Date: March 27th 2008

JAZZ RULES: R V FRANCIS

Our member Jimmy Avasia was delighted by R v Francis [2007] 1 WLR 1021.

Carlene Francis, the defendant, was alleged to have made a racially obscene remark to a police officer who came into the police cell where Francis was detained. Francis was charged with causing racially aggravated alarm or distress under Section 4A of the Public Order Act, 1986. She was brought before the Crown Court at Leicester.

Section 4A says it is an offence if, with intent to cause a person harassment, alarm or distress, a person threatens, abuses or insults another by words, behaviour or any visible representation. The section also says that the offence may be in a public or private place, except if done inside a ‘dwelling’ and the victim of the offence is also in that, or any other, ‘dwelling’.

Section 8 defines a ‘dwelling’ as any structure (or part thereof) occupied as a home or as other living accommodation and includes a tent, caravan, vehicle, vessel or other temporary or movable structure.

Mr James House, solicitor, appeared for the Defendant. His defence was that there could be no offence because the police cell was “other living accommodation” and hence covered by the exception.

Mr House succeeded in the trial court on this defence.

The judgement of the Court of Appeal was delivered by Moses, LJ with his tongue quite firmly in his cheek.

8. Mr House, with admirable persistence, submits that a police cell is other living accommodation. There are features, so he contends, of a person’s accommodation in such a cell which are similar or analogous to that which might be expected in a place where a person lives or which he occupies as a home, for example, eating, sleeping and completing ablutions. It matters not that the person there is under compulsion or only there temporarily.

Moses, LJ then goes on to consider whether a police cell is, in fact, other living accommodation.

10. A police cell is a place where a person is detained in custody, not a place which a person occupies as a living accommodation.

Why and how did the trial court err? According to the Appeal Court:

11. This case probably went wrong because the judge, in giving his conclusion that the defence were right, did not set out his reasons. Had he done so, he might have appreciated there were no reasonable grounds for his conclusion.

No stricture could be more elegantly or gently worded.

And, finally, saving the best for last:

13. We respect the achievement of counsel for the defence, Mr House, in convincing the judge that a police cell was a home, but sometimes early forensic success meets its nemesis in this court. When a bright idea strikes counsel as a moment of epiphany it is useful for the advocate to recall the advice of that illustrious member of the Modern Jazz Quartet. Miles Davis advised, “Think of a note. Don’t play it.” The appeal is allowed.

A footnote (again thanks to the redoubtable Avasia). The Appeal Court erred too. Miles Davis was never a member of the Modern Jazz Quartet. Is that an error apparent on the face of (forgive me for this) the record?

IN THEIR OWN WORDS: US SUP CT JUSTICES TALK INTO THE CAMERA

David Foster Wallace says he is a genius. Now Bryan Garner, editor of Black’s Law Dictionary since its seventh edition and the acknowledged eminence grise of legalese, boldly goes where no one has gone before: he interviews the US Supreme Court justices on video.

Unedited and available for free viewing at Garner’s website, LawProse, the videos make rivetting viewing. Eight of the nine justices are caught on camera. Only Justice David Souter declined the interview.

This collection might well have been titled LawTV Unplugged. It is remarkable not only because it has never been done before, anywhere, but also for the scorching candour with which the judges, usually the most reticent and wary members of society, speak their minds. Imagine the navarasas of Indian natyashastra transplanted into the US Supreme Court. Anger, despair, joy, passion, terror—they’re all there, and they’re all related to words in law.

Given how much they write, and how turgid their writing usually is, one might expect every one of them to have been comfortable with language and writing from very early on. For some of them this is indeed the case: Ruth Bader Ginsburg’s teacher (at Cornell University) was none other than the legendary Vladimir Nabokov. Along with Anthony Burgess, Nabokov was the kind of writer lexicographers probably read to see what’s new with the English language. (Sadly, that position is now occupied by the idiotic patois of cellphones). Words couldn’t possibly have held any terror for Ginsburg. But Samuel Alito says that writing, in his early school years, was traumatic. And Clarence Thomas claims not to have been comfortable with modern English till he was in his twenties; till then he used nothing but a local dialect.

The judges’ statements are often bewildering. Some hate lengthy briefs (Roberts, Breyer); some dislike summaries (Scalia), while others think they are invaluable (Thomas, who likens them to previews of TV shows). What is an appellate lawyer supposed to make of this jumble of idiosyncrasies? Put in a summary to please Thomas and risk upsetting Scalia?

Scalia hates trite phrases, like “a precedent and its progeny”. He particularly abhors typographical errors. Scalia points out that typos murder credibility. If a draughtsman can’t proof his written material, how careful is he likely to be on the law? Contrast this with our own approach: we are completely indifferent to even the most egregious typographical errors, including in judgements.

The likes and dislikes can seem like pettifogging at times. John Roberts, Chief Justice, is allergic to citations of websites and URLs. He thinks “all those letters strung together” are “obscene”. This is rank silliness, for there’s simply no alternative. Note, though, that Roberts does not object to the web citations themselves, only the manner of citation.

Garner himself must have been delighted by another of Roberts’s pet foibles, his dislike of the word “which”. He thinks it should almost never be used, as it is archaic. Which, incidentally, it is not.

Anthony Kennedy weighs in with a broadside against linguistic abuse. He’s not wrong. “Existential”, for instance, is a word now thoroughly disfigured by the Bush administration, which (that word again!) treats it as a synonym for “a struggle for survival”. Islamic fundamentalism, Dick Cheney says, is an existential problem. In 2005, a US Senator said bioterrorism was the biggest existential problem. Blair has done it, too. In a brilliant essay in the New York Times and the International Herald Tribune, William Safire dismembered these linguistic terrorists. In the Garner tapes, Kennedy says these new-fangled words (everything ”-ize”, for example, “inventivize”) are like flashy neckties—very, very declassé.

The videos have been online since January, and are part of a work in progress as Garner continues to interview judges, lawyers and writers in his one-man crusade for greater clarity in legal writing. Garner and Scalia have co-authored a forthcoming book titled “Making Your Case: The Art of Persuading Judges.” This should be interesting, if a little naïve, particularly if one has to deal with Scalia.

Whether these interviews actually do have a collective cohesion (leave aside a unified institutional wisdom) is hard to say. What does seem to come through is the judges’ thinly-concealed impatience for anyone’s word but their own, and a savage intolerance for even the most venial linguistic or grammatical peccadillo.

In one of the segments, Garner asks Kennedy to identify a good writing style for lawyers. Playing to the gallery, Kennedy says,

“Lucid. Cogent. Succinct. Interesting. Informative. Convincing.”

This is no formula for anything. What is lucid to one judge is obtuse to another. An argument that one finds cogent another might call diffuse. And interesting, surely, is a very, very personal preference.

Ironically, these six elements that Kennedy says are the hallmark of a good writing style don’t always figure in the Court’s own opinions.

Especially convincing.

Especially recently.

Reports by Gautam Patel (so that our HonSec not be deemed to bear responsibility for anything in this email)

Rahul Chitnis
Honorary Secretary
Bombay Bar Association
Room No 57, 3rd Floor
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Email: honsec [@] bombaybar.com