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

• Author: Hon. Mr. Justice Adrian Hardiman
• Position: Judge of the Supreme Court
• Pages: 1-16

2007] Weasel Words and Doubtful Meanings 1

WEASEL WORDS AND DOUBTFUL MEANINGS:

A STUDY IN THE LANGUAGE OF LAW

“REFORM”

THE HON. MR. JUSTICE ADRIAN HARDIMAN∗

“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

it.

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

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∗ Judge of the Supreme Court.

1 Bennett, The History Boys (Faber and Faber, London, 2004) p.3.

Judicial Studies Institute Journal [2007:2

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

undermined.2

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

Ireland.

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

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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.