in the fight, not complaining would result in them also being charged with affray.....

Guessing some money exchanged hands ?

The other two involved in the fight have both been charged with affray as well. I'm guessing a few possibilities: either they didn't complain, or both sides did and the CPS were unable to work out whether there was a 'victim' as such from the evidence (I'm assuming here that there's more to the situation than a minute of blurry video), or there was some sort of deal cut by both sides' lawyers, as you suggest. Do CPS offer plea bargains? Is 'affray' a lesser charge than an assault-based charge (doesn't sound like it from what you've told me, just a different one. They can both lead to jail time)?

Is it possible for both parties to a brawl to be charged with common assault (or aggravated assault depending on injuries) on one another? Or is there by definition an aggressor and a victim?

You have to make the distinction between the actus reus of offences against the person (OAPs), and of public order offences (POAs) to understand the difference. With OAP, the guilty act is to use violent actions that inflict some form of physical apprehension of violence or actual physical violence onto the victim that causes some form of damage. The damage is the aggravating factor, and as a victim receives more harm, the severity of the offence increases. So the actus reus is multi layered, a perpetrator has to (a) use violence (b) use violence against a victim (c) that violence has to satisfy a level of physical harm for each level of offence. So, I have a metal rod and swing it at you but miss, assault. You fear I could very likely hurt you and are threatening you with future violence. Or, I swing the rod but you dodge and I only manage a non-painful blow. Battery. If I hit you on the arm and bruise you, ABH. If I hit you and cut you and you need stitches, GBH. If I smash you full on the face and leave you in a coma, malicious wounding.

With POAs, the actus reus is largely the same, but rather than the victim being the person being hit by the rod, the victim now is society represented by the bystander that simply stumbles onto the scene from round the corner. We have all been there no doubt, walking at 2am through a town centre as a few drunks shout hostile nonsense at each other, and feel a little panicked or unsafe. While these people are concerned maybe only for themselves, they are too drunk or irrational due to anger to really be concerned with thinking properly, so this always brings with it a chance that someone innocent feels threatened, or foresees they may be dragged into something due to their proximity. So with a public order offence of affray, the actus reus is defined as a net effect of a group brawling and what effect that would have on people fearing it might spiral out of control. So while me smashing you with a rod round the head as part of a brawl wont land me into prison on a malicious wound charge, it is going to make a witness to the brawl believe that the situation is out of control, and they are going to as a result believe they are more in danger of being caught in the middle, or be forced to witness more unpalatable acts of violence. So this would aggravate the offence.

The problem is, affray is very useful for the police to arrest people, but once charged and taken to court, it is not useful at all. A policeman on the beat at 2am gets called to a fight, they arrive and see a melee, its not necessary for them to identify victims and who is beating up who; they just arrest everyone for affray, and then investigate what happened, and can charge for OAP afterwards as they see suit. Very useful for them as a blanket offence to get people back to the station, buy time, and stop melee's by having a wide offence to intervene.

Once they get to courts, affray's are notoriously hard to make stick. Some local CPS groups make it policy not to charge them for this reason, and the police pretty much hate it when they get told to charge for affray, it is likely their work is a waste of time. This is because its often hard to charge multiple defendants for the same crime, when the balance of blameworthiness is often very up and down. Its far easier to prove, with witnesses and CCTV, that a given punch knocked someone's tooth out and damaged them, then prove a fictions person watching would think the same might happen to them after watching it.

Relating to this case, if a complaint had been made then the police would almost certainly have to acknowledge and investigate the separate components of the incident without resorting to the rather easy option of charging affray on all its perpetrators. This would no doubt be not very beneficial for Ben, because he is the person who strikes the telling blow on the video. It leads me to believe that (a) The others perpetrators accept that their own conduct was aggravated enough to have already escalated the level of violence to the point that Ben's knock out blow made no difference. A key component on the video, and once that looks very badly for the other two, is the bottle throwing. Bottle throwing in the context of affray always serves to put the scuffle at a higher level (b) the defendants as a whole came to an agreement between themselves not to level charges against each other, knowing that as a group they had more chance of fighting the charge of affray successfully. As I said, affray's dont stick much, whereas there is enough punches thrown to definitely charge successfully for OAPs on all of them. Even someone like Hales gets a boot in at one point, i believe, whereas his conduct in the group action is not sufficient to charge him for affray. It is suspicious in this event though, because Stokes has more to lose on an OAP charge, while the others clearly have the likelihood of his actions bringing the groups into a wider punishable level by being charged together. I think by memory, Stokes is the one acting someone who is already down, and hes the one who hunts the retreating guys and lays one out. Both these actions are ones that dramatically aggravate this affray, so not fighting it could lead the others to being punished for his actions due to those being the ones that are judged to have shocked the passerby the most. Hitting on the floor and hitting defenceless people are ALWAYS looking bad. All I can think of, if there hasnt been agreement outside of the police scope, that the other defendants are being advised that the bottle throwing is on the same level. Yet, still doesnt make sense, because if its a OAP action, the bottle doesnt land, so if they made a complaint there is little damage to account for. Makes no sense to me.

Affray is very serious, but the more serious, the harder to prove. The indications will be if the magistrate deems it an indictable offence, and sends it to the Crown on the first hearing. If that happens, they should start to worry, but its still a catch 22: the higher the punishment, the more likely the charge doesnt stick. The less the offence is seen as serious, the more likely it sticks, the less the punishment.

What tends to happen, is that magistrates will keep the case, and everyone gets a slap on the wrist. Or it gets sent upwards, the seriousness cant be proved, and it gets watered down to a section 4 drunk and disorderly, and everyone pays a fine.

I believe now its been charged as a POA though, the courts cannot change that. They either have to find guilt in affray, Drunk and disorderly or violent disorder.