No brains allowed in court

“My whole brain is in there,” said the Canadian lawyer Sean Robichaud as his MacBook computer was declared by a magistrate to be unsuitable for the courtroom. The magistrate aborted the criminal trial and adjourned it until August so that Mr Robichaud could use a printer or fountain pen to carry out the necessary brain transplant to paper folders.

Computers are used throughout the Canadian court system, and the Supreme Court even provides them for lawyers. Why this particular usage was ruled unlawful is a mystery. The case arose from an event on the roads of Ontario. Piotr Lakomy, Mr Robichaud’s client, had been beginning a session of stunt-driving in his Subaru Impreza when he was arrested by police and charged with criminal offences.

As the Crown prosecutor stood up to launch her case, she noticed Mr Robichaud had just switched on his thin, aluminium MacBook. She objected to its use and the magistrate accepted her point, ruling the laptop to be an “electronic recording device” and therefore something prohibited in court.

Mr Robichaud explained that as all his case notes and preparatory materials were on the computer he would be unable to represent his client to the best of his ability without the laptop. It was at that point that the case was adjourned. Later, Mr Robichaud said “I went through law school using only a laptop. I can’t even write anymore. Sometimes I don’t even have a pen”.

In other courts he uses his computer regularly to access case law, documents, and evidence, and to store witness statements. Banning the computer because it was capable of being used as a recording device was decidedly odd because the lawyer had no intention of using it in that way. Mr Robichaud noted “it’s like saying I have the capability to punch someone in the face, and therefore I have to keep my hands in my pockets.”

Explaining the magistrate’s decision to exclude the laptop, a spokesperson for the Ministry of the Attorney-General said that all magistrates and judges have full power over their courts so decisions on which electronic devices to permit are within the discretion they can exercise.

Most judges are now computer-literate. In 2007 a British judge caused an outcry when he said that he didn’t understand the term “website” but that wasn’t because he was trapped in world of parchment and quill pens. He just needed a technical explanation of how a website, like the one in the criminal case before him, was constructed.

Historically, judges have been more likely to object to lawyers’ accessories than their technologies. No advocate has been sent out for having a computer but, at different times, counsel have been judicially denounced for appearing in court with a beard, a white waistcoat, a ponytail, bracelets, brown suede shoes, earrings, and a priest’s cassock.

Gary Slapper is Professor of Law at The Open University.


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Mobile contempt

Judges have occasionally condemned lawyers’ arguments as rubbish. Lord Justice Harman once ruled that “these pleadings ought to go, not to the House of Lords, but to the waste-paper basket”. It’s unusual, though, for a judge to sling visitors’ belongings into the waste-paper basket but that is what Judge Anthony Johnson did recently in Orange County, Florida.

Michelle McRoy, 28, was visiting a court with her young sister. While sitting in the courtroom her phone rang with a clamorous musical jingle and the judge asked why the phone wasn’t turned off. She started to explain but the judge immediately ruled her conduct as contumacious (contemptuous), ordered the phone be surrendered and then threw it directly into the bin near him. He ordered that it be later destroyed by the sheriff’s department.

Ms McRoy said of the judge: “He wouldn’t let me explain to him. He just went off”. She wanted to clarify that she had turned off her phone before entering the court but had then lent it to her young sister who popped out to make a call. Her sister, however, had forgotten to turn it off before returning it.

Ms McRoy, who did not want a contempt of court conviction on her record, appealed. The Fifth District Court of Appeal in Daytona Beach recently ruled in her favour. It decided that the judge wasn’t justified in finding her in contempt. Something might irritate a judge but that isn’t the same thing as contempt of court. 

The trial judge’s order read simply “Michelle McRoy was found guilty of contempt of court. Cell phone is forfeited and to be destroyed by the Orange County Sheriff’s Office”. That was not enough. It should have given a fuller recital of facts that led to the finding, not just the judge’s conclusion. The appeal court ruled that contempt is “an act tending to embarrass, hinder, or obstruct the court in the administration of justice” or something which would “lessen the court’s authority or dignity”. Contempt does not exist “just because a judge feels aggrieved or vexed.”

There are previous instances of judges being irritated by mobile phones ringing in court. In 2008, during a murder trial at Woolwich Crown Court in London, a mobile phone jauntily rang out but as the judge grimly scanned the court to locate and reprimand the thoughtless culprit he realised the ringing was coming from inside his red judicial robes. “I didn’t think I had it with me today” he told his court.

In 2007, Paul Fitton took mobile phone manners into a new territory of indifference. He was convicted of contempt because, while standing in the dock facing a criminal hearing at Blackpool magistrates’ court, he interrupted the district judge to answer his phone and began a conversation with the loud salutation: “Hello there, I’m in court”.

Gary Slapper is Professor of Law at The Open University.


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Too tart a comment?

What began as a snide comment about the way sliced apples were arranged on the top of a tart in a French bakery triggered a two-year legal battle that ended recently in the criminal courts.

Apple pie is often cited as an example of something self-evidently good. In France, however, la tarte aux pommes, might not be in the same category. The events began in April 2008 when a woman and her daughter went into a bakery in Nogent-sur-Marne in Paris. The woman made a withering criticism of the way the baker, Christelle, had patterned the many crescent-shaped apple slices on the surface of the tart. Her denunciation of the tart was so vehement, the dismayed baker responded by saying quelle conne (what a stupid bitch).

The customer’s indignation at this remark was even worse than her indignation at the tessellated tart. Her way of showing she wasn’t a bitch, though, was to invoke a piece of legislation from 1881 and to prosecute the baker for making a “public insult” – an offence with a maximum fine of €12,000.

Once the public insult charge had been made, the judge was obliged to ask a magistrate to conduct an investigation. The judge tried to use mediation to resolve the dispute but the shopper wouldn’t participate. The baker’s lawyer, Maxime Tondi, said: “I have never seen anything like this in my entire career.”

The criminal justice apparatus was then set in motion so the baker was interrogated by police, witnesses were examined and the case thoroughly prepared. Lawyers cut and assembled their arguments with as much care as the most fastidious boulangère would arrange fruit on top of a tart.

Last week, two years after the argument in the shop, the public insult charge finally came to trial. The baker, Christelle, appeared before the 11th correctional chamber of Chéteil ready to defend herself. When prosecutors took their case out the oven, though, it was seen to be half-baked and it collapsed.

The complainant shopper had failed to attend court, so two year’s prosecution work was wasted. The case was dismissed. What the prosecutor then called the shopper can only be imagined.

In England, the clearest line between acceptable and unacceptable public insults has been drawn by lawmakers themselves.

The House of Commons – which acts as its own court – has a list of precedents that have been ruled as “unparliamentarily language”.

Honourable Members calling their fellows any of these names can be suspended from the House. The forbidden insults include: coward, git, guttersnipe, hooligan, sod and rat.

In Canada, legislators have had to withdraw calling other members: a trained seal, pig, jerk and sleaze bag.

In New Zealand, a legislator had to apologise after saying of a fellow member that “his brains could revolve inside a peanut shell for a thousand years without touching the sides”.

Some insults, however, have escaped censure. In 2009 in the Irish Dáil, Paul Gogarty shouted “With all due respect, f** you!” at the Opposition Chief Whip but it was OK because that expression wasn’t on the list of forbidden phrases.

Gary Slapper is Professor of Law at The Open University.


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Discomforting flights

In a leading civil case in 1932, Lord Macmillan said that the principle of negligence could apply to countless situations. He said the law would adapt to “the changing circumstances of life” and that “the categories of negligence are never closed”. In Canada, Marcel Cote recently tried to widen the categories when he sued airline attendants for failing to examine his genitals at 30,000ft.

Mr Cote had been on an Air Transat flight from Montreal to Puerto Vallarta in Mexico in 2008. After an hour, comfortably seated in business class, he suddenly felt discomfort around his scrotum. He went to the toilet and discovered spots of blood on his skin. He then returned to his seat and called a flight attendant. When a stewardess arrived he asked to see a male attendant.

Mr Cote then asked the attendant to give him a close personal examination. Flight attendants receive a good all-round training but that does not include techniques of intimate genital examination so the request was politely declined. Instead, the flight attendant gave Mr Cote some absorbent tissue. Mr Cote was told that a physician would be called if the condition became serious but, in the event, there was no emergency and Mr Cote visited a doctor after the plane landed three hours later. The problem was diagnosed as the rupture of a vein near the scrotum.

Mr Cote sued the attendants and the airline, for failing to provide appropriate medical assistance. He sought damages of $8,000 for the anguish he suffered as a result of their alleged breach of a duty of care. His claim was rejected by Judge Michele Pauze. “It was not incumbent on a flight attendant,” she ruled, “to conduct the medical examination of a passenger, a measure reserved for the medical profession.”

She recognised that Mr Cote might well have experienced anxiety during the episode but she ruled that nothing in the facts proved that the situation was “dangerous or worrisome to the point of requiring the immediate attention of a doctor”. Mr Cote was ordered to pay the airline’s costs.

Passengers have sued airlines in some unusual actions including one in which a Japanese husband and wife sued United Airlines for serving them too much burgundy on a flight from Osaka to San Francisco, thereby causing them to argue ferociously with each other.

Skyway litigiousness reached new heights, however, in 2006 when a group of Belgian passengers on an Air France flight to New York objected to the airline allowing Bonnie Tyler to sing onboard. It was the last flight of the co-pilot before he retired and when the crew discovered Ms Tyler was a passenger they asked whether she’d sing as a special salute to him. She obliged and used the plane’s microphone to belt out her hit Total Eclipse of the Heart. Some passengers bellowed along and swayed in the aisles. But the Belgian passengers didn’t like the song, a No 1 hit in 14 countries, or the public chorus and, in a total eclipse of the revelry, sued the airline for $1,000,000.

Gary Slapper is Professor of Law at The Open University. His new book Weird Cases is published by Wildy, Simmonds & Hill


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The awkward scream

In The Importance of Being Earnest, Lady Bracknell says indignantly that “strange coincidences are not supposed to occur”. Mindy Lynn Neugebauer, from Mangum, Oklahoma, might have thought the same thing recently when she was caught by police in possession of drugs.

Ms Neugebauer had texted an acquaintance with a message that said “if you want a hit of this stuff before it’s all gone you better get over here”. What Ms Neugebauer didn’t realise was that when she sent the message she had not keyed in the number she’d intended so it did not go to her acquaintance but to another man altogether. The random recipient happened to be Chris Counts – an agent at District III Drug Task Force. You can imagine his reaction when he opened the text.

Agent Counts texted back immediately to ask her for the address and she replied with the information. He then checked the sender’s phone registration and identified Ms Neugebauer. Officers turned up at her home and asked her about the text. She said it was just a reference to some marijuana she had wrapped up in a cigar paper.

However, she allowed the officers to search her home and under her mattress they found a plastic bag containing suspected cocaine. She was issued with a felony warrant on charges of possession of a controlled substance and unlawful possession of a controlled drug with intent to distribute. Her case will be heard later this year.

Instances of people accidentally bringing the police to their door and paying a high price for it have triggered some unusual cases. Ranking high in the league of such odd convictions is the case of Brian McGacken in Farmingdale, New Jersey. A neighbour who heard a woman screaming loudly inside McGacken’s house called the police. Officers arrived and McGacken opened the front door dressed only in a bathrobe. Asked about the loud screaming he said it was his girlfriend expressing rapture during “loud sex”. The officers asked to see the girlfriend and she came downstairs wearing only a towel and confirmed that she had indeed been enjoying the company of Mr McGracken.

Then, when McGracken went upstairs to get his ID as requested, one of the officers followed him up and “smelled the odour of raw marijuana”. They found 15 marijuana plants, several bagged quantities of the drug, and distribution paraphernalia. The case, which went all the way to the appeal court, turned on whether the officers were allowed to enter the house under an “emergency aid” exception to the general rule which requires a search warrant. The state argued the officers acted lawfully when, responding to the 911 call about the loud scream, they entered the house to check there was no one else apart from the towelled girlfriend who might have been in distress. The appeal court upheld McGracken’s conviction. The loud sex led to a long sentence: McGracken was given ten years.

Gary Slapper is Professor of Law at The Open University.


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The whiff of justice

Cleopatra’s sails were so exquisitely perfumed that “the winds were lovesick with them”. Exquisite perfumery, though, isn’t necessarily a good thing in law. Following a recent legal action, public office workers in Detroit will have to avoid the use of fragrances. Michigan winds will have to love the natural odour of the workforce.

After the case, in which a woman upset by a colleague’s scent sued her employer and was given a large payout, public office workers have been warned not to wear “scented products including …colognes, after shave lotions, perfumes, deodorants, [and] body/face lotions”. They will also be prevented from using scented candles or solid air fresheners. Perhaps, after a month, another Detroit office employee will be able to sue for having to work in an office with the ambient aroma of a nineteenth-century jail.

Susan McBride, a city planner, sued her employer under the Americans with Disabilities Act after suffering from breathing difficulties caused by a co-worker’s perfume. The employer defended the action on the basis that there was no relevant medical diagnosis and that McBride was not disabled.

In the action, Ms McBride presented a note from her allergist stating that she “has a cough and vasomotor [sic] rhinitis primarily triggerred [sic] by irritants” so that “exposure to these smells should be eliminated”. She argued that she is disabled because she is limited in her everyday activities including (a) avoiding the detergent aisle in grocery stores, (b) speaking, and (c) sitting next to people wearing perfume. In an initial hearing, the US District Court in the Eastern District of Michigan was cautious about some of that reasoning and noted that Ms McBride had spoken for what turned out to be 139 pages of evidence “without incident”.

Despite several reservations, the court concluded that Ms McBride had enough of a breathing disability case for the action to proceed to a trial. It indicated that a compromise might be to outlaw only “strong or offensive scents” in the workplace. How the workplace perfume police would do their job was not specified by the court. In the end, Ms McBride won a $100,000 settlement.

Judicial attitudes to the fragrance of their own workplaces have varied. In the 19th century judges used to urinate in a porcelain vase in court. One lawyer’s account describes how, when Lord Chief Justice Ellenborough went for a comfort break in the corner of the courtroom, the court would always hear “the large seals dangling from his watch-chain rattle against the vase”. The scent of justice wasn’t blossom in a bowl. Some modern judges have taken an equally controversial stance on courtroom bouquet. In the 1960s, a female barrister, who went on to become a distinguished member of the judiciary, was interrupted by a judge whom she was addressing. Narrowing his eyes, and flaring his nostrils, he asked her “are you wearing perfume?” When she replied that she was, he instantly sent her out of court to wash off the fragrance. He took the view that, unlike his 17th century horsehair wig, her perfume wouldn’t help achieve legal justice.

Gary Slapper is Professor of Law at The Open University.


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Walking the dog

There are now over 3,000 different motoring offences that a motorist can commit under English law. Someone in that rule-making department needs to get out more. One of the rules is Regulation 104 of the Road Vehicles (Construction and Use) Regulations 1986. It makes it an offence for anyone to drive in circumstances that mean they “cannot have proper control of the vehicle.” Paul Railton and his pet dog have just given a new dimension to that rule. Railton was recently convicted of driving a vehicle while “walking his dog” by holding on to its leash through the car window as it padded briskly along the road.

When the police caught Railton he was driving in a 4×4 Nissan along a road in County Durham, approaching a blind summit, with his pet lurcher on the end of lead that went through the driver’s open window. After the case, at Consett magistrates’ court, he said “a lot of people exercise their dog like that”. If that is the attitude of dog owners, perhaps the dogs taken on ‘car walks’ should get equally lazy and opt to be pulled along on skate boards. Railton was convicted, fined £66, ordered to pay £43 costs, and banned from driving for six months as he already had nine penalty points on his licence.

The offence of driving while unable to have proper control of the vehicle has attracted some other unusual prosecutions. In 2005, Sarah McCaffery, a nursery nurse from Northumberland, was convicted of the offence, and fined £60 after she drove slowly round a bend with both hands on the wheel but with an apple in one hand. During ten court hearings held over 13 months, prosecutors used photographic evidence from a spotter plane, film from a police helicopter and video from a patrol car. It cost over £10,000 to secure the apple conviction.

The judicial duty to dispense justice punctually is an important one but there are limits. In 1996, a judge was given a written caution for not being in proper control of his vehicle while he was driving with urgency to hear a case at Newcastle Crown Court. A police officer had pulled him over when he saw the judge driving while using an electric razor to shave. More reckless, however, was the conduct of Lady Teresa Manners, daughter of the Duke of Rutland. In 1983 she was convicted of driving while not being in proper control of her car after she was caught racing down the fast lane of the M6 while having only one hand on the wheel because she was energetically and amorously involved in a “passionate embrace” with a man in her passenger seat.

Gary Slapper is Professor of Law at The Open University.


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