"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.

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.

Tuesday, 23 September 2014

Lou Vincent Radio Interview

Here is Lou Vincent's confessional interview on match-fixing given to a New Zealand radio station.  I intend to write another piece on match fixing in sport shortly:

Thursday, 18 September 2014

"Some gentle autumn reading"

Lincoln's Inn Library has said a few words about Court & Bowled:

"This book might provide some diversion for those who have stowed away their kit for the season or have had to revert to The Archers rather than Test Match Special on Radio 4. Miller v Jackson naturally finds a place here, and indeed Lintz cricket ground, where, as Lord Denning pertinently observed, ‘the wicket area is well rolled and mown’ and ‘the outfield is kept short’, features as the cover illustration. But the author covers a wide range of other cases where cricket has found its way into the courts."

The review can be found online here.

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

Cases that Changed Our Lives vol 2

The book is now on sale at Lexis here, at Wildy here and on Amazon here.

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.

Tuesday, 1 July 2014

"My name is Lou Vincent and I am a cheat"

Former New Zealand cricketer Lou Vincent has pleaded guilty to match fixing charges brought by the ECB.  He has released the following statement:

"My name is Lou Vincent and I am a cheat.

I have abused my position as a professional sportsman on a number of occasions by choosing to accept money through fixing.

I have lived with this dark secret for many years, but just months ago I reached the point where I decided I had to come forward and tell the truth.

It's a truth that has rightly caused uproar and controversy in New Zealand and around the world.

I have shamed my country. I have shamed my sport. I have shamed those close to me. For that I am not proud.

I lost faith in myself and the game. I abused the game I love. I had to put things right.
Speaking out. Exposing the truth. Laying bare the things I have done wrong is the only way I can find to begin to put things right.

The time has come for me to now face them like a man and accept the consequences, whatever they may be.

I could not live with my wrongdoing any longer, and after meeting my future wife Susie, after learning what unconditional love really is, I felt strong enough to tell her what I'd done, and she has helped me take the painful steps to telling my parents, my wider family, and then the authorities.

I am proud of those I love. Especially my immediate family and friends. Their strength, support and forgiveness has enabled me to address some deep and uncomfortable issues in my life.

I can finally look my children in eyes and tell them that honesty is the best policy, even if it feels like the hardest thing to do at times.

I now believe in myself as a person again and do not wake up every morning hating myself.

Today is the day I offer my deepest apologies to the public and the cricketing world, to the loyal fans, to the dedicated coaches, staff and all players past and present.

I apologise to the and thank the ACSU [Anti-Corruption and Security Unit] for their help and support, which is out there for all players and it has helped me a great deal. Chris Morris and his legal team, and all associations that have handled this sensitive situation with professionalism and respect.

The people who know me know I am vulnerable. But they also know I am not stupid and that I know what is right and what is wrong.

I do suffer from depression but it is absolutely no reason or excuse for all that I have done wrong.

I used to think mistakes were the actions of bad people. I now know even good people can make the worst of mistakes. My actions, I will regret for the rest of my life.

For sport to prosper, it is up to the players to police the game, because they are the ones that will ultimately lose out if they allow themselves to be used as pawns to make money.

No one should ever be put in that position. And no one should ever allow themselves to forget what sport is about and let money rule their decisions.

The decisions I made were wrong. Players must be better than that. Above reproach. For the fans. For the sport.

For the first time in a very long time I feel positive about the future because I am finally becoming the man I wanted to be. I have to face up to my wrongs to make them right.

I have kept my head down for too long now. This is my time to man up to my mistakes and today I can stand with a better conscience because I know I'm doing the right thing.

It is entirely my fault that I will never be able to stand in front of a game again. It is entirely my fault that I will not be able to apply my skills in a positive way to help future cricketers.

But it is entirely possible that I can use this moment to convince others not to be tempted by wrongdoing. To do the right thing for themselves, for their families and friends, and for the sport they love.

I accept my punishment and I thank you for [reading] my statement.”

Thursday, 26 June 2014

Law reports: the status of authorities

Published on LNUK's PSL Dispute Resolution Blog here


It is the duty of counsel to cite the appropriate law report for a case and it is not sufficient to cite an unofficial report if an official or approved report is available. Therefore, it is important when researching or preparing bundles for counsel or court, to ensure that the most appropriate law reports are referred to.

There are a large number of law reports and the courts have issued various practice directions from time to time relating to their use. The most recent of these is a practice direction which identifies the hierarchy of the law reports that should be referred to to clarify the position. This was handed down by the Lord Chief Justice on 23 March 2012 and repeals and varies previous practice directions and statements (paras 2-3), although it does re-state much of the previous practice.  It is reported at [2012] 2 All ER 255. 

Hierarchy of reports to be used

The hierarchy of law reports which should be cited using the following law reports:

First: cases reported in the Official Law Reports (AC, QBD, Ch, Fam) produced by the Incorporated Council of Law Reporting for England and Wales). These are the most authoritative reports and contain a summary of the argument. Where a judgment is reported in these reports, that report must be cited. Other reports and transcripts may only be used when a case is not in the Official Law Reports. Note:
  • these reports are not published until (at the earliest) some months after judgments are delivered and sometimes not until the next year
  • these reports will therefore not always be available when required

Second: where a case has not been (or not yet been) reported in the Official Law Reports, then the All England Law Reports (All ER) or the Weekly Law Reports (WLR) should be cited
  • All ER and WLR are of equal weight, so either of these reports may be cited
  • both All ER and WLR are seen by the relevant judge(s) before publication

Third: if the case has not been reported in any of the above sets of law reports, but is reported in any of the authoritative specialist series of reports, which contain a headnote and are made by individuals holding a Senior Courts qualification, that specialist report may be cited. Specialist reports include:
  • Simon’s Tax Cases (STC)–headnotes are sent to the judges before publication
  • Law Reports of the Commonwealth (LRC)
  • the Industrial Relations Law Reports (IRLR)
  • Butterworths Company Law Cases (BCLC)–headnotes are sent to the judges before publication
  • Butterworths’ Human Rights Cases (BHRC)
  • All England European Reports (All ER (EC)
  • All England Commercial Cases (All ER Comm)–headnotes are sent to the judges before publication
  • Local Government Reports (LGR)
  • Butterworths Medico-Legal Reports (BMLR)
  • Family Court Reports (FCR)—headnotes are sent to the judges before publication
  • Construction Law Reports (Con LR)
  • International Tax Law Reports
  • Intellectual Property and Technology Reports (IP&T)—headnotes are sent to the judges before publication

Fourth: where a judgment is not reported in any of the reports listed above, but is reported in other reports, they may be cited.

Fifth: where a judgment has not been reported at all, the official transcript may be used, but not the handed-down text of the judgment, as this may have been further amended after the text was handed down. An unreported case should not usually be cited unless it contains a relevant statement of legal principle not found in reported authorities. Official transcripts may be obtained from sources such as BAILII.
Notes on hierarchy:
  1. where there are discrepancies between reports, or where one report is fuller than another, then the hierarchy set out above need not be followed, but this should be explained to the court and the alternative references should be given
  2. If a judgment under appeal has been reported before the hearing but after skeleton arguments have been filed and counsel would prefer to argue from the published report the court should be provided with photocopies of the report for the court to use

Format of copies of authorities

Wherever the report comes from, the copy of the report which is provided to the court should be either a photocopy or a copy of a reproduction in electronic form (which has been authorised by the published) but in either case the following must be complied with:
  1. the report must be presented to the court in an easily legible form (a 12 point font is preferred but a 10 or 11 point font is acceptable), and
  2. the advocate presenting the report must be satisfied that it has not been reproduced in a garbled form from the data source
In any case of doubt, the court will rely on the printed text of the report (unless the editor of the report has certified that an electronic version is more accurate because it corrects an error contained in an earlier printed text of the report).

Ex tempore judgments

A number of judgments are given ex tempore, that is to say orally by the judge, whether due to pressure of time or for some other reason.In such instances an official transcript will or should become available subsequently. The time this takes will vary from case to case. However, it is seldom less than two weeks and may be more depending on a variety of factors such as the workload of the shorthand writer/transcription service, the availability of the judge and whether there are any queries arising out of the transcription.
Digests of ex tempore cases may be found on internet publications such as the All England Reporter service.
The All England Reporter is the only such service whose reports are prepared exclusively by barristers or qualified solicitors, whose name appears at the end of each digest, and hence meet the requirement stated in Halsbury’s as quoted above.

The reports are cited as [year] All ER (D) (number) (month), for example: Smith v Jones [2008] All ER (D) 999 (Nov). All England Reporter also provide links within its digests to cited cases within the same platform.

Neutral Citations

The practice of issuing neutral citations for judgments, that is to say citations not linked to any series of reports, was introduced in the Court of Appeal and Administrative Courts by Practice Note [2001] 1 All ER 193, and extended to the High Court by Practice Direction [2002] 1 All ER 351. The former practice note also introduced the practice of paragraph numbers in judgments. According to Lord Woolf CJ ([2001] 1 All ER 193, paras 2.3-2.4):
2.3 The neutral citation will be the official number attributed to the judgment by the court and must always be used on at least one occasion when the judgment is cited in a later judgment. Once the judgment is reported, the neutral citation will appear in front of the familiar citation from the law report series. Thus: Smith v Jones [2001] EWCA Civ. 10 at [30], [2001] QB. 124, [2001] 2 All ER. 364, etc. The paragraph number must be the number allotted by the court in all future versions of the judgment.
2.4 If a judgment is cited on more than one occasion in a later judgment, it will be of the greatest assistance if only one abbreviation (if desired) is used. Thus Smith v Jones [2001] EWCA Civ. 10 could be abbreviated on subsequent occasions to Smith v Jones, or Smith’s case, but preferably not both (in the same judgment).

Note: some websites have added neutral citations to cases prior to 2001. These have no authority as they were not issued by the court. They should accordingly be used with caution.