Life at the top
Wednesday, February 8, 2012
Justinian in Abel Magwitch, Dinah Rose QC, Gummow J, High Court, Julian Assange, UK Supreme Court

Judicial style ... The genteel, pukkah approach of the UK Supreme Court or the Assyrian assaults of the High Court ... At least in Australia you get a sense of where to pitch an argument ... Please welcome Abel Magwitch to Justinian's expanding fold of analysts and commentators 

Supreme Court justices: lounge suits (and frocks) underneathIt was a revelation to watch the beginning of the Assange hearing in the UK Supreme Court courtesy of the court's "streaming service".

As an old lag with both UK and Australian experience I was at once struck by the differences in the style adopted by the High Court and the UK Supremes. 

The latter is very genteel indeed. The "Lords" all sit in lounge suits (or a party frock for Lady Hale) in a sort of horse-shoe.  

They are not really Lords since the most recent recruits have lost the right to an immediate barony, but they all now get some sort of courtesy title - a bit like their Scottish counterparts in the Outer House who rejoice in titles like "Lord" Maxwell, or "Lord" Braxfield. 

The appellant has been astute to have a lot of women on his team, given the genderist nature of the accusations against him levelled by the Swedish State and Dinah Rose QC had carte blanche, so it seemed.

She was heard without any interruption at all for about 10 minutes, meandering along and reading from a prepared booklet, which she had on the lectern in front of her.

Dinah Rose QC: carte blancheThe very first departure from this occurred when Rose raised the problem of conforming documents in hard copy with those in electronic form. She suggested cheekily that something should be done about it by their Lordships. 

What a contrast with Australia's Supreme Tribunal.

It is usually all that an advocate can do to get out his name, rank, and serial number before the Assyrians sweep down like the wolf on the fold.

Any cursory examination of a High Court transcript, which must be read daily by aficionados, reveals that the first intemperate questioning will most likely come from Gummow J within thirty seconds of taking the crease. 

Forget about reading from your "skeleton"argument. Our court has no interest in that at all. It has already read it, and wants immediately to deal with some difficult preliminary matter. 

 

During the Assange hearing the persuasive Portia was even suffered to read large tranches from various travaux preparatoires – all designed to show how dangerous the European connection has become to a solid but accused Australian who has sought sanctuary in the mother country.

It would seem that any low level Lithuanian or Estonian plod can designate himself as a "judicial authority" pursuant to the "European arrest warrant" and have you quickly hauled out of bed in Tottenham to answer some allegation in Tallinn. 

In our own tribunal someone (frequently Gummow) will say: "Don't bother wasting our time with that - we can read it for ourselves." 

Don't waste our time

Admittedly things have changed from the very old Barwickian days when argument would be torn limb from limb al fresco without an opportunity for the advocate to get much in by way of retort.

The older NSW Court of Appeal had the same "take no prisoners" approach.

Barwick was a force of nature and immensely quick to pick up any point.

There is the famous anecdote about him walking with a gaggle of juniors and solicitors up from his chambers to the old Banco Court.

A passerby called out to him: "Hey, Jack, which way to Prouds?"

Gar replied: "How did you know my name was Jack?"

His interlocutor said: "I just guessed it."

To which the famous advocate responded: "Well guess your f#@*ing way to Prouds."

Things are much more genteel nowadays, but still far from the comatose style and the pukkah sahib delivery that bedevils the UK court. 

It was like watching paint dry. And from the advocate's perspective it conceals a danger, since it is only by questions from the bench that counsel can best deduce how to pitch an argument, and rebut an unfounded judicial assumption.

Lord Bacon tells us that a "much talking judge is no well-tuned cymbal". It is better to have jurist who tell you their thoughts, rather than someone who sits like the Sphinx and then does you down in 40 cold paragraphs.

Will Assange succeed? It is hard to say - the whole of the European justice system is uniformly shambolic, with no juries and a juge d'instruction roaming the countryside preparing a dossier.

You may recall the recent release of a young US woman in Italy on a confected charge of murder, when another perpetrator had already confessed and was behind bars.

In Sweden, Italy, Estonia and Germany you join the judiciary as a young man or woman of 26 or 27 and sit in a "bench" of three.

You slowly work your way up reinterpreting law that has its origins in something the Emperor Justinian (our namesake) laid down in the fourth century of Our Lord.

I once asked some German students what their career aspirations were. One replied:

"Well, the A-grade students join the civil service and become judges, and the C grade students employ the B grade students."

If you have seen the Girl with the Dragon Tattoo you will not have been favourably impressed with the quality of the Swedish judicial system.

Many years ago in a Privy Council case from Australia counsel referred to the old legal maxim "causa proxima non remota spectatur" (look to the closer, not the further cause!).

When the maxim had been quoted in the High Court judgment "fons" was used in place of "causa" by the court and it had been given the wrong (feminine) gender, which provoked the tremendous Bertie Wooster comment from the presiding Law Lord:

"How is it that fons has changed its gender to the feminine on its journey to the Antipodes?"

To which Stanley Buckmaster replied:

"In the same way as the common law has lost its meaning".

The case is Webb v Syme [1910] HCA 32 and the judge, surprisingly, was Griffith CJ, who said, "I think that, adapting the rule causa proxima non remota spectatur, we should say fons proxima non remota spectatur". 

I am banished and barred from returning to my home land, and must live forever as a ticket of leave man among you all, but I regularly despair of what is happening to that great work of civilization which used to be the English legal system.

Abel Magwitch

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
See website for complete article licensing information.