Law reports: the status of authorities

Published on LNUK's PSL Dispute Resolution Blog here. 

Introduction

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.

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.

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.

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?”

Exactly. 

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.

Victorian extras III: Arthur Mold Bowling to AN Hornby (1901)

Just to show that not all that much is new under the sun in cricket, here is some fascinating footage of a late Victorian cricketing story.  Arthur Mold was called regularly for throwing ; the controversy was such that Edison's company arranged for him to be filmed bowling to one of the better-known players of the day, the former England captain Albert "Monkey" Hornby.

Viewers can make up their own mind, but Mold's action does not exactly seem to come from the MCC coaching book ...

Mind you, the same could be said for some modern bowlers, including one against whom no accusation of chucking has been made:

It is also hard to assess Mold without much footage available of anyone else from the time.  And I suppose the point is more about straightness of the arm as opposed to whether it is perpendicular at the point of delivery.

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 … 

---

[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.