"intelligent and useful posts on many of the key legal issues"

- Adam Wagner, UK Human Rights Blog

Saturday, 13 December 2014

Review for the Supreme Court Library for Queensland

My book Court & Bowled has now been reviewed for the Supreme Court Library of Queensland.  The review states among other things:

"This book delivers on its promise, serving the reader with a collection of tales about cricket broadly related in some way or another to the law. This book will be of interest not only to those with a keen interest in cricket, but to any reader who will enjoy a well written and lively collection of tales often as much about human failings and politics as about cricket"

Thursday, 11 December 2014

Review in the Times

My book is chosen in the Times today by the former Lord Chief Justice, Lord Judge, as his recommended read for the festive season.  His review can be found at p 63 of the print edition and online (££) here: http://www.thetimes.co.uk/tto/law/article4293452.ece

He describes the book as "thoughtful and well-written" and says that it is "an interesting, serious study of problems arising beyond the boundary ropes". He also says "Most intriguing is the meticulous analysis of incidents or events of high drama when cricket assumed an importance far more than a beloved game.  The writer addresses all these with judicial impartiality, carefully maintaining a distinction between his narrative account of facts and personal and acute observations".

More details of the book can be found on the sidebar on the left of this blog.  Incidentally, although Amazon is showing 'out of stock' it is in fact in stock and available from there now, or alternatively from the publisher's website or their bookshops on Fleet St and in Lincoln's Inn Archway.  

Wednesday, 10 December 2014

Sport and the courts

An interesting story here about whether a sporting referee's decision can be reviewed in the courts, something I have considered at greater length in my book.

Monday, 1 December 2014

Book review of Court & Bowled

The current issue of the New Law Journal has a review of my book Court & Bowled.  The review is available behind a paywall here.

The free extract on the site provides: "Wilson uses the traditional skills of the lawyer to dissect the intricacies of the laws of cricket and the spirit of the game"


Tuesday, 25 November 2014

The risk of cricket

The question that almost inevitably follows any form of human tragedy is whether the law should be changed.  The natural reaction is to demand that the activity in which the tragedy took place should be more tightly regulated, if not banned altogether.  And so in cricket, following the terrible loss of Phil Hughes, there will be those who argue that better helmets should be developed, that they should be mandatory, or that short-pitched bowling should be outlawed altogether.  

I do not believe that Hughes' loss, shocking though it was, justifies either of the last two of those steps.  This is in no way disrespectful towards his loss, or belittling the scale of the tragedy.  Instead, it is because I believe that it is neither possible nor even desirable to remove all risk from activities such as top level cricket, and that we should legislate for the probable rather than the extremely remote.  To seek to restrict bouncers in cricket would be to fall foul of the old legal maxim that hard cases make bad law, or indeed its converse that bad law makes hard cases.  

The Hughes accident 

In late November 2014, Hughes was playing in the Sheffield Shield for South Australia against his old side of New South Wales.  He was just short of his 26th birthday and had played 26 tests for Australia.  His average of 32, with three centuries, showed that he certainly had the ability to play at the highest level, though it had not been enough to secure a consistent place in the Australian side.  As ever, there was no dearth of competition (even Ricky Ponting and Steve Waugh struggled at times in their careers to justify their place).  Nevertheless, Hughes was making a strong case for his recall. On the day in question, he had batted authoritatively for 63 runs as Sean Abbott came in to bowl. Abbott was a promising young seam bowler, aged just 22, who had already represented Australia in T20 matches and a solitary 50 over match, though he had yet to be chosen for the test side.  He was categorised as fast-medium - no slouch, but not in the same league as express bowlers like Brett Lee or Malcolm Marshall.  He dropped the ball in short.  Hughes tried to pull the delivery, but missed it and it hit him on the side of his head, just below his helmet.  It was immediately apparent to the players and the umpires that it was no ordinary injury - the footage of the incident made for haunting viewing as all on the field called desperately for help.  A qualified doctor attended Hughes almost immediately, before he was taken to hospital, but he never regained consciousness and died not long afterwards.  

A series of heartfelt tributes followed from around the world, showing the high regard in which Hughes was held as a player and a person, and also showing how every cricket player and fan felt the game itself had been shaken by the tragedy.  Among other things, the match itself was abandoned; bats were left outside doors as a sign of solidarity; silences were observed at matches across the world; and social media was awash with messages of support.  One touching example was a tweet with a photoshopped picture showing Hughes walking out to bat with Don Bradman, and a caption explaining that Hughes was resuming his innings elsewhere with a new batting partner.  The touring Indian side agreed to the cancellation of its next match and chose to train indoors, in private.  It released a statement which was measured, sincere and appropriate:

"The touring Indian team joins the cricketing fraternity across the world in offering condolences to the family of Phil Hughes, who has departed from our midst. In this moment of grief, we pray that they are bestowed with divine strength to overcome this unfortunate tragedy.

As fellow cricketers we cherish the memories of playing along with him and deeply respect his contribution to the game of cricket."

The finest tribute of all came from the Australian captain Michael Clarke, in his eulogy at Hughes' funeral.

Appropriately, many of the messages of support also included words for Abbott, whom it was agreed universally had done nothing wrong, and should not be blamed in any respect for what was correctly described as a tragic accident. 

The injury

According to the doctors who treated him, Hughes suffered a vertebral artery dissection, which caused a subarachnoid haemorrhage - in other words, a serious bleed on the brain.  As can be seen in the footage of the incident, Hughes was initially stunned, but still on his feet, then a few seconds later he fell to the ground as he lost consciousness, and hence suffered a second blow as there was nothing to mitigate his fall. Apparently the type of injury was virtually unknown generally, let alone in cricket. For a good illustration, it should be recalled that Shane Watson was hit below the helmet on his head in a fashion very similar to Hughes during the 2013 Ashes in England, from a bowler at least as fast (and probably faster) than Abbott. Watson was stunned, and in considerable pain, but was able to resume his innings after just a few minutes and went on to score a century. 

This is not to say that serious and occasionally fatal injuries have never occurred before.  Nor indeed since: an umpire in a game in Israel was killed shortly after Hughes in another freak accident, albeit of a different nature.

Earlier incidents include the death of Darryn Randall, a former first-class cricketer, in South Africa in 2013. Randall was killed in very similar circumstances to Hughes, being hit on the head when attempting a pull shot.  Of interest is the fact that it was a club game, showing that it does not necessarily take a ball bowled by a first class cricketer, let alone an international one, for a very serious injury to be inflicted.  

Also in 2013, Zulfiqar Bhatti of Pakistan was killed in a club match, by a ball that hit him on the chest while he was batting.  A year earlier, Richard Beaumont, a club player in England, suffered a heart attack after a spell of fast bowling which had netted him five wickets.  In 2009, Alcwyn Jenkins, an umpire, was killed when a ball returned by a fielder struck him on the head accidentally.  The fielder was never named and the incident rightly recorded as an appalling accident.  Ian Folley, an English club player, died in 1993 after being struck playing a hook shot, but in his case the hospital where he was treated immediately afterwards eventually admitted negligence, which at least lessens the causal link with cricket.  

A better known name than any of the above is Wasim Raja, a former test cricketer and match referee.  He died in 2006 during a match for over-50s in England.  It seems he suffered a heart attack with no particular connection to the fact he was playing cricket.  Another former test cricketer, Raman Lamba of India, died in 1998 when fielding at short leg.  He might have worn a helmet but chose not to.  Wilf Slack, a third test cricketer, died in England in 1989 though the cause of death was not determined (again, the connection with cricket may therefore have been entirely coincidental).  

If one then goes back as far as 1870, one finds the death of George Summers, who died in a similar fashion to Hughes.  Summers was playing for Nottinghamshire against MCC at Lord's when he received a head injury, from which he died some days later.  Some caution is needed with Summers' death, since he had apparently ignored medical advice to seek treatment for the blow, and in any event such treatment as he might have received would have been a world away from twenty-first century medicine. 

Those incidents aside, the number of bouncers bowled over the years at a reasonable speed (say, over 70 mph) in all forms of the game must exceed a million, though admittedly accurate statistics are impossible.  

Until the late 1960s, the no-ball rule was different, allowing what was known as the 'fast bowlers' drag', under which the ball could be delivered as close as 18 yards to the batsman.  Then, more than a century on from Summers' death, helmets were finally introduced.  They followed a spate of unpleasant injuries and incidents, beginning perhaps with the assault of Lillee and Thomson on a wholly unsuspecting in England in 1974/5, the near-death of Ewen Chatfield later in the same tour (when England had moved to New Zealand), the brutal assault meted out by Holding and others on Brian Close and John Edrich during the 'grovel' series of 1976, and then - as the final cause perhaps, the breaking of David Hookes' jaw during the World Series Cricket tournament.  

Helmets did not stop all injuries - Andy Lloyd's blow from Malcolm Marshall being a good example of what risk still existed - but there is no doubt that by and large they have made a serious injury much less likely. Bouncer restrictions were also brought in during the 1990s and umpires given the power specifically to curb their use, leading many to opine that things had gone too far in the other direction, with the game softened to the point where something important had been lost. That argument will not gain much traction in the wake of Hughes' death, though the statistical improbability of serious cricket injuries remains.  

How far to go?  

There is a plausible argument to say that the Queensbury Rules in boxing - providing for limited rounds, reduced striking areas and the use of gloves - actually made the chance of serious head injuries worse, because previously fighters' hands would be damaged early in the fight.  Hence the contests that dragged on for an hour or more - neither was in any condition to land a knock-out blow. Deaths were comparatively rarer in those days too, though that might have something to do with modern fighters being stronger and hence punches more powerful.  

Could the same be said for helmets?  Macho gratification at the spectacle of batsmen in danger aside, there are those who consider that helmets have discouraged players from (a) keeping their eyes on the ball, (b) only hooking when sure of success, and (c) ensuring they keep in line.  This may be true, but even if so, it is an argument for better coaching rather than removing a basic safety device.  It might be that drivers have become worse since cars with better roadholding and anti-lock brakes became the norm, but I do not think the best course of action would be to try and reverse technology. Stricter driving tests would be a better option. 

Instead, I think three things mean that drastic action is not called for in the wake of the Hughes tragedy (and I stress that this involves no disrespect for his loss or belittling of its seriousness).  First, the use of bouncers has already been restricted to one per over.  Secondly, the technology behind helmets will doubtless continue to improve, and already there is talk of a new design extending coverage.  Thirdly, the umpires have more power now to restrain fast bowlers from irresponsible conduct (say, peppering tail enders on questionable pitches).

The freakish nature of Hughes' injury is of a piece with the extremely infrequent air travel disasters in the twenty-first century.  The loss of the two Malaysian Airlines planes in 2014 rightly did not lead to wholesale changes in air travel, still less banning it altogether.  Hughes' death will always remain one of cricket's darkest days, but all probability suggests it will be thankfully of the greatest rarity. 






Tuesday, 11 November 2014

Modi v Cairns: the next round

Predictably, Lalit Modi is now lining up to apply to the High Court to set aside the judgment Chris Cairns obtained against him in a libel action in 2012, which at the time was upheld on appeal (the appeal related only to quantum.  Apparently, taking into account interest and costs, the amount Modi will be seeking will be in the region of £2.4m.

The application will be separate from the criminal proceedings Cairns is facing for perjury, which is due to be heard next October (the reason for the long delay is that many witnesses are current players, who have commitments until then).  Realistically, though, the result of the criminal action will dictate the result of Modi's civil application.  If Cairns is found guilty, it is inconceivable that he will resist the application.  If he is found not guilty, then theoretically Modi could press ahead but I cannot see that happening.

Friday, 24 October 2014

Cricket and a High Court Judge


Here is a story on cricket and law from the BBC

"A High Court judge presiding over a planning battle involving a cricket ground demonstrated a lack of knowledge of the sport by asking: "What are sixes and fours?"

Mrs Justice Beverley Lang was hearing a challenge to a plan to extend a former forge beside a Hampshire cricket pitch.

She asked the question when she was told that balls crossed the boundary line at East Meon's cricket ground.

A lawyer at the hearing explained the rules of the game to the baffled judge.

East Meon Forge and Cricket Ground Protection Association is challenging East Hampshire District Council's decision to grant planning permission for an extension with a residential first floor over the single-storey former blacksmith's workshop.

Robert Fookes, appearing for the association, told Mrs Justice Lang that one of the grounds of objection to the development was that the forge was very close to the cricket square and "sixes and fours are frequently hit by batsmen on to forge land, including the roof of the building itself".

The judge said: "I don't play cricket - what does that mean?
"

Well, different strokes for different folks, if I can be excused the pun. But it is perhaps as well that the learned judge was not the one who heard Miller v Jackson, which features as the cover above ... Perhaps I should send a copy of the book to the Judicial Studies Board?

Monday, 6 October 2014

Kevin Pietersen revelations

Much press interest in cricket at the moment is being given to Kevin Pietersen's new book and his complaints about his former England teammates.

Just as with the match fixing allegations which continue to plague cricket, some confidential material has apparently been leaked.  A third incident in recent times concerned the leaking of confidential emails from Darryl Hair after the ICC disowned him over the Pakistani forfeit test.  All three incidents are unrelated, but one does wonder why no-one in cricket seems to be able to keep a secret. The implications for the management of cricket are severe: no commercial organisation can continue to function successfully if confidential information is leaked every time there might be some press interest in it. I wrote about this in a bit more detail in Court & Bowled.

As to who is telling the truth, it is not easy for outsiders to determine.  As Nasser Hussain pointed out, team spirit is always high when a team is winning and tends to collapse when a team is losing.  And once Mitchell Johnson returned as a bowler of the very highest class, no amount of team spirit was going to help the English tail play him (the main difference between the home and away Ashes in 2013/14 was that in England the English tail wagged often enough in a low scoring series to make a difference; in Australia Haddin scored crucial lower order runs in almost every innings whilst the English tail was destroyed by Johnson).

I would observe though that KP was a genuinely great player, and I don't doubt there were other villains in English cricket during his time, but he still has to ask himself why he fell out with so many of the teams for whom he played.  And the management and former teammates have to ask themselves why they were not able to deal with a player who had played 100 tests despite his sins.




Thursday, 2 October 2014

Chris Cairns appears in Westminster Magistrates Court

Chris Cairns appeared today in Westminster Magistrates Court.  The hearing was to set a date for trial and terms for bail (should it be granted).  The fact that Cairns voluntarily travelled to England to face the charges would count very heavily in his favour for granting bail, as would the fact that New Zealand and England have an extradition treaty in force.

Yesterday I contacted the Crown Prosecution Service, who replied:

"Chris Lance Cairns is charged with 1 x perjury.
           
-          The trial date has not yet been set, however Chris Lance Cairns is due to appear at Westminster Magistrates' Court on 2 October 2014.

-          The co-defendant is Andrew Fitch-Holland, who has been charged with 1 x perverting the course of justice

-          On 12 September 2014 the CPS confirmed the below to the media:

We can confirm that we have authorised police to charge Chris Cairns with one count of perjury, which arises from a libel trial held in the UK in March 2012. We have also authorised police to charge Andrew Fitch-Holland with one count of perverting the course of justice, which arises from actions taken relating to the same trial. Both suspects will be formally charged by police in due course’."

The NZ Herald reports the charges were read out as follows.  Against Mr Fitch-Holland:

"On March 23rd, 2011, he perverted the course of public justice in asking Lou Vincent to provide a false witness statement in the libel case between Chris Cairns and Lalit Modi.

Against Cairns:

"And Mr Cairns, the allegation against you is that between October 1st and March 31st, 2012, having been a witness in the libel trial, you wilfully made a statement that you knew to be false when you said you never cheated at cricket and would never contemplate it."

Both defendants have maintained their innocence throughout and maintained that they will fully contest all charges.

What is of particular interest to cricket fans is the way the charge against Cairns is framed.  It is not that he made some specific, detailed claims in the Modi case that were wrong, say about which country he was in at any particular time or that he was involved in X game and so on.  Instead, it is that he made a total denial of any match fixing anywhere, ever.  Trivial examples - such as Cairns merely raising the subject with players in a general conversation - would not suffice, it would have to be concrete evidence beyond reasonable doubt that he had actually taken money to underperform or had made a definite, unambiguous offer to another player.

Thursday, 25 September 2014

Chris Cairns formally charged

According to the NZ Herald, Chris Cairns has now been formally charged.

The article is slightly confused, as it mentions the offence of perverting the course of justice and the offence of perjury.  The two offences are not the same, although from Cairns' point of view it is a distinction without a difference.  Either way his conduct in the libel trial against Lalit Modi is being challenged and thus the credibility of his denials about match fixing is in issue.

Both perjury and perverting the course of justice concern whether or not the process of justice has been obstructed.  Perjury is committed when a person lies under oath, either while giving evidence in court or in sworn statements presented to the court.  Perverting the course of justice can be committed by actions such as hiding or destroying evidence material to a case.

In many trials perjury is technically committed: judgments often state that a witness' evidence was 'not credible', or that the witness was clearly trying to tailor their evidence to suit their side of the case.  Prosecutions do not automatically follow, especially if the evidence was not material to the case or at least the lie did not affect the outcome (say because the witness' side lost the case, or won on grounds independent of the dodgy evidence).

A prosecution is usually only brought where there has been a very serious breach.  Jeffrey Archer's case was a classic example: his entire case was brought on a lie - abusing the very notion of justice, as well as wasting millions of pounds of both public and private money.

Much the same applies to perverting the course of justice: a prosecution would only follow in serious cases.

I would expect therefore that the charges against Cairns will be based on serious allegations.  But it is important to stress - as I have before and will continue to do - that that does not mean they have been proven yet.  Especially where the squalid world of match-fixing is concerned, the truth will always be difficult to ascertain.  Cairns is innocent until proven guilty, and if nothing else, as he himself has stated, at least he now has the chance to defend himself in a proper legal forum, with full disclosure of evidence and cross-examination of all witnesses.

Moreover, although there is no material difference between English law and New Zealand law in this area, it seems to me to be an advantage that the trial is taking place in England, where it is likely none of the jury will have heard of Cairns (unless they are cricket fans).  The story has been reported in England but only on the sports pages.  Thus, Cairns will at least get a fair trial instead of the trial by media he has had to endure for the past few months in New Zealand.