Cricket on Trial: The Kelso Knowes Case 1850

Martin Chandler | 8:59am BST 03 October 2021

Published: 2021
Pages: 32
Author: Miller, Richard (Editor)
Publisher: Private
Rating: 4 stars

It was in the autumn of 1979 that I started learning the law, and my life choices since have been such that in some aspect or other it has dominated my existence ever since. Back in those days I would even, from time to time, read the judgments in decided cases. One of the more interesting ones was the (then) recent case of Miller v Jackson.

The Plaintiffs (they would now be called Claimants) in Miller v Jackson sought an injunction against their local cricket club to, effectively, prevent the club continuing to play. Having bought a home constructed on land adjoining the ground the Millers (who to the best of my knowledge are wholly unrelated to the editor of the booklet before me) grew tired of being the occasional recipients of cricket balls being propelled into their garden by some of the lustier hitters amongst the local cricketing fraternity.

Bizarrely, I always thought, the Millers were able to persuade the High Court to grant them their desired order, and even more remarkably I note now on rereading the judgment something that would not have been of any interest to me as a student, that being that the couple would appear to have had the benefit of a legal aid certificate, thus enabling them to take the club to court at public expense and with, potentially, no cost to themselves at all. Fifty years of progress and our legal aid scheme is such that person charged with the most serious offence in the criminal calendar may not be able to recover their costs of successfully defending themselves in a Crown Court, and as for legal aid for a civil case – well you can give up on that idea straight away. 

But I digress. When the club appealed the Master of the Rolls, the well known Lord Denning, began his lead judgment with one of his more famous sentences; In summertime village cricket is the delight of everyone. So the writing was on the wall from the off and, one of his two fellow appeal judges agreeing with Denning, it was a 2-1 win for two of the greatest pleasures in life, on the one hand cricket, and commonsense on the other.

Nowhere in Miller v Jackson is there a reference to the Kelso Knowes Case that was litigated in Scotland more than a century before. That said there is no reason why it should have been mentioned as, despite the very similar factual background, the two cases were, legally, entirely dissimilar, but it is still surprising that, until Richard Miller rescued it from obscurity, the Kelso case had completely disappeared from view.

Scottish Law is fundamentally different from English Law, although that does not mean that Scottish precedents are wholly irrelevant south of the border. Many of the basic legal principles are the same, although the procedural and terminological differences are fundamental. In the circumstances the glossary that Richard includes at the beginning of the booklet is invaluable.

As to the Kelso case itself the town is close to the English border, and in 1850 some of its inhabitants started playing cricket on the Knowes, a long established area of common land in the town. Unlike in Miller v Jackson on this occasion it was not neighbouring property owners who started the case, rather it amounted to a criminal prosecution by the local Procurator-Fiscal on the basis that the activity of playing cricket was a danger to all those non-cricketers who were as entitled as those facing charges to use the Knowes.

The trial lasted two days and was reported in enormous detail by the local newspaper, the Kelso Chronicle. The evidence and the lawyers arguments are set out much more fully than would be the case today and the eventual judgment of the local non-cricketer, Bailie Darling, is reported at similar length. The Bailie found all those before him guilty, and imposed fines with a period of imprisonment in default.

But the conviction was not the end of the story. With public opinion behind them the guilty five appealed and, in the sort of volte face in which the current UK Government specialises, the appeal was won without a shot fired. Factual disputes are all very well, but lawyers are always on the look out for a technical knockout and the defence team found one here, satisfying all concerned without the need for a hearing that, irrespective of the rights or wrongs of playing cricket on common land, the conduct complained of simply did not amount to a criminal offence in Scottish Law.

If truth be told the real interest in this story, as in Miller v Jackson, will be to those with a legal training rather than those who simply love the game of cricket, but for those of us with a foot in both those camps it is certainly well worth reading. The booklet itself comes from a series on the history of the game in Scotland that Richard has been issuing for the last year, and that series is now up to sixteen. There are only 25 copies of each one, and up till now those who buy one have tended to buy the lot, but Richard tells me there are still a handful of complete sets available, and he can still be contacted by email at surreymember@btinternet.com