The Ben Stokes trial: what went wrong?

This is one of those posts carrying a title which I genuinely had no intention nor desire to write. It is also, I make plain at the outset, rampant clickbait, as I, like 7 billion other people who were not present for the duration of the court proceedings, am in no position at all to say what (if anything) “went wrong” in the Ben Stokes trial. However, given the ongoing social and tabloid media commentary and speculation, it seems that some general pointers on the law in this area would assist. I’ve done my best to piece together the facts from various outlets, but the standard caveat applies throughout: this analysis is based on the inevitably limited picture available.

 

What is the case about?

England cricketer Ben Stokes was on Tuesday 14 August 2018 acquitted by a jury of affray following a week-long trial at Bristol Crown Court. A co-accused, Ryan Ali, was also acquitted of affray. A third defendant, Ryan Hale, was acquitted of affray last week at the end of the prosecution case when the judge ruled that there was “no case to answer” against him.

The facts, put simply, are that in the early hours of 25 September 2017, violence broke out outside a nightclub in Bristol. Video footage captures part of what took place, and shows a male said to be Ben Stokes throwing punches at two other males. In the course of the incident, Ryan Ali was knocked unconscious and suffered a fractured eye socket, fractured tooth, cut eyebrow and bruising. Ryan Hale was also rendered unconscious and suffered concussion.

The prosecution case was that Ben Stokes was the aggressor and was “enraged” after a doorman refused to allow Mr Stokes and his teammate Alex Hales into a club. Ben Stokes was said to have homophobically mocked two men, Kai Barry and William O’Connor, immediately before the violence broke out.

Ben Stokes’ case was that he was in fact standing up for Mr Barry and Mr O’Connor after they were verbally abused by others. He said that Ryan Ali had then threatened him with a bottle, and that his actions thereafter amounted to lawful self-defence.

The prosecution conceded that Ben Stokes may have been acting defensively initially when threatened by Ryan Ali, but asserted that he “quickly became aggressor”.

Ben Stokes’ teammate, Alex Hales, was also present, and it was said by Stokes’ barrister that Hales could be seen on the CCTV kicking and stamping on Ryan Ali during the melee. Alex Hales was not charged with any offence.

The prosecution relied upon the evidence of a doorman and an off-duty police community support officer (PCSO), as well as video footage.

Mr Barry and Mr O’Connor were not called to give evidence by either side at trial.

 

What is affray?

Affray is a public order offence, contrary to section 3 of the Public Order Act 1986:

Affray.

(1) A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.

(2) Where 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).

(3) For the purposes of this section a threat cannot be made by the use of words alone.

(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene.

(5) Affray may be committed in private as well as in public places.

Affray is an “either-way” offence, meaning it can be tried either in the magistrates’ court or the Crown Court before a jury. In the Crown Court, the maximum sentence upon conviction is 3 years’ imprisonment.

As we can see, an offence of affray involves the use or threat of unlawful violence, but is concerned not so much with the impact of the violence upon the individual concerned, but with the impact upon the passing public. The gravamen is the fear that this type of violence causes to bystanders. It is therefore quite different to an assault.

The Crown Prosecution Service guidance on affray provides a handy summary of the relevant law. There are quite a few interesting features. For example, the requirement that a notional “person of reasonable firmness” be put in fear for their personal safety means that not all violence will qualify as an affray. It’s possible for someone to assault another person in such a way as would not cause a bystander to fear for his own personal safety. Affray tends to apply in cases, such as this, where there is a brawl or outbreak of (often drunken) violence that members of the public might reasonably fear could spiral.

 

What is self-defence?

Self-defence is a complete defence to affray. I’ve written about self-defence in some detail before, here. For now, I’m going to copy and paste the relevant bit:

In 2008, the common law defence of self-defence was put on a statutory footing in section 76 of the Criminal Justice and Immigration Act 2008. What it means in practice is as follows:

  • A person acting in genuine self-defence is entitled to use such force as is reasonable in the circumstances as he believes them to be. This provides a defence to any charge of violence, up to and including the use of lethal force;
  • The first question that a jury must ask is Did the defendant believe or may he have believed that it was necessary to use force to defend himself from an attack or imminent attack on himself or others or to protect property or prevent crime?
  • The second question is Was the amount of force D used reasonable in the circumstances, including the dangers as D believed them to be?
  • The burden is on the prosecution to disprove self-defence. It is not for a defendant to prove that he was acting in self-defence. The prosecution have to prove beyond reasonable doubt (so that a jury is sure) that the defendant was not acting in reasonable self-defence.

Let’s break down what this means.

“A genuine belief that force is necessary”

The question here is subjective – i.e. did the defendant genuinely believe he needed to use force in self-defence? It does not matter if the defendant was in fact mistaken, as long as he believed that at the time. So if a 6-foot man wearing a terrifying bear costume runs towards you brandishing what looks like a machete, and you genuinely believe he is about to attack you, the fact that you later realise the “machete” is a hunnypot and that you’ve KO’d Winnie The Pooh in front of a distraught crowd of Disneyland toddlers does not matter. The fact that your belief in the need for force was, by objective standards, unreasonable – who would mistake a hunnypot for a machete, for Lord’s sake? – does not matter at this stage. It might make the jury less likely to accept your insistence that your belief was genuine; however the bottom line is that a mistaken, unreasonable but genuinely-held belief in the need for force is enough. (The only exception is if your mistaken belief is due to your voluntary intoxication. Because, frankly, getting tanked on Stella and raining fury on Winnie The Pooh in a fountain is not something the courts can condone).

“Reasonable force”

Whether force is reasonable has to be judged by the circumstances as the defendant believed them to be, even if, as above, he was in fact mistaken. So if you genuinely believe that a machete attack is imminent, what is reasonable has to be assessed by reference to that belief. What is reasonable will obviously depend on the individual case, but section 76 reflects the famous words of Lord Morris in the case of Palmer v R 1971 AC 814, which are distilled in some form to juries when they are given their directions of law by the trial judge:

“If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken …”

Further pointers in section 76 include the provision that if force is “disproportionate”, it cannot by its nature be “reasonable”. Which sounds self-evident, one might think, but we’ll come to this more in a second. It is also made explicit that, while the possibility of a defendant having been able to retreat is a factor to consider when assessing reasonableness, there is no “duty to retreat”. It is also long-established that a person may strike pre-emptively – you do not need to wait to be hit.

So in a nutshell, the law of self-defence means that the prosecution must make a jury sure that either a defendant didn’t really believe he needed to use force, or that he did but used unreasonable force – for example killing someone with a gun in response to a slap to the face – bearing in mind the broad scope of appreciation allowed in these cases.

 

How was Ben Stokes acquitted? The CCTV shows he was clearly being violent

That may well be so. But the question for the jury wasn’t “Does the CCTV show that he was throwing punches?” The question was whether the offence in law was proved.

To this end, the court has published the “route to verdict” provided to the jury. These are now produced by judges in most Crown Court trials, and are exceptionally useful. Frankly, I have no idea how juries of bygone years were supposed to decide complex cases without them. They usually take the form of flow charts or numbered questions, and are tailored to the issues in the particular case. Judges usually show them to the advocates before the document is given to the jury, so that the parties can offer observations.

Here is the route to verdict:

As can be seen, there were many theoretical routes by which a jury might have acquitted. We have no way of knowing why the jury in this case did.

 

Why wasn’t Ben Stokes charged with assault?

Many, including this honkingly poor Daily Mail piece, have been asking this question. It emerged that, on the first day of trial, prosecuting counsel Nicholas Corsellis applied to amend the indictment against Ben Stokes to add two counts of assault occasioning actual bodily harm (contrary to section 47 of the Offences Against the Person Act 1861), in relation to the injuries suffered by Ryan Ali and Ryan Hale. The judge refused, commenting on the “very late” nature of the application and the fact that Treasury Counsel (the most senior barristers instructed by the Attorney General) had been specifically asked to advise on the appropriate charge at the beginning of proceedings and had alighted upon a single count of affray against Ben Stokes as sufficient. The judge did say that, had the prosecution applied to add the counts to the indictment at an earlier stage, there would have been little problem; however, leaving it to the day of trial was not right. The judge also said that in his view such an amendment was “not necessary”.

Should Ben Stokes have been charged with assault occasioning actual bodily harm? Certainly Mr Corsellis thought so, even if Treasury Counsel (named by the Mail as Alison Morgan) initially instructed to advise on charges at the outset of the case thought otherwise.

The Crown Prosecution Service charging standards would appear to support Mr Corsellis. These specifically address the issue of when a public order offence and an offence against the person should be charged:

Charges Relating to Violence Against the Person

Charges of Assault that are appropriate to link to those of Public Order are set out below.

[…]

If there is sufficient evidence to justify a charge under sections 2 or 3 of the Public Order Act and an assault contrary to:

  • section 18 OAPA; or
  • section 20 OAPA; or
  • section 47 OAPA

It will usually be appropriate to charge both. It will not normally be appropriate to charge common assault (section 39 of the CJA 1988) together with an offence contrary to sections 2 or 3 of the Act.

Sometimes, prosecutors will charge tactically. It may be easier to prove affray, or the view may be taken that a conviction for assault is unlikely to add materially to the sentence for an affray, and the Crown may reasonably consider that adding a charge of assault would unnecessarily complicate the trial.

Without knowing the advice offered to the CPS, we cannot say why the decision not to charge s.47 assault was taken. But the expectation in such cases is that it usually should be charged. The CPS has released a brief statement saying:

“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.”

It may be – we don’t know – that the evidential position shifted in some way that meant that a charge of assault occasioning actual bodily harm was suddenly viable in a way it was previously not. By way of example, if the CPS suddenly come into possession of medical evidence proving injury, they might properly say that they are only at a late stage in a position to support a charge of ABH. But the reports of the judge’s ruling suggest that it was simply that the new prosecution barrister formed a different view to his predecessor. This is in itself not an an uncommon occurrence – because of the unpredictability of criminal court listings, trials overrunning etc, cases are often “returned” to a new barrister the night before trial, who may then advise the CPS in completely different terms.

 

Would a charge of assault have resulted in a conviction?

We don’t know. The newspapers have largely assumed this as a given, but if the tenor of the defence to the affray was self-defence, then my educated guess would be that a similar defence would have been run in relation to any assault charge. And while we don’t know how and why the jury acquitted, there’s a reasonable inference that if they couldn’t be sure that the prosecution had disproved self-defence on the affray, there would be no difference to the verdict on an assault charge.

It’s also worth noting that despite excitable commentary from the Telegraph that charging two counts of s.47 assault would have left Mr Stokes facing thirteen years in prison, this would require the judge upon conviction passing the maximum sentence for each charge (5 years for each ABH and 3 years for the affray) and directing them to run consecutively to each other, something which has never happened in the history of English and Welsh criminal law. Convictions for assaults on top of affray would have added a little by way of sentence, but not lots. The maximum sentence for ABH may be 5 years, but the range set by the Sentencing Guidelines (which judges are required by law to follow) is up to 3 years, and judges do not simply pile sentences on top of each other. They apply what is referred to as “totality”, and ask themselves “what is the overall sentence that justly reflects the total offending in this case?” In this case, the all-round sentence would, in my experience, be unlikely to be much more for the presence of two assault charges.

 

What about the missing witnesses? Why didn’t the prosecution call them?

Barry Kai and William O’Connor were speaking to the media in support of Ben Stokes immediately after the acquittal, raising the reasonable question of why they weren’t witnesses in the trial. The CPS has said:

“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.”

Reading between the lines, it appears that whatever these two witnesses told the police, it did not help the prosecution case. This is why their “evidence” (by which the prosecution presumably means their witness statements or other informal accounts given to the police at the scene) was disclosed to the defence, rather than relied upon as prosecution evidence. This is far from unusual in affray cases, especially where most witnesses and participants have been drinking. Prosecuting an affray trial can be fiendish, as you have to pick out the bones from a pack of incoherent and inconsistent witness statements and decide how the prosecution puts its case. Usually you will rely upon the account of the most sober and independent witnesses, and disclose the remainder to the defence as “unused”. We know that the prosecution had two such ostensibly reliable and sober witnesses – the doorman and the PCSO – and if their evidence contradicted Messers O’Connor and Barry, the latter two may well have been considered unreliable.

It is notable that, despite their warm words for Mr Stokes, the defence did not choose to call them as defence witnesses. Plainly whatever they had to say was not considered sufficiently reliable or helpful to Ben Stokes’ case for them to say it on oath before the jury.

 

Why wasn’t Alex Hales prosecuted?

Based on what has been reported, this is a reasonable question. The defence told the court – and the police officer in charge of the case agreed in evidence – that the video footage showed Alex Hales kicking and stamping on Ryan Hale and Ryan Ali. Mr Hales was interviewed under caution by police but ultimately not charged. He apparently told attending police officers that he had only arrived at the scene after the police had, which does not sit easily with the footage. There is no explanation for the decision not to charge him beyond a bare statement from the police that “Early investigative advice was sought from the Crown Prosecution Service 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.” 

 

Was the Ben Stokes verdict right? 

I don’t know. I didn’t hear all the evidence. And, unless you are a juror, reporter or member of the public who attended every day of trial and absorbed all the evidence, you don’t know either. You have an incomplete picture and should not be commenting.

 

So the verdict means that Ben Stokes is innocent, right?

He is presumed innocent, yes. Proven innocent, no. A “not guilty” verdict means only that the jury was not sure of guilt. This is what juries are told up and down the land ever day – if you are not sure of guilt, you must acquit. Look back at that route to verdict for the many ways in which a jury could have reached a not-guilty verdict. They may well have all agreed that Mr Stokes’ actions were most definitely reasonable self-defence. Or they may have found themselves almost sure – but not quite – that he was the aggressor and/or had gone way over the top. That is the spectrum of an acquittal  – sure of innocence right through to very nearly sure of guilt. That is why we say that an acquittal should never, by itself, be heralded as “proof” of innocence. The presumption of innocence remains intact – no criminal legal consequences now flow – but anyone relying on an acquittal as proof of innocence is reaching for a meaning that the verdict does not carry.

 

This case is a shambles, right? Heads should roll

Some of the criticism has been completely unfounded and misdirected. It was not, for example, a “blunder” for the Crown not to call Mr Barry and Mr O’Connor; unless it can be shown that their evidence was reliable and would have supported the prosecution case, it would be entirely right and proper for the Crown not to rely upon them.

However, there are understandable questions over Alex Hales’ role, and why he was not charged. Some detail from the CPS beyond the usual rote “The evidence did not support a charge” would help in cases such as this.

It is also arguable that charges of assault should have been preferred at an early stage as well as a charge of affray; although there is no evidence that this would have made a difference to the verdict.

Furthermore, and significantly, a not guilty verdict, we must remember, is not a conclusion that a case should never have been brought.

The test for prosecuting is: Is there a realistic prospect of conviction? If there had been no case to answer against Ben Stokes, the judge would have made the same ruling at the close of the prosecution case as he did in respect of Ryan Hale: he would have directed the jury to immediately acquit.

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20 thoughts on “The Ben Stokes trial: what went wrong?

  1. Typo alert: the incident in question took place in 2017, not 2015. I’d hate the reader to think it took nearly three years for this matter to reach court!

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  2. This, as usual, is so helpfully forensic. Clearly, bearing in mind that I wasn’t at the trial, I have to take the advice here that I should not comment. So I won’t, in the sense of sounding off about guilt, non-guilt or innocence. But since there is a Comments section, could I raise one issue, as well as noting one tiny error, which I’m sure most can work out but which does cause a double-take in such a superb bit of writing – the idea that changing or adding to a charge is “a not a common occurrence” (= not uncommon).

    More seriously, I now understand so much better why the jury could clear BS, and the multiple escape routes on the flowchart to conviction. And here’s my question: surely, if one of the conditions of affray relates to fear on a reasonably firm me, surely that in itself would be the almost inevitable get-out, because one could imagine watching these guys thumping and kicking one another without fearing about being drawn in. Do I not recall other witnesses or opinions of people who vaguely stood and watched? And you say too that there doesn’t actually have to be such an observer – just an imagined one. I can certainly well appreciate why there would have been a late and urgent wish to add in the assault charge.

    Thank you for deconstructing all this, as I had been left rather shaking my head at what might best be described using your own words as “a pack of incoherent and inconsistent … statements”.

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  3. It is frustrating when certain media outlets have shown unacceptable bias and suggested that ‘he’ was let off because of ‘who he is’. As you rightly point out, none of us were in court and didn’t hear the evidence in its entirety. I suspect that some self-appointed bar-room gossips will continue to deliver ‘their verdict’ with little or no knowledge of the law. As ever, you have provided the rest of us with a useful analysis of the law relevant to this case. Thank you!

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  4. Who decided to send case to London CPS for charging instead of Bristol?
    Was Barry grabbing Ali’s groin prima facie a sexual assault? (This was important as Ali’s reaction to that could have given him the argument of self-defence and Stokes’ actions could have been due to misinterpretation of that event).
    If this is all kosher why are Avon &Somerset and CPS accusing each other for not charging Hales?

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  5. I understand the ECB will now take some form of disciplinary action. Is it not wrong to put an individual through more than one legal process for the same offence?

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  6. As has been said, there are several clear routes for the jury to find not guilty.
    The fact that Ben Stokes’ aggression appeared from the footage to be ‘decisive’ does not matter. The fact that Ryan Ali, one of the other two accused of affray, in a state of some intoxication by all accounts, was armed with a bottle which he raised as a weapon would surely have been enough for the jury to affirm that Stokes must be acting in self-defence in using his fists against the other two.
    It was the bottle that swung it, perhaps.

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  7. ‘He said that Ryan Ali had then threatened him with a bottle …
    The prosecution conceded that Ben Stokes may have been acting defensively initially …’

    A friend was mugged once. When he’d wrestled the knife off the robber, the robber then produced a second weapon. I suppose one lesson is that it’s wise to make sure that the bloke with the bottle can’t attack you with something else. Another possibility is that it’s wise to deal conclusively with the bottle chap before some of his pals turn up.

    Anyway (i) the jury heard the evidence, and (ii) the members of the jury might know far more about street crime than me.

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  8. Excellent piece. Having attended and produced many files for Crown Courts, Coroner’s Courts and magistrates, unless you hear everything, you can’t be judgemental with any real justification.

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  9. The part I still struggle with is the reasonableness of self defence. When an individual is backing away, with hands raised as if to say “enough”, how can it be reasonable self defence for the other party, Stokes in this case, to continue to pursue them, and continue throwing punches until the individual is knocked to the ground – that’s no longer defence, it’s aggression.

    Otherwise, thank you – an interesting and helpful read.

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  10. I dare say you will have to remove this passing thought but my immediate response was to remember the acquittal of a rather well known footballer,also recorded,who seemed to go up and punch a DJ in the mouth without there seeming to be any threat of violence.
    How on earth do you get a jury to convict a sportsman who is advancing our National Pride?

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  11. It’s always difficult to reach the “beyond reasonable doubt” stage when the eyewitnesses are mostly off their heads on drink etc, and especially if crowd psychology comes to bear. (Hence the concept of the “dangerous place” [pubs, clubs, rowdy town centres, trains full of football fans, etc) in offensive weapon and other crimes – which can escalate a sentence significantly. You sit there hearing a trial and having to make your decision on a set of accounts which often don’t seem to relate to the same incident. Having total consistence between witness accounts raises its own questions.

    Often you are left wondering why this or that apparently significant person hasn’t been called by either side, though of course you can’t factor this in to your decision.

    People who don’t spend time in trial courts tend to overestimate the value of CCTV . Yes it can sometimes confirm that punches were thrown, bottles brandished, etc – and this can be helpful if the defendant or complainant are adamant this didn’t happen. It is usually completely unhelpful, silent indeed, on the equally crucial stuff that may or may not have led up to the violence. In my experience on the bench this is often an important component in the reasonable doubt which leads to a defendant walking when you feel in your heart that he should probably be spending the next few months’ weekends collecting litter or removing chewing gum from the pavements.

    *****

    In SB’s characteristically informative and thorough post, there is nothing specific about over charging. In my experience, particularly of domestic abuse cases, the CPS is prone to undercharge quite serious matters as Assault by Beating, when ABH would seem to be more appropriate. This may be because they can be surer of a conviction, or the desire to make sure it is heard by magistrates or district judges who have received training in the particular nuances of domestic crime. [Assault is a summary-only offence and can only be heard at a magistrates’ court, never by a jury.]

    Affray is always a tricky matter, because of the imponderables [Are you a Person of Reasonable Firmness at 1am on a Sunday Morning?] and the matter of having to make one up if a PoRF is not apparent on the video. I wasn’t surprised BS walked free from court, and not just because it’s often hard to get a conviction with heroes and national treasures.

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  12. I agree that CCTV is not definitive and can be misleading in a vacuum….but in relation to the BS and SG trials the CCTV appears to confirm assaults at a point when it would have been easy to walk away from violence which had subsided or never started.
    In relation to BS charges of ABH might have been more suitable but that decision was made by someone far more eminent than yours truly.

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  13. “This is what juries are told up and down the land ever day – if you are not sure of guilt, you must acquit.”
    Certainly what we were told when I was on a jury.
    And it confused us mightily. “What did he mean by that?”
    Until someone said “perhaps he meant sure beyond a reasonable doubt”
    Then we all breathed a sigh of relief and got to work.
    My point is: we (British and Commonwealth citizens) are raised to understand
    “sure beyond a reasonable doubt”
    and the law should have faith in our capacity to understand that rather than infantilize us by dumbing matters down.

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  14. I have no idea whether or not Ben Stokes is guilty or not, or and this is a quite different thing whether or not he should have been found guilty in the trial. What I can comment on is the impression given by this and many other trials in the media.

    The impression is that who you are has a very big impact on how justice is administered. At the bottom end a poor ill-educated man and at the top a wealthy, attractive and vulnerable looking female. Somewhere in this spectrum towards the top are popular sportsmen. This may not be a fair impression or it may be fair but mainly a consequence of human nature and better representation and presentation by the wealthy and well educated.

    I know consciously that there are many quite legitimate reasons why Ben Stokes may have been found not guilty but I have seen a video in which he punches someone and my immediate reaction is that if I acted in the same way I would be in jail. Everyone I have discussed it with made the same observation unprompted. This may be wrong but I am sure it is extremely widely believed and that is a problem.

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  15. “how can it be reasonable self defence for the other party, Stokes in this case, to continue to pursue them, and continue throwing punches until the individual is knocked to the ground?” For the reasons I mentioned above.

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