Lord Denning, one of this country’s most celebrated Judges, once started a Judgement with the words ‘Old Peter Beswick was a coal merchant in Eccles, Lancashire. He had no business premises. All he had was a lorry, scales, and weights.’ Lawyers the world over have always celebrated words and language. Syntax, grammar, idioms and metaphors are the tools of their trade. Lord Denning, a master of his craft, subscribed to the view that a submission was totally ineffective unless it could be easily understood. As a young solicitor I once heard one of my contemporaries (now a judge) describe a lying prosecution witness as a ‘prevaricator and circumlocutor’. Lord Denning, no doubt, would have turned in his grave!
How something is understood, as a matter of law, can sometimes, critically, depend on punctuation. At Sir Roger Casement’s highly publicised trial for treason, sabotage and espionage in 1916, the prosecution faced difficulty in putting its case. All of the wrong-doings (Casement admitted to them) had been carried out on foreign soil, but the medieval Treason Act seemed to apply only to activities carried out on English (or, arguably, British) soil. However, a certain interpretation of the Anglo-French text used in the Act allowed for a much broader interpretation: the court decided that a comma should be ‘read in’ so that ‘in the realm or elsewhere’ now also referred to where acts were done and not just to where the ‘King’s enemies’ may be. For Casement this was quite literally the difference between life and death.
Juries are often treated to euphemisms so that the full majesty of the law is not sullied by the urbane vernacular. They know exactly what is meant by the phrase ‘intellectual dishonesty.’ If a Supreme Court Judge refers to an argument as facing ‘formidable difficulties’ this is, more often than not, the judicial equivalent of the kiss of death!
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