Darrell Hair Case
As everyone knows, the umpire’s decision is final. Isn’t it? Given the furore at The Oval, the question merits further analysis. The distinction between the operational rules of sport and he discipline of players – blurred during this affair – is one that lawyers may highlight or exploit but which sports bodies and competitors ignore at their peril.
Events on the field of play
20 August 2006 at The Oval was the fourth day of the fourth match of the cricket Test series between England and Pakistan. Before its unprecedented climax, the march had followed a familiar pattern. England had posted a poor first innings total, Pakistan had overhauled them thanks largely to an impressive century from Mohammad Yousuf, and there had been the usual summer breaks for bad light and rain. By the time of the afternoon on the fourth day, when England were battering again, the march was meandering towards a draw. It was then that the match took its surreal turn.
The umpires were Darrell Hair and Billy Doctrove. The former signalled that five penalty runs had been awarded to England, on the grounds that Pakistan had unfairly changed the condition of the ball. Shortly afterwards, all the players left the field because of bad light and to take tea. The Pakistan team refuse to take to the field again after the tea interval, whereupon, for the first time in the 129 year history of Test cricket, the umpires insisted that the result had to stand. The record books show the same result to this day.
Events off the field of play
The incident prompted acres of newsprint and comment, much of it uniformed. There were threats of defamation claims from Pakistan supporters. The International Cricket Council (ICC), cricket’s world government body with responsibility for both the ICC Code of Conduct for Players and Team Officials (the code) and for the Emirates Elite panel of ICC Umpires and Referees (the panel),promptly announced that it backed the decision of the umpires. It charged the Pakistan captain, Inzamam-ul-Haq, with:
– a breach of the code, s C, para 2 – conduct which could bring the player or the game of cricket into dispute; and
– a breach of the code, s CC, para 2.9 – changing the condition of the ball in breach of the Laws of Cricket (the laws), law 42.3.
On 22 August 2006, the ICC chief executive affirmed the primacy of on-field umpires in decision making, and said that it was not the ICC’s role to overturn the decision of those umpires.
Behind the scenes
Following discussions with the ICC on the future of his umpiring career, umpire Hair set the ICC an email on 22 August 2006 in which he offered to give up his position on the panel on terms including US$500,000. Part of the immediate response to the message was that the offer “may have merit”. Later that same day, the ICC chief executive advised hair that the matters raised in his e-mail were “entirely inappropriate”. The ICC in a subsequent statement said that Hair then revoked his e-mails, which he did. What it did not say was that Hair actually withdrew his offer pending further advice in a second e-mail to the umpires and referees manager before the response from the chief executive. On 25 August 2006, and following legal advice, the ICC disclosed the correspondence to the Pakistan Cricket Board and to the world at large at a press conference. It would be surprising if counsel had advised in favour of disclosure in this manner.
The disciplinary proceedings
The Pakistan captain’s disciplinary hearing took place before the ICC chief referee, Ranhan Madugalle, on 27 August 2006, and following legal advice, the ICC disclosed the correspondence to the Pakistan Cricket Board and to the world at large at a press conference. It would be surprising if ousel had advised in favour of disclosure in this manner.
The disciplinary proceedings
The Pakistan captain’s disciplinary hearing took place before the ICC chief referee, Ranjan Madugalle, on 27 August 2006. Hair was among the witnesses, as was the former player Geoffrey Boycott. Despite the many allegations concerning Hair’s supposed attitude towards teams from the dub-Continent, it was no part of the captain’s defence that the umpire had acted in bad faith. This raises more of the behind-the-scenes correspondence.
In his decision, dismissing the ball-tampering charge but upholding the disrepute charge, the chief referee rejected the ICC’s submission that he should overturn the ball-tampering decision of the umpires only if he was satisfied that their decision of a misrepresentation of the laws. Relaying on the code, paras D(8)(c) and D(9), the chief referee held that his function was to reach his own view of whether there was ball tampering. Given the physical state of the ball, allied to the fact that neither umpire had seen a fielder tampering with the ball, his conclusion was that there was no breach of law 42.3. He added that the course of action he would have expected of the umpires was drawing the attention of the Pakistan captain to the marks on the ball and telling him that they intended to keep a close eye on the ball after each over. This is a course of action many commentators suggested in the aftermath of the incident. There is no basis for such a course of action anywhere in law 42.
On November 2006, the ICC board resolved that the umpire Hair should not be appointed to international matches involving ICC full members. The shift from full backing to scapegoating was complete.
The legal framework
Law 42, so far as it is relevant, provides:
“(2) The umpires shall be the sole judges of fair and unfair play…
(3)(b) It is unfair for anyone to rub the ball on the ground for any reason, interfere with any of the seams or the surface of the ball, use any implement, or take any other action whatsoever which is likely to alter the condition of the ball…
(3)(d) In the event of any fielder changing the condition of the ball unfairly, as set out in (b) above, the umpires, after consultation shall…(iii) award five penalty runs to the batting side.”
The material passage of law 21 is:
(3)(a) A match shall be lost by a side which …(ii) in the opinion of the umpires refuses to play and the umpires shall award the match to the other side.”
The offence under the code, s CC, para 2.9 is “changing the condition of the ball in breach of the law 42.3…”. The code, para D(8)(c) provides that the referee shall “investigate and adjudicate upon alleged breaches of the rules of conduct notified to him”. Paragraph D(9)(a) states that in respect of investigating and imposing sanctions for breaches of the code, the jurisdiction of the referee is limited to “any alleged breach of the rules of conduct…occurring on the field of play during a Test match…”. The captain may be charged with the para 2.9 offence where, as here, it is not possible to identify the particular player allegedly in breach.
Marylebone CricketClub (MCC) is still responsible for the laws. Its head of cricket is reported as having said that Hair did everything to the letter of the laws. He did.
The chief referee’s decision that his function was to reach his own view of whether there was ball tampering is ominous, inconsistent with the ICC’s immediate response to the on-field events and dubious in terms of jurisdiction.
Sports if already plagued by interminable action replays and post-mortem analysis, using all manner of camera angles and modern technology, seemingly designed in many instances to ‘prove’ that the umpire or referee was ‘wrong’.
The chief referee’s decision about his function in this case can only encourage more of the same, be it in the disciplinary forum or for broadcasting to the watching public. Regarding the former, there is now even more incentive for cricketers charged with disciplinary offences to wheel out former players and other experts as defence witnesses, and for their evidence as the basis for cross-examination of the man in the middle. The same is likely to be true in other sports.
Powers to adjudicate and investigate
So far as the jurisdiction of the chief referee is concerned, there is first and foremost an obvious and unfortunate tension between paras D(8)(c) and D(9)(a) in that the express wording of the first provision affords a power to adjudicate whereas the second does not.
Moreover, the power to investigate alleged breaches under para D(8)(c) did not in our view entitle the chief referee to make ab ignition and de novo findings of fact about whether the condition of the ball had been changed unfairly, in complete substitution for the decision of the umpires-particularly in circumstances where law 42.2 is unequivocal in stating that the umpires shall be the sole judges of fair and unfair play and where none of the three exceptions advanced by the ICC in its submissions was evident.
It is a trite proposition of the law that a High Court judge determining a claim for judicial review or analogous proceedings such as those under the Town and Country Okaning Act 1990, s 288 must not substitute his own view on the merits for that of the maker of the decision under challenge, unless that decision was irrational (see Hammersmatch Properties Ltd v First Secretary of State  EWCA Civ 1360,  All ER (D) 204 (Nov), paras 32-33, for a good, recent, illustration of this well known principle).
Yet that is precisely what happened in this case. It should also be borne in mind that the chief referee, unlike the umpires, contemplated overnight before announcing his decision, after a hearing in a room at The Oval a week after the ever and without the presence of many thousands of spectators. Hair began umpiring Test matches before the appointment of all the ICC referees.
Writing in The Times, 10 November 2006, p 20, Simon Barnes argued that the questioning of authority leads not to anarchy but to democracy an that there is no rule that says sport should be let off the pain and mess of the latter (see first author’s article in The Times, 16 October 2006, p 65, for a contrary view). Ass a general proposition, Barnes’s argument is not devoid of merit. But it misses the point that in cricket at least the lawmakers have for good reason enshrined a rule that in cases of fair and unfair play the judgement of the umpires is unimpeachable. It can hardly be said that the rule is susceptible to changing mores. It has stood the test of time since the origins of the game and the publication of the first code of Laws of Cricket in 1755.
Emasculating law 42.2
After more than 250 years, the spirit and perhaps even the letter of law 42.2 is now under threat. Pakistan believes that law 42.3 should be altered. The ICC has asked MCC to examine the sufficiency of the five-run penalty and whether or not the umpires should give greater warning to the captain of the fielding team of any punishment. ICC has resolved to refer the matter to its own Cricket Committee.
On 29 November 2006, the MCC advertised for applicants for a new and specialist post of guardian of the laws, whose responsibilities will include protecting and guarding the laws of the game, testing loosely with the club’s Law Working Party and with the ICC. All because of a fleeting decision, in the middle of a routine match, entirely in accordance with the rules of the game. It is to be hoped that the new guardian will be a true guardian. By all means change the inadequate five-run penalty to deter serious unfair play. But the events of 20 August 2006 should not be relied on as the basis for the emasculation of law 42.2.
In the umpire’s decision final? From a personal, if not professional, point of view, the regrettable answer is that it is only until the lawyers can persuade someone else that it isn’t.
Robert Griffiths QC and Stephen Whale are barristers at 4-5 Gray’s Inn Square, London. The former is also a member of the MCC Committee.