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Things I’d like to see in judgments (but never expect to)

Some childish nonsense – title explains it all.

Poor Mr Crumpet of counsel is going to be the whipping boy in a lot of this. Picture whoever you like as Mr Crumpet.

 

“Having consulted the authorities presented before me, there does indeed appear to be no reason in law why a man may not marry a squid”

 

“Mr Crumpet, it did not augur well for your client on his entry to the Drug and Alcohol Court that he formed entirely the wrong impression about the ambit and ambience of said Court and had partaken heavily of both on his way there, to as he put it ‘get the party started’ ”

“I am aware, as Mr Crumpet pointed out that the mother has before her an extremely long and difficult road. He pleaded this as a reason not to attempt rehabilitation and not to go down that road. A wise man put it best – Roads ? Where we’re going, we don’t need roads”

 

“I find that they were the footprints of an enormous hound”

 

“I am reliably informed that the powers of the inherent jurisdiction are theoretically limitless, and therefore, I exercise my powers under the Inherent Jurisdiction to award everyone in the case a dinosaur and I shall from this point onwards have always been the drummer in the Beatles, with all that entails”

 

“This is an intractable contact dispute, almost impossible to resolve. Therefore, I have decided  – pud pie, straight to London, no tipsys”   *      (that might make no sense to Southern readers, sorry. Explanation at foot of page. You’ll all be doing it next week. It would sort this election nonsense out. )

“I want to give a big shout out in this judgment to Dr Kutten-paste – you da man! His evidence was the bomb, I’m sure you’ll all agree. The Bomb. ”

“Mr Grayling, I see that you have come before me today unrepresented as a result of the LASPO reforms, and you stand to lose something incredibly dear to you – I have decided therefore that we shall conduct this hearing in Latin”

“Mr Crumpet, your client gave evidence that he had no tattoo. He is behind you now shaking his head. He is certain that he has no tattoo. Indeed, he showed us last week from the witness box. that he did not have one. Allow me the indulgence of checking again.  Roll up your  left sleeve sir. Ah yes, I see the surprise on your face. Mr Crumpet, do you recall day one of this fifteen day hearing? You do, good. Would you please examine the tattoo on your clients arm. Now….. is THAT your card?”

 

“It was argued by Mr Crumpet that section 3, subsection 13 was fatal to his opponents case. I am afraid to inform him that Justice Austin section 3, subsection 13 says he just got his ass kicked”

 

“It has been explained to me over the lunch adjournment with a great deal of courtesy and skill I might add, that the summary of historical background that I set out in the earlier part of my judgment, was in fact the summary of an episode of Saved by the Bell, which perhaps explains why Screech played a more prominent role in those matters than one might otherwise have thought.  In the event that anyone remains curious, I would have found that Kelly should go to the movie with Slater, and that Zach should be grounded for a period not in excess of two weeks. I will now move on with the case proper. I should remark, as I’ve just thought of it, heh heh, that in this particular instance, it seems as though it was I who was saved by the proverbial bell”

 

“Great reliance was placed on the Court of Appeal authority of Re K 2009. It would be an absolute barrier to the ingenious solution that Mr Crumpet proffers to me. Unbeknownst to you all, as the owner of  a time machine, I have had a peek at the law reports for 2025 and Re K has been overturned, so that’s good news for all of us”

“Let me see if I have the chronology of the parental relationship correct. According to my note, of the mother’s account she met him on a Monday and her heart stood still? And at that time, she believed his name to be Bill or William.  Whereas the father’s account was that they did indeed meet on a Monday, that he took her for a drink on Tuesday, and matters became intimate on Wednesday, continuing through the Thursday, Friday and Saturday, and then there was something of a cooling off period on the Sunday”

“Yet more discrepancies emerge in the parental accounts of the relationship. Whereas the father insisted that he had saved the mother’s life when she nearly drowned, her account was that he had been at the beach but that he had showed off, splashing around. ”

“Mr Crumpet, you may recall that a particularly unothodox point of law arose before I adjourned. During that adjournment, you had your clerks walk over your Red book. I have been in my chambers, studying this matter myself. Could you please turn to page 172 of the copy of the Red book that you have in front of you? Now… is THAT your card?”

“Matters took a somewhat unusual turn in this case when I was presented with an application for a witness summons requiring that the Ghost of Elvis Presley attend to give evidence. I found his evidence to be compelling.”

 

“Before I embark on what is going to be a difficult and complex judgment, hands up if you think mother won? And hands up if you think father won?  I am going to count the usher at the back of the Court, so that rather settles that. Does anyone have any FAS forms to hand in?”

 

 

[*Pud-pie – a method of solving a dispute, or deciding who has to do something that neither participant wants to do. The two players stand a distance apart, facing each other. They take it in turns to take a step towards the other, as though walking a tightrope. The technique is that the heel of your striding foot has to touch the toe of the foot that’s behind. Alternate feet.  With each step, player one says the word “Pud”, and when taking a step, player two says the word “Pie”. The winner is the player whose next step will allow them to tread on their opponents shoe.  A tipsy is a small jump backwards, that each player may deploy if they think they are going to lose, in an attempt to shake things up. A round of pud-pie with tipsys tends to take longer, so if you want to get the decision over with quickly – “Pud pie, straight to London, no tipsys”  

I actually couldn’t find an explanation of “pud pie” on google, so I thought it did warrant an explanation.

Someday I will explain the game of Pondo-Grundy to you all. I reckon I still have a chance to medal in Pondo-Grundy, if the Olympics association ever reply to my letters]

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Are YOU the Lord Chancellor? Find out in our quiz

This post guest-written by Misty St Clair, Agony Aunt of Jackie magazine in 1984 and was written by her at that time, following an excess of Advocaat and a bout of unexpected fortune-telling and a descent into legal matters – her column was not eventually run that week, the editor considering it to be “somewhat niche, dahling”.

 

(Suesspicious Mind note :- This was going to be by Geneva Minty, Agony Aunt of Just Seventeen magazine, but I didn’t dare face looking on Google Image for “Just Seventeen” )

Horses horses horses!  (and law)

Horses horses horses! (and law)

 

Hey Girls!

A lot of young adults write to me with their problems –  “When I marry George Michael, will his chum Andrew want to be hanging around all the time?”   or  “My friend says you can’t get pregnant if you eat four After Eights straight afterwards”  or “How can I apply lipstick like Robert Smith”, but one question comes up more than any other.

It is this  “Misty St Clair, am I the Lord Chancellor?”

And it is time that this issue, which troubles so many adolescents, was answered. Find out, in this simple quiz.

 

1.  Which of these are real Judges?

 

A   Jonathan Sumption QC

B  John Deed

C  Louis Walsh

 

 

2.  Your Government intends to slash and burn the legal aid budget , what do you do?

 

A  Lobby in Cabinet for the benefits of legal aid, and educate your colleagues on the Rule of Law

B Help push through the reforms, but commit to provisions that ensure that nobody will have their human rights breached

C Pretend to do B above, but secretly issue guidance that means that those provisions will hardly ever get used, then lose in the Court case about it

 

3. An idea emerges that to please the Daily Mail, the Government should ensure that foreign nationals don’t get legal aid, do you?

 

A.  Resist on the basis of unfairness and discrimination

B  Reluctantly advise that it isn’t possible

C  Immediately issue Regulations that you had no legal power to issue and lose in the Court case about it

 

4. In order to cut costs, you are asked to ensure that victims of domestic violence have to produce documentary evidence that puts them at risk of harm, do you?

 

A. Resist on the basis that the law exists to protect the vulnerable

B  Introduce a need for documentary evidence but make it reasonable

C Introduce a need for documentary evidence, make it near impossible to satisfy, and lose in the Court case about it

 

5.  You are asked to come up with a policy that will show how tough the Government is on prisoners, do you?

 

A  Refuse and explain to Cabinet that no less an authority than Winston Churchill counselled that one judges a country by how they treat their prisoners

 

B Come up with something which looks tough but ultimately will never be followed through

 

C Ban them from receiving books, claim that this was never intended, lose in the Court case about it – but even then, don’t reverse the policy until after Christmas, ensuring that the unlawful and unpleasant ban on books still stops prisoners getting books as Christmas presents

 

6.  Imagine that you are the manager of a football team  (ask your dad or big brother) called “Judicial Review United” and you lose six matches in a row, do you?

 

A  Resolve to train harder, play better and win the next game fair and square

B Grumble about refereeing decisions but keep playing the same way

C Try to change the rules of football so that it is impossible for the other team to turn up and play

 

 

 

How did you do?

 

Mostly A’s   +    You have nothing to worry about – it may seem sometimes that you have some Lord Chancellor tendencies, but really it is nothing to be ashamed of. Many young people go through this phase and are idealistic and naive and think about experimenting with becoming a vital check and balance on the excesses of the State, and they just come through it. More people than you know. You are not alone!

To be honest, many of your ideas about what Lord Chancellors are like are very old-fashioned – the world has changed a lot, you know!

 

Mostly B’s  –  there is a risk that you might be persuaded by more ‘grown-up’ friends to dabble in Lord Chancellor-ness, but you are far too sensible to really get caught up in it. Just remember, as Misty St Clair always says  “The Coolest Thing you can ever do is Say No Thanks” .  Just like Zammo in Grange Hill, you can come out the other side and live a happy and rich life.

 

Mostly C’s  – There is no easy way to break this to you, there is a good chance that you are reading your sister’s magazine in the hope of finding some problems that help you understand girls. You are destined to become the Lord Chancellor. You may be thinking that you can avoid this fate by never studying law, working in law, having any interest in law or any knowledge of law. It will not stop what is foretold.  For reasons that are inexplicable, you and you alone, will still become Lord Chancellor even though you have no working concepts of anything you would need to know to do the job well. You will also become balding, I’m afraid. That will teach you to read Jackie – stick to Shoot or Victor and you would be much happier.

 

Till next time, I’m Misty St Clair and remember, “a problem shared is a problem that lots of young boys will read secretly and giggle over”

 

Nothing says fun like a boy band holding scaffolding. That and LAW!

Nothing says fun like a boy band holding scaffolding. That and LAW!

Did Adam and Eve receive a fair trial?

 

Nonsense.

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

LORD HOFFMANN

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]

Popular songs, mangled into legal submissions

As you will know, a lawyer never calls a spade a spade if they can instead refer to it as an instrument, implement or tool, ordinarily (but not exclusively) employed in a gardening capacity whose purposes include (but are not limited to) the movement of earth, turf or other similar organic-based material.

So, this is how some popular songs might appear if they were instead translated into legal submissions. If you are trying to guess them, you might want to avoid the comments, which are likely to contain spoilers for the answers.

 

 

1. Your Honour, you are not invited, in this particular case and in relation particularly to my client’s hips, to give yourself a Lucas Direction.

 

2. My client’s position, in relation to his ordinary or habitual residence for the purposes of the Act, is that this can best be ascertained on any particular occasion with reference to the geographical location at that particular time of the item of headwear that forms Exhibit One to his statement.

 

3. Your Honour, the applicant asserts that the respondent has a Narcissistic Personality Disorder, to the extent that even if she were to redact all identifying references to him in her statement, he would be likely to infer or indeed presume that the statement was about him. She places reliance also on the close resemblance between the manner in which the respondent enters a party to the methodology he would be likely to employ if he were, say, to be instead walking onto a yacht (or similar vessel).  You will also see from the colour photograph at page B9, that the respondent’s scarf is indeed, as the applicant claims, to be a shade I would describe on her behalf as apricot.

 

4. It is asserted that my client is suffering from a disorder of the mind or brain, affecting his capacity to make reasoned decisions. The Trust pray in aid my client’s self-descriptions of being “nuts” or “loopy”. Far from it, your Honour, you have heard that he is in fact an aficianado of a particular sport or game, and that from time to time, this sport or game diverts his attention, preoccupies his thoughts and his level of devotion has led him to concede that he is indeed ‘loopy’ in the colloquial, rather than medical sense of the word. He is willing, if it please your Honour, to show you what he can do, if provided with the essential elements of that sport, pastime or game, to whit – a load of balls and a snooker cue.

 

5. Your Honour, much in this case has been made of my client’s particular absorption or fondness for the more generously proportioned posterior. This has been levelled against him, and to his credit, he accepts this fully and repeatedly. Rather than a grudging admission, my client – rather like the young George Washington, was remarkably candid – in relation to his admiration for generously proportioned posteriors, he cannot tell a lie. The Court has also heard evidence from my client’s brothers, and none of them deny the claim either.  It is a matter of trite law, I can find the authority if my opponent wishes or if your Honour needs me to take you to it, that Jane Fonda does NOT have an anaconda in the back of her Honda.

 

6. In relation to the respondent’s infidelity, which forms the grounds for the breakdown of the marriage, the Petitioner’s case is that he did indeed know that the respondent intended to be unfaithful, that he knew that this was with a former partner – another man, who she knew before.  The respondent has been considerably exercised in her desire to know how the petitioner learned of this plan or intent – the petitioner’s case is always that this information came to him from sources that he would prefer to keep anonymous.

 

7. Paternity in this case is disputed. Mr J has given evidence that the mother, whilst physically striking, and resembling a beauty queen, is not someone with whom he has ever been intimate. His evidence was crystal clear on this point – this woman was not someone with whom he had a relationship. He knew her, they danced in a nightclub, that was as far as it went. You heard also from his mother, who had given him very careful advice about how to conduct himself and you may well be satisfied that Mr J had taken this advice to heart. So far as the mother’s claim is concerned, this child is not his son.