Nowadays, Latinisms are rarely to be found in what might be called ‘everyday’ English law. For example, we no longer speak of the Guardian ad litem representing children in care proceedings, or of victims of domestic violence seeking an ex parte (without notice) injunction.
We no longer speak of wives seeking alimony (maintenance). The decree nisi in divorce proceedings is now simply a conditional order. That does not, however, mean that ‘popular’ Latinisms, such as affidavit (sworn statement), pro bono (free of charge) or subpoena (witness summons) are about to be consigned to history by the knives of the censor! Indeed, curiously, these terms, from the so-called dead language, are very prevalent amongst litigants in person. Perhaps on that basis we really should revise Shakespeare’s injunction to ‘kill all the lawyers’!
On the other hand, the law, in England and Wales, like almost every other aspect of British society is full of Americanisms – there are a good number of Brits who prefer to walk on the sidewalk rather than the pavement! Moreover, there are a whole host of American legalisms, which don’t actually make any real sense in English law. Take for example the expression ‘trespassers will be prosecuted!’ This would be true if trespass was a criminal offence in England and Wales. It generally isn’t, unless you happen to unlawfully enter a civil nuclear installation or places where Royals or senior politicians live. The list of places where one can criminally trespass is a really short one. A sign, on private land, which declares ‘no trespass’ is more or less, simply a polite request.
The American expression to ‘press charges’ falls to a similar analysis, although any self-respecting criminal lawyer will hear clients knowledgeably utter this phrase at least once a day, and twice on Sundays, when acting as the Duty Solicitor. Private individuals cannot ‘press’ criminal charges in England and Wales. Only the state can do that. Therefore, a declaration that a private individual ‘has no intention to press charges’, is pretty much a statement of the obvious, as he or she has no ability to do so anyway.
The real problem is that what we see on the silver screen lulls us into an animated state of false reality. This is exemplified by the fact that if matters do get prosecuted by the state, in England and Wales, defendants are required to ‘go into the witness box’ not ‘take the stand’, in order to explain their alibi.
Perhaps because of the silver screen effect, Americanisms in the Family Courts are living a kind of charmed life in a parallel universe. Judges have virtually given up correcting litigants in person who speak of alimony (maintenance), visitation (contact) and motions (applications). The very American common-law marriage (cohabitation) is alive and well in our English Family Court. So too is residency and custody (live-with orders). These are bona fide mistakes which are repeated ad nauseum!
Like their colleagues in the Crown Court, judges in the Family Court occasionally have to incarcerate litigants. Indeed, the very term ‘incarceration’ is a most popular one among litigants in person. It is from the Latin in carcer (in a prison). It is, however, important to note that in the United Kingdom, custodial sentences are served in prisons, not gaols or jails! Also, if anyone remembers seeing a judge bang a gavel just before the hapless prisoner is escorted away, they have probably been watching too much television.
I could go on like this ad infinitum but let’s carpe diem (seize the day) and ignore the plea for ‘silence in Court’! Apparently carpe diem is the most common Latin phrase of modern times, but I have lost count of the number of times that lawyers for drink-drivers claim that their clients cannot pay fines because they are impecunious. It literally means they have no money. It’s from the Latin pecunia (money). The irony of the phrase in vino veritas (in wine there is truth) comes to mind. By the way, there is no such thing as a plea bargain in English law.
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Syvil Lloyd Morris
Solicitor Advocate and Co-Founder
Bastian Lloyd Morris
