A senior prosecutor is facing serious questions over the catalogue of errors that saw England cricket ace Ben Stokes cleared of affray.
It took the jury just two and a half hours to clear the England cricketer of affray over his part in a violent street brawl.
Stokes, 27, and his co-defendant Ryan Ali, 28, were unanimously found not guilty following a week-long trial at Bristol Crown Court.
They had denied the charge, which arose from a fracas outside a Bristol nightclub last September several hours after England had played a one-day international against the West Indies.
Video showed Stokes – who admitted he had spent the evening drinking lager, vodka and shots – hitting Mr Ali and former soldier Ryan Hale, 27, with such force that both were knocked unconscious.
Ben Stokes, pictured here with his wife Clare Ratcliffe, and his co-defendant Ryan Ali, 28, were unanimously found not guilty following a week-long trial at Bristol Crown Court
But despite the victim’s obvious injuries, Stokes was merely charged with affray.
It has now emerged the case – described as ‘relatively low-level’ by the judge – was transferred from the local branch of the Crown Prosecution Service to its headquarters in London.
It was there that one of the country’s senior prosecutors Alison Morgan, who rose through the legal ranks after gaining prominence in her role during the trial of the murderers of Stephen Lawrence, made the decision to charge Stokes with the lesser offence of affray rather than assault.
Miss Morgan, who was promoted to first junior treasury counsel in February, also decided not to charge Alex Hales, an England batsman, for kicking Mr Ali in the head during the row despite the fact he was recorded doing so.
Nicholas Corsellis, the prosecutor in the trial, applied on Monday last week for Mr Stokes to be charged also with two counts of assault.
The Times reports Judge Peter Blair expressed surprise that decisions in the relatively low-level case had been transferred from the local crown prosecution service to the organisation’s headquarters in London.
He said that Ms Morgan had access to all the key evidence when she made a decision to charge Mr Stokes with affray and indicated that assault charges would have been allowed if requested at a pretrial hearing in February.
The judge noted that Ms Morgan had not attended the pretrial hearing but sent a member of her chambers, Lucy Organ.
Following his acquittal Stokes was immediately restored to the England squad for Saturday’s Test against India
Following his acquittal, and despite his failure to apologise publicly for his involvement in the altercation, Stokes was immediately restored to the England squad for Saturday’s Test against India.
It can now be reported that a series of mistakes marred the proceedings, despite the Crown Prosecution Service consulting the most senior counsel on how to handle the sensitive case. The CPS was forced to deny attempting to ‘highlight’ Mr Stokes because of his standing as an international cricketer. Prosecution mistakes included:
- Helping police decide that fellow England international Alex Hales should not be charged, despite CCTV appearing to show him kicking a prostrate Mr Ali three times in the head;
- Charging Stokes with a single count of affray, an accusation they acknowledged was inappropriate and inadequate only on the morning of the trial;
- Failing to meet the basic level of evidence required to demonstrate a case against Mr Hale, who was cleared at the direction of the judge before his defence even began;
The CPS also failed to explain why gay couple Kai Barry and William O’Connor were not called to give evidence. They had insisted Stokes protected them from verbal abuse.
Stokes, who had admitted drinking heavily but denied being ‘really very drunk’ had insisted in court: ‘Everything I did that night, I did in defence of myself.’
He said he had acted to protect Mr Barry and Mr O’Connor from homophobic abuse.
Nottinghamshire batsman Hales, 29, had been credited by the prosecution with attempting to calm the ruckus until footage of him ‘stamping’ on Mr Ali emerged in evidence. In police bodycam footage of Stokes’ arrest, Hales appeared to lie to PC Stacey Alway, claiming he had missed the fight.
Despite the severity of the violence he allegedly used, and his apparent lies to police, Hales was not arrested or charged, merely interviewed under caution.
In his closing speech, Stokes’ barrister Gordon Cole QC went as far as to suggest that Hales could have been responsible for Mr Ali’s injuries, which included a fractured eye socket. The CPS said it was an Avon and Somerset Police decision not to pursue Hales.
On the morning the trial began, prosecutors sought to lay two additional, more serious charges against Stokes to reflect the injuries suffered by Mr Hale and Mr Ali. But Judge Peter Blair QC said introducing the counts of assault occasioning actual bodily, an offence carrying a sentence of up to five years in jail, would be unfair on Stokes and his legal team at such a late stage.
The decision to charge Stokes and his co-defendants with affray lay with treasury counsel Alison Morgan, who has acted in high-profile cases including the prosecution of Stephen Lawrence’s killers.
But her decision is under scrutiny following the last-minute attempt to introduce the extra charges and the acquittal of Mr Hale halfway through the trial.
Jurors may have been baffled by the absence of Mr Barry and Mr O’Connor, who maintain that Stokes defended them against homophobic abuse. Sources said the CPS deemed them unreliable.
Prosecution mistakes include charging Stokes with a single count of affray, an accusation they acknowledged was inappropriate and inadequate only on the morning of the trial
As the jury, who deliberated for two hours and 34 minutes, announced the not guilty verdicts, Stokes’ chest heaved and he staggered forward, tears welling in his eyes, before he shook Mr Ali’s hand. In the public gallery, Stokes’ wife Clare wept and embraced his agent Neil Fairbrother.
Outside court, Mr Stokes’ solicitor Paul Lunt told reporters: ‘Today’s verdict represents the end of an 11-month ordeal for Ben during which time he has had to maintain his silence at times when many of social media, and certain parts of the Press, predetermined his guilt long before the trial began.
‘The jury’s decision… fairly reflects the truth of what happened in Bristol that night.’
A CPS spokesman said: ‘A decision to charge this case was made following detailed consideration of the evidence and in accordance with the Code for Crown Prosecutors. The function of the CPS is not to decide whether a person is guilty of a criminal offence, but to make fair, independent and objective assessments about whether it is appropriate to present charges for a jury to consider. We respect the jury’s decision. The CPS keeps cases under continual review.
‘We selected the charge of affray at the outset in accordance with the Code. Upon further review we considered that additional assault charges would be appropriate.’
Avon and Somerset Police said: ‘Early investigative advice was sought from the CPS in relation to Alex Hales’ involvement in the incident and a decision was subsequently made at a senior level to take no further action against him.’ The England and Wales Cricket Board said: ‘Now that the legal proceedings have concluded, the disciplinary process for Ben Stokes and Alex Hales can be scheduled by the Cricket Discipline Commission.
‘Ben Stokes will now join the England squad for the third Specsavers Test against India. In due course, there will be a range of matters for the board to fully consider.’
Why didn’t CPS prosecute Ben Stokes for ABH? Legal expert suggests reason Crown tried England cricketer for affray
by Charlie Bayliss for MailOnline
Ben Stokes may not have been charged with ABH as the Crown Prosecution Service’s evidence may have been undermined by bad character witnesses or a lack of corroborative evidence, a legal expert has suggested.
The England Cricketer was only charged with affray and was found not guilty following a trial at Bristol Crown Court.
The 27-year-old – whose co-defendent Ryan Ali was also acquitted – was cleared by a jury following a street brawl outside a club in the city on September 25 last year.
England cricket player Ben Stokes outside court following the verdict, alongside his wife Clare Ratcliffe this afternoon
Stokes with his wife Clare Ratcliffe as the statement was read out by his lawyer
England cricketer Ben Stokes’s lawyer Paul Lunt reads out a statement outside Bristol Crown Court where he has been found not guilty of affray. Stokes pictured centre
It has also been revealed today that the CPS failed in a last-ditch attempt to try Stokes for ABH on the first day of the trial – which carries a maximum term of ten years, in addition to three years for affray.
Adam Rasul, a senior partner at Holborn Adams criminal defence solicitors, told MailOnline the decision by the CPS to not charge Stokes with ABH earlier could be because their case was not strong enough.
Speaking to MailOnline, he said: ‘If the prosecution apply for a higher charge so late in the case, they are allowed to do that but as a defence lawyer, I would be attacking that application to say why wasn’t he charged earlier.’
Prosecutors were unable to piece together the events leading up to brawl, where Stokes knocked out two men.
According to The Telegraph, the two key eyewitnesses – Kai Barry and William O’Connor, the gay couple of Mr Stokes was allegedly trying to defend – were deemed ‘unreliable’ by both Stokes and the CPS.
Mr Barry and Mr O’Connor’s version of events seemingly contradicts a nightclub bouncer who said Mr Stokes was mocking the gay men.
Kai Barry, left, and William O’Connor, right, today thanked Stokes for stepping in to defend them against homophobic abuse
A senior legal source told The Telegraph that neither the Crown nor Stokes’ legal team had felt able to call the pair.
The source said: ‘Mr Barry and Mr O’Connor’s story ebbed and flowed backwards and forwards. They were inebriated on the night and their recollection of events was very patchy.’
Private solicitors are also able to challenge pre-charge representations and gather evidence from witnesses and experts to ‘contradict the prosecution allegations so that charges cannot be justified under the Code for Crown Prosecutors’. Pre-charge representation is not offered under legal aid.
He added that as a private solicitor, similar to one hired by Mr Stokes, his defence team can bombard the prosecution with evidence that undermines their case, in a bid to seek a lesser charge.
England cricketer Ben Stokes’ police mugshot, left, and Ryan Ali, right, showing the injury he sustained to his left eye
Mr Rasul said: ‘What applies to the prosecution applies to the defence. If you have the money you can afford to call expert witnesses who can contest every piece of evidence.’
With a private solicitor, Stokes’s legal team would be able to engage with prosecutors on a daily basis if they saw fit. Pre-charge representation is not offered under legal aid.
The CPS may have had issues with bad character of non-defendant, including previous convictions. Witnesses who give evidence that does not corroborate with others could also undermine their case, as would bad video quality, Mr Rasul told MailOnline.
‘There are so many things that can happen in evidence. If the evidence can be undermined, it can be used by defence lawyers.
‘If you are represented properly or privately, you can throw everything at the case. Our clients have access to private defence lawyers around the clock. It seems unfair, but you get what you pay for.’