Sunday, 26 April 2015
Saturday, 25 April 2015
Wisden 2015 book review of Court & Bowled: tales of cricket and the law
Wisden 2015 has reviewed my book Court & Bowled:
Stone & Rolls v Moore Stephens [2009] 1 AC 1391 - 'not to be looked at again'
In my book Cases, Causes & Controversies: fifty tales from the law I was critical of some of the undecided issues in the case of Stone & Rolls v Moore Stephens [2009] 1 AC 1391. I warned that the confusion in the judgment might lead to another case going all the way to the Supreme Court, with a lot of costs incurred as a result. That has now happened, with the Supreme Court recently giving judgment in Jetivia v Bilta [2015] UKSC 23 (read judgment). There was a particular irony in them having to reconsider the case since the leading counsel for the auditors in Stone & Rolls was Jonathan Sumption QC, now Lord Sumption and a judge of the Supreme Court. One of the dissenting judges in Stone & Rolls was Lord Mance, who was known to have opposed Sumption's appointment to the Supreme Court.
I would refer readers to a good summary on the UK Human Rights Blog here and to the press summary issued by the Court itself here. In the meantime, I would simply record what Lord Neuberger said at para 30 of the judgment about the Stone & Rolls case:
"Subject to these points, the time has come in my view for us to hold that the decision in Stone & Rolls should, as Lord Denning MR graphically put it in relation to another case in In re King [1963] Ch 459, 483, be "put on one side and marked 'not to be looked at again'". Without disrespect to the thinking and research that went into the reasoning of the five Law Lords in that case, and although persuasive points and observations may be found from each of the individual opinions, it is not in the interests of the future clarity of the law for it to be treated as authoritative or of assistance save as already indicated."
Friday, 27 March 2015
Prince Charles' letters: R (on the application of Evans) and another v Attorney General
The Supreme Court has now given judgment in R (on the application of Evans) and another v Attorney General, the case brought by the Guardian seeking access to Prince Charles' letters under the Freedom of Information Act. The Court ruled in favour of the Guardian and therefore at some point in the future disclosure will now have to be made.
I wrote about the case at an earlier stage in the process here. It was not an uncontroversial opinion, as the comments section indicates, though I stand by the view that the Prince should not have been writing letters lobbying for change. This is not because I disagree with all of his views - though I certainly disagree with his support of homeopathy and his more general unscientific pronouncements (brutally dissected by the late Christopher Hitchens here). The problem is the more general principle that the monarchy is supposed to reign, not rule. The late Tony Benn used to have four questions for any man or woman with power he met. They were along these lines:
1. What power do you have?
2. How did you obtain it?
3. In whose interests do you exercise it?
4. How can I get rid of you?
In the case of the Monarchy, the answer to question (1) has traditionally been 'not very much', and hence the rest were of not so great importance. By seeking to influence government policy, Charles would change that answer and hence cause significant embarrassment to his position. The Attorney-General almost admitted as much in his decision and his pronouncements on the letters earlier in the case.
It is true that the Queen grants the Prime Minister a weekly audience, at which she presumably shares her views on a wide range of matters. But no Prime Minister (and the Queen has been on the throne since Winston Churchill occupied No. 10 Downing St) has ever said she lobbies for any particular course of action, only that she offers advice here and there. For ardent republicans - and there is no doubt that the Evans case was a flanking attack on the entire monarchy by the Guardian - the mere fact of her meeting politicians in a different capacity from an ordinary citizen is objectionable of itself. But they would still concede that Charles' letter-writing is of a different order of magnitude, and much more damaging to the monarchy accordingly.
I do not buy the argument based on privacy - the notion that Charles is entitled to private correspondence like anyone else. He is indeed entitled to privacy - on matters appropriately private. Thus, if he wrote to a friend, or if he wrote a private journal (which he did, and which I argued in one of my books should be confidential) then that would be no-one else's business. But if he is seeking to influence an important matter of policy, whether in regard to the environment, human rights, architecture, alternative medicine or whatever, then that is properly something of public concern, given his constitutional position. No-one could pretend that his letters on such subjects would be no different from those of Disgusted of Tunbridge Wells.
In my earlier blog, a commentator referred to the German president, who is supposed to be neutral in party politics, but who still intervenes and takes positions on contentious political matters. There are two responses: first, the positions are not identical - the German constitution is a carefully crafted arrangement, not easily compared with the British one; and secondly, the German president is elected, and thus there is a ready answer to Tony Benn's question (4) which does not apply in the case of Charles.
There is also the question of one of Charles' letters concerning a ministerial decision which is later made subject to a judicial review challenge. Would a letter from the Prince amount to an irrelevant factor? Or would it otherwise breach natural justice, on the basis that no-one would have had a chance to respond to it?
I should stress that none of the above actually fell for decision in the legal proceedings. The court did not need to consider whether Charles should be writing the letters in the first place, what consequences there might be for him, and what consequences there might be for anyone else. Instead, it was concerned primarily with the separate but equally interesting issue of whether, and in what circumstances, the Attorney-General might overturn a decision of a judicial tribunal. There is a short note on the UK Supreme Court Blog here and I will link to a longer discussion when one appears.
I wrote about the case at an earlier stage in the process here. It was not an uncontroversial opinion, as the comments section indicates, though I stand by the view that the Prince should not have been writing letters lobbying for change. This is not because I disagree with all of his views - though I certainly disagree with his support of homeopathy and his more general unscientific pronouncements (brutally dissected by the late Christopher Hitchens here). The problem is the more general principle that the monarchy is supposed to reign, not rule. The late Tony Benn used to have four questions for any man or woman with power he met. They were along these lines:
1. What power do you have?
2. How did you obtain it?
3. In whose interests do you exercise it?
4. How can I get rid of you?
In the case of the Monarchy, the answer to question (1) has traditionally been 'not very much', and hence the rest were of not so great importance. By seeking to influence government policy, Charles would change that answer and hence cause significant embarrassment to his position. The Attorney-General almost admitted as much in his decision and his pronouncements on the letters earlier in the case.
It is true that the Queen grants the Prime Minister a weekly audience, at which she presumably shares her views on a wide range of matters. But no Prime Minister (and the Queen has been on the throne since Winston Churchill occupied No. 10 Downing St) has ever said she lobbies for any particular course of action, only that she offers advice here and there. For ardent republicans - and there is no doubt that the Evans case was a flanking attack on the entire monarchy by the Guardian - the mere fact of her meeting politicians in a different capacity from an ordinary citizen is objectionable of itself. But they would still concede that Charles' letter-writing is of a different order of magnitude, and much more damaging to the monarchy accordingly.
I do not buy the argument based on privacy - the notion that Charles is entitled to private correspondence like anyone else. He is indeed entitled to privacy - on matters appropriately private. Thus, if he wrote to a friend, or if he wrote a private journal (which he did, and which I argued in one of my books should be confidential) then that would be no-one else's business. But if he is seeking to influence an important matter of policy, whether in regard to the environment, human rights, architecture, alternative medicine or whatever, then that is properly something of public concern, given his constitutional position. No-one could pretend that his letters on such subjects would be no different from those of Disgusted of Tunbridge Wells.
In my earlier blog, a commentator referred to the German president, who is supposed to be neutral in party politics, but who still intervenes and takes positions on contentious political matters. There are two responses: first, the positions are not identical - the German constitution is a carefully crafted arrangement, not easily compared with the British one; and secondly, the German president is elected, and thus there is a ready answer to Tony Benn's question (4) which does not apply in the case of Charles.
There is also the question of one of Charles' letters concerning a ministerial decision which is later made subject to a judicial review challenge. Would a letter from the Prince amount to an irrelevant factor? Or would it otherwise breach natural justice, on the basis that no-one would have had a chance to respond to it?
I should stress that none of the above actually fell for decision in the legal proceedings. The court did not need to consider whether Charles should be writing the letters in the first place, what consequences there might be for him, and what consequences there might be for anyone else. Instead, it was concerned primarily with the separate but equally interesting issue of whether, and in what circumstances, the Attorney-General might overturn a decision of a judicial tribunal. There is a short note on the UK Supreme Court Blog here and I will link to a longer discussion when one appears.
Tuesday, 10 February 2015
Book review in the Law Society Gazette of Court & Bowled
A review has been published of Court & Bowled in the Law Society Gazette, here. The review states that the book 'is an interesting and entertaining collection of stories and cases involving cricket as it interacts with the law.'
Wednesday, 28 January 2015
Jesse Ryder trial
The remaining defendant in the trial arising out of the assault on Jesse Ryder, the New Zealand cricketer, has pleaded guilty.
I wrote about the assault in my book, Court and Bowled. The other prosecution that has been brought regarding the incident concerns the uploading of a video on YouTube; that case is proceeding to trial. It will have interesting wider implications, given the prevalence of smartphones nowadays.
I wrote about the assault in my book, Court and Bowled. The other prosecution that has been brought regarding the incident concerns the uploading of a video on YouTube; that case is proceeding to trial. It will have interesting wider implications, given the prevalence of smartphones nowadays.
Saturday, 17 January 2015
Chris Cairns in court again
Chris Cairns has made another appearance in court. It was only a routine case management hearing. Cairns and his co-defendant, the barrister Andrew Fitch-Holland pleaded not guilty once again and it seems that the trial will proceed in October of this year.
The case is reported on a number of websites including this Australian paper. One mistake a lot of the media are making is to assume that Fitch-Holland was Cairns' barrister during the 2012 libel trial, on which the criminal case is based. Fitch-Holland is a friend of Cairns, and gave him some assistance in the trial. He did not, however, represent Cairns, in part because he is not a libel specialist. He is a co-defendant because (as I understand it) it is alleged he improperly pressured a witness to sign a false statement for Cairns.
It is important to reiterate that both defendants pleaded not guilty. I shall keep an eye on the case as it progresses, and depending on other commitments, will attend as a journalist/observer in October when the trial takes place.
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