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

- Adam Wagner, UK Human Rights Blog

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.

Monday, 16 June 2014

Arlott's Freakers, All Black Streakers and human rights

In the second test between the All Blacks and England over the weekend (in a sport which probably isn't receiving much attention at the moment), a streaker ran on the pitch and was apprehended by a security guard, who seemed to be auditioning for the All Black back row, such was the force of the tackle he unleashed.  The New Zealand Herald has a report here.

I have mentioned streakers in my forthcoming book on cricket and the law.  The "practice" as it were of streaking seems to have started in the mid-1970s, to the point where the American comedian Ray Stevens wrote a popular song on the theme.  One still finds the odd incident today despite the novelty having worn off faster than the average streakers' clothes.

From a legal perspective, a streaker would be committing two offences: (i) a public decency offence, usually found under the public order statutes; and (ii) trespass, since they would have no right to be on the field of play.

As to the first of those, I wonder if any might try some of the same arguments as Stephen Gough, the soi-dissant naked rambler, who has been arrested a number of times in Britain over the past few years, and usually deploys human rights arguments.  In particular, he argues that it is his right to free expression to display himself in the relevant fashion.  Although he has succeeded in establishing that by being naked in public he is manifesting his right of free expression, it has always been held that the public interest outweighs that manifestation of his right, and he has therefore been convicted and had any appeal dismissed.

As to the latter, trespassers can usually be removed with reasonable force, though the question seems to have arisen with the individual on Saturday as to what was "reasonable".  A few years ago the following ensued in a cricket match in Australia; it was held, correctly in my view, that the actions of the Australian batsman, Andrew Symonds, was in fact reasonable and he committed no offence:

From about 43 second in one can see why the streaker might have started to regret his actions.

Tuesday, 10 June 2014

Cases that Changed Our Lives, Volume 2

I am a contributing editor to this forthcoming book from LexisNexis.  I have written the chapter introductions, and an essay on the case of Eweida and others v the United Kingdom (App. Nos. 48420/10, 59842/10, 51671/10 and 36516/10). I will post more information on the book over the next few weeks.

Thursday, 5 June 2014

Mankading and the spirit of cricket

A bit of controversy was raised in the final one day international between England and Sri Lanka on Tuesday night, when the English batsman Jos Buttler was run out by “Mankading”.

“Mankading” is the act of a bowler running out the non-striker for backing up too far.  It is named after the Indian test cricketer Vinoo Mankad, who performed the action twice against Bill Brown during India’s 1947 tour of Australia.  In more recent times the laws have been amended so that one can only be “mankaded” before the bowler enters his delivery stride. I have a short piece on the subject in my forthcoming book

True to the spirit of one too many sporting crowds in recent years, some spectators droned on for a while after Buttler’s dismissal, chanting “cheat” at the Sri Lankans.

I can return a short verdict on the controversy and attendant chanting: utter nonsense.  Frequently one day matches are decided by only one or two run margins, or with less than an over to spare. Often run-out appeals are decided only after repeated action replays from different angles using high definition cameras.  Therefore, even one or two inches’ distance can make all the difference.  Why, therefore, should the bowler indulge the batsman by allowing him to start backing up before the ball has even been bowled?

The answer is that a convention has developed by which the bowler is supposed to warn the batsman first, as indeed Mankad himself did all those years ago.  But the Sri Lankans did warn Buttler – twice – and he chose to ignore the warning.  It was therefore his fault, and his problem, and if anyone was morally transgressing it was Buttler for trying to gain an unfair advantage by way of short singles.

Mahela Jayawardene got it in one:

"If the other sides are not going by the rules, then they're not playing by the spirit, so what can you do?”


Wednesday, 4 June 2014

Crimes (Match-fixing) Amendment Bill

A New Zealand public lawyer, Mai Chen, has recently written an article in the New Zealand Herald explaining a bill which would make match-fixing a specific criminal offence.  In particular, it seeks to outlaw

"any act or omission done with intent to influence a betting outcome of a sporting competition or dog race other than for tactical or strategic sporting reasons"

It is hoped that the bill will "send a signal" about New Zealand's commitment to end match-fixing.  Chen further explains:

"While the Racing Board's betting rules permit it to cancel sports bets if it considers there is or may be a risk of corrupt betting, and to monitor betting to prevent corruption, those rules apply only to betting conducted in New Zealand with the Racing Board. Similarly, while match-fixing may be an offence under the Crimes Act or the Secret Commissions Act, there is no explicit provision prohibiting match-fixing and, to date, no New Zealand prosecutions. Nor is it explicitly prohibited in our Gambling Act or Racing Act."

This is all to the good, though no-one should be under any illusions that it will be a panacea to stop the horrendous threat to cricket in the form of the match-fixing that we have all known about since the Pakistani scandals of the 1990s and the Hansie Cronje debacle of 2000, and which has not gone away in the years since.

I am not up to date with New Zealand criminal law anymore, but would observe that in England at least, any proof of spot fixing or match fixing is already a serious criminal offence, as illustrated by the jailing of three Pakistanis earlier this decade.  They were convicted of conspiracy to accept corrupt payments and conspiracy to cheat, and sentenced to terms of imprisonment.  They were also subjected to disciplinary proceedings and given fines and suspensions.  I wonder how much difference it would have made to them, or anyone else, if there was a specific offence under which they might have been charged rather than general fraud/conspiracy offences which apply to conduct much wider than sport. The last Labour government in the United Kingdom passed literally thousands of new offences into law, without a measurable improvement in public behaviour.  Many seemed to be the result of wishful thinking, or grandstanding, or work-creation, or all of the above.

Secondly, any potential criminal is much more concerned about the chances of being caught.  A specific offence will not alter that.

Thirdly, criminal law does not normally extend beyond a state's boundaries.  If all the conduct occurs overseas (say, a game on the subcontinent and payment in the Middle East), then presumably any New Zealand player involved could not be prosecuted at home.

Finally, the bill if passed will not be retrospective (it is an almost watertight rule of criminal law that it is never retrospective in operation), and so any of the current rumours and allegations will not be covered.

All that said, we can only wish the authorities well, in New Zealand and everywhere else, in continuing to fight against the worst threat to cricket in its history.

Needless to say, I have covered match fixing in rather more detail in my forthcoming book.