Victorian extras II

Jack the Ripper, the subject of my previous blog, was unquestionably the most famous real-life Victorian criminal. Equally unquestionably, the most the most famous fictional Victorian crime fighter was the denizen of 221B Baker St, one Sherlock Holmes. As it happens, Holmes’ creator, Sir Arthur Conan Doyle, was a great cricketing fan. Conan Doyle regularly played for a team called “The Authors”, and on occasion was joined by both AA Milne and JM Barrie.

One of Conan Doyle’s more regular teammates was his brother-in-law, EW Hornung, who created the gentleman thief Arthur Raffles. Raffles was the “anti-Holmes”, in that he put his genius in the service of crime rather than against it. In the early books at least, Raffles’ status as a gentleman was regularly emphasized by his cricketing credentials (he played for “Gentlemen of England”), and he liked to separate criminals into gentleman amateurs and working-class professionals, just as cricketers were classified at the time. 

As well as turning out for the Authors, Conan Doyle played ten first class matches for MCC between 1899 and 1907. He was primarily a batsman, though his highest score for MCC was only 43. Far more impressive was the fact that his sole first class wicket was none other than W.G. Grace.[1]

By dismissing Grace, Conan Doyle lived every cricketer’s dream. He also had the literary talent to sum up the experience, in writing a poem.  It is a vivid portrayal of what it must have been like to face Grace on the field, and is also the perfect embodiment of Victorian cricketing ideals.  The verse begins:

Once in my heyday of cricket,

One day I shall ever recall!

I captured that glorious wicket,

The greatest, the grandest of all.

Before me he stands like a vision,

Bearded and burly and brown,

A smile of good humoured derision

As he waits for the first to come down.

A statue from Thebes or from Knossos,

A Hercules shrouded in white,

Assyrian bull-like colossus,

He stands in his might.

With the beard of a Goth or a Vandal,

His bat hanging ready and free,

His great hairy hands on the handle,

And his menacing eyes upon me.

(…)

Sir Arthur Conan Doyle, A Reminiscence of Cricket

Not all Victorian poets wrote about cricketing joi de vivre in the manner of Conan Doyle.  A E Housman, for example, wrote in A Shropshire Lad:

“Now in May time to the wicket

Out I march with bat and pad:

See the son of grief at cricket

Trying to be glad.

Try I will; no harm in trying:

Wonder 'tis how little mirth

Keeps the bones of man from lying

On the bed of earth.”

Those were the sort of sentiments one might associate with Houseman’s fictional near-contemporary Eeyore (the creation of Conan Doyle’s occasional teammate), or perhaps more appropriately the Great War poets a generation or so later.  All part of the rich tapestry of cricket, I suppose … 

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[1]               The match was between MCC and London County at Crystal Palace in August 1900. Grace was out caught behind off Conan-Doyle’s bowling in the second innings, having scored 110. Cricinfo has the scorecard here

Cricket and law: Montague John Druitt

Recently in the Ask Steven column on Cricinfo, the question was asked as to whether Jack the Ripper was a cricketer.  The answer is of course that no-one knows who the Ripper was, so no-one can say whether he was a cricketer, or even a "he", or otherwise very much about him at all.  (Personally I have always thought FrancisTumbletee ticked more boxes than any other suspect, and cannot be definitively ruled out for any reason, but we are not exactly in the realms of beyond reasonable doubt.) As Steven observed, the reader presumably had in mind the journeyman Victorian cricketer Montague John Druitt.  Druitt was for many years one of the leading Ripper suspects.  Had space permitted I would have said something more about him in my book Court and Bowled (he has a passing mention as it is), because he was also a journeyman Victorian barrister, and thus nicely fits within the theme of cricket and the law.

A basic requirement for any Ripper theory is to be able to place the suspect in Whitechapel on the nights of the murders. It also helps if they had some familiarity with the area, since that would partially explain how they were able to evade justice. Druitt’s barrister’s chambers were in the Temple, a short distance with good travel links to Whitechapel, although given his upper class status he would have been rather conspicuous in the squalid East End had he spent any time there. But it is in fact his cricketing career which has enabled historians to examine his movements more closely, for he was involved in recorded matches on some of the days in question.

Druitt played a match at Canford in Dorset the day after the murder of Polly Nichols. On the morning of the murder of Annie Chapman, he turned out at 11:30am in a match near his home at Blackheath. The second occasion would have involved the more unlikely journey. Since Chapman was killed at 5:30am, Druitt would have had only a short time to return home, dispose of all the evidence and turn up for the start of play without arousing any suspicion (one also imagines getting through the day’s play after an all-night murderous rampage would have presented some difficulty).

It would therefore have been possible, but only just, for Druitt to have moved between Whitechapel and the match venues on the days in question. Matters are complicated though if one moves beyond the canonical five murders.  If, for example, one accepts that Martha Tabram was another victim, then one has to explain why Druitt would have returned mid-week from Bournemouth, where he was playing a cricket match on consecutive weekends, in order to commit the murder. I suppose he might have returned anonymously precisely so he would have an alibi concerning his whereabouts, though if so it is strange he did not bother going to the same lengths with all the other murders. Then again, Tabram was before the canonical five, so perhaps Druitt (if he was the killer) felt more confident after getting away with it and less need to bother with an alibi.

The main reason for Druitt becoming a suspect was that he was mentioned in the “McNaughten Memorandum”, a piece written by a police officer not long after the killings. McNaughten seized on the point that Druitt committed suicide shortly after the last of the five canonical murders. That point certainly satisfies another Ripper requirement, which is to provide an explanation about why the killings suddenly stopped. There was also a history of mental illness in Druitt’s family, which goes to the next Ripper requirement of a reason to believe that the suspect could have been a crazed and depraved murderer, though there is a world of difference between the mental health issues in his family and being a psychotic killer.  If Druitt ever displayed any of the latter tendencies it was never recorded.  

Either way there is nothing definitive on the point: other serial killers, such as Ted Bundy (whose misogyny and depravity certainly equalled that of the Ripper), have been quite able to keep up the pretense of normality away from their crimes.

The weakness of the case against Druitt is that McNaughtan was not working in the East End at the time of the murders, and so was not an officer with first-hand knowledge of the case. And apart from his memorandum, there is nothing of substance to connect Druitt with the murders.  

Thus, as with so many of the popular suspects, we are left concluding that while there is no evidence that definitively rules Druitt out, there is equally precious little that rules him in. 

Match fixing update

The writer Mary Russell Mitford (1787–1855) wrote:

‘To think of playing cricket for hard cash! Money and gentility would ruin any pastime under the sun.’

The irony is that, at the time, not only was the game frequently played for money, but exactly the wrong sort of money – that of illegal gamblers out to rig the result.

It is generally considered that match fixing had died out by the end of the nineteenth century, but no readers will need reminding that match fixing in cricket is back in a disturbingly large way. First there were the Pakistani scandals in the 1990s, leading to a judicial inquiry, then the Hansie Cronje debacle of 2000, and now in more recent times we have gambling associated with the 20/20 tours. The journalist Ed Hawkins has written a very important book explaining the nature of all this skulduggery.

Since I wrote a blog on match fixing last week and spoke to Radio NZ, there have been some important developments:

- Brendon McCullum has confirmed he stands by the testimony he gave to the ICC, which was leaked to the media recently.

- The ECB has brought disciplinary proceedings against Lou Vincent and another player.

- Vincent has confirmed that he has made no plea bargain.

- Chris Cairns has come to London to speak to the police and ICC investigators.

There are three possible legal fora under which proceedings might be brought:

(i) The internal disciplinary regimes of the ICC or national authorities, as is under way with Vincent. The ECB banned Danish Kaneria under its own procedures, and Kaneria’s challenge to the High Court (under the Arbitration Act 1996) was dismissed. I intend to write a bit more about Kaneria’s case in the next week or so.

(ii) A player accused of match fixing might sue anyone who publishes the accusation, as Cairns did a few years ago when Lalit Modi accused him in a tweet. I have written about this case in detail in my forthcoming book (due at the end of June).

(iii) Criminal charges might be brought, as they were against Salman Butt and two bowlers earlier this century. I wrote a short account of this case in my first book.

I would reiterate the following:

- Chris Cairns is not just entitled to the presumption of innocence, he has not even been charged with anything. He has voluntarily come to London to provide his testimony.

- The ICC seems to have been sitting on some testimony for several years. This appears unacceptably dilatory, unless some proper reasons not publicly known at present come to light in due course. On that we must reserve judgement.

- The media are only doing their job in reporting allegations and leaks, and no-one can blame them for that. It is the ICC who is at fault, for not stopping the leaks in the first place. The leaks have (i) interfered with the right of the subject of them to a fair trial; (ii) brought the general competence of the ICC into question; and (iii) worst of all, possibly deterred players from putting themselves at risk by going to the authorities in the first place. As I have stressed elsewhere, players (especially the more junior ones) who are approached by match fixers will need to have full confidence that they can report things in private, or they will be too in fear of reprisals from the wrong-doers to risk it.

One can only hope the truth will out. I along with the rest of the general public cannot know who is telling the truth in all this at the moment. But that also means we as the general public cannot know the extent of the wrongdoing, and thus how many games we pay good money to watch or read about are tainted.

The stakes – to use an ironic term – could not be higher. There is much evidence that illegal gambling was the reason cricket became an organised, national sport in the first place. In a rather cruelly circuitous fashion, illegal gambling may yet become the reason it ceases to be so. Let us hope not.

A short book of bad judges

I have written a review of this book for the New Law Journal, published on 23 May 2014, p 22.

Radio New Zealand interview on Chris Cairns and match fixing

I have been interviewed by Radio New Zealand about the ongoing match fixing allegations.  The interview can be heard here.

I have also been quoted by the New Zealand Herald in this article.

Update: I have also been quoted by the Wanganui Chronicle here. (I shall forgive them for calling me British, since I agree with the thrust of their article that it is about time the ICC and the ACSU to get on with it.  Otherwise, the story is just going to run and run, to the detriment of everyone whose name is mentioned in connection with allegations, and to the detriment of the game itself, which will lose credibility more and more unless the authorities are shown to be on top of corruption.)

Chris Cairns' match-fixing trial by media

It has not been an enjoyable 24 hours or so for the former New Zealand cricketer Chris Cairns. In 2012 he won a major High Court action for libel against Lalit Modi over match-fixing allegations which Modi had made on Twitter.  I have considered the case at some length in my forthcoming book Court & Bowled (available from the publishers here or on Amazon here).

After the trial, and his successful defence of Modi's appeal against the damages award, Cairns would presumably have considered himself free of all match-fixing suspicion.  In recent days, however, it has emerged that his former teammate Lou Vincent has made very serious match-fixing allegations against Cairns, initially reported to be part of a plea bargain with the ICC, though it has since emerged that no plea bargain was made by Vincent.

Cairns has strongly denied the allegations, but to add greatly to his worries, it has just emerged that other statements to the ICC implicating him have been made by Vincent's ex-wife and by the New Zealand captain Brendon McCullum.  The New Zealand Herald reports:

"New Zealand Cricket reacted angrily to the leak of McCullum's testimony.

New Zealand Cricket is dismayed that Brendon McCullum's testimony to the International Cricket Council has been leaked to the media," the board said in a statement. "We can confirm that Brendon is not under investigation by the ICC and his testimony has actually been applauded by them. NZC has 100% confidence in our captain and his role in tackling corruption."

On the face of it, things look bleak for Cairns.  Vincent might be viewed with a degree of suspicion (update: he has since been charged by the ECB, and has said there is no plea bargain). His ex-wife (who has not been implicated in anything) is another matter, however, and McCullum as well.  McCullum, as New Zealand Cricket states, is entirely free from suspicion, and with a very good reputation in world cricket.  On the strength of his word, it would seem that there is a case for Cairns to answer.

But that is the point - so far we have nothing more than allegations, to which Cairns will in all likelihood have to answer in some form or another.  There has been no court case or disciplinary hearing.  Cairns has not had any chance to see the allegations against him in full, nor to put forward a considered response.  He is therefore innocent (not that he has even been charged with anything) until proven guilty.  So far there has been nothing more than trial by media, thanks to the appalling leaks, which have necessarily been very damaging for Cairns.

Although we cannot know, it is hard to avoid the suspicion that the leaks were other than deliberate, with the express purpose of destroying Cairns without the bother of a trial or disciplinary hearing in an independent tribunal with all parties represented and with full disclosure beforehand.

If Cairns is innocent, he has been disgracefully traduced.  If Cairns is guilty, he has been denied the due process that is the right of all in a free society under the Rule of Law.  Either way, his chance of receiving a fair trial with the presumption of innocence has been reduced. One hopes the ICC will treat the leak as seriously as the match-fixing allegations themselves, for its credibility depends on it being seen to be impartial and competent. Moreover, other players will be reluctant to come forward with information if their confidentiality cannot be protected.  Brendon McCullum's lawyer has already expressed anger that his client's statement was leaked.  For those reasons, the fact of the leaks is just as damaging to justice as their content.

UPDATE (30 May): Here is a report of Cairns' statement to the media following his trip to London to meet ICC investigators.

UPDATE (September) It has been confirmed that Cairns will stand trial for perjury.  This will enable a proper trial with witnesses and full disclosure.  Cairns has stated that he will plead not guilty and that he emphatically denies the allegations.  I shall continue to follow the proceedings and continue to post updates and comment on this blog.

Court and Bowled: extras

Work on my forthcoming book on cricket and the law continues. In the meantime, I have found a few interesting videos and other research material on the way, which I will post here from time to time.  Here is the first, an interview with the greatest cricketer of all.  It was recorded during the 1930 Ashes series, in which Bradman scored a world record 974 runs (still a record today), including the-then highest test score of 334.

The interview was given just before the Oval test, with English cricket in something of a panic.  If Bradman could annihilate them on their home turf, the feeling went, imagine what he would do at home. The former England captain Percy Fender studied him closely at the Oval and concluded the one potential weakness was in the way Bradman played short-pitched bowling.  Since he scored a double century, it cannot have been much of a weakness, but it was all the English had to go on.  Fender duly relayed his theory to the captain of the return Ashes series - one Douglas Jardine.

None of that could have been known to Bradman and his interviewer in this clip.  There is much to savour: Bradman's slightly unorthodox technique (which seemed to work alright for him in practice). The speed of his wrists and the way he keeps his head still.  The fact that he always recommended hitting the ball on the ground, but clearly smashes one over midwicket.  I used to think Ricky Ponting played the pull shot in his own style - here we have an interesting antecedent.

Bradman's clipped Australian tones are interesting as well.  I assumed that because it would have been novel for anyone speaking to camera in 1930, he was probably affecting his accent somewhat, but an Australian colleague confirms that his accent is not atypical of his generation.  What is amusing is the way in which the interviewer feeds him stock questions and Bradman gives the same sort of pat replies any player might do today - plus ca change ...

A slightly better quality version of the same clip can be found here.

R (on the application of Edwards and another) v Environmental Agency and others: environmental claims and the rule of law

On the UK Human Rights Blog, David Hart QC has written a number of informative posts about the Aarhus Convention, which governs access to environmental information, public participation in environmental decision-making and access to justice in environmental matters.  He has a helpful introduction to the Convention here.

His most recent post concerns one of the Convention's more important features: the limitation it places on the costs a claimant will incur in an environmental claim where they would otherwise be "prohibitively expensive".  In particular, he discusses the decision of the Supreme Court in R (on the application of Edwards and another) v Environmental Agency and others.

I have no argument with Mr Hart's authoritative analysis of the law.  Rather, my quarrel is with the idea that there should be a protective costs regime carved out for one area of the law.  Accordingly, I have left the following comment:

There is an obvious breach of the rule of law here.  Legislation should be general and apply equally unless there is a good point of principle otherwise.  Carving out a special costs restriction for one type of litigation (Environmental, in this case) is a flagrant breach of that principle.  No doubt environmental claims are important, but so too are medico-legal cases (which determine our quality of life and indeed life itself in some cases), commercial cases (which determine whether we can earn a living) and indeed potentially _any_ form of litigation depending on the circumstances and the limits of your imagination. 

Moreover, once an exception has been carved out, it provides a fertile source for litigation over whether any particular case falls within the exception.  There will no doubt be some cynical cases where an environmental peg is found for what is not really an environmental case at all, or not as intended by the Aarhus draftspeople anyway (see here for a good example of the possibility of litigation over the Aarhus margins). 

Then we have the equally bad problem identified by another commentator to Mr Hart's post: if one removes the risk of proceedings for bringing a claim, then the opportunity for what is at best opportunism and at worse blackmail is obvious.  Exactly this happened in New Zealand environmental law with its Resource Management Act, which allowed objections to planned development to be made by people who would not bear the cost of their objections failing, so a nice little earner (as they don't say in that country) was fashioned by those who figured out that they might have their objections bought off ... 

Of course, the rule of law also requires that citizens be able to bring proceedings to enforce their rights or clarify their legal position.  If the courts are too expensive for all but the smallest fraction of society to use, all the rights they supposedly uphold will be illusory.  But, going back to the first point, this applies to all rights and hence all litigation.  There is no justification for special regimes here and there - employment, family, environment, to name just three we presently have - because indigent but worthy claimants can be found everywhere. (Mrs Donoghue was one, for a start - and her case concerned neither environmental law, nor employment nor family ... )

Where is Rosa Parks? Universities and segregation

Last week the Supreme Court predictably dismissed the appeal of a Christian couple who had refused to let a double room to a homosexual couple who were in a civil partnership (Hall and another v Bull and another  [2013] All ER (D) 307 (Nov)).  They insisted that only married couples could stay in such rooms, so the homosexual couple sued under the Equality Act (Sexual Orientation) Regulations 2007 (since replaced by the Equality Act 2010, without material alteration).  The regulations prohibited anyone offering services to the public from discriminating on various grounds, including sexual orientation.

According to the proprietors, they were not discriminating directly on the ground of sexual orientation, but rather on the ground that the couple were not married.  It was accepted that, if so, the policy would have been indirectly discriminatory against homosexuals, since (at the time) they could never get married, whereas a heterosexual couple could. In those circumstances, the proprietors offered two ways in which the policy could be justified or excused.

The Supreme Court held that the policy equated to direct discrimination. Whatever explanation was offered, the blunt truth was that the policy of the proprietors treated homosexual couples differently. At that point the arguments about indirect discrimination fell away (though the Supreme Court held that the proprietors would have lost on them anyway).

Did the result mean that the rights of homosexuals to equal treatment "trumped" those of Christians wanting respect for their beliefs?  No, said Lady Hale, because the result would have been the same in reverse.  That is, had a homosexual couple run a B&B and refused admission to a Christian couple for whatever reason, the Christian couple would have been able to sue them in the same fashion.

The logic is simple: those offering goods or services to the public cannot discriminate on certain grounds, including gender, sexual orientation and religion.

So why then did Universities UK, the representative organisation for the UK's universities, publish guidance suggesting it might be acceptable for a religious speaker at a university - of all places - to demand segregated seating before speaking?  Indeed, such an event occurred recently, though the guidance mentions it only as a hypothetical possibility.  Nick Cohen takes apart the argument in the Spectator.

If a homosexual couple being disallowed to share a room with a double bed is unlawful discrimination, why is it not equally discriminatory to allow two men to sit together at a university event but not a man and a woman (even married)? If the speaker used to belong to the Dutch Reformed Church and demanded that black and white students be separated, they would be sent on their way.  So too a religious bigot who demanded Jews and Gentiles be separated.  And so should anyone trying it on with gender discrimination.

Of course one might also wonder why a university was keen on someone preaching religious-based discrimination speaking there in the first place.  The cornerstone of any university has to be that ideas have to be advanced on the basis of reason and evidence.  All theories have to be subjected to falsification.  If any theory is found inconsistent with counter-arguments and evidence, it should be modified or abandoned accordingly.  Any religious leader showing up to offer his (and it is usually his) theory that men and women should not sit together can and should expect to have to argue the case, not simply declare it and assume there will be unquestioning and even fawning acceptance.  So too any other arguments they might offer on any subject whatever.

It is not too much of an exaggeration to say that all of our present day prosperity and freedom derives from the Enlightenment, and all the hard fights against superstition, obscurantism and intolerance that were fought and won in those times.  It seems all those battles are having to be fought all over again.

Court and Bowled: tales of cricket and the law

The reason for recent blogging silence is that I am working on a new book, Court and Bowled: tales of cricket and the law, to be published next year.  It can be pre-ordered here.  The blurb is as follows:

'In summertime village cricket is the delight of everyone' the English judge Lord Denning famously wrote, in a case brought by someone who clearly disagreed with him.

The case was but one example of how the game of cricket cannot always avoid the law. Neighbours or passers-by get hit by stray cricket balls, protesters interrupt matches, players get into fights or take drugs, and not a few involved with the game sue each other for libel.

This book looks at a number of stories where cricket or cricketers gave rise to a legal dispute. It begins with a short history of cricket as it appears in the early law reports, including the case from 1598 which contains the very first known use of the word “cricket”. It then turns to individual cases from Victorian times to the present day.

Some of the disputes have been of fundamental importance to the game itself. The ruling in Bolton v Stone affected village and indeed impromptu cricketers everywhere, while if Kerry Packer had lost his High Court action in 1978, his cricket revolution would have been over before a ball had been bowled.

Other cases raise issues going well beyond the boundary ropes: Basil D’Oliveira’s omission by England from a tour of South Africa, for example, ended up being considered in the highest echelons of power in both countries.

All of the stories demonstrate something common to both cricket matches and court cases: behind the intrigue, entertainment and amusement of both there are real people and real human stories, with all the usual human emotions and fallibility.

The book will be of interest not only to cricket fans or lawyers but anyone interested in tales of high (and low) human drama and great ethical, moral and legal dilemmas.