Tag Archives: courts

Court interpreters as spies/Gerichtsdolmetscher als Spione

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1. Werner Siebers, the criminal defence lawyer, reports in his blog that the public prosecutor’s department in Kassel wants to prescribe what court interpreter he uses on a first visit to a potential client in prison. He is concerned that the public prosecutors may be using an interpreter to report back to them on conversations between defendant and defence counsel.

Wenn ein Dolmetscher vereidigt ist, werde ich ganz sicher nicht zulassen, dass mir die Staatsanwaltschaft dazwischenfunkt. So verkniffen, wie die Staatsanwaltschaft die Sache angeht, werde ich das jetzt auch sehen.

Die wollen vielleicht einen Dolmetscher “einschleusen”, der dann brühwarm berichtet, was mir der Beschuldigte erzählt hat. Das fehlt mir noch.

2. Carsten Hoenig takes up the topic in Verraeter-Dolmetscher (excuse English keyboard). He comments that some interpreters may be prepared to act as the prosecution’s ears, but this is rare. But he reports on a situation he experienced. There were five defendants in a case, all speakers of a rare language, and each by law should be represented by a different interpreter. On the way to prison, the interpreter said he’d already interpreted for two of the other Ds and had been there at the first police questioning. Hoenig then did not question the D on important matters. On the way back, the interpreter reported numerous details of the private conversations with the other defendants – perhaps not dangerous in this case, but all the defense counsel decided not to use this interpreter again.

Auf dem Rückweg aus dem Besuchertrakt der Untersuchungshaftanstalt berichtete mir der Dolmetscher freimütig einige Details aus den Gesprächen der anderen Verteidiger mit ihren jeweiligen Mandanten. Es war nicht Wildes dabei; aber allein der Umstand, daß der Dolmetscher überhaupt solche Geheimnisse mit Dritten – also mit mir – teilte, war für mich – und dann auch für die Berliner Strafverteidiger – Anlaß genug, uns für die weiteren Mandanten-Gespräche nach anderen professionell arbeitenden Dolmetschern umzuschauen.

Hoenig adds an account to show that nearly all interpreters are reliable.

3. Here’s a report from Austria – in German – on a situation similar to the ALS problem in the UK: Dolmetsch-Misere in Traiskirchen (thanks to Brigitte for that).

Indirect speech in judgments/Indirekte Rede in Urteilen DE>EN

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There was a query on Proz this week on a topic I remember once discussing on u-forum: when you translate a judgment from German to English, how do you indicate that part of it is in reported speech?

I basically agreed with the solution in this case, although it wasn’t quite what I would do (using words like ‘allegedly‘ was one of the points, and I find that a bit negative). I must say that the suggestions and discussions on Proz are often extremely helpful to me. Proz has this weird system called Kudoz, whereby you get points if you help someone to answer a question. This seems to force people to put effort into their answers, because they get even more points if their answer is selected, although sometimes the asker doesn’t select the best answer. There are discussions on Leo and dict. cc too, which tend to be more time-consuming to consult.

So here’s the problem: German uses the subjunctive for reported speech. It is absolutely clear from the verb itself that this is reported speech, even without the reporting verb. Here is a sentence from a judgment of the Bundesgerichtshof:

Nach Auffassung des Berufungsgerichts hat die Klägerin einen Anspruch darauf, dass die Beklagte die Bezeichnung der Klägerin als “Terroristentochter” unterlässt (§ 823 Abs. 1, § 1004 BGB analog). Die Bezeichnung verletze die Klägerin rechtswidrig in ihrem allgemeinen Persönlichkeitsrecht.

The judgment quotes another court. It is a vital part of the meaning that this is a quotation. In the second sentence, the verletze
is subjunctive, so clearly indirect speech, without any introductory verb or ‘Nach Auffassung’ and so on.

In English, it is essential to make this reporting clear. If the reporting verb is in the past tense, the reported verb is backshifted, but this is not always enough to show reported speech: it could mean ‘verletze’ or ‘verletzte’.

English reported speech rules are not terribly well understood in Germany, partly I think because students are expected to adhere rigidly to the backshift whereas we don’t backshift every single verb if it’s clear. Still, here is a summary:

Reporting verb in present tense or ‘According to’ etc: no backshift
Reporting verb in past tense: backshift

Canoonet has a nice summary of the German practice.

In the German example above, the first sentence has ‘Nach Auffassung des Berufungsgerichts’ and no subjunctive, the second sentence has subjunctive.

In English, the reporting phrase ‘In the opinion of the Higher Regional Court (Oberlandesgericht)’ would also be followed by a present tense, and the second sentence would remain present tense too.

Techniques of showing it is reported speech: you may replace ‘in the opinion of the court’ by ‘the court held’, followed by a backshift.
You may pepper the translation, as it continues with a big block of reported speech in the subjunctive, with more reporting verbs and ‘in the court’s view’ – these may not be there in the German, but they convey the subjunctive.
Another help is that if a whole paragraph is quoted, the layout alone may make it clear that is the case. This is the approach taken by an online translation of this very judgment.

Here’s a block of judgment (for reference see below) with the reported verbs marked. Note that the last sentence turns to the opinion of the present court, the Bundesgerichtshof, which is no longer subjunctive:

Entscheidungsgründe: I. Nach Auffassung des Berufungsgerichts hat die Klägerin einen Anspruch darauf, dass die Beklagte die Bezeichnung der Klägerin als “Terroristentochter” unterlässt (§ 823 Abs. 1, § 1004 BGB analog). Die Bezeichnung verletze die Klägerin rechtswidrig in ihrem allgemeinen Persönlichkeitsrecht.

Die Äußerung “Terroristentochter” stelle eine Tatsachenbehauptung dar.

Ein durchschnittlicher Leser verstehe den abstrakten Aussagegehalt der Bezeichnung dahin, dass jemand die Tochter von Terroristen oder eines Terroristen sei. Durch den Bezug zu Ulrike Meinhof sei für den durchschnittlichen Leser klargestellt, dass die Bezeichnung im Sinn von “Terroristin-Tochter” gemeint sei.

Es könne dahingestellt bleiben, inwieweit die Klägerin grundsätzlich dulden müsse, dass auf ihre Abstammung von Ulrike Meinhof hingewiesen werde.

Selbst wenn sie dies hinnehmen müsse, dürfe ihre familiäre Abstammung von Ulrike Meinhof nicht durch das eindringliche Schlagwort “Terroristentochter” zum Ausdruck gebracht werden. Zu familiären Beziehungen als Teil der Privatsphäre hätten andere grundsätzlich nur Zugang, soweit er ihnen gestattet werde. Die Klägerin habe keine Einwilligung erteilt, die familiäre Beziehung zu ihrer Mutter und ihre Abstammung darauf zu reduzieren, dass sie eine “Terroristentochter” sei. Sie müsse die Bezeichnung daher nicht dulden.

Etwas anderes gelte auch nicht deswegen, weil die Klägerin mehrfach über Ulrike Meinhof und den RAF-Terrorismus veröffentlicht und dabei auch offen gelegt habe, dass sie die Tochter von Ulrike Meinhof sei. Die Klägerin sei als freie Journalistin tätig. Im Rahmen der in Art. 5 Abs. 1 Satz 2 GG garantierten Pressefreiheit habe sie das Recht, Art und Ausrichtung, Inhalt und Form ihrer Veröffentlichungen selbst zu bestimmen. Der Ton, in dem sie ihre Artikel verfasse, sei Teil der Meinungsfreiheit. Dass sie die Grenze zur Schmähung überschritten habe, werde nicht vorgetragen.

Die Bezeichnung “Terroristen-Tochter” sei rechtswidrig. Zwar habe niemand einen Anspruch darauf, so gestellt zu werden, wie er sich selbst sehe, wohl aber darauf, zutreffend und nicht verfälscht dargestellt zu werden.

II. Die Ausführungen des Berufungsgerichts halten einer revisionsrechtlichen Überprüfung nicht stand.

And here are a couple of ways of translating the beginning:

Grounds: I. In the opinion of the Higher Regional Court (Oberlandesgericht), the plaintiff has a claim for the defendant to cease and desist from referring to the plaintiff as ‘Terroristentochter’ (terrorist’s daughter; section 823 (1), section 1004 with the necessary modifications, German Civil Code (Bürgerliches Gesetzbuch)). The court finds that the term unlawfully violates the plaintiff’s general right of personality.

Grounds: I. The Higher Regional Court … held as follows: that the plaintiff had a claim…The term unlawfully violated …

The expression ‚terrorist’s daughter’ was a statement of fact.

In the translation by Raymond Youngs online, the layout makes it obvious that the whole block is indirect speech. This works here. Youngs uses a past tense, ‘infringed’, without an introductory reporting verb to justify it, but I doubt a reader would normally notice that.

7 In the appeal court’ s view, the claimant has a claim for the defendant to desist from describing her as a “terrorists’ daughter” (¿¿ 823 para 1, ¿¿ 1004 of the BGB by analogy). The description unlawfully infringed the claimant’ s general right of personality.

8 The expression “terrorists’ daughter” represented an assertion of fact.

BGH, Urteil vom 5. 12. 2006 – VI ZR 45/05; OLG München (Lexetius.com/2006,3371)

Raymond Youngs translation on the University of Texas site: Case: BGH VI ZR 45/05, Bundesgerichtshof (Federal Supreme Court), 6th Civil Senate
VI ZR 45/05
University of Texas Institute for Transnational Law

Interpreter’s oath/Dolmetschereid

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Here’s a curious question from an ITI member. This is the interpreter’s oath, which is taken by all interpreters in courts in England:

I swear by Almighty God that I will well and faithfully interpret and make true explanation of all such matters and things as shall be required of me according to the best of my skill and understanding.

Gosh – haven’t they modernized that one?

The colleague thinks that ‘to the best of my skill’ is wrong and should be ‘to the best of my skills’, because ‘best’ is a superlative adjective and it implies comparison between at least two objects (actually, as a superlative, it would have to be three, because ‘better’ applies to two). He wants it changed.

I can’t see this at all. I am familiar with the legalese expression ‘to the best of my knowledge’ and ‘to the best of my ability’. These are uncountables, as are ‘skill’ and ‘understanding’ in the oath. ‘Skill’ can be countable too – a good source for information on countable and uncountable meanings is the Longman Dictionary of Contemporary English, which is now online. Now if ‘skill’ should be plural, then ‘understanding’ must be wrong too – which it isn’t! I think both ‘to the best of my skill’ and ‘to the best of my skills’ are correct English. However, although I find 27,000 ghits for the plural, I only find seven of them on UK sites. So if you are in Canada or India or the USA, ‘skills’ is OK here.

Most interpreters in Germany swear an oath, a sort of permanent oath, when they are appointed, so they don’t have to swear in court. I did manage to affirm when I became a court-certified translator, although the courts seem fairly unfamiliar with that procedure here.

In an article on ProZ, Marta Stelmaszak, a Polish-to-English interpreter, also gives the affirmation.

The Interpreter’s Oath
“I swear by Allah/Almighty God, etc. that I will well and faithfully interpret and true explanation make of all such matters and things as shall be required of me according to my best of my skill and understanding”

The Interpreter’s Affirmation
“I do solemnly declare that I will well and faithfully interpret and true explanation make of all such matters and things as shall be required of me according to my best of my skill and understanding”

(That should be ‘the best’, not ‘my best’ – but ‘and true explanation make’ is apparently the recommended word order).

LATER NOTE: A commenter would have added the following affirmation as used in Oxford magistrates’ courts:

I do solemnly, sincerely and truly declare and affirm that I will well and faithfully interpret and true explanation make of all such matters and things as shall be required of me according to the best of my skill and understanding.

I imagine there is a lot of variation over the country, or should I say over England and Wales. Apparently Scots are permitted to raise a hand when swearing.

Disparaging the German Federal President/Verunglimpfung des Bundespräsidenten

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There’s a kind of defamation you can commit in Germany called Verunglimpfung des Bundespräsidenten. The old StGB translation called it Disparagement of the Federal President, the new one (by Bohlander) calls it Defamation of the Federal President. It’s like defamation in that, in Germany, it’s a criminal offence that can only be prosecuted on the application of the person who claims to have been defamed. There’s a discussion with Udo Vetter here on the risks of going to prison for making a joke about Wulff.

There was in fact a case coming up in Dresden in which someone was on trial for making a joke about Wulff and his wife, but I don’t need to go into that now because this evening it seems the President has had the proceedings dropped (Wulff will keinen Prozess mehr).

See section 90 here:

It comes under the category of offences endangering the democratic state under the rule of law.

Section 90

Defamation of the President of the Federation

(1) Whosoever publicly defames the President of the Federation, in a meeting or through the dissemination of written material (section 11 (3)) shall be liable to imprisonment from three months to five years.

(2) In less serious cases the court in its discretion may mitigate the sentence (section 49 (2)) unless the conditions of section 188 are met.

(3) The penalty shall be imprisonment from six months to five years if the act constitutes an intentional defamation (section 187) or if the offender by the act intentionally supports efforts against the continued existence of the Federal

Republic of Germany or against its constitutional principles.

(4) The offence may only be prosecuted upon the authorisation of the President of the Federation.

Verunglimpfen is a nice word. Unglimpf means insult or defamation. Glimpflich is a better-known word. There was a MHG verb gilimpfan: to behoove. As in: it behooved him to drop the proceedings before he risked further ridicule.

First German court hearing in English/Erste Verhandlung auf Englisch (LG Bonn)

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As reported in an earlier entry, hearings in English are now possible at three international commercial chambers in Aachen, Cologne and Bonn. Both parties have to agree to waive the use of an interpreter. The first such hearing took place on May 10 at the Bonn Regional Court (Landgericht). There is a brief report in German in the Kölnische Rundschau, but it does not go into detail, and indeed, the reporter was apparently unable to assess the effectiveness of the language:

Premiere in Bonn: “Good afternoon”, begrüßte Manfred Kaufmann, Vorsitzender der neu eingerichteten 19. Zivilkammer des Bonner Landgerichts, die Parteien: Dann erläuterte der Handelsrichter in englischer Sprache die juristische Problematik der vorliegenden Klage: Eine Aktiengesellschaft belgischen Rechts wirft darin einem Bonner Unternehmen Vertragsbruch vor. Worum es im Detail ging, blieb dem Prozessbeobachter – im Handelsenglisch nicht geübt – im Verborgenen.

However, a colleague, Martina Niessen, Diplom-Dolmetscherin, has kindly reported to translators’ mailing lists on the hearing, which she attended.

To summarize: the courtroom was rather small, seating scarcely more than twenty, but there were SAT1 TV cameras there and a reporter and photographer. The three judges’ wives were reportedly all native speakers of English. Both parties had German lawyers, and the plaintiff also had a Belgian lawyer.

None of the parties was a native speaker of English. The case related to a Belgian company which supplied the Cuban government with electronic components, and a German company which supplied such components to the Belgian company. The German company has been taken over by a U.S. corporation, and so problems have been created by the U.S. embargo against Cuba. The court wanted the parties to reach a compromise, in part because a large amount of Belgian documents in French and Cuban documents in Spanish would have needed to be translated (so much for simplifying matters by using English as the court language!).

There were some language problems. For example, it was necessary to spell names, and the judges were not used to spelling in English. The words plaintiff and defendant were confused several times. Our colleague had the impression that they would have liked to express themselves in German.

The two German lawyers called for a Grundurteil. This is a decision as to whether the plaintiff’s claim has merit, literally a ‘basic judgment’, a kind of interim judgment. I haven’t got my library with me, but I gather Dietl-Lorenz does not contain a term (German judges often consult this dictionary and if it makes a suggestion they are usually happy with it). Nobody knew what the English for Grundurteil was, so they used the term Grundurteil in German – probably the best thing they could do. I would have consulted my English translation of the Zivilprozessordnung for this blog entry, and indeed this is a reference the courts might consider having at hand, but none of these dictionaries or translations are authorities in themselves: the user needs to have the background knowledge to decide which, if any, suggested terminology works.

The record of the proceedings was dictated in German by the presiding judge. The Grundurteil is to be pronounced on 31 May. The hearing was 90 minutes long. One of the associate judges (Beisitzer) spoke excellent English, apparently.

The judges had a tendency to start complex sentences which they could not finish.

Other language problems: the Federal Court of Justice (Bundesgerichtshof, BGH) was referred to as ‘he’.
Kritik was translated as critic, not criticism.
Gewinn was translated as gain, not profit.
Power of attorney had to be explained to the Belgian.

It does seem odd that – obviously – German law is always involved. It is difficult enough to talk about legal issues in a foreign language, but it is even harder to be constantly translating German law into a foreign language. And this is precisely what is not practised if you do an LL.M. in the USA or UK. It’s something you need to work on.

Pronouncing the English alphabet: I used to get students to write the letters in groups according to the vowel sound, like this (this presumes the British pronunciation of Z as zed – if it is pronounced zee, it goes in the second line instead:

A H J K
B C D E G P T V
F L M N S X Z
I Y
O
Q U W
R

Many thanks to Martina for this report. I’d love to attend one of these hearings!

IT in Supreme Court

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In the Times Online, Richard Susskind describes the IT systems used or to be used in future in the new Supreme Court. So the new building has done some good!

Fixed cameras are installed (banned in other courts in England, Wales and Northern Ireland).

Documents discussed to be shown on screens.

The three courts are also equipped with document display systems. Elegant, black, flat, high-resolution monitors sit before all judges. When barristers argue their cases, the precise pages under discussion appear on the screens. The judges do not need to search for paper-based folders and documents. This technology alone can cut hearing times by a quarter.

Justices can use laptops and mark up documents on them.

Unless permission is given, everything must be filed both on paper and electronically.

Information for public online:

What about the public and the lawyers? Any web user can find out the status of cases before the court. Details are fed from the case management system to the website (www.supremecourt.gov.uk), so people can view summary information and lawyers peruse in greater detail.

Hope it all works!

(Tweeted by Nick Holmes)

German cat case/Deutscher Katzenfall in Times

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Gary Slapper reports on two weird cases in The Times. One of them is a case recently decided by the Frankfurt am Main administrative court (Verwaltungsgericht).

The story begins with Peter Neumann’s cat and its expensive food tastes. The cat, Neumann argued, ate a €500 banknote. Holding some fragments of the note which he said had gone through the cat and been discovered in the litter tray, Neumann then went to the German Bundesbank to ask for a replacement note. … The bank declined to replace the note in this case.

The original German case report is here.

Soweit der Kläger geltend machen will, dass die drei von ihm eingereichten Banknotenteile zusammen mehr als 50 % einer 500,00 Euro-Banknote ergeben, hat das überzeugende Sachverständigengutachten ergeben, dass das Teilstück 2 nicht von der gleichen Banknote stammen kann wie die Teilstücke 1 und 3, sondern dass es sich mindestens um 2, evtl. sogar um 3 Ausgangsbanknoten handeln muss, von denen die fraglichen Teilstücke stammen. Aber auch die Teilstücke 1 und 3, die von derselben Originalnote stammen, ergeben – wie sich aus dem Sachverständigengutachten ergibt – keinen Flächenanteil von mindestens 50 % einer Banknote.

…
Wie die Beklagte zu Recht ausgeführt hat, ist es durchaus denkbar, dass die Katze – nachdem sie die Banknote zerfetzt hat – Teile der Banknote unbemerkt verschleppt hat und die Banknotenteile später aufgefunden werden oder aber wenn sie die Banknote tatsächlich gefressen hat – die Banknotenteile ausgeschieden hat und die Banknotenteile in den Exkrementen der Katze noch vorhanden waren und je nach Verbleib der Exkremente in diesen noch vorgefunden werden konnten bzw. können. Insoweit wäre es dem Kläger zuzumuten gewesen, die übrigen Banknotenteile in den Exkrementen der Katze sicherzustellen.

The name of the plaintiff is correctly not revealed in the German accounts.

Slapper seems to think the most curious other cat to have challenged the courts was Blackie the Talking Cat in Augusta, Georgia. He may not have heard of the other German case where a man received a fax in the night and jumped out of bed so fast that he frightened his cat, which fell off the scratching post and injured itself. Damages were not awarded.

Die zulässige Klage ist unbegründet, da dem Kläger keine Schadensersatzansprüche bezüglich der Verletzung seiner Katze zustehen. Als alleinige Anspruchsgrundlage kommt vorliegend § 823 BGB in Betracht. Der Kläger macht geltend, daß durch das zur Nachtzeit eingehende Faxschreiben der Beklagten sein Telefon geläutet habe, er aus dem Schlaf geschreckt und zum Telefon geeilt sei, wodurch die Katze vor Schreck vom Kratzbaum sprang und sich hierdurch verletzte.

Before the Supreme Court/Neues Gericht in England: die Vorgeschichte

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In 1980 I qualified as a Solicitor of the Supreme Court of Judicature. In 1981 it was renamed the Supreme Court of England and Wales.

Now we are to have the Supreme Court of the United Kingdom (see below).

Not many non-lawyers know what the Supreme Court of England and Wales is. It isn’t one court, but a collective term for the higher courts of first instance (High Court and Crown Court) and the Court of Appeal.

A friend of mine once created a diagram of the English courts for me on which there was a greyish square backing these three courts. The publisher removed the grey.

Outside these courts are the inferior courts (magistrates’ courts and county courts), various institutions called tribunals, some of them more like courts and some less, and above them all the House of Lords, or rather the Appellate Committee of the House of Lords. (There is also the Judicial Committee of the Privy Council, but that is not for the UK; and the European Court of Justice (EU) and the European Court of Human Rights (not EU)).

The House of Lords as a court was originally much more integrated into the political chamber. There was an attempt to abolish it in 1873, but with a change of government it was saved. From 1844 no lay peers voted in the judicial business; from 1875, it was staffed by legally qualified judges who were given life peerages. After this, the House of Lords dealt with particularly important cases, in which a point of law was involved.

It did not sit in the parliamentary chamber, but in a sort of committee room. The judges did not wear wigs and gowns. It was presided over by the Lord Chancellor, who was also the Speaker of the House of Lords parliamentary chamber and a member of the government. He was therefore a popular subject for background studies questions, because he was the best example of a lack of separation of powers, being in the executive, the legislature and the judiciary.

Suddenly, in 2003, Tony Blair had a cabinet reshuffle and announced that the Appellate Committee of the House of Lords was to be replaced by the Supreme Court of the UK. Apparently Tony Blair was thinking of creating a Ministry of Justice even before he became Prime Minister in 1997. Even then it was reported that his former pupil-master, Derry Irvine, whom he made Lord Chancellor, was against the proposals so they would be deferred. But still, the sudden constitutional changes, apparently without consultation with the judges, were a shock. Were the plans drawn up on a cigarette packet, as has been reported? Or dreamed up over a glass of whisky, as suggested by Lord Neuberger this month? If not, that’s still what it looked like.

In fact, Blair actually abolished the Lord Chancellor (as reported in this blog on 12 June 2003 – Guardian article of the time) but we don’t talk about that now, because it didn’t quite work. At present, Jack Straw is both Lord Chancellor and Secretary of State for Justice (as Lord Falconer was in 2003, when he took over from Irvine).

The Guardian in 2003:

An astonished shadow home secretary, Oliver Letwin, said: “To remake constitutions on the hoof, on the basis of personnel changes within the cabinet, is the height of irresponsibility. To announce it in a press release at 5.45pm on a Thursday evening is nothing short of a disgrace.”

The shadow leader of the Lords, Lord Strathclyde, described the proposals as “trendy reforms cobbled together on the back of an envelope”.

Six years on from this little kerfuffle, the Constitutional Reform Act 2005 has been passed and the Supreme Court of the UK will start work on 1 October.

Lord Neuberger left the House of Lords to become Master of the Rolls, regarded as a step downwards, a step Lord Denning also took. His remark about the court has been widely quoted. Here is Eursoc on the subject:

Britain’s new Supreme Court is a “frivolous” creation, apparently dreamed up as a last-minute decision “over a glass of whisky” by former Prime Minister Tony Blair. So says former Law Lord Lord Neuberger of Abbotsbury, who declined to join the Supreme Court.

In an interview with the BBC, Lord Neuberger added,

“The danger is that you muck around with a constitution like the British Constitution at your peril because you do not know what the consequences of any change will be.”

The topic has been discussed by Joshua Rozenberg, who also writes in the TLS on two books about the UK constitution.

So what will change about the House of Lords?

The judges will be called justices (up to now, the only justices in England and Wales have been the justices of the peace)
They will move across the road to a 1913 building, the Middlesex Guildhall, that cost £77m to renovate
They will be more visible to the public
They may in time throw their weight about more
Its constitution will be the same, although there is a voluntary new procedure for choosing justices
Its powers will be the same
Its work will be the same
It will be able to issue a single opinion, or a majority opinion (at present five speeches are given)

Pringles are crisps/Court of Appeal-Entscheidung zu Kartoffelchips

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The Court of Appeal, on 20 May 2009, held that Pringles, which are a kind of reconstituted crisp-like substance, are crisps, not cakes or biscuits. This makes them subject to VAT.

Daily Telegraph article (tweeted by matthewbennett)
Decision at Bailii

(4) Regular Pringles are manufactured by mixing the dry ingredients into dough with water and emulsifier, cutting shapes out of a dough sheet, frying it for a few seconds, adding oil and salt, cooling it and then adding flavours. A similar procedure applies to maize (in US parlance, corn) chips like tortillas. Mr Hogg considered that the unique feature of Regular Pringles was that the manufacturing process causes oil to go into the spaces throughout the texture of the product replacing the water content removed during the frying. This gives the “mouth-melt” feel when it is eaten. By contrast with potato crisps most of the fat stays on the surface.

I like ‘in US parlance’. (Also the later reference to ‘the reasonable man’ and Pringles). I’m not sure the last sentence is well constructed. It should be ‘By contrast, in potato crisps most of the fat stays on the surface’.

Food products are generally zero-rated for VAT purposes; see Schedule 8, Group 1 of the VAT Act 1994. However there are some excepted items. Item 5 reads:

“5. Any of the following when packaged for human consumption without further preparation, namely, potato crisps, potato sticks, potato puffs and similar products made from the potato, or from potato flour, or from potato starch, and savoury products obtained by the swelling of cereals or cereal products; and salted or roasted nuts other than nuts in shell.”

This case is reminiscent of earlier cases about peanuts and tomatoes, if I remember right. They are good reading for students who are interested in the language of the law courts and don’t want too complex a situation.

There was a language point, ‘made from’ (no mention of ‘made of’, which would mean about 100% to me):

“Made from”
# In the course of his urbane submissions on the “made from” aspect of Regular Pringles Mr Cordara QC referred to “the potato as a fiscal contaminant”, the “essential characteristics of the paradigm potato crisp”, the absence of “findings of potatoness” and the “quantitative role of the potato.” In contending that Pringles (42% potato, 33% fat) were not “made from” the potato he put forward this proposition:

“If a product has a number of significant ingredients it cannot be said to be ‘made from’ one of them.”

So it is argued that Regular Pringles, which also contain fat and flour, cannot be said to be “made from the potato.”

‘Urbane’ is one of those typical tongue-in-cheek references to the court’s and lawyers’ enjoyment in phrasing the case.

Privy Council

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I haven’t got far with my introduction to English law, but looking ahead, when (if) I get round to the courts, one court of interest is the Judicial Committee of the Privy Council. It’s easy to start looking at this one in isolation. Frances Gibb has an article in the Times headed Does anyone understand what the Privy Council does? which is a good starting point.

Of course, I don’t understand what the Privy Council does, and never have done. What I know a bit about is the Judicial Committee of the Privy Council. The Privy Council is one thing, its court another. The same goes for the House of Lords – a chamber of parliament, but containing within it a court, the Judicial Committee of the House of Lords. It gets confusing when the long name of the court is abbreviated.

So, the Privy Council is a bunch of people whose predecessors once advised the monarch in what I tend to call the Middle Ages. In German it could be called Kronrat. I should think in those days it was clearer who was a member, but nowadays it’s a mystery not just to me. It isn’t a full-time occupation in itself. I liked the quote referring to it only occasionally emerging from the ‘constitutional fog’.

Before I get down to the Judicial Committee, I recommend further reading on what the Privy Council is for those who like obscure knowledge.

Who are Privy Counsellors? Currently there are more than 540, mostly senior politicians who were once MPs. As with a gentlemen’s club or secret society, members swear allegiance to the Queen and to “assist and defend…against all Foreign Princes”.

One thing I don’t think the article mentions is that members of the Privy Council can be recognised by their title – some of them call themselves ‘Right Honorable’, unless they have a superior title. (Note the spelling of Privy Counsellor – I admit that was new to me).

Turning to the court, the Judicial Committee of the Privy Council is a relic of the British Empire. It used to be the highest court of appeal for all colonies. It still acts as a court of appeal for the (few) remaining colonies), and some Commonwealth countries have chosen to retain it as their final court of appeal.

(T’he Commonwealth is a voluntary association of independent states that used to be colonies).

Its members are the same judges, appointed lords, who constitute the Judicial Committee of the House of Lords, plus occasionally one or two judges from whatever jurisdiction the case is about.

It acts as the final court of appeal for many former colonies and UK overseas territories, mainly in the Caribbean but also including appeals from the Channel Islands and Isle of Man, Admiralty appeals from the Cinque Ports, and disciplinary appeals involving doctors and dentists as well as some appeals from ecclesiastical courts.

Since 1998 it has also had power to rule on constitutional appeals arising over devolved powers to Scotland and Wales.

In recent years its overseas jurisdiction has reduced as successive countries have cut off the Privy Council as a court of final appeal: Canada, India, Sri Lanka, African nations, Singapore and, most recently, Hong Kong and New Zealand have all withdrawn.

In all it handles about 55 to 65 Commonwealth and devolution appeals a year, appeals nominally to the Queen as head of state. The judges, notes Mr O’Connor, do not make decisions like other courts; they “humbly advise Her Majesty” whether to grant a petition to the appellant. But the Queen can also refer to it any matter that she wants to. In effect, he says, it is “an embryonic, but unused, constitutional court”.

It’s curious that the court can find itself making decisions on the death penalty, which is not part of English law, or on written constitutions, which the UK does not have.