Thursday, 7 March 2013

Can Danish Kaneria Evade Ban?

The answer to the question posed above was delivered today 26/4/13.
Kaneria lost his appeal against the findings of match fixing. Surprisingly the appeal against the sanction of a life ban is to be heard later. Once the ECB secured a High Court summons against key witness Mervyn Westfield, and in the spite of the bluster of Kaneria's legal team, the writing was on the wall for the Pakistani. This was a very good day for cricket.
The Original Story
In 2012 Danish Kaneria was found guilty by an independent ECB anti corruption panel of inducing another player (Mervyn Westfield) to under perform and of bringing the game into disrepute and consequently given a life ban. Because of reciprocal arrangements throughout cricket his ban is enforceable worldwide. Kaneria has not been able to play cricket since because notwithstanding an appeal the ban took immediate effect. The finding against him was largely based upon the testimony of Mervyn Westfield, a colleague at Essex County Cricket Club. Westfield himself was imprisoned for 4 months and banned by the ECB for 5 years although he can return to club cricket after 3 years. The Police also investigated Kaneria, but, given that they could not rely upon Westfield as a witness at that time, concluded that there was insufficient evidence to proceed.
The ECB Panel accepted Westfield's testimony before them and found Kaneria to be lying and giving an implausible account.
Kaneria is now appealing the ECB's finding against him. The hearing should have taken place in December 2012, but was postponed until April 2013 due to the unavailability of Westfield. It is believed that Westfield has withdrawn his co - operation and is refusing to attend. It was widely believed that Westfield could not be compelled to attend. Given that he cannot get his own ban reduced by continuing to co - operate, he appeared to have lost any desire to assist the ECB. When deciding upon the sanction in his case, his ban could have been mitigated by 'substantial assistance', but there is no provision to enable his sanction to be revisited in the light of subsequent co - operation. The time limits to appeal his original ban expired 21 days after the Panel's decision. There appears to be no discretion to allow Westfield to appeal out of time. Accordingly the ECB has no incentive to offer Westfield for his co - operation and testimony.
Nonetheless in a sensational development on the 11th April 2013 the ECB successfully obtained a witness summons from the High Court compelling Westfield's attendance before the Disciplinary Appeal Panel. Pursuant to Practice Direction 34A
 A witness summons may be issued in the High Court or a county court in aid of a court or tribunal which does not have the power to issue a witness summons in relation to the proceedings before it.


 Kaneria had been looking to profit from the absence of the ECB's star witness, but this is a potentially devastating blow to his hopes? The ECB may have turned the tables on the Pakistani cricketer at the eleventh hour.
The appeal is not ordinarily by way of a de novo rehearing. There is a presumption within the regulations that the appeal will look at the 'reasonableness of the original decision' rather than hearing evidence afresh.

Regulation 7.4.2
Where required in order to do justice (for example to cure procedural errors at the first
instance hearing), the appeal shall take the form of a re-hearing de novo of the issues
raised by the case. In all other cases, the appeal shall not take the form of a de novo
hearing but instead shall be limited to a consideration of whether the decision being
appealed was “Wednesbury unreasonable”.

 The legal arguments will turn on the interpretation of the phrase 'where required in order to do justice'.
Kaneria will argue that he is entitled, and that it is necessary, to cross examine Westfield (again) in order for justice to be served. Those acting for the ECB will contend that there is a full record (indeed an audio recording should exist) of Westfield's evidence and that it was fully tested at the original hearing by prominent Queen's Counsel and sports lawyers. Unless there have been significant developments since the original testimony and there are fresh matters that should be put to Westfield which undermine his credibility, the ECB's standpoint may prevail. Furthermore  I cannot see that Kaneria has any prospect of persuading the appeal panel that the original decision was 'Wednesbury unreasonable' ie perverse and contrary to the evidence.
Those acting for Kaneria have recently been loudly expressing their position in the media and asserting that a significant claim for compensation against the ECB for worldwide  loss of earnings will follow. They further suggest that they want Westfield to attend the hearing and for the 'truth' to emerge. They argue that any future hearing should be held in public knowing that ECB rules state the contrary. Somehow I doubt very much that Kaneria's team would greet an appearance by Westfield at the eventual appeal hearing with open arms. They may have to suffer it anyway and get what they 'publicly desired'.
The Daily Mail (22.3.13) floated the prospect of a rapprochement between the ECB and Westfield and perhaps some mitigation of the length of his ban. It does not identify the mechanism by which this would be achieved. Of course it would be very attractive to the cricket authorities to secure the co - operation of Westfield in an attempt to maintain the ban on the much bigger fish which is the Pakistani cricketer. In addition it claims that Westfield testified at the Old Bailey during criminal proceedings. In fact he pleaded guilty. Any observations there about Kaneria came from his defence Counsel and the sentencing judge. Kaneria of course was not ultimately prosecuted in the criminal courts due to lack of evidence.
Following Day 1 of the hearing Kaneria and his team were less ebullient than previously, claiming that the evidence was 'not strong' and that you cannot take away somebody's livelihood on the word of one person. This suggests that whatever misgivings Westfield has about his presence at the appeal his testimony continues to damn Kaneria.

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