Musings on section 12 of the Contempt of Court Act 1981.
In the traditional down-time whilst in the Family Proceedings Court today, I was sitting near a sign. I like signs. I like to read them, and they often send my tiny brain skittering off in odd directions.
This one said “It is a contempt of court to wilfully insult the justices or any witness before the court, or any solicitor or counsel having business in the court, during his or her sitting or attendance in court or going to or returning from the court”
Now, obviously, I knew about it being contempt to wilfully insult the justices (though I gratefully suppose that wilfully insulting their intelligence with some of the propositions one has to put to them as part of a case doesn’t count), but it was news to me that we advocates had this protection too.
So, I looked it up. (and yes, I do have insomnia, and yes, it is 5.00am)
s12 Contempt of Court Act 1981
(1)A magistrates’ court has jurisdiction under this section to deal with any person who—
(a)wilfully insults the justice or justices, any witness before or officer of the court or any solicitor or counsel having business in the court, during his or their sitting or attendance in court or in going to or returning from the court; or
(b)wilfully interrupts the proceedings of the court or otherwise misbehaves in court.
(2)In any such case the court may order any officer of the court, or any constable, to take the offender into custody and detain him until the rising of the court; and the court may, if it thinks fit, commit the offender to custody for a specified period not exceeding one month or impose on him a fine not exceeding [F5£2,500], or both.
Now, frankly, I have never, ever, wilfully insulted justices or witnesses, but I’ll be damned if I would plead with clear conscience that I’ve never wilfully insulted any solicitor or counsel in the course of a court day or going back and forth from court. Never with any malice, or intent to cause distress or harm, but that’s not a mens rea which is in the Act. So, careful with that banter, folks. Even banter on the train journey can be contempt.
And that led me, in a flying leap, to the traditional legal insult of choice, which is to say that you respect someone. There’s little ruder than saying “with respect”, unless it is “with great respect” or “with the greatest possible respect to my learned friend” – all of these things, if translated into what is intended would be the sort of language that would get you thrown out of the roughest tavern, and would be frowned on with a bunch of 14 year olds playing Call of Duty on the X-box and calling each other Noobs and Losers.
It’s like a little secret legal code, if not a very good one, since we all know. I don’t think anyone has ever used the ‘with respect’ card to mean what it actually appears to on its face, rather than the unspoken bristling hostility if not loathing.
And that leads me to the other little secret legal code that I can’t stand. Sorry if this is breaking some Magic Circle style rule, but when a lawyer says to the Court, “I am instructed that”, or even stronger “I am firmly instructed that” , they are telling the Court that everything that follows is not their own view of the case, but that the client has not listened to their very sensible advice. It is a device to allow them to communicate to the Court and the other parties that the idiot is their client, not them. A rough translation would be “I know this is crackers, but my client has ignored my advice, and I’m stuck with this case”
Now, the irony of communicating it in the phrase “I am instructed that” when that is the last thing in the world that your client would actually want you to convey to the Court (and you’re sort of breaching his legal privilege there, in hinting that you’ve given him advice which he has refused) is telling. If you leaned over to you client and said to her (or him) “I’m going to tell the Judge now that I tried to get you to see sense, but you are unreasonable and everything that follows after that is your own daft opinion and not my view, is that alright?” do you think for a second that they would be okay with that? I think they’d justifiably sack you.
If you said that sentence in French or Latin, it wouldn’t be any more reasonable, just because the client wouldn’t understand, and nor, I ‘respectfully’ suggest is it any more reasonable because you’ve put it in code that the client doesn’t understand but the other listeners do.
I know it is done, I know that our credibility with the Court is a valuable currency and one that we don’t want to give away lightly, but I don’t like the phrase. I’d be a liar if I said I’d never said it, but it did leave a bad taste in my mouth, and I haven’t said it for about ten years, for that reason. Are you wilfully insulting your own client, just in code?
Now, can someone help me off this horse, it’s higher than I imagined?