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

- Adam Wagner, UK Human Rights Blog

Friday, 27 March 2015

Prince Charles' letters: R (on the application of Evans) and another v Attorney General

The Supreme Court has now given judgment in R (on the application of Evans) and another v Attorney General, the case brought by the Guardian seeking access to Prince Charles' letters under the Freedom of Information Act.  The Court ruled in favour of the Guardian and therefore at some point in the future disclosure will now have to be made.

I wrote about the case at an earlier stage in the process here. It was not an uncontroversial opinion, as the comments section indicates, though I stand by the view that the Prince should not have been writing letters lobbying for change.  This is not because I disagree with all of his views - though I certainly disagree with his support of homeopathy and his more general unscientific pronouncements (brutally dissected by the late Christopher Hitchens here).  The problem is the more general principle that the monarchy is supposed to reign, not rule.  The late Tony Benn used to have four questions for any man or woman with power he met. They were along these lines:

1.  What power do you have?

2.  How did you obtain it?

3.  In whose interests do you exercise it?

4.  How can I get rid of you?

In the case of the Monarchy, the answer to question (1) has traditionally been 'not very much', and hence the rest were of not so great importance.  By seeking to influence government policy, Charles would change that answer and hence cause significant embarrassment to his position.  The Attorney-General almost admitted as much in his decision and his pronouncements on the letters earlier in the case.

It is true that the Queen grants the Prime Minister a weekly audience, at which she presumably shares her views on a wide range of matters.  But no Prime Minister (and the Queen has been on the throne since Winston Churchill occupied No. 10 Downing St) has ever said she lobbies for any particular course of action, only that she offers advice here and there. For ardent republicans - and there is no doubt that the Evans case was a flanking attack on the entire monarchy by the Guardian - the mere fact of her meeting politicians in a different capacity from an ordinary citizen is objectionable of itself. But they would still concede that Charles' letter-writing is of a different order of magnitude, and much more damaging to the monarchy accordingly.

I do not buy the argument based on privacy - the notion that Charles is entitled to private correspondence like anyone else.  He is indeed entitled to privacy - on matters appropriately private.  Thus, if he wrote to a friend, or if he wrote a private journal (which he did, and which I argued in one of my books should be confidential) then that would be no-one else's business.  But if he is seeking to influence an important matter of policy, whether in regard to the environment, human rights, architecture, alternative medicine or whatever, then that is properly something of public concern, given his constitutional position.  No-one could pretend that his letters on such subjects would be no different from those of Disgusted of Tunbridge Wells.

In my earlier blog, a commentator referred to the German president, who is supposed to be neutral in party politics, but who still intervenes and takes positions on contentious political matters.  There are two responses: first, the positions are not identical - the German constitution is a carefully crafted arrangement, not easily compared with the British one; and secondly, the German president is elected, and thus there is a ready answer to Tony Benn's question (4) which does not apply in the case of Charles.

There is also the question of one of Charles' letters concerning a ministerial decision which is later made subject to a judicial review challenge.  Would a letter from the Prince amount to an irrelevant factor?  Or would it otherwise breach natural justice, on the basis that no-one would have had a chance to respond to it?

I should stress that none of the above actually fell for decision in the legal proceedings.  The court did not need to consider whether Charles should be writing the letters in the first place, what consequences there might be for him, and what consequences there might be for anyone else. Instead, it was concerned primarily with the separate but equally interesting issue of whether, and in what circumstances, the Attorney-General might overturn a decision of a judicial tribunal. There is a short note on the UK Supreme Court Blog here and I will link to a longer discussion when one appears.

Tuesday, 10 February 2015

Book review in the Law Society Gazette of Court & Bowled

A review has been published of Court & Bowled in the Law Society Gazette, here.  The review states that the book 'is an interesting and entertaining collection of stories and cases involving cricket as it interacts with the law.' 

Wednesday, 28 January 2015

Jesse Ryder trial

The remaining defendant in the trial arising out of the assault on Jesse Ryder, the New Zealand cricketer, has pleaded guilty.

I wrote about the assault in my book, Court and Bowled.  The other prosecution that has been brought regarding the incident concerns the uploading of a video on YouTube; that case is proceeding to trial.  It will have interesting wider implications, given the prevalence of smartphones nowadays.

Saturday, 17 January 2015

Chris Cairns in court again

Chris Cairns has made another appearance in court.  It was only a routine case management hearing.  Cairns and his co-defendant, the barrister Andrew Fitch-Holland pleaded not guilty once again and it seems that the trial will proceed in October of this year.  

The case is reported on a number of websites including this Australian paper.  One mistake a lot of the media are making is to assume that Fitch-Holland was Cairns' barrister during the 2012 libel trial, on which the criminal case is based.  Fitch-Holland is a friend of Cairns, and gave him some assistance in the trial.  He did not, however, represent Cairns, in part because he is not a libel specialist.  He is a co-defendant because (as I understand it) it is alleged he improperly pressured a witness to sign a false statement for Cairns.  

It is important to reiterate that both defendants pleaded not guilty.  I shall keep an eye on the case as it progresses, and depending on other commitments, will attend as a journalist/observer in October when the trial takes place.  

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.