Notes on legal and language questions arising from the ERA / Loquitur Legal English Online Course (021L02), 22 to 26 March 2021

My thanks go to Jaroslav Opravil and Oliver Steuernagel at ERA for their excellent work and of course to the participants, whose lively contribution was much appreciated, and whose questions I address in the following notes.

Please feel free to contact me if you have any follow-up questions or queries.

  1. What is the role of the Supreme Court in the UK?

 The Supreme Court is the highest court in the UK. The judges, known as justices, rule on the most important civil and criminal cases in the country. They are the ultimate check and balance on the UK’s laws and constitution.

However, the UK has a doctrine of parliamentary sovereignty, which means the Supreme Court (formerly the House of Lords) is much more limited in its powers of judicial review than the constitutional or supreme courts of other countries. It cannot overturn any primary legislation passed by Parliament.

Perhaps the Supreme Court’s most important judgment came in 2019 at a time when the issue of Brexit was still being hotly debated.

The Court was asked to decide whether Prime Minister Boris Johnson’s decision to prorogue (suspend) Parliament for five weeks was lawful. Johnson’s critics said that he was employing prorogation to prevent MPs from discussing Brexit.

The Court ruled unanimously that the decision to prorogue was both justiciable (i.e., appropriate for court review) and unlawful, and therefore null and of no effect. It ran counter to the principles of parliamentary sovereignty and democratic accountability. The court stated that prorogation ‘has the effect of frustrating or preventing, without reasonable justification, the ability of parliament to carry out its constitutional functions as a legislature’.

Supreme Court Justices

Supreme Court Justices

  1. Is false imprisonment a crime?

 False imprisonment occurs when a person restricts another person’s movement within any area without legal authority, justification, or the restrained person’s consent. False imprisonment is both a tort and a crime.

False imprisonment is classified as an intentional tort. An intentional tort is a wrongful act which a person plans and carries out in full knowledge of their actions.

The common law offence requires the unlawful intentional or reckless detention of the victim. Under English law, the police have the right to arrest under conditions set out in the Police and Criminal Evidence Act, which states that an arrest must be supported by reasonable suspicion.

In the UK, a case was brought to the High Court concerning the alleged unlawful detention of hundreds of members of the public during the May Day riots of 2001 in London. The police, using the tactic of ‘kettling’, held a large crowd in Oxford Circus for several hours, allowing nobody to leave, including peaceful passers-by with no connection to the demonstrations. The action and a subsequent appeal failed, the House of Lords declaring that the ‘purpose’ of the deprivation of liberty must be taken into account.

In the UK, a false or unlawful imprisonment by the police can trigger a writ of habeas corpus. Habeas corpus is a summons with the force of a court order requiring that a prisoner be brought before the court so that a determination as to whether the confinement is lawful can be made. If the detainee is being held without authority, the prisoner must be released.

Related to false imprisonment is the common law offence of kidnapping, described by Lord Brandon in the following terms:

‘First, the nature of the offence is an attack on, and infringement of, the personal liberty of an individual. Secondly, the offence contains four ingredients as follows: (1) the taking or carrying away of one person by another; (2) by force or fraud; (3) without the consent of the person so carried or taken away; and (4) without lawful excuse.’

Police ‘kettling’ a crowd in London

  1. How does jury selection work?

The UK

People are selected at random from the electoral register and summoned to serve as jurors. Failure to turn up can result in a £1000 fine.

The parties to a jury trial have a right to look at the list of jurors and decide whether to challenge any of them. Challenges can be to the array or for cause.

To the array means that a jury can be challenged on the basis that it has been chosen in a biased or unrepresentative way.

For cause challenges an individual juror’s right to sit on the jury. One reason might be if a witness or a party to the proceedings is known or related to the juror. Such jurors should be removed because in these situations, a conviction might be quashed because of a miscarriage of justice.

The USA.

As in the UK, jurors are selected randomly from the electoral register. Being summoned for jury duty does not guarantee that a person will actually go on to serve on a jury. When a jury is needed for a trial, the group of qualified jurors is taken to a courtroom where the trial is due to take place.

The judge and the attorneys then put questions to the potential jurors to determine their suitability to serve on the jury. This process is known as voir dire, and its purpose is to exclude from the jury and people who may not be able to decide the case fairly. Typically, potential jurors who know or are related to any of the parties involved, or who have information about the case, or strong prejudices about any of the people or issues involved in the case will be excused by the judge.

The attorneys may also exclude a certain number of jurors without giving a reason.

  1. What does ‘gross’ mean in a legal context? 

Black’s describes gross as meaning ‘Out of all measure; beyond allowance; flagrant; shameful; as a gross dereliction of duty, a gross injustice, gross carelessness or negligence… Such conduct as is not to be excused’.

About gross negligence Black’s states that it consists of a ‘conscious or voluntary act or omission which is likely to result in grave injury when in face of clear and present danger of which [the] alleged tortfeasor [wrongdoer] is aware’.

Compare this to the following definition of negligence:

‘Carelessness: failure to do something that a reasonable [person] (i.e., an average responsible citizen) would do, or doing something that a reasonable [person] would not do.’[1]

  1. Subpoena, Summon and Summons

My Black’s[2] tells us that a subpoena is a

‘… command to appear at a certain time and place to give testimony upon a certain matter. A subpoena duces tecum requires production of books, papers and other things.’

The purge of Latin in Lord Woolf’s reforms in 1999 means that subpoena has now been replaced by summons, in the UK at least.

Summons is a singular noun ending in -s. These are rare in English. Here are some others:

  1. The news is bad.
  2. Billiards is my favourite game.
  3. The United States is the most powerful country in the world.
  4. Measles is a dangerous disease in adults.
  5. Linguistics is a fascinating subject.
  6. There is no good means to achieve this goal.

The Oxford English Dictionary (OED) tells us that both summon and summons can be used as verbs. So

‘She was summonsed to appear’, and ‘she was summoned to appear’ are both good.

The OED also tells us that summonsable is possible, i.e., ‘liable to a summons’. Spell checker doesn’t like it and neither do I.

  1. What is the difference between ‘interpret’ and ‘construe’?

The OED tells us that interpret means:

  1. ‘Explain the meaning of something (something mysterious or abstruse, foreign words, a dream, etc.). Formerly also, translate.’

We talk about the interpretation, not the construction, of dreams. And construction never means translation.

  1. ‘Give the meaning or explanation of something.’

Here, I think interpret and construe have a very similar meaning. Hence, statutory interpretation and the construction of a contract.

  1. ‘Bring out or represent stylistically the meaning of a creative work etc.’ E.g., Ms Fleming’s interpretation of Violetta in La Traviata had audiences on their feet.’

Construe can’t be used in this sense.

  1. What is the difference between where and if when used to talk about hypothetical circumstances?

I couldn’t find anything online or in my Practical English Usage[3] on the difference between where and if for hypothetical situations, but common sense tells us that where is much more limited in its scope than if and means ‘in the situation or circumstances in which’.

Where can often be used like if when the sentence is of the ‘first conditional’ type which adduces the real possibility of something happening. So, for example;

Employers can be sued under the Sex Discrimination Act where / if an employee has been dismissed on the basis of gender.

Where is used to talk about situations generally. Thus

‘Where people are found to have broken lockdown restrictions, the police will come down heavily on them’

is OK but

‘Where John Smith is found to have broken lockdown restrictions, the police will come down heavily on him’

sounds strange.

Further, where cannot be used to talk about impossible situations. In such cases, if must be used:

We would be in a pretty good financial situation where if Covid hadn’t happened.

Where If Donald Trump had had an ounce of decency, he would have apologised for the attack on the Capitol.

 

Stephen Dillon Weston, London, 1 April 2021

loquituruk@btinternet.com

[1] Elizabeth A. Martin (Ed.), A Concise Dictionary of Law (OUP 1992).

[2] Henry Campbell Black, Black’s Law Dictionary (West Publishing Co. 1990)

[3] Michael Swan, Practical English Usage (OUP 2005).

 

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