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

- Adam Wagner, UK Human Rights Blog

Friday, 29 August 2014

c & b Ryan Hinds

A nice picture here of a fine cricketer, Ryan Hinds, with my book:

From Wildy's facebook page.

Tuesday, 5 August 2014

Court & Bowled

My book is now available.  It can be purchased from Wildy, Simmonds & Hill at their shops in Lincoln's Inn Archway and Fleet St, or from their website here.  It is also available on Amazon.

Thursday, 31 July 2014

Constantine v Imperial Hotel [1944] KB 693

I will be published in the next edition of the New Law Journal (1 August 2014, p 22) on the case brought by Learie Constantine against the Imperial Hotel during the Second World War. The article is available here.

Sunday, 6 July 2014

English sporting malaise

In my book on cricket and law there is a chapter on an unhappy saga from the mid-1990s, when a part-time cricket writer called Robert Henderson had a piece published in a well-established cricket magazine. The piece argued that foreigners should not play cricket for England.  This was a common enough argument, then as now, but Mr Henderson also extended his argument to say that ethnic minorities should not be selected either.  A great storm of protest erupted, leading to High Court writs being filed.

I will not repeat the details here, but would note that Mr Henderson has continued to express his views via his own website to the present day, though he has been shunned by the mainstream cricket media.  Recently he has written a blog banging the same drum:

In the past few weeks England have lost three times to the All Blacks at rugby and crashed out of the World Cup with only one point from their three pool games . This week  they lost for the first time ever a home  cricket series against Sri Lankra . During the winter the Ashes series was lost 5-0.
What is going wrong? The answer is beautifully simple. English top-flight team sport is suffering from the same sickness that England as a whole is carrying: it is the victim of immigration. Our three  most popular team sports , football, cricket and rugby union, have all opened their doors to any number of foreigners and foreign players, coaches and owners have flooded in.
I will not repeat the arguments against Henderson's views on foreigners in sport that I have made in my book.  Instead I will simply observe that his arguments fail on their own terms.

First, England losing to the All Blacks in New Zealand is truly a dog-bites-man story.  England has won a grand total of two tests on New Zealand soil in its entire history, even throughout all the years in which they had teams selected from a pool of players of which Henderson would have approved.  It would have been astonishing had they even won one test, and it is commendable that they ran the All Blacks reasonably close at times.

No-one else wins in New Zealand consistently either - not even South Africa or Australia (before the 1990s, Australia's record in particular was utterly abysmal in NZ). And, if anything, New Zealand has a more multicultural team than England, having for years shamelessly utilized the resources of South Pacific nations (something I have never been happy about, since it is unfair on the island nations).

Secondly, England's cricketing woes can hardly be laid at the door of the so-called foreign players, since it was with the likes of Pietersen, Trott and Pryor that they won the Ashes four times this century and a variety of other matches as well.  To be sure, not all the players seemed to have their heart set on England (we can be fairly sure of Andrew Strauss's view of one of them, at least), but I do not think that England's Ashes failure in Australia over the winter was much to do with nationality.

Thirdly, I am not much of a footballing expert, but I did not meet a single English person who thought England stood a chance in Brazil, since aside from anything else no European team has ever won a world cup in that Continent.  Spain, Portugal and Italy did not fare much better either.  Spain and Italy have substantial leagues like England, though they have won recent World Cups.  For what it's worth, it seems to me that English football has always been more of a club sport than a national one, and that was a mentality which existed long before any grand foreign influx into the game.

Saturday, 5 July 2014

Andrew Strauss insults Kevin Pietersen

Not the most surprising title for this post. Tms Facebook page has a story on another classic moment when a commentator thinks he is off air https://m.facebook.com/story.php?story_fbid=10152546762789904&substory_index=0&id=8244244903

It says Strauss apologises unreservedly. Yet surely there is a reservation: Strauss said what he thought (and given the history between him and KP, there is no surprise about the hostility) . He can't expect anyone to believe he was not speaking his mind. Therefore, the apology is for getting caught, not for everything.  And it is not as though he hasn't had any provocation from KP (not that that justified his actions), as I have discussed in my forthcoming book (now due end of July).  KP has always been an outspoken character, and on a recent podcast, Tuffers & Vaughan, he was in full voice.

Piers Morgan was quick to weigh in. Given how outspoken he has been throughout his media career, I presume he had no issue with Strauss expressing views as such ...

Friday, 4 July 2014

Sovereigns and the rule of law

It is occasionally remarked that the Queen is above the law in the United Kingdom, on the basis that since criminal proceedings are always brought in her name (hence R for Regina, in criminal cases, which are usually styled R v (defendant)).  I suspect, though, that if the Queen for some reason committed a serious offence, consequences would be bound to flow in some form or another. The public outcry would be such that she would be compelled to pay compensation to the victim in some serious amount, and in all likelihood to abdicate as well.

If on the other hand any other members of the Royal family committed an offence, they would not have the protection of the Queen's prosecutorial position, and could expect to be charged and dealt with like anyone else.  That, of course, is one of the cornerstones of the rule of law: everyone is equal before the law, and neither wealth nor privilege offers any sort of defence. It is true that in sentencing someone the court would take into account their particular circumstances, as indeed would the Crown Prosecution Service when deciding whether to bring charges in the first place.  But there are limits.  And the usual answer to someone who protests that a criminal prosecution would ruin his personal life is to point out that he should have thought of that before committing the crime.

All of the above is, or should be, fairly trite.  The reason I mention it is because of this seemingly farcical story from New Zealand, where according to the New Zealand Herald:

The son of Maori King Tuheitia Paki has been discharged without conviction today on charges of burglary, theft and drink driving, after his defence successfully argued a conviction would ruin his chances of succeeding to the throne.
Korotangi Paki, 19, had previously pleaded guilty to all the charges, which related to two separate incidents dating from March this year and October 2013.
His drink driving charge -- in which he blew a reading almost double the legal adult alcohol level -- was only revealed in court today after Judge Philippa Cunningham lifted a suppression order.
Defence for Paki, Paul Wicks QC, said the consequences of a conviction would outweigh the seriousness of the crime, because it would render the teen -- who will become a father in September -- ineligible for the role of king.
This is absurd nonsense.  Apart from anything else, I doubt Maoris would want a King who had committed such offences.  People are killed every day around the world by drunk drivers, and terrorised by burglaries.  It raises the question of how serious an offence Mr Paki would have to commit before it would be thought proportionate to convict him.

Other readers may be surprised to hear of a Maori King at all.  It is effectively a ceremonial role which is a throwback to the wars of the nineteenth century.  Wikipedia as ever has some more detail, which seems broadly accurate in this instance.

New Zealand usually prides it self on its adherence to the rule of law, and its generally eminent status in every survey of international standards of living, in contradistinction to what used to be called "tin pot dictatorships".  This sort of story is straight from the worst annals of hapless dictatorships worldwide.

Tuesday, 1 July 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, 26 June 2014

Law reports: the status of authorities

Published on LNUK's PSL Dispute Resolution Blog here


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

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

Hierarchy of reports to be used

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

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

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

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

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

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

Format of copies of authorities

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

Ex tempore judgments

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

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

Neutral Citations

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

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

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.