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Category Archives: stuff that isn’t law at all

Figments of imagination (so many figments)


When a High Court Judge opens their judgment with a line like this:-


The facts giving rise to the present application are so extraordinary that they could have come from one of A.P.Herbert’s “Misleading Cases”.


Then I am pretty much Renee Zellweger in Jerry Maguire – “you had me at hello”


A .P. Herbert is my inspiration for legal writing, and his Misleading Cases one of my favourite books – I lost my copy in the RCJ last year and I still feel the ache of its absence when the weather is cold…


Sometimes, when you see a Judge criticise a person, you have a degree of sympathy – anyone can make a mistake, anyone can make a poor decision, anyone can have a bad day. Sometimes, you think “there but for the grace of God”


Not this time.


Islamic Investment Company of the Gulf Bahamas Ltd v Symphony Gems Ltd 2014


is not, as you will have gathered from that lofty case name, a family case.


So you don’t HAVE to read it – it tells you nothing illuminating about family law. But if you make the time, it will pay off, I assure you.


In this case, a Mr Mehtra (RM) had found himself in tricky litigation in the commercial Courts. It involves a debt of £10 million, which the Court previously ordered he should pay, and now interest on top of £4 million.


It is, pretty self-evidently, a tricky case.


It has been made more tricky for RM because for about three years, his lawyer Mr Benson, formerly a partner at Byrne and Partners (now not) had been running the litigation in a peculiar way.


By peculiar, I mean making things up. And by making things up, I don’t mean “Oh, Mr Mehtra, I was just about to ring you, I’m so glad you’ve called”.


Nor do I mean ” Have you lost weight? Seriously, have you been working out or something?”


I mean, fabricating every single thing that he told his client, including documentary evidence to support that.


I’ll quickly make it plain that the Court were totally satisfied that Byrne and Partners knew nothing about this and were not involved in any way.


Also that the Court had not heard from Mr Benson, and that it is (theoretically) possible that he has a good explanation for it. I can’t for the life of me imagine what that might be, but there could be one. If he instructs Perry Mason, Atticus Finch, Clarence Darrow, Mrs Jo Mills, Edward Marshall Hall, Kavanagh QC, Olivia Pope, Phoenix Wright, Maxine Peake out of Silk and My Cousin Vinny they might jointly come up with one on his behalf, but I doubt it.


By way of flavour (and there’s loads and loads of this, I’m just pulling out some examples). Remember in relation to all of them that RM had instructed Mr Benson to make an application to Court, but that at no point did Mr Benson do anything about it in the real world, he instead just made up a detailed and plausible account of how that was going.


So he was :-


Telling his client that a silk had been briefed for him (nope) and then that the silk had been changed (well, yes, but only changing one imaginary briefing for another) – in all, four silks were dragged into this case on a purely imaginary basis.


Telling his client that the silk was dragging his heels and that’s why things were taking so long (well, no, because he’d never actually told the silk anything about the case or asked the silk to do anything)


Sending the client letters to the High Court chasing up about hearings (having never sent any application to the High Court, he obviously didn’t send letters chasing it up)


Sending his client fabricated orders from the High Court, culminating in even making up Judges who were supposedly making these orders


Sending his client a skeleton argument prepared by his silk (nope, because there was no silk instructed. He did this TWICE. )


Arranging a telephone conference between his client, himself and a ‘senior partner’ at his firm to discuss the case (the ‘senior partner’ was not anyone connected with the firm, but someone impersonating him)


Sending his client fake emails from the other side


Sending his client a draft letter of complaint to a High Court Judge about the delay in the case (obviously never sent, because the High Court had never been asked to do anything, so there was nothing to delay)


Sending his client a fake judgment in his favour from the Court of Appeal – something that must have taken some effort, because as the Court observed “It runs to 6 pages and comprises 37 plausibly reasoned paragraphs”.   The original judgment was set aside and sent back for re-hearing.


As the Court also point out, Hence by this point Mr Benson had constructed a fiction in which RM was effectively back to square one


Visiting his client in Antwerp to take instructions for an affidavit which was never filed, because the proceedings were entirely imaginary.


Sending another judgment from the High Court following the Court of Appeal’s decision – again, entirely made up


Sending letters explaining that yet another silk had attended Court on RM’s behalf to lobby the Senior Presiding Judge about the dreadful delays in the case.


Sending emails from High Court Judges clerks about forthcoming hearings and orders


And yet another High Court judgment


And yet another appeal – which RM won (hooray, only it never happened)



And then this is where it all unravelled – as RM started to liaise with the Court about getting a typed version of the order and judgment, and the Court rightly said words to the effect of “whatchoo talkin’ bout, Willis?”



RM instructed another solicitor, one who conducted his practice in a world where the sky is blue, and that solicitor made enquiries of the four Silks who had apparently acted on RM’s behalf, none of whom had ever heard of him. At which point, calls were made to the police and to the Solicitors Regulation Authority.


You might be thinking that this was all some sort of financial con, but it appears not.


Firstly, RM had only paid £25,000 to the firm – that sounds like a lot of money to you and I, but for commercial litigation for 3 years in the High Court and Court of Appeal with four silks, it is very small beer indeed. There is no way that the huge amount of work that was being put into this fabrication was in order to trouser £25,000.   Bear in mind Mr Benson was faking not only reams and reams of correspondence, but submissions that were from leading counsel, judgments and appeal court judgments. It would have been far less work to actually just issue the application.


The deception practised by Mr Benson over a period of more than 3 years, as summarised above, is rightly described as breathtaking. Until the Police and the SRA have concluded their investigations much remains unclear, including his motives. What is clear, however, is that his actions will have had a significant effect on RM (and his family) who has been strung along for more than 3 years in attempts to challenge the ACO and apparent subsequent court orders and in efforts to demonstrate that he has complied with the order of Master Miller of 17 January 2007. Throughout this time RM has been effectively been prevented from entering this jurisdiction causing obvious distress to himself, his partner and his children (who live in the UK).



The motives for Mr Benson’s actions are presently unclear. The only payment made on behalf of RM during this period is the payment of £25,000 made to Byrne & Partners pursuant to the supposed consent order dated 4 July 2011. This has now been returned. None of the other payments called for in purported court orders were made. There is some evidence that other payments may have been made to Byrne & Partners but, if so, not by or on behalf of RM. There is also some evidence of a bitter family feud and of parties who might have an interest in ensuring that RM failed in all aspects of the English court litigation. However, at present this is all speculation. Matters will no doubt become clearer as a result of the Metropolitan Police and SRA investigations.



My best guess – there was a small lie – instead of issuing the application, he sat on it, and instead of admitting that when the client asked how it was going, he lied. And then rather than progressing things, he continued to lie. And then the lies just snowballed to a point where they were utterly utterly out of control.



I hope so (because the other suggestion, that he had been paid to nobble his own client is just too dark and awful to bear thinking about)


This is terrible, terrible stuff. It is hard to think of an example of someone doing a worse job for their client. Lionel Hutz, attorney at law would look askance at this.


I feel for Mr Benson on a human level – you don’t get to be a partner at a commercial law firm dealing with multi-million pound claims without being smart, and he has clearly set fire to his career and probably stands to lose everything without any apparent gain. And throughout those three years, he was probably terrified every time he had a day off or was ill, in case someone else from the firm dealt with Mr Mehtra and the whole thing unravelled.


You know when you have those nightmares that someone official comes up to you and tells you that there’s been a mistake and you never really passed O Level/GCSE English after all and that as a result all of your other qualifications are flawed? Imagine that level of stress and anxiety, but for real, every day for three years.



{Before you go to bed tonight, just say to yourself “I wasn’t the lawyer in that case, and I DO really have an O Level in English”, just to avoid nightmares}

Hounds of Justice – 500th post!

Obviously, I meant to do something weighty and serious for the 500th post. But as luck would have it, the marvellous Last Week Tonight gave me a much better post.


If you’re not familiar with Last Week Tonight, it’s a show on HBO (and Sky Atlantic) which is a satirical news show. It happens to be both the funniest and most thought-provoking show on tv, and tackles really hard hitting stuff in amongst the light nonsense.  It’s also presented by a geeky man in spectacles, so it is close to my heart in a number of ways.


On this week’s show, after presenting a hard-hitting piece on how mindless and stupid bureacracy has prevented translators in Iraq and Afghanistan who risked their lives to help US forces from taking up the US citizenships that they were promised, the show tackled the difficult issue of how the law can decide really very important things BUT it is really boring and dull to watch.


So, they took what was already a pretty funny case (is it Unconsitutional to ban prisoners from growing beards because they might hide tiny revolvers in them) and showed how you can present that in a gripping and televisual way.  By the way, if you are drinking coffee when watching this, I am not liable if it comes out of your nose.




They also kindly provided raw footage and material on line, so that people could take the actual audio tapes of any Supreme Court hearing and turn it into this style of presentation, and people are already putting major decisions up on You Tube.  NOW THAT’S WHAT I CALL TRANSPARENCY.


I CANNOT WAIT for the next UK Supreme Court decision….

Jordan Family Law Awards


Yes, this is the bit where I shamelessly beg for your vote again.  Yes, I know you voted for me last year and I didn’t win.*


Yes, I know I promised I would cut tuition fees and ended up tripling them. Yes, I know I told you all I was opposed to privatisation and then sold off the Royal Mail to some very rich people in the City at a knock-down price. Yes, I know that I campaigned on the basis of protecting human rights and have trampled all over them, and that I introduced LASPO,  DRIP and the bedroom tax and loads of other things that, let me tell you, I am now as utterly opposed to as you are.  I know people say that I sold out all of my principles, and sold them out cheaply, that I made wild promises to be different and turned out just as bad as the rest of them.


So, you can rest assured that THIS year, it will all be different.


Here is the voting link thing.  In the interests of transparency, I should say that Lucy Reed over at Pink Tape has also been nominated (and frankly, I’d vote for her instead of me, if I didn’t have a vested interest and a space on my mantlepiece. I wouldn’t even know there was such a thing as law blogging if it hadn’t been for Lucy. She is an icon. And much like Daniel Day Lewis without a moustache in many ways).  I don’t know the other two nominees, but they sound very impressive too, and also like they might be nice people.


But if you have ever enjoyed the blog – if I’ve made you smile, or made you annoyed, or made you think ‘something must be done’, or helped you find a case that you needed, I’d be really grateful if you would vote for me.


More importantly though – if you have ever had a fraction of the enjoyment out of any of my pieces that I had writing them (okay, not the Brussels II pieces, I’ve hated every second of those), then you could do me a huge favour, and pass on a link to someone you know.   (Ideally someone who might have an interest in family law). If you get the email version, forward it on to someone – don’t pick a Brussels II case, those really aren’t a good illustration of what the site is about.



(*I did get pretty close last time round, and looking back at my guarantee to save the life of everyone who voted for me, what I can tell you is that nobody who voted for me has subsequently died, or will ever die.


That might be pitching it a bit strong. I might get sued for that.   Let’s instead say that in the last year NO CORONERS INQUEST has named me as responsible in any way for the death of anyone who voted for me.  So, vote for me.  It is the key to immortality…   or at least, there is not yet any scientific proof that it isn’t . )


I’ll put the vote thing here, in case you just skipped to the bottom to see if I was offering any cash.





I used to bullseye womp-rats in my T-16 back home




As a child of the Seventies, I am obviously delighted that new Star Wars films are being made (after extensive primal scream sessions, I have managed to persuade myself that the three prequels don’t exist, much like there is only actually one Matrix film, and Superman can’t turn back time by flying backwards round the earth ffs).

As anyone who has seen the films will know (and if you’ve not seen Star Wars (a) this piece isn’t for you and (b) wow, seriously?), the first film ends with Luke Skywalker the hero of the piece, taking part in a tiny space ship attack on the Death Star a huge battle station – the rebel forces are massively outnumbered, but Luke finds a way.

But it has always nagged at me that the reality for Luke Skywalker, getting into that X-wing fighter and going into space battle – given the extraordinarily limited combat experience he has ever had, would be somewhat crazy.

So this is how Luke Skywalker’s interview might have gone, had he been applying to join the RAF, in the real world.


Luke : I want to fly an F16 – I want to join in the attack on Al Qaeda. Which way to my plane? Let’s go, right now!

Interviewer : Well, enthusiasm is marvellous, but let’s take things one step at a time, shall we. Tell me about your previous experience.
Luke : Well, up until this morning I was a farmer.

Interviewer : A farmer? Not a pilot?

Luke : No, I worked on a farm, for my aunt and uncle.

Interviewer : I see. Well very few people I interview are getting into a cockpit ten minutes later and flying a piece of military hardware with a value of two million pounds, still less putting the lives of everyone else on the mission in jeopardy. So, one step at a time. Let’s start again, shall we.

Clears throat

Interviewer : So, you’re interested in joining the RAF, Mr Skywalker

Luke : Oh, absolutely. I hate Al Qaeda. I have done since this morning.

Interviewer : This morning?

Luke : Oh yes, they killed my aunt and uncle this morning.


Interviewer writes down ‘Post-traumatic stress syndrome’


Interviewer : And where were you at the time?

Luke : Oh, I was hanging out with an old man. We were getting all mystical, you know? And I got knocked unconscious.

Interviewer : You were knocked unconscious, this morning.

Luke :That’s right. That was just before my first flight, actually.

Interviewer : You may still have concussion, to be honest. I’m not sure it was good for you to be flying a plane right after that.

Luke : Oh, I wasn’t flying it. I was just a passenger.

Interviewer: But you said it was your first flight.

Luke : That’s right – it was. The first time I’d ever flown in a plane was earlier today. And now I want to fly one, in combat.

Interviewer : Okay… we’d prefer our combat pilots to have a little more flying experience.


Luke : Well, I have driven a landspeeder.

Interviewer : And that’s not really the same thing in any way at all, I’m afraid. Driving a car is rather different to flying a plane in combat. Okay, tell me about your combat experience

Luke: I killed someone for the first time today. Probably about twenty people, I guess. Prior to that, as a farmer, I’d never really had any combat experience.

Interviewer : …. And how are you coping with that?

Luke : Fine. I’m trying not to get cocky.


Interviewer writes ‘Definite issues with post-traumatic stress’


Interviewer : Do you know anyone in the RAF?

Luke : Oh yeah, my friend Biggs. I wrote loads about him on my application form, but I had to cut it all from the final version. He has a moustache.

Interviewer : I see. Do you have much experience of targeting ? This would be a precision raid.

Luke : I used to bullseye womp-rats with my T-16 back home

Interviewer : I….see. That sounds an awful lot like you are saying to me that you shot and killed wild animals with an air-rifle for amusement… and that you’re proud of that.

Luke : They’re not much bigger than 2 metres.


Interviewer writes ‘psychopathic tendencies’


Interviewer : Let me just take some details for our security checks. Full name is Luke Skywalker… let me just check that. Oh.

Luke : Is that a good oh?

Interviewer : Have you ever known there to be a good oh, in this sort of situation? Well, what my computer is saying to me is that your father is the second in command of Al Qaeda, and that I would have to be clinically insane to let you participate in an attack on Al Qaeda or be involved in the planning of it in any way.

Luke : Well, I knew absolutely nothing about that. Really? That is a surprise, I have to tell you. My dad is a big shot in Al Qaeda. That is news to me. I bet I can redeem him though.

Interviewer : I have to tell you Mr Skywalker, that even though we are badly in need of pilots and one of the pilots we have on this mission is a man called Porkiss who can barely fit in the cockpit, you would be on paper, a worse choice than him.

Luke : But… I discovered a new religion today. I’d never heard of it until this morning, but now I’m a complete convert. Total dedication. I’m utterly sure the force of my new religion can get me through any situation. I was already pretty much thinking that if I got up in the F16 I’d turn off all my instruments and just fly on instinct a piece of hardware that I’d sat in for the first time that very day.

Interviewer : Could you please show in Mr Maverick and Mr Iceman on your way out?





Suggested improvements to case management orders


Look, we know what you’re up to. They are intended to be soul-destroyingly tedious – perhaps you have some sort of vested interest in treatment of aneurysms, perhaps you just hate lawyers, perhaps you want to make us all quit.  Or you read Catch 22 but completely missed that the bits where the bureacracy intended to serve people in their jobs ends up hampering them or took those as a call to arms rather than a satirical barb. Who knows?


Every time I open up a blank one, I feel like this



But form designers, you can strive even harder to ruin the day of anyone who has to complete the things.  Here are just five suggested additions


1.  Code numbers.  To protect anonymity, from now on, the name of any individual or party, including Judges, social workers, experts, lawyers, will have its own unique 26 number code. That code will not be consistent with that used for that person in any other case, and will be changed every 27 days for security purposes.  This will result in clauses like this   97233861182418618690207116900  shall file and serve their assessment of 18y790393700122 and 10089279972291772  as carers for 11909078667672291 and 492280661512982 . Much better for everyone


2.  Section 2 of the order will now require that the author complete in handwriting (to prevent cutting and pasting) every section of the Human Fertilisation and Embryology Act that does not apply to the case, even where the case involves a perfectly routine pregnancy.


3. Section 9 of the order requires the author to give two examples of irony in literature (such examples must not have been replicated in any other order lodged in that Court. The Court will not divulge in advance whether the example has been previously used)


4. In the event that any of the parties has ever been on holiday to a foreign country, indicate whether you have written to that country to see whether they have any intention to intervene in these proceedings.


5. Again for security purposes, a code system like those Captcha things on websites is introduced when lodging the form. The computer system will give fourteen words and the advocate lodging the form must identify which View from the President the words are a quotation from.



[I might, perhaps, just perhaps, have drafted too many Case Management Orders this month]


World cup – Game of Thrones style


(apologies to anyone who does not follow either football or Game of Thrones – the clue that this one may not be for you is in the title. No-Telly Neville, you won’t get any of this, sorry)


With the World Cup looming, it is time to consider how the major Westeros sides are likely to do in the tournament, based on form, tactics, personnel and management style in our exclusive Betting Guide


Team Targaryean    –   hopes were high for one of the pre-tournament favourites – they have solidity at the back with one of the all time great defenders Barristan Selmy, the workman-like Sir Friendzone of Mormont, youth with Gray Worm, three fiery attackers and the man with “All the Flair and Too Much Hair” Daario.  They also have a manager that the team will follow to the ends of the earth. What could go wrong?  Well, whilst all of the other teams set up training camps in Miami or Brazil, Daenerys instead chose to base her team in Morocco, and so far has shown no signs of ever bloody booking a plane to Brazil where all the action is. When we interviewed her, suggesting that the World Cup was there for the taking and all she had to do was cross the narrow sea to get there, Daenerys instead set her sights on being in Algeria for the foreseeable future.  Save your money and back someone else.   1/15 if they actually turn up   250/1 on the basis that they don’t seem to have a transport plan to get them to the action


Team Black Watch – resolute defenders, certainly. Their defensive wall is second to none, and even the most creative free-kick taker is going to struggle to get the ball over a four hundred foot wall of ice and get it up and down fast enough to beat the keeper. There have long been concerns about whether they have any attacking presence, and our sources suggest that although they claim to have a World Cup squad of 100,000 players it might actually be about seven, one of whom is blind and about 160 years old and another is very fat.  Talk is also that the manager, John Snow, knows nothing.   They might get out of the group, but no further.   14/1


Team Stark – sigh. Such a promising team, ripped apart by injury – and in the case of their last two captains simply ripped apart.  Rickon seems to just go missing, Bran wanders about aimlessly. Arya is a deadly finisher and Sansa might be turning into a genuine player. If you MUST have a flutter on Team Stark, it should be for their former jinky winger Bran scoring with a Hodor.  (sorry)     28/1


Team Oberyn Martell – charismatic Latin flair, everyone’s favourite dark horse. All the power, all the knowhow, all the tactics. However, some of us got badly burned backing him in the last semi-final, where he dominated Brazil for ninety minutes whilst never actually scoring a goal and then spent the entireity of injury time doing keepie-uppies and Cruyff turns in his own six yard box.   9/1


Team Lannister  – the current holders of the trophy,  rumours persist that they bought the previous three World Cups that they won (as though there could ever be financial corruption in a World Cup). They have had their own injury worries, with their star goalkeeper Jaime losing a hand. We have had Goldenballs at a World Cup before, now this is Golden-Hand.  Most people’s favourite player Tyrion, with his low centre of gravity and quick wits gives them a chance. Their manager Tywin is said to be a strict disciplinarian (other than when it comes to members of his team sleeping together).  Joffrey, their captain, who often plays a sweeper role hiding behind the back of his mother Cersei is another doubt – he is said to have a bad cough at the moment. Fans of the WAGS  (and the TV cameras) will be hoping that doesn’t shut Margaery out of the tournament.   7/4 favourites


Team Stannis – dour, hard to beat, hard to break down. What they really need is a bit of magic.  9/1


Team Hound – we interviewed the Hound and his comments were  “F**k the World Cup”   – when we pressed and said that plenty of people like the World Cup, he said “Yes, plenty of C***s”   –  it is not entirely clear whether he is even intending to turn up. We don’t advise risking your hard earned cash on a flutter


Team Theon – all the talk is that this team has lost something in the tackle department.  90/1


Team Littlefinger – most fans did not even realise that Littlefinger was playing in this tournament. Many of them didn’t even realise he had a team. An outside bet, but he certainly plays that Andrea Pirlo role, pulling all the strings and making everything happen. The odds are against him, but frankly worth a punt.  180/1


Team White Walkers – terrifying presence, have the ability to take the players from the opposing side and make them play for Team White Walkers, virtually unstoppable – ice-cold blood in their veins, which would be useful if it goes to penalties. The one question mark is their absolute lack of pace – they seem to have made no forward progress in the last four seasons.   19/1


Did Adam and Eve receive a fair trial?



I came across a quotation from a very old criminal case a few weeks ago and it has been on my mind – I can’t turn up the reference today save that the Judge was Fortescue, will try to find it. Anyway, the thrust of it was that the Judge, in explaining the need for fairness and procedure in criminal proceedings brought in the reference of Adam and Eve, in effect saying that God did not immediately punish them for their original sin, but gave them a trial first.  If that’s so, then a criminal trial is either one of the first important things in human history (if you are a creationist) or something that is in one of our oldest pieces of literature (if you are not).

So, it has been on my mind as to whether or not they received a FAIR TRIAL.

Let’s start with the offence – was there an establishment of  a criminal offence, and warning of consequence of the offence?


Genesis chapter 2

And the LORD God commanded the man, saying, Of every tree of the garden thou mayest freely eat:

17 But of the tree of the knowledge of good and evil, thou shalt not eat of it: for in the day that thou eatest thereof thou shalt surely die.

On that basis, Adam clearly knew that God did not want him to eat the fruit from the tree of knowledge  (in effect, that’s the equivalent of the Government enacting the Theft Act).  I would point out that shortly afterwards Eve is created, and the warning isn’t given again. So it is arguable that God did not communicate the Theft Act to Eve, relying on Adam to tell her. Given that they were the only people in the world, and that God’s entire conversations to that point with Adam were less than a page, it seems reasonable to assume that at some point Adam would have mentioned it to Eve, it being the only rule of the Garden of Eden.

We now come to the offence itself

Now the serpent was more subtil than any beast of the field which the LORD God had made. And he said unto the woman, Yea, hath God said, Ye shall not eat of every tree of the garden?

2 And the woman said unto the serpent, We may eat of the fruit of the trees of the garden:

3 But of the fruit of the tree which is in the midst of the garden, God hath said, Ye shall not eat of it, neither shall ye touch it, lest ye die.

4 And the serpent said unto the woman, Ye shall not surely die:

5 For God doth know that in the day ye eat thereof, then your eyes shall be opened, and ye shall be as gods, knowing good and evil.

6 And when the woman saw that the tree was good for food, and that it was pleasant to the eyes, and a tree to be desired to make one wise, she took of the fruit thereof, and did eat, and gave also unto her husband with her; and he did eat.

(In addition, we establish here that Eve DID know that God had prohibited the eating of the fruit, so she can’t later claim ignorance of the law, which as we know is no excuse anyway)

At this point, we are aware that Adam and Eve knew that eating the fruit was unlawful, and that they ate it. One can hardly claim that you recklessly ate an apple from a tree, so although God wasn’t specific about mens rea for the offence, there seems to be both the act  of eating the apple and the intention to eat the apple.

The offence comes to light here, and God probes the couple as to what happened

And they heard the voice of the LORD God walking in the garden in the cool of the day: and Adam and his wife hid themselves from the presence of the LORD God amongst the trees of the garden.

9 And the LORD God called unto Adam, and said unto him, Where art thou?

10 And he said, I heard thy voice in the garden, and I was afraid, because I was naked; and I hid myself.

11 And he said, Who told thee that thou wast naked? Hast thou eaten of the tree, whereof I commanded thee that thou shouldest not eat?

12 And the man said, The woman whom thou gavest to be with me, she gave me of the tree, and I did eat.

13 And the LORD God said unto the woman, What is this that thou hast done? And the woman said, The serpent beguiled me, and I did eat.

I’m not sure that I would classify that as a trial, so much as an interview. Both of them confess (Eve after Adam has already turned Queen’s Evidence on her)

If they HAD denied it, given that God was both prosecutor and Judge, what chance would they have got?  Remember that God is omnipotent and omnipresent, so he was also a witness to them eating the fruit at the time, and can also see the past and see the future. He would appear to be the perfect eye witness, and is also the Judge and the jury.  He clearly would not have reasonable doubt, given that He was an eye-witness.

I think that Adam and Eve would be doomed if they tried to defend the case.

One might argue that they did it, and we know that they did it, so does it matter that they had no real opportunity to defend themselves? Does it matter if a system absolutely ensures that the guilty are always punished (the corollary of God being a perfect witness is that the innocent would never be convicted by Him, because of his omniscence.  Perhaps it is only that our imperfect human minds are not omniscent that means that we NEED reasonable doubt and the chance for people to persuade a jury of those doubts)

The better line of defence here might be in relation to the agent provocateur, the serpent. At no point in the ‘trial’ is it revealed that the serpent was previously employed by God. And of course, as God as ominiscent, then He was there when the serpent tempted Eve and could have intervened, and He knew in advance that the serpent WOULD try to tempt Eve and gave no guidance.  Is there the possibility of an entrapment defence here?

Well, that is going to hinge on whether God is English or American  (other nationalities are possible, but come on, clearly God speaks in a similar voice to either David Niven (English) or Charlton Heston (American) )

In English law, entrapment is not a defence

R v Loosely


My Lords,

    35. The question in both of these appeals is whether the English law concerning entrapment is compatible with the Convention right to a fair trial. In my opinion it is. I have had the advantage of reading in draft the reasons of Lord Nicholls of Birkenhead for reaching the same conclusion. I agree with them.

    English law on entrapment

    36. Entrapment occurs when an agent of the state – usually a law enforcement officer or a controlled informer – causes someone to commit an offence in order that he should be prosecuted. I shall in due course have to refine this description but for the moment it will do. In R v Latif [1996] 1 WLR 104, 112 Lord Steyn said that English law on the subject was now settled. It may be summarised as follows. First, entrapment is not a substantive defence in the sense of providing a ground upon which the accused is entitled to an acquittal. Secondly, the court has jurisdiction in a case of entrapment to stay the prosecution on the ground that the integrity of the criminal justice system would be compromised by allowing the state to punish someone whom the state itself has caused to transgress. Thirdly, although the court has a discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude evidence on the ground that its admission would have an adverse effect on the fairness of the proceedings, the exclusion of evidence is not an appropriate response to entrapment. The question is not whether the proceedings would be a fair determination of guilt but whether they should have been brought at all. I shall briefly enlarge upon these three points.

(a)     Not a defence


    37. The fact that the accused was entrapped is not inconsistent with his having broken the law. The entrapment will usually have achieved its object in causing him to do the prohibited act with the necessary guilty intent. So far as I know, the contrary view is held only in the Federal jurisdiction of the United States. It is unnecessary to discuss the cogent criticisms which have been made of this doctrine, notably by Frankfurter J in his dissenting judgment in Sherman v United States (1958) 356 US 369, because it has never had any support in authority or academic writing in this country. Indeed, the majority judgment of Rehnquist J in United States v Russell (1973) 411 US 423, 433, which describes the criticisms as “not devoid of appeal” suggests that its survival in the Federal jurisdiction owes more to stare decisis and its perceived constitutional and pragmatic advantages than to its intellectual coherence.

So in English law, the fact that the serpent, whose connection to the Prosecution / law enforcement agencies is uncertain but at least raises doubts, lures Eve into the offence is not a defence. It might be that if the circumstances are so repugnant to justice that the EVIDENCE obtained can’t be relied upon the prosecution might be stayed, but that would be God’s decision as the Judge.

It is God acting as Judge and jury and police and prosecutor which raises the biggest issues here. That would seem to give rise to a right of appeal, on the R v Sussex Justices point – “Justice must not only be done, it must be seen to be done”

The right of appeal doesn’t help though, since any appeal would (a) also be to God and (b) Him being omniscent, already knows the outcome of the appeal.

It is quite difficult to work out what a fair criminal justice system in which the only individuals in existence are God, the serpent, Adam and Eve; so one must be careful in criticising what was set up, but this arrangement where God sets the law, brings the charges, is a wtiness of fact, decides the case and delivers sentence seems lacking in the fundamental separation of powers.

Perhaps that explains why God  (who had told Adam and Eve that if they ate the fruit, they would die that same day) ends up giving a more lenient sentence than the death sentence originally specified.

Unto the woman he said, I will greatly multiply thy sorrow and thy conception; in sorrow thou shalt bring forth children; and thy desire shall be to thy husband, and he shall rule over thee.

17 And unto Adam he said, Because thou hast hearkened unto the voice of thy wife, and hast eaten of the tree, of which I commanded thee, saying, Thou shalt not eat of it: cursed is the ground for thy sake; in sorrow shalt thou eat of it all the days of thy life;

18 Thorns also and thistles shall it bring forth to thee; and thou shalt eat the herb of the field;

19 In the sweat of thy face shalt thou eat bread, till thou return unto the ground; for out of it wast thou taken: for dust thou art, and unto dust shalt thou return.

And the LORD God said, Behold, the man is become as one of us, to know good and evil: and now, lest he put forth his hand, and take also of the tree of life, and eat, and live for ever:

23 Therefore the LORD God sent him forth from the garden of Eden, to till the ground from whence he was taken.

24 So he drove out the man; and he placed at the east of the garden of Eden Cherubims, and a flaming sword which turned every way, to keep the way of the tree of life.

So, hunger, banishment from paradise, a life-cycle involving hard toil and then death rather than eternal life, and horrible pain in childbirth.  (That in itself raises an Equalities Act issue, in that Eve’s sentence for the same offence seems markedly more harsh than Adam’s. The serpent also gets a sentence, and there’s clearly no trial of the serpent, who is not asked anything – AND God had not established that incitement was an offence)

[The later sentence of merely banishment for Cain, for murdering at that time one quarter of the world’s population, seems somewhat out of kilter to the harsher sentence for eating an apple, but the Lord moves in mysterious ways]


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