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

- Adam Wagner, UK Human Rights Blog

Sunday, 6 April 2014

Court & Bowled

Here is the latest version of my forthcoming book's cover.  It can be pre-ordered here or on Amazon.

Tuesday, 28 January 2014

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.

Sunday, 15 December 2013

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 ... )

Wednesday, 4 December 2013

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.

Wednesday, 13 November 2013

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.

Wednesday, 25 September 2013

On hold

As will have been apparent for some time, I am not regularly blogging at the moment and in all probability will not be until some point next year.  I am working on a new project in the meantime, and will update here and on twitter in due course.

Tuesday, 3 September 2013

Intervention in Syria

I have posted the following comment on the UK Human Rights Blog this morning:

Much as the international law question is interesting regarding Syria, it is nothing to the point. There are a lot of straw men arguments floating around. No-one disputes that what has happened in Syria todate has been a disaster. No-one disputes that the use of chemical weapons is appalling. There is a moral case to do something about it, and perhaps a legal one too.

But we then hit the rocks of reality: the real question is whether we have the capacity to do anything about it. If we fire a few missiles at Syria the regime may respond in a variety of ways. It might cease using chemical weapons and simply go back to airstrikes, artillery and other means which have so far killed 100,000 people. What the moral or legal difference between killing by those means and killing by chemical weapons is I am unsure – I doubt the victims noticed any difference.

Alternatively, the regime might increase its use of chemical weapons to try and hasten the defeat of the rebels before Western intervention can make a telling difference. Or it might try something seriously desperate such as attacking Israel (either directly or by a proxy group), in the hope of drawing in its Iranian ally and sending the West’s interest well and truly elsewhere. Or it might sponsor some terrorist attacks on British soil. Or the Russians and/or Iranians might (if they haven’t already) supply supersonic anti-shipping missiles to the Syrians, who will use them to sink a few Western warships and cause chaos among Western leaders about what to do in response.

It seems to me that Assad will probably still win the civil war, and all we will do with a few token strikes is delay his victory – and consequently increase the casualties on all sides.

Or the regime might fall – in which case the civil war will continue until the country either splits into different territories with an uneasy truce, or until one side is strong enough to crush the rest.

Those calling for intervention must answer two questions: (i) what is the precise goal of any military action; and (ii) how far are you prepared to go to achieve that goal; that is, if the initial strikes fail, how much force are you going to use (or to put it another way, how much blood and treasure you are prepared to expend).  It does not help in this regard that the UK defence budget has been drastically reduced in recent years.  The Type 45 destroyers, for example, have not been fitted with cruise missiles - the first weapon of choice for any attack on the Syrian regime.

As well as the obvious lessons from Iraq and Afghanistan, we might also remember Kosovo (an illegal war, incidentally, whatever one thinks of the moral situation), where a few token strikes did not deter Milosovic, forcing the West to mount a very expensive bombing campaign that only succeeded when the surrounding countries started to join NATO, thus opening up land borders and the possibility of a quick ground assault. 

What we might do instead is assist Jordan by supplying tents, food, sanitation equipment etc for the increasing number of refugees it is taking from the conflict. That would be a humane and tangible contribution even if it would not stop the killings in Syria itself.  Funding for the operation could come from the international aid budget, the source of some controversy recently.  

Monday, 29 July 2013

Alan Turing in the Times

Published in the Times on 26 July 2013:


Many arguments have been raised by your recent correspondents concerning Alan Turing, but the nub of the case can be stated simply.  Turing was not wrongly convicted because he was a genius; he was wrongly convicted because his actions should never have been a crime in the first place.  His conviction would have been equally unjust had he been a drunken layabout instead of a national hero.

There is no need for a retrospective pardon, because Parliament has already made clear that Turing and others should not have been convicted, by repealing the relevant offence, and by the passage of various equality laws in recent years.

Friday, 26 July 2013

The last Englishman: Colonel A D Wintle MC

I have been published in the New Law Journal (vol 163, 26 July 2013, p 22) this week, concerning the legendary Colonel Wintle. The article can be found here.

Sunday, 7 July 2013

An ugly affair

I have been published in this week's New Law Journal here (££) on the libel case involving Stephen Berkoff and Julie Burchill.