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The Origins of the Skeleton Argument and Marcus Aurelius

There was a time – probably about when I started in the law! – when advocacy in court was almost exclusively oral.  The other side often didn’t know the thrust of your argument until they heard it and cases turned often on the force and expression of argument and indeed pure oratory.  Then, largely with the Woolf Reforms and the Civil Procedure Rules in 1998, came the skeleton argument.  This is a document setting out the salient points of legal argument which has to be filed and exchanged with the other side before a trial or a lengthier hearing.  The advantage for justice of course is that no one (including the judge) is taken by surprise and also no one will win by oratorical flourish alone, although some say on the down side that some intellectual spark has been lost as a result to the law and specifically that the opportunity to turn a case around on the day on the evidence has been impaired.

In fact my researches are that the skeleton argument has a much longer history than I originally thought.  Unconnected with my legal career (I thought!) I recently did a talk for Suffolk Inter-faith (aka SIFRE) on Marcus Aurelius (121 -180 AD).  Marcus Aurelius is best known as a Roman Emperor and philosopher but he was also a lawyer and judge.  On one occasion he was about to judge a dispute over the Shrines and privileges claimed by the city of Smyrna (located now in the region of Izmir in modern Turkey).  Shrines and the rights attached to them were very valuable in Roman times.  The lawyer who was to argue the case, called Polemon, was renowned for his skill and so there was no doubt that the case would be pleaded well before Marcus.  Marcus was confident that he would hear all the arguments properly put and tested and therefore he would make the right decision.  However on his journey to the trial, unfortunately Polemon died.  When inferior advocates turned up to the trial, Marcus turned to them and said: ‘Was not Polemon appointed your advocate in this contest?’ The answer came back yes.  ‘Perhaps then’, said Marcus, ‘he had composed some speech on behalf of your rights, as is likely, as he was about to contend before me some important issues’.  Marcus adjourned the case for Polmeon’s speech (i.e. skeleton argument) to be found and brought before him.  He then judged the case and found in favour of Smyrna. 

The people of Smyrna later claimed that Polemon had come to life for their sake.  And in the case of Polemon – excuse the poor joke – the argument could be said to be skeleton in more ways than one!

Below is a photograph of my painting of Marcus Aurelius which I presented at my talk for SIFRE as well.

Assange to Exit Inside Diplomatic Bag?

Julian Assange has just been granted political asylum by Ecuador. The British Government says it has a legal duty to extradite him to Sweden to face trial there and that to carry out this duty it will if necessary arrest him in what is currently the Ecuadorian Embassy building. Ecuador says it supports Assange’s case that there is a further agenda to send him from Sweden to USA to face interrogation and possible charges over Wiki leaks.

The Guardian today has suggested 4 ways that he can get out of the country and rightly sees legal and practical problems with all of them. They range from Ecuador giving him diplomatic status (which could be challenged as it would not be regarded as genuine) to smuggling him in a diplomatic bag (which has been done before by a Nigerian apparently, but was wrongly labelled so he was caught – anyway, scanners would pick up a body at the airport and so the game would be up there).

A political minefield of course, but what is the legal position? Can the British Government make an arrest on embassy premises here?

There has been much talk about the Diplomatic and Consular Premises Act 1987.

This Act came about as a consequence of the shooting of WPC Yvonne Fletcher from the Libyan Embassy. It provides in section 1 that the Secretary of State can withdraw consent for premises to be used as an embassy (and therefore the police could enter under their normal powers) but only where it is permissible under international law and taking into account all considerations. The considerations listed would not themselves seem to be applicable in the Assange case as the safety of the public is not currently at risk nor is national security (remember the Act was a response to very different and tragic circumstances). However these considerations are expressly stated to be non-exhaustive, so in theory the Act could be used but would such use not set a dangerous precedent, namely that other embassies, including British ones, could also be ‘defrocked’ in the same way throughout the world, causing possible major diplomatic tensions?

It was wittily stated on Radio 2 this morning that Assange might eventually leave himself as he will get fed up with takeaways. Otherwise, the police will probably just sit and wait it out.

This picture of Julian Assange is by Valeriy Osipov

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You are in contempt!!

You are in contempt!!

 

We often hear about judges jailing people for being ‘in contempt of court’. But what does it mean? 

A finding of contempt declares that someone has either disobeyed a court order or been otherwise disrespectful of the authority of a court.  The sanction is a fine by the court or in more flagrant disobedience, imprisonment.

Disobedience of a court order is the more clear cut of the two types.  Contempt in that sense comes about often in the context of injunctions, for instance domestic violence injunctions, which are ignored,  often with very serious consequences. In the context of serious domestic violence, injunctions have powers of automatic arrest by the police for breach,  attached to them when first made. Otherwise, an application has to be made for a ‘penal notice’ first and the order has to be served again, which makes enforcement more cumbersome but ultimately has the same effect.  

Injunctions can cover many other things. A few years back a woman, otherwise law –abiding, was jailed for failing to obey a final court order to cut her hedge. The whole basis of contempt is that justice will fall into disarray and will be worthless  if court orders are not followed and courts respected,  so it makes no difference how big or small a thing the contemptuous party was ordered to do.

 It is also contempt not to attend court after service of a witness order to do so.

In the wider sense of disrespect to a judge,  this can take many forms. In my criminal law days, I had a case when a young tearaway was finally imprisoned and his father uttered a threat to ‘get’  the presiding magistrate. That was clear contempt.  Many examples involve disruption of court process in various ways, ranging from such threats to speaking ‘out of turn’ or even yawning (although in such milder cases it is likely the judge will give a strong and probably repeated warning before finding the perpetrator in contempt) .  Others involve the press. It is a contempt of court to publish material which will prejudice a fair trial. This kind of contempt is defined by statute.

Contempt can even enter the political arena.  The ex-Northern Ireland Minister, Peter Hain, is currently facing a prosecution by the NI Attorney- General for writing in his autobiography that Lord Justice Girvan was ‘off his rocker’ in connection with his questioning of decisions by civil servants in an old case when he was minister.  Such a prosecution many think goes too far.  It is a opinion expressed in an historical memoir: even if no doubt it helps to sell the book too, so too will the prosecution.  This prosecution is actually for ‘scandalising’ the judge.  Another case of that was in 1900 when the editor of the Birmingham Angus was convicted of describing Justice Darling as ‘an impudent little man in horsehair’. Ouch.

YyO

Legal Tip for Parents whose Kids are at Uni

Most students at university share houses at some point. More often than not landlords want the rent and other covenants in the tenancy agreement guaranteed by parents. I was asked to sign a guarantee recently for my son’s accommodation. I was wary, partly because I had a case a few years back where a parent client was held to a guarantee to the tune of several thousand pounds when one of the other student sharers, not their son, had not paid then rent and worse still, that student sharer’s parent didn’t honour the guarantee either. It is one thing being held to account for your own son’s default, quite another to be held to account for a stranger’s. But that is exactly the form of guarantee I was myself being asked to sign for my own son’s new accommodation. So I decided to politely refuse unless the agent amended the guarantee to cover only my son’s portion of the rent, suggesting that the landlord could do likewise with the other 3 parents and would still have 100% of rent guaranteed. Lo and behold the agent straight away came up with another standard form of guarantee just in the form I requested. So maybe the landlord had been chancing his arm all along. Anyway, the story shows it pays to hold out sometimes when it comes to any ‘standard’ legal documents which are presented to you. You don’t have to be a lawyer to do that, although you may want to take legal advice.

Judgements on an Empty Stomach

Fortunately I have won a lot more cases than I have lost over the years - otherwise maybe it would be worth thinking of another career - but on the occasions I have lost, clients have sometimes suggested to me that maybe the judge had 'got out of the wrong side of the bed today' or 'not had a good breakfast'. It would have been too flippant for me to accept these as valid reasons rather than any weakness in my argument or its presentation, but some recent research quoted in The Times recently, suggests that these clients may have had a point.

Two researchers in Israel looked at more than 1,000 decisions by 8 judges over a 10 month period. The judges worked for 3 sessions a day, with a morning snack break (more than UK judges get methinks) and a lunch break. The researchers found that at the beginning of each session, a Defendant had a 65% chance of avoiding imprisonment, declining to almost zero before the end of the session and then raising again to 65% at the start of the next session. As the brilliant QC David Pannick says in his Times column, this is 'food for thought'!