(Not drowning, but waving – with a wry smile at the incongruity of this …)
27/8/2021
Category Archives: Uncategorized
A fragment on special pleading
Excited at this new archival discovery of doggerel (In the archive of my head, that is …). And if Bracton can include little stories about jesters and the like, and YBs and Plea Rolls can include pictures and little rhymes, I don’t see why not …
There are several Is in ‘Appallingly Bad and Selfish Instincts When Pinged to Self Isolate’
This feckless and reckless pretender,
an odious snake oil vendor
who’s certain that rules,
are for gullible fools
sells as ‘freedom’ his sordid surrender.
(Sometimes only a limerick will do … I know, it’s not exactly Extinction Rebellion …)
Gender in word and deed
Law is, as we all know, a wordy thing. Its rules, pronouncements, rulings, are bound up with the words in which they are expressed. Working across the different languages of English and Welsh legal history involves engagement with some issues which are properly in the domain of the linguist, which should encourage caution, but at times they cannot be avoided. One of these issues is that of gender. The convention of linguistic gender is widespread. Perhaps it is often not particularly important, but when one is studying medieval women, it deserves attention.
The issue comes up in different ways. One is disputes about whether a masculine word should be taken to apply to women as well as men. In the unattractive phrase found in 19th and 20th C writings, does ‘the masculine embrace the feminine’? Thus the disagreements as to whether women should have been considered to be within the protections given to a liber homo in Magna Carta, and wrangles as to whether ‘heirs’ should be understood to ‘embrace’ ‘heiresses’[i] Another way in which linguistic gender v. sex/gender in reality arises relates to the ‘feminisation’ (or not) of texts and provisions. I have been pondering this lately, in the context of pardons.There are two interesting, and contrasting, aspects of pardon formulae to mention here,[ii] one relating to sorts of offence (specifically, rape), and the other to roles within the criminal justice system (specifically, approvers).
From at least the late fourteenth century, pardons which cover more than one specified offence commonly exclude from their ambit treason, homicide and the rape of women. These offences are, one presumes, held up as too serious to be pardoned as a ‘job lot’ with any other transgressions an offender might have committed in a particular period. I have noted that ‘rape of women’ might still be included when the person receiving a partdon was a woman. This seems interesting because felonious rape was, at this point, and until very recent times, a ‘male on female’ offence. Women might be accessories, to felonious rape, or to ‘ravishment’, but not principals. Had the formula been devised with female offences in mind, it is hard to believe that it would have included this particular exclusion. I find it interesting, and telling in terms of the relationship between women and the law, that the formula was adopted, unchanged in this respect, when the ‘pardonee’ was a woman.
One gender-adjustment is made in these same pardons, again from at least the later fourteenth century. In the original, ‘male’ version of the wording, mention is made of the possibility of the potential ‘pardonee’ acting as an approver – one who confesses an offence, but hopes to avoid execution by inculpating others, appealing them and obtaining a conviction.[iii] When the ‘pardonee’ is female, this word is feminised – so ‘probator’ becomes ‘probatrix’.[iv] Fair enough, according to the linguistic/legal rules of the day, one might think, since ‘misgendering’ might cause an indictment to be held insufficient. The odd thing is, though, that acting as an approver was a ‘men only’ thing. All the evidence suggests that, because approvers had to be able to engage in trials by battle, and because women were not thought capable of fighting such judicial duels, they were never approvers of this sort. Thus, the feminised word had no attachment to the reality of legal process. It is unanswerable, of course, but I do wonder what was going on in the minds of the clerks drawing up these pardons. Was it an automatic translation (the medieval in-language equivalent of Google translate?)? Is it evidence of a rather radical (even performative?) disinterest in women and the ways in which the law positioned them as different and unequal? And does this have anything to say to existing scholarship on gender roles in the pardoning process (queens interceding, mercy as a bit on the effeminate side etc. etc.)? Gendered food for gendered thought.
GS
15/6/2021
[i] I have a bit of a go at these in c.1 of Women in the Medieval Common Law.
[ii] On later medieval pardons, see especially Helen Lacey, The Royal Pardon: Access to Mercy in Fourteenth-Century England. (Woodbridge, Rochester NY: Boydell & Brewer, 2009).
[iii] For a masculine version, see, e.g., this one.
Picture – well, if you have to ask…, it’s a quite brilliant reference to Lynn Anderson’s Country and Western classic ‘(I beg Your pardon, I never promised you a) Rose Garden)’ – one of the great rhymes in popular song….
Photo by Max Berger on Unsplash
The grim tale of a Lincolnshire tailor: sin and crime in a medieval gaol delivery roll
Well, this one’s very nasty (be warned – violence, and abusive sexual behaviour), but also interesting from a legal history point of view, so worthy of a quick note.
It’s in the gaol delivery roll for a session at Lincoln castle on 1st August, 1392, which contains a series of allegations against Robert de Spalding, tailor, living in Horbling.[i] Sadly, the roll has a big chunk missing from the right hand side, but there is still enough to reconstruct the charges.
In July 1391, Robert had been arrested for homicide, in relation to a newborn (and unbaptised) child, in a house in Horbling. That in itself is pretty horrible, but there was more. The entry notes that Robert had two (apparently living) wives, the first somewhere in Holland (Lincs, not Netherlands) and the second at Folkingham (also Lincs), but even so, on a Sunday in November 1390, he had taken his biological daughter Agnes, shut all of the windows and doors and raped her [the entry on the roll mentions force and the fact that this was conttrary to Agnes’s will]. It goes on to say that he continued in this sin [it’s definitely singular] with the result that Agnes became pregnant. When the time came for the baby to be born, on Wednesday 28th June, 1391, in a house at Horbling, Robert shut all the windows and doors again, and drew his knife on the prostrate Agnes, swearing by the body of Christ that if she made any noise, he would kill her (so that nobody would learn of his misconduct). In this way, Agnes gave birth to the ‘creature’ which on that day, Robert killed and buried at the same house.
Robert was found ‘guilty of the felonies’ with which he was charged, and was hanged.
Points of interest
It often seems to me that the most surprising and interesting material comes out of situations like this, when we are dealing with a bit of ‘freestyling’ on the part of those who drew up the accusations. There is a fair bit here which goes beyond what was legally necessary – if we strip it all down, all that was needed for a capital trial in this case was the allegation that Robert had killed the baby, or a charge that he had raped Agnes (though, if you’ve spent any time with medieval records, you’ll know that that does not tend to end with a conviction). The rest of it – the two wives, the incest, the swearing and the threats – was not really needed. For some reason, though, those drawing up the indictment, and the clerk recording the session, decided to give us the whole story, granting us unusual access to the thoughts of medieval laymen. We see disapproval of bigamy and incest – and despite the fact that there seems to have been continuing sexual activity, only Robert, and not Agnes, is blamed for it (I don’t think that would have been the case in non-incest situations, and it is rather at odds with other statements in common law sources in which pregnancy was said to be impossible without the woman’s consent/pleasure).
Although the bigamy and incest were not strictly the felonies which ended up ending Robert, it is interesting that they were brought up. Each year, rather glibly perhaps, in the part of the Legal History unit dealing with sexual offences, I tell my students that bigamy and incest weren’t within the scope of the medieval common law: they were left to the church. It looks as if medieval people did not always make that neat jurisdictional distinction. Certainly something to think about.
From a human point of view, I do hope that things improved for Agnes after this – but rather fear that she would have been left in a poor position. She did not even get Robert’s property, for his chattels (1 mark) were forfeit, as was usual after a felony conviction.
GS
11/4/2021
Picture: Lincoln Castle, Lincoln © Dave Hitchborne cc-by-sa/2.0 :: Geograph Britain and Ireland
[i] JUST 3/177 m. 83 (AALT IMG 179) which you can see at AALT Page (uh.edu)
Not diverse? But we had a lady lecturer once …
Lectures | Centre for English Legal History (cam.ac.uk)
15/3/2021
See also: 2021_03_HISTORIC AND LITERARY CONVERSATION LAW_NICOLINI_M (univr.it)
I
Main mage information: Men Only © Paul O’Farrell :: Geograph Britain and Ireland
Update, 18/8/2021
Hegal Listory?
This strikes me every time I open one of these Oxford History of the Laws of England volumes …. interesting use of surnames only … All very eminent. All (I believe – correct me if I am wrong) male. Even if several of these are only projected volumes, and – who knows – may end up picking up a collaborator or substitute, the fact that the series appears to have been projected as a men-only endeavour, is, in 21st century academia, astounding.
Not entirely ‘perswasive’?
Leave a reply
In between teaching and admin., at the moment, I am working on something touching on decisions relating to the presence of life and legitimacy. Today, I am pursuing bits and pieces on the legitimacy/’bastardy’ side of it, and looking at the splendidly titled Lex Spuriorum by a very early 18th C lawyer.[i] Usually, in this enquiry, I have found my mind occupied by the disturbingly condemnatory attitudes and language, and the writing-off of so many children, people, as ‘bastards’, and somehow not as good as others, despite self-evident lack of personal guilt in the ‘sinful’ nature of their conception. Today, however, I have been ‘going off on one’ in a different direction, after looking at the preface of this book.
In this preface, Brydall felt it necessary to justify himself – why was he writing the book? What ‘perswaded’ him (love that spelling!) to publish it? His specific answer to that is interesting (and a little hard not to laugh at): his alleged motives include writing ‘To let the People of this prefent Age fee, what great Difadvantages Children born out of Holy Matrimony do lie under, which might … very much deter Men and Women from ever purfuing unlawful and exorbitant Embraces, of which this Nation, as well as foreign Countries, have been deeply guilty.’ Unlawful and exorbitant Embraces should, obviously, be discouraged, but the idea that people intent on a bit of exorbitant Embracing would stop, read a treatise, find it ‘perswasive’ and think better of their plans, seems … just a little far-fetched.
Postscript – It is a measure of my current preoccupation with all things REF that my mind immediately went to ‘ooh – that’s a bold claim for the potential “impact” of a piece of writing’.
GS 22/11/2020
[i] John Brydall of Lincoln’s Inn, esq., Lex Spuriorum or the Law Relating to Bastardy (London, 1703).
Quantitative methods
And this qualifies as Legal History because …
- Some people who do LH like to count stuff (my own efforts here are a bit amateur, but some people do it very well …)
- Er … virus… bit like plague …
- It needs to be noted for future Legal Historians and other historians.
It is … shall we say interesting … to note that my dear employer, and presumably the decision is one by the senior management team, has changed the way that it is publishing information on coronavirus, now that the cumulative total of cases looks very bad, and the institution is hovering around the top 5 or 6 according to the UCU dashboard (all the others above it being in known hotspots in the NE and NW and E Midlands).
Pleased to see that somebody is trying to fight back: https://worriedacademic.wixsite.com/bristolunicoviddata
Otherwise, feeling pretty powerless, as there is so little accountability for all of this. Sometimes, all that’s left is resistance by limerick. So here’s one I found earlier (in my head):
‘Our priority is the health and safety of our staff, students and community’ [signed, from a safe distance, some very well paid people with an interest in minimising the impression that they are putting other people in harm’s way, ]
We care about students and staff,
don’t want you to worry – don’t laugh –
we promise you, that’s
why we’ve swapped scary stats
for a sweet, soothing, ‘what virus?’ graph.
GS 30/10/2020
Ruffs: there ought to have been a law against them
The stiffest and starchiest stuff,
bleached, folded, fussed over enough
to demonstrate I’m
rich in servants and time:
regard my ridiculous ruff!
Well, this was a bit of a clumsy attempt to justify including an item about ruffs in what is (at times very vaguely) a blog about legal history. Obviously, there was a long tradition in various jurisdictions of legislating about the sorts of clothing which people could wear, but not (as far as I know) specifically about what is clearly the most ridiculous item of neckwear ever – the early modern ruff.
I have been equally horrified and obsessed by the ruff since being bought a Marks and Spencers book about the Tudors, one childhood Christmas, with all of the classic, much-reproduced pictures of the celebs of the day, increasingly, over the 16th C, ruffed up. I mean, the codpieces were … disturbing (especially on young Edward VI – just so wrong) … but it was the ruffs that really stood out for me. They seemed to be a combination of extreme discomfort and extreme silliness. Also a seriously bad idea to be drawing attention to your neck in an era rather well known for its beheading. Some of them even made the ruffee look like familiar pictures of John the Baptist’s head on a plate.
I seem to keep coming across ruff-pics these days, when looking up biographies of legal history ‘great men’ or on social media feeds about various historical things, and feel the need to work out some of my repressed ruff issues. Here, then, is my chart of ruffs – no doubt to be updated as more ruff-porn comes to my attention.
- Ruff(le)
A subtle little number, sort of polo-neck-cum-ruff, from R. Dudley
https://twitter.com/HistParl/status/1301814785173061632
- Ruff puff
The ruff itself is less than spectacular – but with that puffy sleeve, chain and skull accessorising, a winner from ‘Mam Cymru’
https://twitter.com/gcseabourne/status/1241663502479171584
- Ruff and tough and strong and mean …
It’s Walter Raleigh, wearing a doily https://en.wikipedia.org/wiki/Edward_Coke#/media/File:Sir_Walter_Raleigh.jpg
- Rufformation
I am not convinced that ruffs are very godly, bishop Hooper
#/media/File:John_Hooper_by_Henry_Bryan_Hall_after_James_Warren_Childe_cropped.jpg){kind=link}
- Ruff music
Johannes Eccard is wearing a ruff, but he’s not happy about it …
https://en.wikipedia.org/wiki/Johannes_Eccard#/media/File:Johannes_Eccard_1615.jpg
- Ruff ruff ruff
In everyone’s favourite tale of domestic violence, Mr Punch’s dog, Toby, always seems to have a ruff
https://www.bbc.co.uk/news/av/uk-44988800
- Ruff and ready
Because there’s no need to be all business-like about your armour,
.jpg){kind=link}
- Outruffed
The absolute satisfaction of knowing yours is the biggest, silliest ruff out there. Also a fine example of the implications of ruffs for hair-dos.
https://twitter.com/gcseabourne/status/1241398414954369024
- Ruff justice
The the humble and charming Sir Edward Coke – ruthless misogynist, show-off and snappy dresser.
https://en.wikipedia.org/wiki/Edward_Coke#/media/File:Edward_coke.jpg
Then there’s the picture above – the ‘beard squeezer ruff’ – right up under the ears too 0 astounding.
- Elizabeth R[uff]
Was there ever any doubt – this one has it all: the spectacular ruff, the puffy sleeves, the hair … apotheosis of the ruff – ruff as neck-halo, almost.
https://en.wikipedia.org/wiki/Armada_Portrait#/media/File:Elizabeth_I_(Armada_Portrait).jpg
.jpg){kind=link}
OK, good to get that off my chest. Or neck. Or whatever.
6/9/2020
Update 9/9/2020
Bubbling under…
Not quite worthy of a place on the Completely Official Ruff Pics Top Ten, but may get there in time …
[Sc]ruffy
This picture looks as if it has had a bit of early modern photo-shopping. That hat is so 2D. But it’s the ‘ruff almost meets hat’ and ‘scraggy beard’ combo which is worthy of recognition:
https://twitter.com/WelshBiography/status/1303580143630204928
Well hello doily!
An honourable mention in the ruff-accessorising category goes to this gent – another Coke – who has cut up a doily and stuck it to his hat and cuffs, to cheer up his look. Also love the detail of shadow on his ruff from his little pointy beard. Marvellous.
https://en.wikipedia.org/wiki/John_Coke#/media/File:Johncoke.jpg
Take the ruff with the smooth
William Cecil sets off his hat/ruff/beard combo with a lot of velvet. Marks for detail in relation to the ‘hand ruff’ cuffs (why not make your wrists just as uncomfy as your neck?) and that emphatic rod (virga – definitely has subtext…)
https://twitter.com/HistParl/status/1305114197911535616/photo/1
Born #OTD 1520/1 William Cecil, 1st Baron Burghley.
A chief advisor to Elizabeth I, Burghley held many important posts in his career, incl. Secretary of State and Lord Treasurer.
Find out more about his career in the House of Commons in his #HistParl bio: https://t.co/SZykYd2vq4 pic.twitter.com/Z6T2IVsg9h— HistoryofParliament (@HistParl) September 13, 2020
Not even close …
I am afraid this chap just gets it all wrong. There really is no point in ruffing if your ruff is overshadowed by a brushed beard and natty hat. Yes I know it was early in ruff history, but still…:
Died #OTD 1549, Anthony Denny, MP for Ipswich and later Hertfordshire, and close friend of Henry VIII.
One of the most trusted members of Henry's circle, Denny even acted as witness and executor of the king's will.
Find out more about him in his bio: https://t.co/PnAoNpbBn0 pic.twitter.com/Pp4addWL7x— HistoryofParliament (@HistParl) September 10, 2020
What about this one – excellent illustration of variation of ruff angle: James VI of Scotland in the 1580s, ruffed at a very steep angle indeed – going full ‘John the Baptist’s head on a plate’: the head and body seem to be completely separate. 
And, new in on 5/11/2020 it’s this veritable neck-tutu from Henry Howard, earl of Northants, d. 1614 (from https://blogs.bl.uk/digitisedmanuscripts/2019/11/coppie-the-words-but-burne-this-paper.html:
This one – can’t quite put my finger on what it looks like: meringue?
Died #OTD 1642, Henry Montagu, lawyer and MP for London 1604 & 1614.
Following a prominent career in the Commons, Montagu was elevated to the peerage in 1620, becoming lord high treasurer and later lord privy seal.
Read his Commons bio here: https://t.co/dCKFkRws5E pic.twitter.com/wWZY9ZvT0m— HistoryofParliament (@HistParl) November 7, 2020
Ruffs: it will never be enough
Well, it would seem that my ruff-obsession remains. Entirely unable to help myself commenting on two more instances of ruff-age, which turned up on Twitter:
Ruff work
This one is a lovely scene of friendship and pastimes, but I can’t help but wonder (yes I know that is rather C. Bradshaw) whether it might have been easier to sew, or to cuddle a child, without the impediment of a ludicrous and extensive folderol about the neck. There must surely have come a point at which the ruff interfered with visibility of the hands or piece of embroidery (directly or because of its shadow). At the same time I would be a bit disappointed to find out that ruffs were not actually worn all the time like this, and it was just a bit of an artistic convention.
Ruff sketch
Feast your eyes on this multi-layered monstrosity. It puts me in mind of those foam collars worn by people with a whiplash injury, or – in a certain sense – the ‘cones of shame’ worn by dogs who have had an operation. No way Frankie would be licking his stitches with this thing on.
Gray’s Inn (@HonSocGraysInn) / Twitter
14/1/2021
More treats for ruff-watchers here: ignore Charles (casually wearing a suit of armour – like you do; what this? I just put on the first thing that was lying about in my room …) and look at the necks of (i) the Infanta (is that a furry ruff? What would we call that? A fluff?) and (ii) Buckingham – who is sporting the sort of antimacassar thing I remember from my grandmother’s sofa. Ruffs and silly neckwear clearly still holding firm in the 1620s.
18/2/2021
And what about this ‘ruff and fluff’ combo? Representing law and politics, it’s the seventeenth century’s own James Whitelocke.
27/6/2021
I think we also need to talk about angle. This number, from John Dee, illustrates the ‘ear-warmer’ angle of ruffage – possibly necessitated by the little pointy beard. Good to see that John is keeping the hat relatively conservative, not detracting from his ruff too much.
13/7/2021
Legal History, Slavery, Colonialism
The last few weeks have been full of news of protest and direct action relating to racism, slavery and colonialism. As no one in Bristol can have failed to notice, it has been the week when the most prominent statue of slaver Edward Colston finally fell.
At the place where I work, the University of Bristol, this has brought to the forefront of minds various issues to do with naming of buildings, and the University logo. The names of families whose wealth derived from slavery are prominently commemorated here, and the emblem of Edward Colston, a dolphin, is included in the University logo. These names and the logo are under review now – and quite rightly (though possibly putting out a tweet to announce this and … using the Colston- commemorationg logo to do so … was not the best call). Both the University and excellent and doughty scholars within it, as well as committed historians outside academia, have been looking at these issues for some time, but recent events have lent it all a particular urgency, and have also drawn in a much wider group of academics who know that we should be doing more, and faster, to try and make the education we offer both inclusive for all students, and also sufficiently energising and mind-expanding to cause positive change in the local community and the wider world.
I have, for many years, run a unit on Legal History for our Law undergraduates. It has always attracted excellent, sparky students who are alive to injustice, including racial and gender injustice, in the world. We have plans to include more on this in the next academic year. I dare say the issue of statues, putting them up, pulling them down, will feature. At the moment, though I am thinking about a couple of other issues: how the common law and common lawyers were implicated in slavery and colonialism, and how Legal History itself has been affected by having been developed as a discipline in the heyday of colonialism and racism. There is a lot to think about, and to do – and, as a medievalist rather than an expert on later periods, I am going to be synthesising the work of other, expert, scholars where I can find it – but it feels as if Legal History needs to put its metaphorical shoulder to the wheel.
Some of the questions which occur to me straight away:
- Is there a general survey of lawyers (or legal institutions) as slave-holders? I have put out a Twitter bat-signal to try and see what there is ‘out there’, having drawn something of a blank in my own preliminary searches – I suspect that there might not be, though there are sections and statements in various, disparate works. If there is not such a general survey, how can a start be made on this? Individual biographies are one way to go, I suppose, as well as checking the writings of lawyers themselves. It would be particularly interesting to make a start on lawyers in Bristol …
- In what ways has common law doctrine been implicated in slavery, racism, colonial projects? (Huge – obviously – and equally obviously there is excellent work here by historians, but it also seems that there are gaps with regard to more doctrinal (‘dry’?) parts of law, and areas in which a bit of imagination, and consciousness of the issue, might bring up a wider set of connections).
This morning, a cross check in the Oxford Dictionary of National Biography has shown me some interesting lawyer/slavers, which is a start for no. 1 at least
[And on the Bristol-Colston front, I just came across another example of his ‘philanthropic’ ubiquity in Bristol – there is a charitable foundation called the Dolphin Society, which might want to be a little firmer in its dissociation from Ed and his murderous works … https://www.dolphin-society.org.uk/history
Also the ODNB (updated 2008?) has EC article entitled ‘Colston, Edward (1636–1721), merchant and philanthropist‘. Very neutral…]
12/6/2020
13/6
There is more ‘Colstonalia’ in Bristol – and more websites which might want to consider saying something stronger about the wrongness of slavery. Today’s example (accessed 13/6) is this one https://www.about-bristol.co.uk/chu-04.asp
17/6
A programme which those who are not regular watchers of Welsh language TV might have missed …
https://www.s4c.cymru/clic/programme/532330299
Dylan ar Daith – S4C programme (Welsh – with subtitles!) on Thomas Picton, governor of Picton, cruel even for the times. Interesting to see the Welsh coming to terms with not having been pure with regard to slavery. Some stories I had not heard here – worth a watch to see what you think of its tone.
Don’t estop me now: credibility and comments on intelligence
-Warning: explicit Land Law content. If you do not want to read musings on land law, stop right now …
James v James [2018] EWHC 43 (Ch) http://www.bailii.org/ew/cases/EWHC/Ch/2018/43.html
Having had a year away from land law teaching, I am catching up on recent cases, including this one on proprietary estoppel (as well as testamentary capacity). I am not going to say anything about the actual legal points, despite the fact that this is what I am supposed to be preparing, but will comment on another interesting aspect of the approved judgment: a tendency to elaborate upon and explain the decision making process in terms of views about individuals (I think of this as the Eggheads tendency – after the quiz show where people can’t just say the answer is b, they have to ‘talk us through’ the thought-process which has led to that conclusion).
There is detailed discussion of various witnesses: HHJ Paul Matthews does not restrict himself to saying he believes X or believes X more than Y, and some of this material seems to go beyond credibility and into intelligence or education. For example, one of the major characters was, the judge found, ‘a slow but clear witness. He was not good at reading. He was dogmatic, sometimes rather contrary, and not good at following legal reasoning’. [8] And ‘For the most part, I think that [S.] had convinced himself that he was in the right, and interpreted all the material available to him in a way which demonstrated that he was. In some cases, I am afraid I think he went further, and told me things that were simply not true.’[9] Some of this is honesty/credibility-related, but calling somebody ‘slow’ and criticising their reading seems to go beyond that.
In relation to a group of female witnesses, the judge shared his impressions at [11] that two were ’quiet and calm’. One ‘rather shy but clear and straightforward, but another, while she ‘gave evidence in a quiet tone’ also ‘ avoided eye contact and her body language suggested internal conflict.’ Some material for consideration of appropriate female witness behaviour there, I think – plus signs of great self confidence on the judge’s part of his ability to ‘read’ mental state from ‘body language’. I am not entirely convinced that has a place in an official account like this. Another ‘good’ female witness was ‘loyal.. to her husband,’ but ‘distressed by the litigation and wanted it to be over’ [12]. Yet another female witness was ‘a slow witness, with clear, trenchant views’ [13].
In relation to an older female witness, there is some doubt, but it is not expressed in quite such critical terms: [14] ‘[S.J.], … although she often took her time to answer, was clear and decisive when she did. Despite her advancing years, she was generally very much on the ball. But she was confused as to [a particular point]. On the other hand, she had little or no trouble in following accounts. It is plain that she had a head for business. Sometimes her answer was that she could not remember things, though I noted that that was the answer more often given when the question was a difficult one, not susceptible of a simple answer in her side’s favour. She also appeared confused about [another point]. Her answers did not square with what she said in her witness statement…. I have accepted her evidence without reserve where corroborated by other independent evidence, but otherwise with more caution.’ The first part of this sounds a bit like ‘She’s marvellous, considering …’ – a little patronising?
Also interesting is the decision of the judge to mention his views as to the competence and intelligence of a female solicitor in the case: ‘She struck me as a highly competent, intelligent solicitor …’ [16] while in dealing with a male solicitor-witness, [17], there was, apparently, no need to affirm his intelligence. Likewise the male experts were ‘as one would expect … highly professional’ [18]. Might have been best avoided?
Clearly, the format of a civil trial requires a judge to make decisions about credibility, and comments on parties are not new, but I do wonder how it helps to hear that the judge does not rate a party’s speed of thought, and whether the study of ‘body language’ is now a respected and scientific subject, taught at judge school.
For a contrasting approach, see another proprietary estoppel case, Habberfield v Habberfield [2018] EWHC 317 (Ch), in which the judge is much less … well … judgey about individuals, and almost entirely sticks to saying which evidence he prefers on particular points. We don’t learn who is intelligent and who is ‘slow’, and yet it doesn’t detract from our understanding … [no idea why this bit has gone red!]