No. 2011/06057/D5 & 2011/06134/D5
Neutral Citation Number: [2011] EWCA Crim 2914
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Wednesday 23 November 2011
B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  ROYCE

and

MR  JUSTICE  GLOBE
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R E G I N A

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MOHAMMAD  AMIR

SALMAN  BUTT
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Mr C H Blaxland QC and Mr M Summers appeared on behalf of the Appellant Mohammad Amir
Mr N Bajwa QC and Mr T Patel appeared on behalf of the Applicant Salman Butt
Miss S Whitehouse appeared on behalf of the Crown
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J U D G M E N T
Wednesday  23  November  2011

THE LORD CHIEF JUSTICE:  
1.  This is a notorious and essentially simply case.

2.  Three men who had the distinction and privilege of representing their country in test match cricket took bribes.  The applicant Salman Butt and the appellant Mohammad Amir are two of those players.  Salman Butt is now 27 years old.  He was the captain of the Pakistan team which toured this country during the summer of 2010.  Mohammad Amir, who is now 19 years old, was a prodigious young cricket talent with huge potential; he was a fast bowler.  The third cricketer was Mohammad Asif.  The three cricketers agreed with a fourth man, Mazhar Majeed, who was resident in England and was the agent for Butt and Asif (and would have become the agent for Amir if this crime had not been discovered), that "no balls" would be bowled at specific identified moments in the Test Match at Lords which took place at the end of August 2010.  It was "spot fixing".  

3.  As agreed, three "no balls" were bowled, two by Amir and one by Asif, in effect to order.  It was a betting scam.  They were very well rewarded.

4.  The events which we shall describe occurred in the context of an investigation by a newspaper into possible corruption in international cricket.  The profits to be made by criminals involved in gambling on certainties (obviously a contradiction in terms) may very well not have been as great as they would have been if the investigating journalist had been acting as the agent for a gambling syndicate.  That, however, did not diminish the culpability of the three cricketers.

5.  On 16 September 2011, in the Crown Court at Southwark, before Cooke J, Amir pleaded guilty to conspiracy to accept corrupt payments and conspiracy to cheat.  On 1 November 2011, Butt was convicted by a jury of the same offences.  On 3 November they were sentenced as follows: Butt, to two years six months' imprisonment for the first offence and two years' imprisonment for the second, to run concurrently; and Amir, to six months' detention in a young offender institution on each count, to run concurrently.  Orders for costs were made against them.  Asif was convicted by the jury on the same day as Butt and was sentenced to one year's imprisonment on each count, to run concurrently.  On 16 September, Mazhar Majeed pleaded guilty to conspiracy to give corrupt payments -- that is the corrupt payments accepted by Butt, Amir and Asif -- and to conspiracy to cheat.  He too was sentenced on 3 November to two years eight months' imprisonment on count 1 and 16 months' imprisonment on count 3, the sentences to run concurrently.  Both Asif and Majeed were also ordered to make contributions to the costs of the prosecution.

6.  Butt's application for leave to appeal against sentence has been referred to the full court by the Registrar.  Amir appeals against sentence by leave of the single judge who refused bail but directed an expedited hearing.  

7.  Given that we were to hear an appeal against sentence by Amir, it seemed sensible that we should give Butt leave so as to hear the entire case at a single hearing.

8.  The three cricketers had contracts with the Cricket Board of Pakistan.  That imposed a number of obligations on them, one of which was to ensure compliance with the Anti-Corruption Rules imposed by the International Cricket Council ("ICC").  Indeed, from the earliest days of Amir's involvement in cricket, at progressively higher levels it had been drilled into him and all those who had attended the academy, and then on all of the players who were to come to England as part of the touring team, by the Anti-Corruption and Security Unit of the ICC that they should beware of the dangers and risks of bribery and corruption.  There can be no doubt that all of them appreciated the risks of involvement, the risks of possible corrupt approaches, and the seriousness with which corruption would be regarded.  

9.  During the summer of 2010 an investigative journalist with the News of the World, Mazhir Mahmood, launched an investigation into suspected corruption.  He did so by pretending to be a businessman.  He gave himself the identity of "Mohsin Khan" and suggested that he wished to set up a cricket competition in the Middle East.  As a result a number of meetings and telephone calls took place with Majeed.  All these were carefully recorded.  On 16 August, the two men met at a hotel in Park Lane.  During the course of the first meeting the question of match fixing was raised.

10.  On the following day (though apparently coincidentally) there was telephone contact between Amir and a number in Pakistan.  He sent his bank details.  Text messages were exchanged to this effect: "How much and what needs to be done?"  "This is going to be too much"; "so in first 3, bowl however you want, and in the last 2, do 8 runs?"  The judge did not believe, and we are unable to accept, that this exchange was divorced from potential corruption.

11.  On the morning of 18 August Mahmood and Majeed met at a restaurant.  Mahmood took with him two colleagues who posed as business associates.  After dinner the two men went outside and sat in Mahmood's car where there was conversation about fixing matches, or fixing parts of matches during which a variety of different events might occur or be arranged to occur.  Majeed said that he had been doing this with the Pakistan team for about two-and-a-half years.  He explained how the system worked.  Mahmood asked Majeed to show that the system worked by arranging for the bowling of two "no balls" on the following Friday.  For this he agreed to pay £10,000.  Majeed agreed.  They arranged to meet again on the Thursday so that the money could be paid and the details of which balls would be bowled as "no balls" could be decided.

12.  On 19 August they met, as they had arranged, at a different restaurant in London.  Salman Butt was present at this conversation.  Mahmood and Majeed again went out to Mahmood's car.  Mahmood paid over the £10,000.  In return Majeed agreed to arrange for two "no balls" to be bowled the following day.  He said that he would provide Mahmood with the name of the bowler and which ball would be bowled as a "no ball".  They agreed that this would be just a "taster".  Majeed said that they would later sit down and work the way forward.  Majeed said that if all went to plan on the next day they were to meet in the evening and he would give Mahmood information about a bracket on which a bet could be made for the following day.  He demanded a deposit of £150,000 for his "trust" and "for me to pay my six boys", after which he could give Mahmood every result and every bracket that was agreed.  Majeed confirmed that Butt was involved.

13.  Mahmood telephoned Majeed on the morning of 20 August.  Majeed said that they did not "want to do any no balls today", and indeed none was bowled.  The two men arranged to meet the same evening.  There was a further discussion about what arrangements might be made for the next day's play.  Majeed telephoned Butt so that Mahmood could hear the arrangements.

14.  At about 8am on Saturday 21 August 2010, Mahmood went to Majeed's home address in Surrey.  Majeed telephoned Butt.  He instructed him to bat a "maiden over" when facing the first full over.  He told him to tap his bat in the middle of the pitch before doing so as a signal.  Later that morning, when Butt faced his first full over, the maiden over did not occur.  That was not a sudden change of mind.  Butt did not suddenly repent of his involvement.  It was simply that, as everybody would recognise, with a hard, new ball bowled in first-class cricket, a batsman could not guarantee that he would provide a maiden over.  Mahmood spoke to Majeed at 11.35am and told him that Butt had not given the signal and therefore he had not batted the maiden over.  Mahmood told him that he wanted to see some results before he handed over any more cash.  They spoke again that evening.  Majeed offered to return the £10,000 and suggested that others would pay hundreds of thousands of pounds and that the players were "not willing to give anything unless you give a large, substantial amount".  Majeed observed that "ten grand is peanuts".   

15.  On 22 August Mahmood called Majeed.  Majeed said that he had been speaking to the players and they wanted to know why Mahmood was not prepared to pay them more money up front.  Mahmood complained that nothing which had been promised had been delivered.  He wanted just one no ball to be bowled to show that the system worked.  He would then be prepared to pay £150,000.  Majeed offered to return the £10,000 and end the relationship.  However, they ended by agreeing that in return for £150,000 Majeed would arrange for two no balls to be bowled.

16.  There was telephone and text contact on 23 and 24 August between Majeed and Butt, and between Majeed and Amir.  Those conversations represented part of the development of the conspiracy.  There was a further telephone conversation on 25 August during which Majeed no longer required £150,000 because in an unspecified way he indicated that Mahmood had "passed the test".  Mahmood insisted, however, that he would hand over the cash.

17.  That night Mahmood met Majeed at a hotel.  Mahmood gave Majeed £140,000 in cash.  Majeed told Mahmood that three no balls would be bowled on the first day of the Lords Test, and he identified the exact moment when each of the no balls would be bowled.  All was now arranged.

18.  The Test Match at Lords began on Thursday 26 August 2010.  On the first ball of the third over a no ball was bowled by Amir in accordance with the arrangement.  On the sixth ball of the tenth over a no ball was bowled by Asif, again in accordance with the arrangement.  However, due to the intervention of bad weather the agreed third no ball could not be bowled on the Thursday.  Arrangements were made for it to be bowled during the following day's play.  On the Friday, as arranged, the third no ball was bowled of the third over.  That was bowled by Amir.

19.  On Saturday 28 August 2010 police officers went to the hotel near Regent's Park where the Pakistan cricket team was staying.  In Butt's room officers found a large amount of cash in several currencies.  The money included £2,500 in £50 notes which were marked and had come from the bundle of cash paid by Majeed to Mahmood.  In Amir's room police officers found £1500 in £50 notes which had come from the same bundle of cash.

20.  Police officers also attended and searched the home address of Majeed.  They found £50 notes which had come from the same bundle.  No money was found in the accommodation occupied by Asif.

21.  The cricketers were interviewed.  Butt explained that it was a coincidence that no balls had been bowled, and that the £2,500 cash was an advance payment for his attendance at a recent opening at an ice-cream parlour in Tooting.  He claimed never to have received any money for the purpose of influencing cricket matches; it was simply a "freak coincidence" that Majeed had been able to predict when the no balls would be bowled.

22.  Amir said that he had bowled a no ball through bad luck because the ground was slippery.  He denied doing it on purpose or for cash. He explained that the £1500 was payment for his appearance at the opening of the ice-cream parlour in Tooting.

23.  Asif said that Majeed was his agent.  He denied ever being paid any money to bowl no balls.  If Majeed had predicted anything, that must have been by chance.

24.  Majeed said that he had acted as he did in order to extract money from Mahmood.  He was in debt.  He gave Mahmood incorrect information.  The fact that no balls had been bowled, as he had said they would be bowled, was simply a coincidence.

25.  The players were allowed to return to Pakistan.  The file was sent to the Crown Prosecution Service to consider whether criminal charges should be brought and, if so, against whom.  

26.  In the meantime, in early September 2010, the ICC provisionally suspended the players from all forms of cricket and announced that it would bring its own charges in accordance with the ICC Anti-Corruption Code.  The tribunal, headed by Mr Michael Beloff QC, met in early January 2011.  Butt and Amir denied any corruption or involvement in corrupt activities.  The evidence which they gave to the tribunal was found not to be credible.  

27.  In February the tribunal findings were announced.  It concluded that the players were guilty of "spot fixing" in relation to the three no balls bowled at Lords.  Butt was banned from cricket for ten years; five were suspended on condition that he committed no further breach of the Anti-Corruption Code and that he participated in programmes of public education and rehabilitation under the auspices of the Pakistan Cricket Board.  Amir was banned from cricket for five years, of which two were suspended on the same basis.  The ban means that neither appellant can play or coach in any form of international, first-class or club cricket anywhere in the world.  For them these are significant penalties.  Quite apart from the distinction of representing their country, with all the prestige, advantages and respect that normally go with that distinction, they will be unable to earn a living as professional cricketers.

28.  When he came to pass sentence Cooke J, who had presided over the trial, expressed himself in trenchant, clear terms.  Salman Butt was the orchestrator of the corrupt activity by the three players.  Because of his status as the captain, with many advantages which the other two cricketers lacked in the context of education and so on, he was the most culpable of the three.  He was directly involved with Majeed and, more important, he had involved Amir.  The judge examined Amir's background.  He recognised that it was very different to the better fortune which Butt had enjoyed.  Amir came from a poverty-stricken background.  He had not long been a member of the team.  The judge took account of the fact that Butt had abused his position as Captain and had brought considerable influence to bear on Amir in order to make money for himself and others.  He took account of the matters of personal mitigation and he reflected on the decision made by the ICC and its impact on Butt's playing career.

29.  When sentencing Amir, the judge noted that he had contested the allegations before the ICC, but in the context of the criminal proceedings he had admitted his guilt.  The judge gave him full credit for the guilty plea entered at the first opportunity.  That was credit to which Butt was not entitled.  The judge plainly had in mind the difficulties of Amir's background.  He took note of the contention that Amir had become involved only because of pressure and influence, and he recognised the serious implications for the professional career of a young man who was, in truth, on the threshold of what would have been a most distinguished career.  In the material presented to the court the judge noted reference to threats received by Amir.  He reminded himself again that Amir had come from a background where life had been hard.  Compared with others he was unsophisticated and impressionable.  He bore much less responsibility than his Captain did.  On the other hand, despite his youth, Amir had been involved in discussions about the fixing arrangements and he had received a substantial amount of money for the no balls he had bowled in accordance with the corrupt agreement.  The judge also took account, as with Butt, of the ICC suspension.

30.  We turn to the submissions that are made in support of the two appellants.  The broad contention made by Mr Bajwa QC on behalf of Butt is that the sentence was excessive for a variety of reasons.  In written submissions it is suggested that the judge took too high a starting point before he gave a discount for the penalties imposed by the ICC.  Alternatively, he failed to give sufficient weight to the full impact of the decision by the ICC on Butt's future cricketing career.  Mr Bajwa suggested that the criminality involved was at its lower end.  It was suggested that this was "spot fixing" rather than fixing a certain result.  In cricketing terms, to fix a certain result is very improbable.  Mr Bajwa suggested that the result now is that Butt is a broken man, devastated by his situation, and serving a sentence abroad from home.  He has personal problems, not the least that faced by his wife who gave birth to their second child a few weeks ago.  Butt will never play competitive cricket again.  It is submitted that there is an objectionable disparity between the sentence imposed on Butt and that imposed on Asif.  It was suggested that a correct level of sentence for this crime might be found by an examination of the sentences passed on those Members of Parliament who dishonestly inflated their expenses.  There is also a complaint that the judge had wrongly attached too much importance to Butt's responsibility for Amir's involvement in the corruption.

31.  Mr Henry Blaxland QC on behalf of Amir focused on the difficulties of his background, his youth, his lack of experience, his naivety, and the fact that as an impressionable young man he would have come under the influence, as the judge found, of his Captain.  In the written submissions emphasis is placed on the length of his involvement in the offence, and our attention has been drawn to the circumstances in which it all came about.  The guilty plea was a significant feature of mitigation.  It was highlighted that this took particular courage in the context in which Amir found himself.  Our attention was drawn to the evidence of Imran Khan, a former captain of the Pakistan Test Team, that this sort of response was virtually unprecedented.  Significant punishment had already been imposed on Amir by the ICC decision, given that he was on the threshold of his career.  Accordingly, it is said that the custodial sentence was wrong in principle; alternatively, if a custodial sentence was appropriate, this was an exceptional case in which the sentence should be suspended.

32.  We can deal with these submissions briefly.  As the narrative shows, the corruption was carefully prepared.  It was not set up on the spur of the moment.  Nor was it the result of a sudden temptation to which either appellant succumbed in effect on the spur of the moment.  The criminality was that these three cricketers betrayed their team, betrayed the country which they had the honour to represent, betrayed the sport that had given them their distinction, and betrayed the very many followers of the game throughout the world.  In exchange for the privilege and advantages of playing Test cricket it was required of them that at all times they should perform honestly and play to the best of their respective abilities -- no more, but certainly no less.  If for money or any other extraneous reward it cannot be guaranteed that every Test player will play on the day as best he may, the reality is that the enjoyment of many millions of people around the world who watch cricket, whether on the television or at Test Matches, will eventually be destroyed. 

33.  Butt was undoubtedly the most deeply involved of these cricketers.  He was the captain and a malign influence on both Amir and Asif.  Without him the corruption would not have occurred.  When there was the faintest whiff of corruption, his duty as Captain was to step in, to stop it, and to see that the young members of his team in particular, but every member of his team, was helped to resist it.  Without him the corruption could not have occurred.  The judge said that he had orchestrated it.  The judge was fully entitled to reach that conclusion.  The judge had in mind all the factors of personal mitigation.  We too have considered them.  But for the fact that leave had been given to Amir to argue that his sentence was excessive, we should have regarded the submission on behalf of Butt as unarguable.  We gave leave simply so that we could consider the case in the round as a whole.

34.  Although Amir's situation is much less culpable, try as we might we cannot reach the conclusion that his culpability was any more than reduced.  It was not extinguished.  He was young and open to the malign influence exerted by Butt.  However, he can have been in no doubt about the risks, the dangers and the problems of corrupt approaches and how they should be dealt with.  That was an elementary part of his education as a potential Test cricketer.  He was not so young that he did not fully appreciate what he was doing.  He appreciated perfectly well that he was responsible for delivering the two no balls at the crucial moments.  Indeed, he made absolutely sure that there was no way the umpire could miss the no balls that he bowled.  No reluctance was apparent then, and he happily took his financial reward for what he had done.  Thereafter, he fully contested the allegation before the ICC when all this came to light, before he eventually and courageously accepted that he was criminally involved in the corrupt processes.

35.  This prodigious talent has been lost to cricket for some years.  The reality is that if he cannot play cricket at any level for some years, his talent may be irreparably damaged.  That is his own loss and cricket will be the poorer for the loss.  But in the long term the game would be utterly impoverished if the court failed to make it clear that conduct like this is not simply a matter of breaking the rules of the game and therefore subject to internal regulation and discipline by the ICC, but that it is also criminal conduct of a very serious kind which must be marked with a criminal sanction.  

36.  Allowing for all the matters of personal mitigation, a short, immediate prison sentence was necessary and appropriate.  

37.  In all the circumstances we have outlined, we see no reason to interfere with the decision reached by Cooke J.  Accordingly, both appeals against sentence are dismissed.