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

- Adam Wagner, UK Human Rights Blog

Friday, 12 September 2014

Chris Cairns charged with perjury





It has now been announced that Chris Cairns has been charged with perjury, concerning his 2012 libel trial against Lalit Modi.  In that case, which I have discussed in some detail in Court & Bowled, Cairns recovered £90,000 damages because of allegations Modi had made about match fixing.  The damages were upheld on appeal (the decision on liability was not appealed).

The charge is apparently to be laid formally on 25 September, and the police will not comment until that point. Cairns for his part has said:

"I'm obviously extremely disappointed. However, at least there will now be an opportunity to face my accusers in an open forum, with some rigor and proper process around that, so that I can clear my name once and for all" 

NZ Cricket will await the outcome of proceedings before making any comment.  In the old days, people would use the Latin sub judice - subject to justice - to indicate that because a trial was under way or forthcoming, nothing should be said before its outcome (partly because it might prejudice the trial, and partly because it might be made redundant anyway depending on the outcome of the trial).

Cairns is of course innocent until proven guilty.  Other than that, there is not much else to say pending at least any statement by police on 25 September.  

Thursday, 11 September 2014

Friday, 5 September 2014

The umpire's lot is not a happy one



Two recent press stories show that the lot of a cricket umpire is not always a happy one off the field, any more than it can be on it. Two respected umpires of many years standing have been told they are too old to continue, while another faces the unusual charge that he is too Church of England. Both propositions will have satirists reaching for their keyboards, but in both cases there is a serious legal issue that has much wider implications than the foibles of flanned fools in whites.

The elders

According to the Times (28 August 2014), the umpires Peter Willey (an iron-willed batsman for England a few years ago) and George Sharp are about to bring a complaint against the England and Wales Cricket Board in the employment tribunal, alleging age discrimination. Both Willey and Sharp are about to reach 65 years of age, and under present ECB rules both face compulsory retirement accordingly. They may have the law on their side: since 2011, mandatory retirement at 65 is no longer automatically legally defensible. Instead, employers are required to show an "objective justification".

The role of an umpire requires an extensive knowledge of cricket, together with the ability to deal with at least mildly stressful situations. If anything, both qualities are likely to be enhanced by age. On the other hand, umpiring also requires stamina, concentration, sharp eyesight and acute hearing, and it is not being ageist to observe that all of those abilities erode with time (and that erosion comes to us all). Cricketing history has more than a few tales of once-respected umpires stubbornly carrying on well beyond the point where their senses had dulled too far, yet apparently remaining unsackable because of their earlier reputation or because of ineffective officialdom.

Then again, all individuals age at different rates, and different jobs require different skills, some of which will decline quicker than others. Both those considerations suggest a fixed figure is inappropriate for determining retiring ages across all spheres of employment.

The only problem with a more flexible approach is that it leaves room for argument (and ultimately litigation) in individual cases, with the resultant expense and uncertainty. Yet even if one decides, for reasons of certainty, that a fixed age for retirement (and collection of superannuation) is appropriate, the long-standing figure of 65 might need to be revised in light of substantially improved living standards. The average life expectancy has increased markedly in the past few decades, and a person of 75 today might well be just as fit and capable as the average person of 65 fifty years ago. (Whether one agrees or not, the parlous state of our public finances might soon require the raising of the pensionable age out of economic necessity.) It follows that Willey and Sharp have an arguable case at least.

The churchman

The Daily Telegraph (7 September 2014) reported that

A councillor and cricket enthusiast has been told he cannot umpire a church match because of fears he may not be ‘theologically neutral’ as his great-great grandfather was a bishop.

Michael Claughton, who has 18 years’ experience as a cricket umpire, offered to officiate the match between the Church of England XI and Vatican XI, due to take place later this month.

But he said he was left baffled after officials said he could not be considered for the charity because they wanted to ensure it was theologically “neutral” and they feared his ancestry could make him biased against the Catholic team.”

Assuming the report to be accurate, the officials’ reasoning seems slightly odd – if one could trace Claughton’s ancestry further back than Henry VIII, it would be a racing certainty that he would have Catholic forebearers too. Moreover, both XI’s seem to share the same head office theologically, even if the branch management differs.

More seriously, natural justice requires that a judge recuse him or herself if there is any suggestion that he or she shares any form of relationship or common interest with the litigants. There have been some interesting disputes over the years as to whether a common religion between judge and litigant amounts to such a relationship, the answer probably being that it will do so only where the dispute actually involves the religion in some material respect, with the usual qualification about each case turning on its facts.

Secondly, what about social events such as Claughton’s cricket match?  Should the law bother getting involved?  One might instinctively suggest no, but there have been occasions in which human rights fingers have been pointed accusingly towards a social event: a long-standing married couples’ golf tournament was an early victim of human rights legislation in New Zealand, for example. Then there were the private clubs which clung to their men-only membership policies until very late in the twentieth century (the Marylebone Cricket Club prominent among them).

Such questions would be more pertinent in Claughton’s case if umpiring was his professional career and the game a remunerative fixture. As it stands, I assume that he will not be much obstructed by the slight. But the moral principle remains.


One of the match’s organisers said “There's absolutely no question of Michael Claughton's skill as an umpire or his honesty. We just thought it would be a nice way of showing everybody this is neutral.” Well, I imagine it wasn’t very nice for Claughton. 











Friday, 29 August 2014

c & b Ryan Hinds

A nice picture here of a fine cricketer, Ryan Hinds, with my book:


From Wildy's facebook page.

Tuesday, 5 August 2014

Court & Bowled

My book is now available.  It can be purchased from Wildy, Simmonds & Hill at their shops in Lincoln's Inn Archway and Fleet St, or from their website here.  It is also available on Amazon.




Thursday, 31 July 2014

Constantine v Imperial Hotel [1944] KB 693





I will be published in the next edition of the New Law Journal (1 August 2014, p 22) on the case brought by Learie Constantine against the Imperial Hotel during the Second World War. The article is available here.

Sunday, 6 July 2014

English sporting malaise

In my book on cricket and law there is a chapter on an unhappy saga from the mid-1990s, when a part-time cricket writer called Robert Henderson had a piece published in a well-established cricket magazine. The piece argued that foreigners should not play cricket for England.  This was a common enough argument, then as now, but Mr Henderson also extended his argument to say that ethnic minorities should not be selected either.  A great storm of protest erupted, leading to High Court writs being filed.

I will not repeat the details here, but would note that Mr Henderson has continued to express his views via his own website to the present day, though he has been shunned by the mainstream cricket media.  Recently he has written a blog banging the same drum:

In the past few weeks England have lost three times to the All Blacks at rugby and crashed out of the World Cup with only one point from their three pool games . This week  they lost for the first time ever a home  cricket series against Sri Lankra . During the winter the Ashes series was lost 5-0.
What is going wrong? The answer is beautifully simple. English top-flight team sport is suffering from the same sickness that England as a whole is carrying: it is the victim of immigration. Our three  most popular team sports , football, cricket and rugby union, have all opened their doors to any number of foreigners and foreign players, coaches and owners have flooded in.
I will not repeat the arguments against Henderson's views on foreigners in sport that I have made in my book.  Instead I will simply observe that his arguments fail on their own terms.

First, England losing to the All Blacks in New Zealand is truly a dog-bites-man story.  England has won a grand total of two tests on New Zealand soil in its entire history, even throughout all the years in which they had teams selected from a pool of players of which Henderson would have approved.  It would have been astonishing had they even won one test, and it is commendable that they ran the All Blacks reasonably close at times.

No-one else wins in New Zealand consistently either - not even South Africa or Australia (before the 1990s, Australia's record in particular was utterly abysmal in NZ). And, if anything, New Zealand has a more multicultural team than England, having for years shamelessly utilized the resources of South Pacific nations (something I have never been happy about, since it is unfair on the island nations).

Secondly, England's cricketing woes can hardly be laid at the door of the so-called foreign players, since it was with the likes of Pietersen, Trott and Pryor that they won the Ashes four times this century and a variety of other matches as well.  To be sure, not all the players seemed to have their heart set on England (we can be fairly sure of Andrew Strauss's view of one of them, at least), but I do not think that England's Ashes failure in Australia over the winter was much to do with nationality.

Thirdly, I am not much of a footballing expert, but I did not meet a single English person who thought England stood a chance in Brazil, since aside from anything else no European team has ever won a world cup in that Continent.  Spain, Portugal and Italy did not fare much better either.  Spain and Italy have substantial leagues like England, though they have won recent World Cups.  For what it's worth, it seems to me that English football has always been more of a club sport than a national one, and that was a mentality which existed long before any grand foreign influx into the game.


Saturday, 5 July 2014

Andrew Strauss insults Kevin Pietersen

Not the most surprising title for this post. Tms Facebook page has a story on another classic moment when a commentator thinks he is off air https://m.facebook.com/story.php?story_fbid=10152546762789904&substory_index=0&id=8244244903

It says Strauss apologises unreservedly. Yet surely there is a reservation: Strauss said what he thought (and given the history between him and KP, there is no surprise about the hostility) . He can't expect anyone to believe he was not speaking his mind. Therefore, the apology is for getting caught, not for everything.  And it is not as though he hasn't had any provocation from KP (not that that justified his actions), as I have discussed in my forthcoming book (now due end of July).  KP has always been an outspoken character, and on a recent podcast, Tuffers & Vaughan, he was in full voice.

Piers Morgan was quick to weigh in. Given how outspoken he has been throughout his media career, I presume he had no issue with Strauss expressing views as such ...

Friday, 4 July 2014

Sovereigns and the rule of law

It is occasionally remarked that the Queen is above the law in the United Kingdom, on the basis that since criminal proceedings are always brought in her name (hence R for Regina, in criminal cases, which are usually styled R v (defendant)).  I suspect, though, that if the Queen for some reason committed a serious offence, consequences would be bound to flow in some form or another. The public outcry would be such that she would be compelled to pay compensation to the victim in some serious amount, and in all likelihood to abdicate as well.

If on the other hand any other members of the Royal family committed an offence, they would not have the protection of the Queen's prosecutorial position, and could expect to be charged and dealt with like anyone else.  That, of course, is one of the cornerstones of the rule of law: everyone is equal before the law, and neither wealth nor privilege offers any sort of defence. It is true that in sentencing someone the court would take into account their particular circumstances, as indeed would the Crown Prosecution Service when deciding whether to bring charges in the first place.  But there are limits.  And the usual answer to someone who protests that a criminal prosecution would ruin his personal life is to point out that he should have thought of that before committing the crime.

All of the above is, or should be, fairly trite.  The reason I mention it is because of this seemingly farcical story from New Zealand, where according to the New Zealand Herald:

The son of Maori King Tuheitia Paki has been discharged without conviction today on charges of burglary, theft and drink driving, after his defence successfully argued a conviction would ruin his chances of succeeding to the throne.
Korotangi Paki, 19, had previously pleaded guilty to all the charges, which related to two separate incidents dating from March this year and October 2013.
His drink driving charge -- in which he blew a reading almost double the legal adult alcohol level -- was only revealed in court today after Judge Philippa Cunningham lifted a suppression order.
Defence for Paki, Paul Wicks QC, said the consequences of a conviction would outweigh the seriousness of the crime, because it would render the teen -- who will become a father in September -- ineligible for the role of king.
This is absurd nonsense.  Apart from anything else, I doubt Maoris would want a King who had committed such offences.  People are killed every day around the world by drunk drivers, and terrorised by burglaries.  It raises the question of how serious an offence Mr Paki would have to commit before it would be thought proportionate to convict him.

Other readers may be surprised to hear of a Maori King at all.  It is effectively a ceremonial role which is a throwback to the wars of the nineteenth century.  Wikipedia as ever has some more detail, which seems broadly accurate in this instance.

New Zealand usually prides it self on its adherence to the rule of law, and its generally eminent status in every survey of international standards of living, in contradistinction to what used to be called "tin pot dictatorships".  This sort of story is straight from the worst annals of hapless dictatorships worldwide.