A Lesson In Libel

The seeds of the bitter dispute between, on the one hand Ian Botham and Allan Lamb, and on the other Imran Khan, were sown during the Test and ODI series played by Pakistan in England in 1992. All three parties involved in the litigation played roles in those series albeit, for such great players, very minor ones. Imran was originally due to captain Pakistan but stood down, on the face of matters at least, because of a shoulder injury. He did not play Test cricket again. Both Lamb and Botham were selected for the first two Tests of the series. Botham’s contribution to the two matches was negligible, and Lamb’s of little more significance. For both their Test careers were over and the last three matches of the ODI series later in the summer marked their final appearances for England in that format as well.

England won the ODI series with the help of some useful, if not spectacular, contributions from the two veterans but the Test series was lost 2-1. Never before had England granted the Pakistanis a full five match Test series and it was also the first time that a five game ODI series had been played in England. The dominant Pakistani players were Wasim Akram and Waqar Younis. Both confounded the English batting lineup with their ability to reverse swing the old ball, and to go with the dramatic cricket that was played the atmosphere was intensified by English grumbles about ball tampering being the cause of the prodigious late swing that Wasim, Waqar and, to a lesser extent, Aqib Javed, were able to find. Pakistani complaints about the standard of the umpiring ensured there was controversy on both sides.

For Allan Lamb there had, by the summer of 1996, already been one libel action when he was sued by his former Northamptonshire colleague, Sarfraz Nawaz, who, Lamb had said in a column in the Daily Mirror, had shown him a technique to assist in swinging the old ball. Sarfraz chose to interpret that as an allegation of cheating. It was not until the trial was in progress in the High Court, in November 1993, that Sarfraz decided to throw in the towel. Despite being in receipt of state benefits and the unavailability of legal aid for such actions Sarfraz had still been able to instruct solicitors to represent him, a firm who numbered the Pakistani Cricket Board amongst their clientele.

In April 1994 an interview with Imran appeared in “India Today”. Imran himself had already admitted to ball tampering in a County Championship match many years previously by using a bottle top on the ball. When asked why he said “…. the reason I raised the issue is that ever since Wasim and Waqar, two great bowlers, destroyed the English batting lineup, they faced this abuse that they cheat….why did the umpires not question them? The only two cases where players have been caught tampering involved Derek Pringle and Phil Tufnell, a spinner who was doing it for the fast bowlers. Remember that John Holder, the umpire who caught them, has never stood in a Test match again.You know why? Because he is black.”

It has been said, by some of those involved, that there was indeed a warning for ball tampering given to England skipper Graham Gooch, during the Oval Test against West Indies in 1991 when Holder was standing. The incident has not, however, at any time been officially confirmed to have taken place. At the Oval Holder was standing in his tenth Test. Although Imran was, when his words were quoted, correct, Holder was to stand in one more Test match, in the Lord’s Test of the 2001 Ashes series, all but a decade later.

The first comment attributed to Imran in the interview which gave rise to the subsequent libel action was “There is a lot of racism here. When Bob Willis or Fred Trueman were tearing the heart out of Indian or Pakistani batsmen we never heard an outcry about short pitched bowling. How come the noise started when the West Indian and Pakistani bowlers started winning matches with their fast bowlers? How come we never heard about slow over rates until the West Indies fast bowlers came along? Australians can get away with anything because they are white. There is a lot of racism in this society. A lot of people such as Lamb and Botham making statements like “Oh I never thought much of him anyway and now its been proved that he’s a cheat.”

Later in the interview Imran was asked about his belief that English cricket had a class problem. He was quoted as saying “Yes, look at Tony Lewis, Christopher Martin-Jenkins and Derek Pringle. They are all educated Oxbridge types. Look at the others, Lamb, Botham, Trueman. Differences in class and upbringing makes a difference.”

By those comments Lamb and Botham took the view that they had been libelled. They had been accused of being racist and from an underclass. In the case of Botham the issues ran deeper as Imran was subsequently quoted in The Sun as claiming, in relation to the issue of ball tampering, that “the biggest names in English cricket have all done it.” Neither Botham, nor indeed any other individual, was named in the piece.

On receiving letters before action on behalf of Botham and Lamb, and therefore on realising that trouble was brewing, Imran went on record to assure both men that he had “not once called anyone lower class or underclass” and that he “never intended this issue to get personal”. That correspondence was met with a demand for a public apology which Imran offered to write in the form of an open letter to The Times in order to “clear up any confusions about racist or class slurs”, which he always maintained was caused by his being misquoted in the first place. Botham and Lamb were not happy with the contents of the proposed letter, in part because it did not contain the public apology that they sought and also because they simply did not accept, as Imran claimed to be the case, that not only India Today, but also The Sun and Ivo Tennant (Imran’s biographer), had all misquoted him.

Thus it was to be that these three former international cricketers, together with expensively assembled legal teams were, together with a supporting cast of many of the great and the good of the game of cricket, to gather together in the Royal Courts of Justice in the Strand for 13 days in the second half of July of 1996. Those who were fortunate enough to be present were treated to a half decent story, a modicum of tedious legal argument, much erudite scientific explanation of the principles of reverse swing, a thorough grounding on the subject of some of the laws of the game, as well as a number of entertaining interludes, particularly from those who had the bit parts.

Before we look at the trial itself it is worth setting out a brief explanation of the law of libel in England and Wales. As Plaintiffs Lamb and Botham had to establish that statements had been published about them which were defamatory. In simple terms that means to cause a reasonable person to think worse of them. If a Plaintiff can establish that what is written about him is defamatory then he will succeed unless a Defendant is able to bring himself under the protection of one of the closely defined defences that are available. In this case Imran ultimately ran two defences. His first line of defence was that the words complained of, even if they were said, were not defamatory. Specifically in relation to the quote in The Sun regarding ball tampering he also added, late in the day, a defence of justification to his initial position that even if Botham came within the ambit of the remark it was not defamatory. In a nutshell his primary position was that breaking the laws of the game was not, in the context the court was concerned with, the same as an allegation of cheating. The second line of defence, justification, is the defence relied upon by a Defendant who seeks to prove that what he said was true. A video was prepared for the trial which Imran maintained showed two specific examples of Botham being directly involved in ball tampering.

Most civil cases in England and Wales are heard by a Judge sitting alone. At the conclusion of trials long careful judgments are read out which contain the Judge’s findings of fact, how he has applied the law to those findings and, where there are issues of law, how he has resolved those issues. Libel actions are one of the very few for which trial by jury can take place in the civil courts. In such cases the jury are directed as to what the law is by the Judge, but it is for them to come to their conclusion about the facts and then to apply the law to the facts as they find them. When the jury returns at the end of their deliberations all that they do is confirm whether they find for the Plaintiff or Defendant. Their impressions of the evidence, their findings of fact and their reasoning remain shrouded in mystery in perpetuity.

For the trial Imran retained, as his Leading Counsel, the late George Carman QC. As his victories in high profile cases, usually but not always in libel actions, had stacked up Carman had become known in the popular press as “Killer Carman” and “Gorgeous George”. He was without doubt the best known civil advocate of his time. For Botham and Lamb Leading Counsel was Sir Charles Gray QC – no less able but perhaps less theatrical in his approach.

On the first day of the trial, Monday July 15, Gray opened the case to the jury of seven men and five women and explained the background. It was mid afternoon before he finished his speech and Botham was called to give evidence. Botham was a confident witness who was adamant that he had never lifted a seam, even in the nets. He readily accepted that all stretching of the laws of the game did not amount to cheating and in particular drew some laughter from those assembled in Court 13 in confirming that when playing against Australia a batsman did not walk until adjudged out by the umpire. He was adamant that he was not racist and that he had roomed on tour with black players on many occasions. In what was, presumably, a deliberate attempt at humour he complained about having to share a room on occasion with Derek Randall on account of the volume of his snoring. He also explained to the court that he came from a “working middle class background” and that his parents had made “enormous sacrifices” for him.

On the second day of the trial Botham had to contend with cross examination by Carman. It emerged that following the publication of Tennant’s biography Imran had written personal letters to both Lamb and Botham disassociating himself from some less than complimentary remarks about them in the book. The jury also heard about a remark made by Imran in his review of a volume of Botham autobiography which, by his responses, had clearly antagonised Botham. “The real hero of the book is Botham’s wife, Kathy. I wish her all the luck for the remainder of her marriage.” were the offending sentences. Botham told Carman it was an “extremely arrogant” remark.

Carman went on to question Botham about old allegations made against him about smoking cannabis, and a dalliance with a Miss Barbados on a West Indies tour. Carman was keen to enquire why Botham had not sued on those occasions. Botham said he did not wish to incur the costs. Carman suggested to him that the reason was that the allegations were true – Botham emphatically denied that and Carman swiftly moved on to a different subject, his aim no doubt achieved. Lamb, in his autobiography published later in 1996, was deeply critical of this “muckraking” exercise. Lamb does of course have the advantage on me that he sat through almost of all of the trial, but I have to say that it seems to me to be highly improbable that an advocate as eminent as George Carman would risk alienating a jury by throwing mud at a man who remained a national sporting hero, just for the sake of it. My own view is that the only purpose of his questioning was to establish that the root cause of Botham’s legal action against Imran was a personal animosity towards his former opponent rather than any concern about his reputation being damaged by what he actually said.

Botham’s evidence continued into day three of the trial. In relation to his oft quoted abhorrence of racism Carman extracted from Botham an acknowledgement that he had considered a GBP500,000 offer to tour South Africa with the 1989 rebels. I suppose Carman had to ask the question, but I suspect he would not have dwelt on the subject. Half a million pounds is a tidy sum now but in 1996 was a huge amount – to expect Botham to dismiss it out of hand was wholly unrealistic, and whatever the merits or demerits of Imran’s case his refusal of the offer can only have been on grounds of principle.

Carman moved on to the two specific allegations that were the subject of the justification defence. The first dated back to 1982 and the Lord’s Test match against Pakistan with the visitors strongly placed at 363-4. Botham was said to be seen on the footage to be using his thumb to work on a ball that was 31 overs old. The explanation Botham gave was that he was using his thumb to try and push the ball back into shape. He went on to say that one reason why his actions could be no more sinister than that was because in those days he had, having bitten his nails since childhood, no means of picking a seam anyway.

The second incident came from another Test in 1982, this time against India at the Oval, and film of Botham throwing the ball to wicketkeeper Bob Taylor, who was then seen to vigorously rub the ball between his gauntlets, the allegation being that his and Botham’s purpose was to remove the lacquer from one side of the ball. Botham told Carman that the gloves simply would not be capable of removing the lacquer and that sandpaper would be required to achieve that. He went on to say that all that was happening was that Taylor was drying the ball.

Botham’s evidence continued on the fourth day as Carman extracted from him confirmation that he had criticised Imran in the press following his admission that he had tampered with the ball in that County Championship match. He went on to tell the court, probably unwisely, that he had been outraged that Imran had escaped censure for his admission and he confirmed he agreed with the contents of an article subsequently written by his co-Plaintiff in which he had accused Imran of teaching his fellow Pakistani fast bowlers how to cheat. He was also taken to task about his failure to accept Imran’s initial offer of a letter of apology.

After 14 hours in the witness box Botham made way for Lamb and, given the start that he made, he might have been better opening instead of Botham rather than sitting anxiously awaiting his turn. Even under the friendly questioning of his own counsel he had a difficult start explaining that he left his home in South Africa because he was “against anti-apartheid”. He later declared “I condone anyone who tampers with the ball”, forcing Gray to suggest to him that he might have intended to use the word “condemn” instead. In the end however Lamb settled down and his time giving evidence proved to be nothing like as long as Botham’s and by the fifth day the first of the Plaintiffs’ supporting witnesses was called.

It is worth making the point at this stage that all those who came to court to give evidence for Lamb and Botham did so voluntarily. By contrast those who came to give evidence on behalf of Imran did so having been served with subpoenas. Whether to call an unwilling witness is a tricky decision to make for litigants and this is an important reason why those called by Botham and Lamb were, generally, rather more helpful to them than Imran’s witnesses were to him.

The first witness called was former teammate John Emburey although he was to prove to be of limited assistance to either side. He did agree that Botham appeared to be using his thumb to push the ball back into shape however as far as the question of reverse swing generally is concerned he candidly admitted to Carman that he simply didn’t understand it. Brian Close was also called and he laid the foundations for what was to prove, the following week, one of the more entertaining moments in the trial. The 66 year old Close agreed with Lamb and Botham that ball tampering was cheating. He confirmed that the application of sweat to the ball was acceptable as was pushing the ball back into shape but that that was all. Carman put it to him in cross examination that some experts, Geoff Boycott included, believed that a degree of ball tampering was standard practice. Close maintained that he disagreed with Boycott and, despite being invited to do so by Carman, declined the opportunity to confirm whether Boycott was an honest man.

Following rest days on the Saturday and Sunday the trial resumed on Monday 22nd July for its sixth day. Bob Taylor began the second week by confirming that he was indeed drying the ball when seen to be rubbing it so vigorously against India. He added that in his experience Derbyshire bowlers often threw the ball to him for that purpose and that it was not therefore surprising that some England bowlers did likewise. When Carman drew his attention, doubtless hoping to score heavily, to the fact that in the BBC commentary that accompanied the footage Ted Dexter was heard to say he had not seen such a thing before, Taylor’s deadpan response was that he wasn’t sure that Mr Dexter had ever been to Derbyshire. As to ball tampering generally Taylor accepted that it went on, as did the next witness, Gladstone Small. Robin Smith was next in the box and his start was reminiscent of that of his fellow South African as at one point he was forced to apologise and say “I’ve got my crazy head on today”. Once “The Judge” had played himself in however he rather warmed to his surroundings and recalled a conversation he had once had with Imran. The subject of the conversation had been the young Pakistani quick, Aqib Javed, who had been playing with Smith at Hampshire. Smith had explained to Imran how the youngster had been warned in one match for ball tampering. Imran’s response was said to be to the effect of “I’ve warned him to be more careful about that.”

The next witness called by the Plaintiffs was not the last to have, in part at least, an agenda of his own. Umpire Don Oslear, who was shunned by the TCCB after taking a firm stand over ball tampering, at various times made reference to a conspiracy to get rid of him, and to a “Bermuda Triangle” at Lord’s into which things disappeared never to be seen again. Oslear was no doubt expecting a hard time from Carman and, perhaps as a result of that, was somewhat blunt in some of his responses. It must have been interesting to see the reactions of a doubtless rattled Carman after Oslear admonished him for referring to the “rules” of cricket rather than the “laws”, and later to describing Oslear as a “referee”.

Day seven began with David Gower confirming that Botham appeared to have been using his thumbs to push the ball back into shape but the main interest that day was to be in the evidence given by the Plaintiffs’ wives. Both stuck rigidly to their husband’s cases, a clearly distressed Lindsay Lamb talking about the enormous pressure put on her family by the Imran and Sarfraz cases. She was adamant her husband was no racist. Kathy Botham made her views known on the rehashing of old allegations from the past and supported her husband’s case about his lack of thumbnails. Again I stress I was not present in court nor have I had an opportunity to read a full transcript of the trial but I do struggle to believe that calling the wives was a good idea. It will surely have served only to reinforce in the minds of the jury the very personal aspect of the dispute.

There was enough time left on day seven for Carman to begin his opening and then on day eight he started to call his evidence. Unusually Imran did not go first permission having been given to England’s captain and coach, Mike Atherton and David Lloyd, to give their evidence so that they would be free for the start of the first Test of that summer’s series against Pakistan that began at Lord’s the following day. Atherton gave the evidence that Imran hoped for standing by his well publicised view that the law relating to ball tampering should be changed. I presume that the point of calling Atherton was to demonstrate that if the current England captain considered ball tampering to be something that was dealt with too harshly by the laws of the game, that a suggestion that a player breached that particular law could not be considered to be “cheating” and therefore injurious to his reputation.

As far as Lloyd is concerned Imran no doubt hoped he would give similar evidence to Atherton and to the effect that the ball tampering law was more respected in the breach than in the observance. Those hopes were centred around the contents of a book Lloyd had written in 1992. The title of the book, “G’day ya Pommie b……..!” ought to have given a clue as to how its content should be interpreted. The cartoon depiction on the front cover of Jeff Thomson hurling one down at Lloyd was another clue to the irreverent nature of the book’s content. The book is no more than a collection of amusing stories from Lloyd’s career. There can be no doubt that most, if not all, of the stories have a basis in truth but all give the impression of having been finely honed over the years for the after dinner speaking circuit from which “Bumble” has always derived a decent living. Inevitably there were stories of ball tampering each of which was put to Lloyd – “It’s a story” was his invariable response, occasionally supplemented by the phrase “and a good ‘un too” – no joy for Imran there.

With England captain and coach safely in a cab on the way to Lord’s the rest of day eight saw Imran begin his evidence. Gray had to wait until day nine to begin his cross examination but once he did so Imran undoubtedly had his worst day of the trial, being forced to abandon his defence of justification. At the end of his cross examination Gray demanded an apology from Imran. It must have stuck in Imran’s throat at the time but his answer “Yes Sir I apologise. If Mr Botham says he was squeezing the ball I’ll accept it” probably had a rather different significance to the jury than observers at the time would have thought.

The last day of the second week saw the end of Imran’s eleven hours in the witness box and he was followed by four commentators whom he called on his behalf. Derek Pringle, Christopher Martin-Jenkins and Tony Lewis all confirmed views they were known to hold that ball tampering was widespread. The fourth commentator, Geoffrey Boycott, was undoubtedly the most entertaining witness. He began by giving the court his full address stressing “Yorkshire” and adding “that’s in England”. Carman enquired whether Yorkshire had achieved independence – the response was “We like to think we are a bit different” – and there are few who would disagree with him. Boycott had clearly been called to contradict the evidence given by Brian Close and to say that, as he did, surreptitious ball tampering was a widespread practice including amongst teams in which he played with Close and which the latter captained. Unfortunately for Imran Boycott had been stung by the implied questioning of his honesty by Close and his intention was clearly to have a platform for an attack on Close’s integrity. This upset everyone and eventually the Judge simply told Boycott to leave the box which he did, clutching as he went the single cricket boot he had brought with him and declaring, on being told he had to go, “That’s a pity”.

Boycott was the last witness and when the trial resumed on Monday 29 July what remained were both side’s closing speeches, the Judge’s summing up and finally the jury’s deliberation and verdict. The jury finally went out on Wednesday morning. It is clear from everything written at the time that most, if not quite all, of those concerned believed there would be a finding in favour of the Plaintiffs and Lamb in particular has written of his amazement when the jury returned late in the afternoon with a majority verdict in favour of Imran on both the “India Today” and “The Sun” articles.

It is at this point that the major frustration of the jury system is exposed in that we simply do not know on what basis the jury came to their decision. Only speculation is possible but the answer must surely be that the jury saw the case, much as the Judge did when, in ruling that each party should pay their own costs (a departure from the usual rule of “loser pays”), he described the case as a “complete exercise in futility”. The jury’s view seems likely to have been to the effect that these were three relatively wealthy and very successful men squabbling over childish insults, and that while Imran’s comments were doubtless ill advised they did not, given the background of animosity that existed in the overall situation, impact in any meaningful way on the reputations of those involved. On a different day perhaps they might have awarded Lamb and Botham a modest sum in compensation, but as it was the offer of amends made at the outset, coupled with Imran’s dignified apology to Gray over the failed plea of justification, probably tipped the scales of sympathy, if not the scales of justice, in his favour.

For the best way of looking at the incident it is probably best to go right back to the beginning of the saga. In Imran’s initial comments he mentioned the name of Frederick Sewards Trueman in the same context as Lamb and Botham. To the extent that Imran’s comments besmirched the reputations of Lamb and Botham they did the same to “Fiery Fred”. In conversation with Imran’s most recent biographer, Christopher Sandford, Trueman said that he had better things to do than “sit on my arse waiting for some court” to deal with a dispute he felt “best settled over a pint”.

We know that a number of current England players recently felt that they had been libelled by the manager of the 2009 Pakistani tourists, Ijaz Butt. We were told they were contemplating legal action if they did not get a satisfactory response to their demands for a retraction and an apology. If they were serious about those intentions they would have done well to reflect on the experience of Ian Botham and Allan Lamb half a generation ago. No one of any importance attached the slightest credibility to Mr Butt’s comments and it must be the case that a group of centrally contracted cricketers can find better uses for their time than sitting in lawyers offices watching their legal costs rise to resemble telephone numbers. Let us hope that the PCB’s expressed hope that Mr Butt’s subsequent statement is an end to the matter will prove to be the case. Cricket does not need its reputation tarnished by an unseemly squabble in the libel courts.