Justice needs to be seen to be done in Man City’s trial – but secrecy stops that happening

Hearing is being played out behind closed doors on a strict need-to-know basis and the message is ‘we do not need to know’

Football’s “trial of the century” kicked off on Monday. Except we do not know who is on the three-person commission hearing it, we do not know when it will end, or when the verdict will be published.
Neither, of course, will we hear any of the evidence because that is also kept secret until the outcome is delivered. Meanwhile, both the Premier League and Manchester City are bound by an agreement of non-disclosure which will prohibit the briefing of any detail of what is said and argued between the two parties.
It is a wholly unsatisfactory state of affairs, shrouded in secrecy and played out behind closed doors on a strict need-to-know basis. And the message is? We do not need to know.
Yes, we will eventually be able to read the findings and go through the case but it will be delivered as a document – out of the blue, one day – published on the Premier League’s website without any prior warning.
The verdict may leak, there may be briefings, despite the agreement not to disclose, depending on who has won and lost. That is human nature and may skew what the perception of the result is.
Of course it is complicated. For example, Everton’s first hearing into breaching the profitability and sustainability rules (PSR) resulted in a document that ran to 41 pages.
Most people did not bother to read it and so battle lines were drawn: either Everton were the victims being punished for trying to build a new stadium or, if the judgment was actually read, were guilty of trying to get around the rules despite a series of clear warnings (although that is also without going into the unfairness of the PSR rules, as framed, in the first place).
City are facing 115 charges rather than one and, although there is some apparent duplication in the alleged offences, there is also the distinct prospect of them being found guilty of some charges and acquitted of others which will make sifting through the judgment even more difficult.
But that is not the point. The point is this: why the lack of transparency in the first place around the whole process? If this is, as has been understandably billed, the test case of the Premier League’s authority and credibility, then why can we not see it being aired in public and be allowed to hear the evidence and for it to be reported?
The Premier League is a private company limited by shares. Its shareholders are the 20-member clubs at any given time and it feels that the clubs and the league hide behind the fact they are privately-owned businesses and draw up their rules accordingly.
They will argue against this and say the Premier League’s rule book is an exemplar of good governance and openness. There are certain points when there is disclosure. For example, the Premier League is obliged by its rules to publish that the charges have been referred to an independent commission.
It is also committed to publish, in full transparency, the judgment in the case including all the details of the Premier League’s argument, the club’s argument and any mitigating or aggravating factors.
It was in January that Richard Masters, the Premier League’s chief executive, sat before the Department for Culture, Media and Sport select committee of MPs and disclosed about the City case: “There is a date set for that proceeding. Unfortunately, I can’t tell you when that is but that is progressing.”
Cannot or will not? It is cannot but, unfortunately, it leaves the impression of will not. Why such need for privacy and non-disclosure that even the actual date of the hearing cannot be revealed?
Lawyers from both sides are poring over every report, every comment, any apparent indication of a briefing that might be used to say the case is being prejudiced. But, remember this, it is not a matter that is going in front of a jury. Rather it is being heard by an – at present – anonymous three-person commission which, one would hope, given their expected expertise, are beyond being so easily influenced.
In law, few sentences have been quoted more often than the aphorism “justice must not only be done, but must also be seen to be done”. The City case is not a criminal trial. But the principle holds. The Premier League argues that justice will be seen to be done in this case because the judgment will be published in full. But is that enough? Why can we not actually report on and read about the legal arguments in real time? What harm would be done?
Another reason for trials being held in public – and, yes, this is technically not a trial, but the principle holds – is because it helps build confidence in the system. Plus, frankly, we can also see whether the case is actually being prosecuted correctly, which does matter.
Of course there is no legal requirement for such cases as City’s to be more public. But there is a moral one. Clubs are private businesses; the Premier League has its own rule book which is determined by the clubs.
But football clubs – whether they like it or not – are far more than that and this is what executives so often forget (or ignore). They are community assets. They may not physically belong to the fans but they do belong to the fans. And the fans and the public need to know that the integrity of the game they love and invest so much in is being properly protected. Transparency, openness, full disclosure helps guarantee that. Quite frankly, the reasons for not allowing that are not good enough.