Weasel words and doubtful meanings: a study in the language of law 'reform'

AuthorHon. Mr. Justice Adrian Hardiman
PositionJudge of the Supreme Court
2007] Weasel Words and Doubtful Meanings 1
“This is the tricky one.
The effect of the bill will be to abolish trial by jury in at
least half the cases that currently come before the courts
and will to a significant extent abolish the presumption
of innocence.
Our strategy should therefore be to insist that the bill
does not diminish the liberty of the subject but amplifies
it; that the true liberty of the subject consists in the
freedom to walk the streets unmolested etc., etc., secure
in the knowledge that if a crime is committed it will be
promptly and sufficiently punished and that far from
circumscribing the liberty of the subject this will enlarge
I would try not to be shrill or earnest. An amused
tolerance always comes over best, particularly on
television. Paradox works well and mists up the
windows, which is handy. ‘The loss of liberty is the
price we pay for freedom’ type thing.”
(Irwin, once the cynical exam obsessed history teacher is
now a Minister, privately advising his own MPs in Alan
Bennett’s The History Boys).1
The History Boys is, of course, fiction. No proposal with the
effect described, at least directly, has been put forward in Ireland
or, as far as I know, in the United Kingdom. But a number of
measures tending to the results mentioned exist: for example, the
practise in creating new offences, of making many of them triable
Judge of the Supreme Court.
1 Bennett, The History Boys (Faber and Faber, London, 2004) p.3.
Judicial Studies Institute Journal [2007:2
summarily only, or of giving only the prosecution the right to opt
for jury trial has greatly circumscribed the citizen’s right to trial
by jury. This is so notably in cases of direct conflict between the
citizen and the Gardaí, now more common than previously by
reason of the Public Order legislation. Of course, this may be a
perfectly defensible development, but it has been introduced
without any discussion at all, merely by a change in
administrative practice. And the presumption of innocence, which
cannot be abolished because it is guaranteed in several
international conventions, has, in the opinion of Ms. Claire
Hamilton, the leading Irish academic authority, been gravely
It is, of course, beyond the scope of a judge to discuss the
merits or demerits of specific legislative proposals, even those
still a twinkle in someone’s eye. I do not do so here. In any event,
a judge’s opinions on legal topics are always “subject to hearing
argument”. Instead, inspired by Alan Bennett whose play, which
has furnished my epigram, was performed in Dublin in mid-
October 2007, I call attention to the reductive, assumption-laden,
distorting and subliminally misleading language in which
discussion on criminal law reform, not always excluding
politically-led discussion, is often conducted in contemporary
Over the past number of years, and even earlier, I have
become gravely concerned about the tone and content of, and the
context in which, debate and discussion on criminal law topics
has taken place. It is, in the first place, one of extreme
oversimplification and populism. Hamilton goes so far as to say
that some parliamentary contributions on this subject are
indistinguishable in both their content and their style from articles
in the tabloid press.3
To criticise the language of the debate is not to ignore or
disparage the need for laws to be kept constantly under review,
still less the grave concern felt over the rise of gangland shootings
and other aspects of crime. These are serious problems which
2 See Hamilton, The Presumption of Innocence and Irish Criminal Law (Irish
Academic Press, 2007).
3 See Hamilton, The Presumption of Innocence and Irish Criminal Law.

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