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

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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.

Friday, 24 October 2014

Cricket and a High Court Judge


Here is a story on cricket and law from the BBC

"A High Court judge presiding over a planning battle involving a cricket ground demonstrated a lack of knowledge of the sport by asking: "What are sixes and fours?"

Mrs Justice Beverley Lang was hearing a challenge to a plan to extend a former forge beside a Hampshire cricket pitch.

She asked the question when she was told that balls crossed the boundary line at East Meon's cricket ground.

A lawyer at the hearing explained the rules of the game to the baffled judge.

East Meon Forge and Cricket Ground Protection Association is challenging East Hampshire District Council's decision to grant planning permission for an extension with a residential first floor over the single-storey former blacksmith's workshop.

Robert Fookes, appearing for the association, told Mrs Justice Lang that one of the grounds of objection to the development was that the forge was very close to the cricket square and "sixes and fours are frequently hit by batsmen on to forge land, including the roof of the building itself".

The judge said: "I don't play cricket - what does that mean?
"

Well, different strokes for different folks, if I can be excused the pun. But it is perhaps as well that the learned judge was not the one who heard Miller v Jackson, which features as the cover above ... Perhaps I should send a copy of the book to the Judicial Studies Board?

Monday, 6 October 2014

Kevin Pietersen revelations

Much press interest in cricket at the moment is being given to Kevin Pietersen's new book and his complaints about his former England teammates.

Just as with the match fixing allegations which continue to plague cricket, some confidential material has apparently been leaked.  A third incident in recent times concerned the leaking of confidential emails from Darryl Hair after the ICC disowned him over the Pakistani forfeit test.  All three incidents are unrelated, but one does wonder why no-one in cricket seems to be able to keep a secret. The implications for the management of cricket are severe: no commercial organisation can continue to function successfully if confidential information is leaked every time there might be some press interest in it. I wrote about this in a bit more detail in Court & Bowled.

As to who is telling the truth, it is not easy for outsiders to determine.  As Nasser Hussain pointed out, team spirit is always high when a team is winning and tends to collapse when a team is losing.  And once Mitchell Johnson returned as a bowler of the very highest class, no amount of team spirit was going to help the English tail play him (the main difference between the home and away Ashes in 2013/14 was that in England the English tail wagged often enough in a low scoring series to make a difference; in Australia Haddin scored crucial lower order runs in almost every innings whilst the English tail was destroyed by Johnson).

I would observe though that KP was a genuinely great player, and I don't doubt there were other villains in English cricket during his time, but he still has to ask himself why he fell out with so many of the teams for whom he played.  And the management and former teammates have to ask themselves why they were not able to deal with a player who had played 100 tests despite his sins.




Thursday, 2 October 2014

Chris Cairns appears in Westminster Magistrates Court

Chris Cairns appeared today in Westminster Magistrates Court.  The hearing was to set a date for trial and terms for bail (should it be granted).  The fact that Cairns voluntarily travelled to England to face the charges would count very heavily in his favour for granting bail, as would the fact that New Zealand and England have an extradition treaty in force.

Yesterday I contacted the Crown Prosecution Service, who replied:

"Chris Lance Cairns is charged with 1 x perjury.
           
-          The trial date has not yet been set, however Chris Lance Cairns is due to appear at Westminster Magistrates' Court on 2 October 2014.

-          The co-defendant is Andrew Fitch-Holland, who has been charged with 1 x perverting the course of justice

-          On 12 September 2014 the CPS confirmed the below to the media:

We can confirm that we have authorised police to charge Chris Cairns with one count of perjury, which arises from a libel trial held in the UK in March 2012. We have also authorised police to charge Andrew Fitch-Holland with one count of perverting the course of justice, which arises from actions taken relating to the same trial. Both suspects will be formally charged by police in due course’."

The NZ Herald reports the charges were read out as follows.  Against Mr Fitch-Holland:

"On March 23rd, 2011, he perverted the course of public justice in asking Lou Vincent to provide a false witness statement in the libel case between Chris Cairns and Lalit Modi.

Against Cairns:

"And Mr Cairns, the allegation against you is that between October 1st and March 31st, 2012, having been a witness in the libel trial, you wilfully made a statement that you knew to be false when you said you never cheated at cricket and would never contemplate it."

Both defendants have maintained their innocence throughout and maintained that they will fully contest all charges.

What is of particular interest to cricket fans is the way the charge against Cairns is framed.  It is not that he made some specific, detailed claims in the Modi case that were wrong, say about which country he was in at any particular time or that he was involved in X game and so on.  Instead, it is that he made a total denial of any match fixing anywhere, ever.  Trivial examples - such as Cairns merely raising the subject with players in a general conversation - would not suffice, it would have to be concrete evidence beyond reasonable doubt that he had actually taken money to underperform or had made a definite, unambiguous offer to another player.

Thursday, 25 September 2014

Chris Cairns formally charged

According to the NZ Herald, Chris Cairns has now been formally charged.

The article is slightly confused, as it mentions the offence of perverting the course of justice and the offence of perjury.  The two offences are not the same, although from Cairns' point of view it is a distinction without a difference.  Either way his conduct in the libel trial against Lalit Modi is being challenged and thus the credibility of his denials about match fixing is in issue.

Both perjury and perverting the course of justice concern whether or not the process of justice has been obstructed.  Perjury is committed when a person lies under oath, either while giving evidence in court or in sworn statements presented to the court.  Perverting the course of justice can be committed by actions such as hiding or destroying evidence material to a case.

In many trials perjury is technically committed: judgments often state that a witness' evidence was 'not credible', or that the witness was clearly trying to tailor their evidence to suit their side of the case.  Prosecutions do not automatically follow, especially if the evidence was not material to the case or at least the lie did not affect the outcome (say because the witness' side lost the case, or won on grounds independent of the dodgy evidence).

A prosecution is usually only brought where there has been a very serious breach.  Jeffrey Archer's case was a classic example: his entire case was brought on a lie - abusing the very notion of justice, as well as wasting millions of pounds of both public and private money.

Much the same applies to perverting the course of justice: a prosecution would only follow in serious cases.

I would expect therefore that the charges against Cairns will be based on serious allegations.  But it is important to stress - as I have before and will continue to do - that that does not mean they have been proven yet.  Especially where the squalid world of match-fixing is concerned, the truth will always be difficult to ascertain.  Cairns is innocent until proven guilty, and if nothing else, as he himself has stated, at least he now has the chance to defend himself in a proper legal forum, with full disclosure of evidence and cross-examination of all witnesses.

Moreover, although there is no material difference between English law and New Zealand law in this area, it seems to me to be an advantage that the trial is taking place in England, where it is likely none of the jury will have heard of Cairns (unless they are cricket fans).  The story has been reported in England but only on the sports pages.  Thus, Cairns will at least get a fair trial instead of the trial by media he has had to endure for the past few months in New Zealand.







Tuesday, 23 September 2014

Lou Vincent Radio Interview

Here is Lou Vincent's confessional interview on match-fixing given to a New Zealand radio station.  I intend to write another piece on match fixing in sport shortly:


Thursday, 18 September 2014

"Some gentle autumn reading"

Lincoln's Inn Library has said a few words about Court & Bowled:

"This book might provide some diversion for those who have stowed away their kit for the season or have had to revert to The Archers rather than Test Match Special on Radio 4. Miller v Jackson naturally finds a place here, and indeed Lintz cricket ground, where, as Lord Denning pertinently observed, ‘the wicket area is well rolled and mown’ and ‘the outfield is kept short’, features as the cover illustration. But the author covers a wide range of other cases where cricket has found its way into the courts."

The review can be found online here.

Friday, 12 September 2014

Chris Cairns charged with perjury





It has now been announced that Chris Cairns has been charged with perjury, concerning his 2012 libel trial against Lalit Modi.  In that case, which I have discussed in some detail in Court & Bowled, Cairns recovered £90,000 damages because of allegations Modi had made about match fixing.  The damages were upheld on appeal (the decision on liability was not appealed).

The charge is apparently to be laid formally on 25 September, and the police will not comment until that point. Cairns for his part has said:

"I'm obviously extremely disappointed. However, at least there will now be an opportunity to face my accusers in an open forum, with some rigor and proper process around that, so that I can clear my name once and for all" 

NZ Cricket will await the outcome of proceedings before making any comment.  In the old days, people would use the Latin sub judice - subject to justice - to indicate that because a trial was under way or forthcoming, nothing should be said before its outcome (partly because it might prejudice the trial, and partly because it might be made redundant anyway depending on the outcome of the trial).

Cairns is of course innocent until proven guilty.  Other than that, there is not much else to say pending at least any statement by police on 25 September.  

Thursday, 11 September 2014

Friday, 5 September 2014

The umpire's lot is not a happy one



Two recent press stories show that the lot of a cricket umpire is not always a happy one off the field, any more than it can be on it. Two respected umpires of many years standing have been told they are too old to continue, while another faces the unusual charge that he is too Church of England. Both propositions will have satirists reaching for their keyboards, but in both cases there is a serious legal issue that has much wider implications than the foibles of flanned fools in whites.

The elders

According to the Times (28 August 2014), the umpires Peter Willey (an iron-willed batsman for England a few years ago) and George Sharp are about to bring a complaint against the England and Wales Cricket Board in the employment tribunal, alleging age discrimination. Both Willey and Sharp are about to reach 65 years of age, and under present ECB rules both face compulsory retirement accordingly. They may have the law on their side: since 2011, mandatory retirement at 65 is no longer automatically legally defensible. Instead, employers are required to show an "objective justification".

The role of an umpire requires an extensive knowledge of cricket, together with the ability to deal with at least mildly stressful situations. If anything, both qualities are likely to be enhanced by age. On the other hand, umpiring also requires stamina, concentration, sharp eyesight and acute hearing, and it is not being ageist to observe that all of those abilities erode with time (and that erosion comes to us all). Cricketing history has more than a few tales of once-respected umpires stubbornly carrying on well beyond the point where their senses had dulled too far, yet apparently remaining unsackable because of their earlier reputation or because of ineffective officialdom.

Then again, all individuals age at different rates, and different jobs require different skills, some of which will decline quicker than others. Both those considerations suggest a fixed figure is inappropriate for determining retiring ages across all spheres of employment.

The only problem with a more flexible approach is that it leaves room for argument (and ultimately litigation) in individual cases, with the resultant expense and uncertainty. Yet even if one decides, for reasons of certainty, that a fixed age for retirement (and collection of superannuation) is appropriate, the long-standing figure of 65 might need to be revised in light of substantially improved living standards. The average life expectancy has increased markedly in the past few decades, and a person of 75 today might well be just as fit and capable as the average person of 65 fifty years ago. (Whether one agrees or not, the parlous state of our public finances might soon require the raising of the pensionable age out of economic necessity.) It follows that Willey and Sharp have an arguable case at least.

The churchman

The Daily Telegraph (7 September 2014) reported that

A councillor and cricket enthusiast has been told he cannot umpire a church match because of fears he may not be ‘theologically neutral’ as his great-great grandfather was a bishop.

Michael Claughton, who has 18 years’ experience as a cricket umpire, offered to officiate the match between the Church of England XI and Vatican XI, due to take place later this month.

But he said he was left baffled after officials said he could not be considered for the charity because they wanted to ensure it was theologically “neutral” and they feared his ancestry could make him biased against the Catholic team.”

Assuming the report to be accurate, the officials’ reasoning seems slightly odd – if one could trace Claughton’s ancestry further back than Henry VIII, it would be a racing certainty that he would have Catholic forebearers too. Moreover, both XI’s seem to share the same head office theologically, even if the branch management differs.

More seriously, natural justice requires that a judge recuse him or herself if there is any suggestion that he or she shares any form of relationship or common interest with the litigants. There have been some interesting disputes over the years as to whether a common religion between judge and litigant amounts to such a relationship, the answer probably being that it will do so only where the dispute actually involves the religion in some material respect, with the usual qualification about each case turning on its facts.

Secondly, what about social events such as Claughton’s cricket match?  Should the law bother getting involved?  One might instinctively suggest no, but there have been occasions in which human rights fingers have been pointed accusingly towards a social event: a long-standing married couples’ golf tournament was an early victim of human rights legislation in New Zealand, for example. Then there were the private clubs which clung to their men-only membership policies until very late in the twentieth century (the Marylebone Cricket Club prominent among them).

Such questions would be more pertinent in Claughton’s case if umpiring was his professional career and the game a remunerative fixture. As it stands, I assume that he will not be much obstructed by the slight. But the moral principle remains.


One of the match’s organisers said “There's absolutely no question of Michael Claughton's skill as an umpire or his honesty. We just thought it would be a nice way of showing everybody this is neutral.” Well, I imagine it wasn’t very nice for Claughton.