Friday, February 14, 2020

Sound judgement; sound judgment

The last time I was in court, it was for a case where the barrister had declared he could see no way in which we could lose our case. Counsel for the claimants started off, and made the case we knew that he would make, with very limited "I see"s from the judge. Our barrister stood up in return to make the case for the Respondents, and before he had said half a dozen words the judge interrupted him:

"When exactly," he said, "would you say that this particular obligation attached?"

Without going into any of the fascinating details, it was a killer of a question. Literally: the moment he asked it, I knew that we were completely sunk (as, indeed, the vessel in question almost had been). Most judges have a habit of making it very clear which way their thoughts are going very early. It's a habit that is even more pronounced in their judgments. 

There was once a case about whether some poor chap had been missold a skiing holiday (the "house party" advertised consisted of himself and nobody else, and the skis available for hire were half size). Lord Denning started his judgment like this:
Mr. Jarvis is a solicitor, employed by a local authority at Barking. In 1969 he was minded to go for Christmas to Switzerland. He was looking forward to a ski-ing holiday. It is his one fortnights holiday in the year.
In another case, newcomers to a village complained about the nuisance of cricket balls from the village green landing in their garden. Denning (once again) began like this:
In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short . . [y]et now after these 70 years a judge of the High Court has ordered that they must not play there anymore . . [h]e has done it at the instance of a newcomer who is no lover of cricket.
Denning was in the minority on that one, but even so it's pretty obvious from the opening words of each judgment exactly which way the ruling is going to go.

So it is with the recent Case of the "Transphobic" Policeman (which is a Sherlock Holmes story manque if ever I heard one). The facts were that a retired copper retweeted a fairly disobliging poem about transwomen, and various other tweets on the same subject that someone found objectionable. They contacted the police, who promptly turned up at Harry Miller's workplace to tell him that they were recording the incident as a "non-crime hate incident". He then sued the police on the basis that they had no right to do any such thing on the basis of what he had tweeted.

The full (alarming) facts of the case are well set out in the judgment, but if you want to know the outcome, you only need to read the first paragraph:
In his unpublished introduction to Animal Farm (1945) George Orwell wrote:
“If liberty means anything at all, it means the right to tell people what they do not want to hear.”
In a case about online freedom of speech, you know how the rest is going to go from the first line...

2 Comments:

Blogger Staffordshire man said...

Good to see a Denning quote, even better to hear one.

1:23 pm  
Blogger Tim J said...

I always hear them in a John Arlott voice...

11:59 am  

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