Natural justice - but not for Rangers
- 17 August 2012
Commenting upon the precedential case of Regina v Felixstowe (1984/5), Lord Justice Watson held that,
"There is a right to know who sits in judgement, and denial of that right is unlawful, unwarranted and inimical to the proper administration of justice, further that there is no such person known to Law as 'the anonymous JP'.”
Lord Justice Watson made his comments in circumstances where many JP’s sought anonymity when dealing with sensitive and problematic Council Tax and CSA cases, and where the courts were actively denying many defendants the right to know who the presiding Magistrate was in their particular case.
“The practice among some Magistrates of claiming anonymity has been declared unlawful” was the resultant declaration.
However, it would seem that Neil Doncaster and the Scottish Premier League think they know better than the eminent Lord Justice Watson.
Their appointment of a so-called Independent Commission to deal with the charges they have brought against Rangers in relation to allegations that the Club paid its players by means of illicit dual contracts, flies in the face of Lord Justice Watson’s precedential judgement.
Simply, substitute the SPL’s so-called Independent Commission for the ‘the anonymous JP’ and you have a similar situation to that dealt with by Lord Justice Watson in the Regina v Felixstowe case.
The legal principle is, of course, that a defendant has the right to know who will ‘hear’ the case and hand down judgement.
That principle is sacrosanct, unassailable, indisputable and as readily applicable to the anonymous Independent Commission set up by the SPL as it is to the Justice’s of the Peace who were taken ‘to task’ in the Regina v Felixstowe case for seeking anonymity.
What is abundantly clear is that Neil Doncaster and the SPL are acting in contravention of the fundamental principle inherent in the wise and prescient judgement given by Lord Justice Watson.
Whilst Lord Justice Watson’s judgement was made in relation to a number of recalcitrant JP’s (and their complicit court officials), the principles of fairness, transparency, natural and open justice inherent in his words, are as applicable to the ‘tribunal’; ‘the Judicial Panel’; the Appellate Tribunal or, in this case, the SPL’s anonymous and secretive Independent Commission, as it is to our time honoured legal system.
Call it what you will, but the SPL’s Independent Commission is a court of inquiry that may result in serious sanctions against Rangers. It may not be part of Scotland’s judicial system, but it is part of the Scottish Premier League’s judicial system.
It has been convened to hear, and decide, the case against Rangers FC for allegedly breaching the articles and rules of the SPL, in the same way as the courts are convened to deal with alleged breaches of the civil and criminal law.
The principles of natural justice and open justice must, therefore, apply. There is no rationale, legal or otherwise, for not doing so.
But those principles have been spurned by the SPL; the principles of fairness, openness and transparency have been jettisoned in favour of the covert ‘kangaroo court’. The SPL does not want anyone to know who will preside – who will determine the fate of Rangers in this particular case.
These will be faceless, anonymous men, making secretive decisions behind closed doors, far from the scrutiny of a disenfranchised public who have a legitimate, moral and legal right to know who is passing judgement and handing down punishment on one of the oldest institutions in Scotland.
“The Court is required to provide this information to the parties in the case, and any others having an interest in the case (i.e. witnesses etc.)”, said Lord Justice Watson, but apparently Neil Doncaster and the SPL know better.
Make no mistake, this body has been convened with the specific purpose of deciding the ‘charges’ that have been ‘constructed’ on the back of an investigation by the SPL’s own solicitors; the self same solicitors that act for, and represent the interests of, Celtic Football Club.
Surely a blatant conflict of interest I hear you cry - yet there is no voice raised in protest save our own.
No journalists, no politicians, no voice of influence anywhere has been heard in defence of a basic moral and legal right. No one, it seems, wishes to defend the right of Rangers Football Club to an open, transparent hearing – one that is founded on the twin concepts of natural justice and open justice.
No one, it seems, is interested in the coordinated and vindictive campaign to have the Independent Commission strip us of our titles and cup triumphs. No one, it seems is interested in the prejudicial statements made by Neil Lennon and others, that cannot but adversely influence the deliberations of the Independent Commission.
Open justice, fairness and impartiality are fundamental rules in common law and a prerequisite in the exercise of natural justice.
In 1919 the House of Lords in Scott v Scott (1913) affirmed the common law rule that normally courts must administer justice in public. One Law Lord in that case, Lord Atkinson, said,
“The hearing of a case in public may be, and often is, humiliating or deterrent both to parties and witnesses and in many cases, especially those of a criminal nature, the details may be so indecent as to injure public morals, but all this is endured because it is felt that in public trial is to be found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means for winning for it public confidence and respect.”
In the same case, Lord Shaw of Dunfermline asserted,
“Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying a case, under trial.
And the Law Lords collectively asserted
“Open justice is vital to a democracy. If justice is done in secret, the public can have no confidence in it because the secrecy may hide injustice. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.”
In his Appeal Court judgement in R v Legal Aid Board (1998), Lord Woolf said,
“It (open justice) is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses identity concealed. It makes uniformed and inaccurate comment about the proceedings less likely.”
These then are the core principles that underpin our legal system. These are the principles that we, as citizens of the United Kingdom can rely upon when confronted with the prospect of court or tribunal action.
But not so Rangers Football Club. The SPL has ordained a different set of rules for Rangers. A set of rules that enshrine, unfairness, secrecy, self interest and anonymity as core values.
In a recent email to Neil Doncaster, I wrote,
“In this democracy – of which Scotland remains an integral part – we cherish and maintain the concept of natural justice; and one of the core principles of natural justice is to know that those charged with the investigation and/or adjudication of any allegation/s are, themselves, free of bias, completely impartial and unencumbered by any conflict of interest.
It is my perception – and that of hundreds of thousands of Rangers supporters at home and abroad – that those who conducted the investigation into the matter of dual contracts are not free from such bias; are not impartial and clearly have a conflict of interest.
In the United Kingdom, and the other Western democracies such as the United States of America, it is a fundamental right to know who will sit in judgement when formal charges (and the relevant evidence) are presented at tribunal or in a civil or criminal courtroom. Even when major precedential issues are at stake the Law Lords and the US Supreme Court judges presiding are known in advance of a hearing.
I therefore find it quite incredible, and wholly unacceptable, that the SPL should seek to deal with allegations of this nature (no matter how minor or how serious) ‘in camera’ – behind closed doors - whilst refusing to reveal who is actually considering the evidence compiled and who will hand down the sanction.
Nor do I find it acceptable that the original investigation was conducted by a firm of solicitors who act for a major rival, and who clearly have links with other individuals who have, at one time or another, had substantive connections with Celtic FC, the SFA and Rangers’ former bankers.
Even if it were to be established that there is no actual conflict of interest in these links, the perception of a conflict of interest is all – pervasive and, therefore, contrary to one of the core tenets of natural justice.”
My emails to Neil Doncaster (of which there were three) simply asked for fundamental assurances about the process to be adopted and the impartiality of the people who will be responsible for conducting it.
Needless to Mr. Doncaster did not respond.
However, what is beyond doubt is that Neil Doncaster (and his employer – the SPL) would demand the very justice I have espoused above if the ‘shoe were on the other foot’. They would demand the same treatment that all of our citizens have the moral and legal right too.
Indeed, there is no doubt in my mind they would move ‘heaven and earth’ to ensure that these principles - so unique to our Western democracies - were applied to them in such circumstances.
We, the Rangers family demand and deserve no less.
As Lord Justice Watson said,
"There is a right to know who sits in judgement, and denial of that right is unlawful, unwarranted and inimical to the proper administration of justice.”
It is to the eternal discredit of Neil Doncaster and the SPL that the principles they so brazenly and glibly espouse, they seek to deny to Ally McCoist, Charles Green and Rangers Football Club.
Calvin Spence (aka JCS) a frequent contributor to Rangers Media as a Site Writer and occasionally contributor to Gersnet. He has supported Rangers since 1974 and his career has focused on industrial relations, employment law and contracts of employment. He lives just outside Belfast.