A dispute between police and CPS, why key witnesses were never called and all those memory lapses. The vital questions that still linger over cricket star Ben Stokes’s botched trial . . .
TODAY, Ben Stokes is due to take to the pitch for england against India in the Third Test at Trent Bridge. If he does so, it will mark the end of an extraordinary week for the 27-year-old all-rounder.
On Tuesday, he found himself standing in the dock of Bristol Crown Court waiting to hear whether or not he would face a possible jail sentence for affray.
He had been accused of punching two men unconscious — shattering the eye socket of one in the process.
Since his arrest last September, Stokes had maintained he had acted in self-defence, stepping in to protect two gay men who claimed to have been subjected to homophobic abuse.
Cleared by the jury, his lawyer said afterwards that their verdict fairly reflected ‘the truth’ of what happened that night.
But if Stokes had hoped that was the end of the matter, he will be rather disappointed.
evidence presented to the court painted an unedifying picture of what happened after Stokes and teammate Alex Hales had headed out on the town to celebrate a victory over the West Indies in Bristol.
It is claimed that Stokes downed at least ten alcoholic drinks before unleashing a foulmouthed tirade at a bouncer and then mocking two gay men, Kai Barry and William O’Connor.
That same pair were then allegedly subjected to homophobic abuse by two other men — Ryan Hale and Ryan Ali — prompting Stokes to intervene.
Ben Stokes, Mr Hale and Mr Ali were all subsequently charged with affray.
Despite all three men being acquitted, a number of questions have since arisen about how the case was conducted.
From absent witnesses to absent defendants, and last-minute charges to lingering memory lapses, here the Daily Mail asks some serious questions about the trial that shocked the sporting world.
Why was Stokes charged with affray and not assault?
THE decision to charge Stokes with affray, rather than assault, has baffled many.
Affray carries a maximum jail sentence of just three years and two men were knocked unconscious in the fight, suggesting a much more serious charge might have been more appropriate.
For some reason, minutes before the start of the trial, prosecutors sought to lay two additional, more serious, charges against Stokes. But they were too late.
Judge Peter Blair QC said introducing the counts of assault occasioning actual bodily harm, an offence carrying a sentence of up to five years in jail, would be unfair on Stokes and his legal team so close to the trial.
He said it was ‘hard to see how the defence could have objected’ if the new charges had been added at a pre-trial hearing in February, but Stokes’s legal team had prepared for a trial on an affray charge and should not be ambushed with a last-minute change.
Of course, even if the additional charges had been brought, there is no suggestion that the outcome would have been any different. Stokes would still have been able to claim that he acted in self-defence.
But the late change of tack does raise questions about how the prosecution case was managed from the outset.
Police sources have said that they wanted Stokes to be charged with ABH, rather than affray, ‘right from the start’.
The decision to bring the affray charge was taken by Crown Prosecution Service lawyers. A CPS spokesperson said: ‘The CPS keeps cases under continual review. We selected the charge of affray at the outset in accordance with the Code for Crown Prosecutors.
‘ Upon further review, we considered that additional assault charges would also be appropriate. The judge decided not to permit us to add these further charges.
‘The original charge of affray adequately reflected the criminality of the case and we proceeded on that.’ Asked whether the CPS would be conducting a review of how the case was handled, the spokesperson said it would not be doing so.
Why was ‘innocent bystander’ in dock. . .
In THE wake of the early-morning melee, three men were charged with affray. But half way through the trial, the judge instructed the jury to acquit 27-year-old former serviceman Ryan Hale.
He’d been knocked unconscious by Stokes, after which he was accused of arming himself with a metal pole. He had always insisted he was an ‘innocent bystander’.
At the end of the prosecution case, Judge Peter Blair QC told jurors that he had considered whether they would be able to find that Mr Hale ‘used or threatened unlawful violence’.
‘There hasn’t been any evidence whatsoever that he did so,’ the judge told them, adding that Mr Hale could be seen removing his T- shirt to put under the head of his friend, who had ‘been knocked senseless to the road surface’ by Stokes.
Police sources have claimed that they did not want to pursue the case against Mr Hale — but were told to press ahead during early consultation meetings with the CPS last year.
Mr Hale’s solicitor told the Mail that he ‘struggles’ to understand how he ended up as a defendant in the case — rather than the ‘victim of an unlawful assault’.
. . . as England’s Alex Hales walked free?
WHILE Mr Hale may have found himself in the dock, Stokes’s team-mate Alex Hales was notable by his absence.
This is despite the fact that he was seen on CCTV kicking Mr Ali in the head while he lay on the floor injured. Hales was questioned under caution, but never arrested.
‘I struggle to understand how the Crown, in adopting the stance they have, have come to the conclusion that overt acts of direct violence used by an individual to someone on the floor is not worthy of prosecution,’ Stephen Mooney, representing Hale, told the judge in the absence of the jury.
In his closing speech, 29-year-old Hales’s alleged involvement was further highlighted by Stokes’s own barrister, Gordon Cole QC. He suggested that Hales could, in fact, have been responsible for Ali’s injuries — including a shattered eye socket.
Hales also faces accusations that he lied to police. On the night, when approached by a uniformed officer who had just arrested allrounder Stokes, he said he did not witness the fight and only turned up after the fracas had finished.
An Avon and Somerset Police spokesman said of the decision not to charge Hales: ‘early investigative advice was sought from the CPS in relation to Alex Hales’s involvement and a decision was made at a senior level to take no further action against him.
‘The decision was made by the detective inspector following the early advice from the CPS.’
But a CPS spokeswoman said in a statement: ‘ The decision to charge Ryan Hale was taken in accordance with the Code for Crown Prosecutors — that there was sufficient evidence to charge and that it was in the public interest to do so. The CPS was not
asked to make a charging decision in respect of Alex Hales.’
Why can’t ANYONE recall what went on?
To sAy that there were gaps in the memories of those involved in the fracas would be something of an understatement.
While Ben stokes was able to remember well enough to refute claims he had called a bouncer a ‘c***’, mocked his tattoos and mocked the two gay men, there were plenty of other blanks.
For example, he could not recall flicking a cigarette butt at the two
gay men, despite the action being caught on CCTV. Nor could he recall mimicking their ‘camp’ actions — something that Mr Barry and Mr o’Connor confirmed stokes had indeed done in their interview in The sun following his acquittal.
Nor could he remember the exact words that he claimed to overhear Mr Ali and Mr Hale direct at Mr Barry and Mr o’Connor.
He knew they were homophobic — indeed, he described them as ‘nasty homophobic abuse’ in a letter drafted by his solicitor — but, as to the precise words, not a clue. (In fact the phrase used, the gay friends claimed, was ‘batty boys’, a derogatory term for homosexuals.)
He could not remember knocking Mr Ali unconscious, nor could he remember who he telephoned — his wife or his agent — after being arrested and taken to the police station. ‘ Mr stokes, you seem to have a really significant memory blackout,’ prosecuting barrister Nicholas Corsellis suggested to him at Bristol Crown Court.
stokes replied: ‘you could say that, yes.’
Given that stokes had consumed at least ten alcoholic drinks on that night, including pints of lager, vodka and lemonades and Jagerbombs, was it because he was ‘actually really very drunk’?
stokes strongly denied that was the case, adding: ‘I think the whole incident would have been clouded because it was such . . . there was a lot of people around . . . a lot of shouting. I don’t remember every little detail which has gone on that night.’
Mr Ali, meanwhile, had a similar problem recalling the details of the night. He told jurors his memory of the evening was ‘ incomplete’ due to the head injury he suffered when he was knocked out.
As for Mr Hale, in a statement to police, he said he had suffered a mini- stroke a month before the incident. As a result his ‘shortterm memory was not good’.
Why didn’t witnesses give court evidence?
GAy friends Kai Barry, 27, and William o’Connor, 21, were the individuals at the heart of the case. yet they barely featured in the trial, being mentioned only in passing. Their statements were not read to the jury and they were not called to give evidence.
There was plenty they could have helped to clear up — on oath — had they actually been asked.
Had stokes been bullying them over their ‘camp’ mannerisms, as the prosecution claimed?
or had stokes, in fact, been their saviour, stepping in to shield them from cruel jibes?
Neither the prosecution nor the defence chose to call the pair — raising questions as to whether their story would have stood up to court scrutiny.
sources confirmed to the Mail they had been deemed unreliable and that their recollection of events was ‘fluid’.
In an interview with The sun following the trial, Mr Barry said: ‘Just a week before the case, the Crown Prosecution service said they didn’t want us there.
‘ I think police and the CPs ignored that it happened to us because we’re gay.’
A spokesperson for the CPs denied this was the case and added: ‘The evidence of Mr o’Connor and Mr Barry was disclosed to the defence, but it was not deemed necessary to call them as witnesses in the case.’
So what is their explanation?
WHIle Mr Barry and Mr o’Connor did not give evidence in court, on two occasions their version of events has been published in The sun newspaper.
Their first interview was on october 28 — a month after stokes’s arrest and the very day the england team flew out to Australia to contest the Ashes.
stokes was absent from the squad, having been suspended following the fracas. Their intervention was potentially highly significant.
‘Their claims could lead to the all-rounder being cleared over the punch-up and freed to play for england in the First Test in Australia next month,’ the newspaper stated.
As it turned out, stokes would take no part in the Australian tour.
A second interview with the pair was published on Wednesday, the day after stokes was acquitted.
In both interviews, the duo lavished praise on stokes for stepping in to save them from homophobic bullies who were verbally abusing and physically threatening them.
But there were a number of discrepancies in what they said.
In the first interview, they said they met stokes inside the Mbargo nightclub. Hairdresser Mr Barry said: ‘When I’m in a club I just dance next to people. It will be random bump and grind, like: “Hello, how are you.” It would be normal banter. I chat to everyone and they were quite fit so we partied with them for a bit. Ben bought us Jägerbombs.’
While in the club, they claimed to hear someone call them ‘batty boys’.
‘I didn’t think anything of it,’ said Mr Barry. ‘It’s not nice, but I’m old enough to rise above it.’
A remarkable response, some may think, given the reaction those same words were said to have elicited later.
significantly, the evidence in court established that stokes did not, in fact, meet the men until they had left the nightclub. By then, the cricketer was waiting outside, having left earlier and been refused re-entry.
In their most recent interview, it is now suggested that this was indeed the case, that they ‘got chatting . . . outside a nightclub, outside Mbargo’.
As they walked away, they claimed Mr Ali and Mr Hale followed them.
‘We then heard a “batty boy” comment,’ said Mr Barry, adding that he was then hit in the back with a bottle. Again, evidence of this was heard during the case.
But, in their first interview, there was no mention at all of a bottle.
The pair’s repeated claims that they were subjected to homophobic abuse have riled Mr Hale, who issued a statement denying that was the case following the end of the trial.
‘Mr Hale denies that there was any animosity between the group throughout the evening, and he in fact left the Mbargo nightclub and greeted Mr o’Connor and Mr Barry in a friendly way, as supported by CCTV,’ it read.
‘ He does not in any way accept that there was any homophobic behaviour on his or his friend’s part.’
Mr o’Connor and Mr Barry claimed that they were oblivious to the fallout from the brawl and only found out when a policeman came to speak to them shortly before they spoke to The sun for the first time.
‘Apparently people thought we didn’t exist and that the story about Ben defending two gay men was made- up,’ the interview concluded. ‘ But here we are as proof.’
When he was arrested, stokes claimed to have been defending his gay ‘friends’.
In fact, he had only met the pair for a matter of minutes.
Why did Ben Stokes shake Mr Ali’s hand?
BoTH Mr Ali and stokes were found not guilty of affray by the jury. stokes remained impassive when the verdicts were read out. But soon after, he reached across the dock to shake hands with Mr Ali. The gesture surprised some.
After all, it was stokes’s case that Mr Ali and Mr Hale had been the authors of the homophobic abuse that had moved him to intervene on the night.
That intervention ultimately cost him the chance to represent england in The Ashes, cost him hundreds of thousands of pounds in lost sponsorships, as well as landing him in court facing the prospect of jail.
Given those circumstances, the handshake was a generous — or sportsmanlike — gesture if ever there were one.