CONCEPTS OF LIABILITY

CONCEPTS OF LIABILITY – Female Genital Mutilation And Negligent Barristers

An address to the Medico-Legal Society, 28 May 1994

J.W.K. BURNSIDE QC

It all depends

I start with two hypothetical cases, and two questions.

First: Suppose the case of a 13 year old child. An adult inflicts knife wounds on the body of the child. There is no medical reason to justify the procedure. No anaesthetic is used. The parents of the child have, however, consented to the procedure.

Question: Is any of the adults liable for assault?

Answer: It all depends …

Second: Suppose the case of a professional person, duly engaged to undertake his professional task. He begins the task well enough, and breaks for lunch. At lunch, he gets drunk. After lunch, seriously worse for wear, he performs so poorly that the task, otherwise relatively straightforward, fails. The person who engaged him suffers loss as a direct result of his obvious negligence.

Question: Is the professional liable in damages for the loss suffered?

Answer: It all depends …

You would be justified in wondering “It all depends on what?” That question – simple and obvious as it seems – uncovers some difficult problems of jurisprudence. What are the forces and values which inform our concepts of liability?

Jurisprudence

Many people have investigated the nature of Law and have looked for its sources. Austin and his followers assert that all Law stems from the dictates of a sovereign, backed by the threat of punishment and the power to administer it.

Bentham and the Utilitarians say that Law emerges from an evaluation of the net benefit to Society of particular forms of behaviour. That which produces a positive benefit will be permitted, and that which produces a net detriment will attract liability. Benefits and detriments are weighed against each other to determine what is beneficial and thus right. The instrument used for this remarkable exercise is the felicific calculus.

Dworkin conveniently blurs the distinction between what Law is and what Law ought to be, by asserting that laws bubble up from the morality of the community. He insists that there is no distinction between Law and morality. This morality is to be discerned by reference to the framework of rights and morality in the constitution and in institutional practices.

Hart’s concept of Law is a set of social rules which have attracted the force of sanctions. The sanctions compel observance. Thus rules create rights, duties and liabilities.

Adherents of Natural Law seek to identify principles of morality which transcend time and place. Those principles dictate rights and liabilities according to Natural Law.

Valid/Invalid Law

One profound problem of jurisprudence is whether a valid law loses its status as law if it conflicts with social morality. Hitler’s final solution for the Jews was implemented by valid laws, in the sense that the relevant laws were duly passed by parliament and duly enforced by the courts. The various organs of the Wehrmacht were validly constituted, and the chains of command were proper. Orders to carry out mass executions were legally valid and enforceable. However, the International tribunal at Nuremberg rejected the defence that the accused were carrying out superior orders. No one could doubt the moral correctness of that result. If it was legally correct, then apparently valid laws turn out to have been invalid and ineffective, because they offend morality.

This is clearly a difficult issue. It is the province of Natural law to determine the ultimate validity of apparently valid laws of nations. The difficulty is that there is no agreement about the content or application of Natural law. The nation which passes a law will not itself concede that it conflicts with Natural law. Typically, that judgment is left to the world community, in times of peace; and to the victorious in times of war.

The problem of validity is especially acute when an individual in Society considers that a specific law is contrary to that individual’s moral convictions. Remember those who protested against the Australian involvement in Vietnam, and evaded conscription because of their conviction that the Vietnam war was wrong. They broke the law and were vilified at the time. Attitudes have changed: now those who fought in Vietnam are vilified by some.

There are many theories about what Law is, and where it comes from. I do not what to align myself with any specific school of jurisprudence, but I should declare my biases. I take the following propositions as axiomatic:

(a) It is possible for a law to be a bad law.

(b) A bad law is one which offends the instinctive sense of justice, fairness or morality of the society bound by the law.

(c) A law which compels a person to act contrary to prevailing standards of decency or propriety is a bad law.

From those propositions you will see that I assume that Law and morality should have, but do not always have, a common foundation.

To the practitioner, these considerations generally present no difficulty. The practitioner is in the happy position of the motor mechanic, who can criticise the design and construction of a car but whose job it is to do the best he can within the constraints those things impose. The practitioner takes the Law as it is and does with it the best he can for his client. Difficult or perverse laws which operate to the detriment of the client will frequently be found to operate for the benefit of the lawyer.

But on occasions like this, the mere mechanic can take command – briefly, and in imagination only – of the design process; he can commandeer the factory and experiment with production control. In that liberated spirit I take advantage of a captive audience, to examine the way we derive our concepts of liability. In order to do it, I choose two examples which test the problem at its boundaries.

Female Genital Mutilation

I return to my first hypothetical problem.

Suppose the case of a 13 year old child. An adult inflicts knife wounds on the body of the child. There is no medical reason to justify the procedure. No anaesthetic is used. The parents of the child have, however, consented to the procedure.

Question: Is any of the adults liable for assault?

FGM has many forms. It is now illegal in all its forms in Britain. Many people in Australia think that it ought to be illegal here. That is a proposition which nicely tests individual legal philosophy.

It is desirable to understand the various forms of FGM which are still widely practised. The range of activity comprehended under the all embracing title of FGM is wide. The commonest form is so-called female circumcision: incision or removal of the clitoral hood. Almost as common is clitoridectomy: removal of the clitoris, and sometimes removal of parts of the labia.

The most drastic form of FGM is infibulation. This involves excision of the clitoris and labia, followed by suturing of the vulva so as to leave only a tiny opening to allow menstruation and micturition. At marriage, the opening is enlarged by cutting the scar tissue. In some cases, this is done by the woman’s mother, sometimes by her husband. After childbirth, the vulva is infibulated again.

It is easy, and for us perhaps obvious, to condemn such practices. It is sobering to learn that FGM is widely practised in 40 countries around the world, including 27 African countries. Female circumcision is practised by some Australian Aboriginal groups. It is not a Muslim religious practice, although some of the cultures which practise it are Muslim.

Infibulation is the least common form of FGM. It is confined principally to Somalia, Ethiopia, Mali and Sudan. In those countries, as many as 85% of women are infibulated. In Somalia it is approved by 83% of women and 88% of men. Somali women who approve the practice are reported as saying that they would feel unclean and socially unacceptable if they were not infibulated in accordance with their cultural tradition.

The practice of FGM, and infibulation in particular, came into prominence in Australia in late 1993. Two girls were seen by a solicitor who suspected that they were victims of child abuse. In addition to the evidence of child abuse, she learned that they had been infibulated. She notified Community Services Victoria. CSV took the view that infibulation did not itself constitute child abuse, and did not by itself warrant a care and protection order. Doctors who had already examined the children took the same view. An organisation concerned with child welfare intervened in the case. As a result of the case, CSV altered its policy. Evidence of FGM is now regarded as sufficient to justify an application for a care order. The Family Law Council has recently issued a discussion paper which adopts a provisional conclusion that FGM ought to constitute an unlawful assault. In this context, it is well to remember that consent is a defence to assault. The boxer impliedly (or expressly) consents to what would, in a different context, be an assault. All surgery is an assault, unless consented to. However, there are limits to the sort of assault which can be effectively consented to. You cannot consent to be shot. The House of Lords has recently held that you cannot effectively consent to brutal sado-masochistic activities.

Africans who come to Australia bring with them their culture, including the practice of FGM. Is it right that we say to them: “We are a multicultural society, but only to a certain point.” ? Will not the ethical relativists among them say “But we only do it to ourselves, who approve it, and not to you who disapprove”? And the absolutists will respond: “There are some things which are not to be condoned by reference to any cultural justification”. So are the battle lines of principle drawn.

I do not think it is easy to decide between the rival positions. A person seeking to persuade me to the absolutist view will say: “What if it were your daughter?” and of course that prospect appals me. But is that the right test? There is no suggestion that a culturally orthodox Somali will be concerned to infibulate my daughter. But his daughter will feel unclean if she is prevented by law from being infibulated.

Some people brush this aside as a mere quibble. They insist that it is easy, indeed essential, to condemn FGM in Australia. After all, if they come here they must accept our laws.

Let me tease the problem out. The most widely practised form of FGM involves a minimal incision of the clitoral hood, with or without removal. Is this to be tolerated? If not, how do we distinguish it from the widespread practice of male circumcision? That practice is culturally important to Jews, and until recently it was habitual in many societies, including our own.

Australian Aborigines slit the urethra along the inferior surface of the penis as an initiation at puberty. The initiate does not consent: in fact, he is hunted down before the procedure is performed. If he escapes, so much the better for him. It is not evident that those who criticise FGM among Somalis are equally critical of subcision amongst Aborigines. Interference with Aboriginal culture is not as popular as it once was. Instead, the received view is that the Aborigines have suffered more white cultural imperialism than can be justified, and we should go no further.

I do not know how many Dayaks there are in Australia. Dayak males insert a 4 cm pin through the glans of the penis. It is done voluntarily, and for the purpose of enhancing the sexual pleasure of their partner. I can only think of three things to be said in favour of the practice. First, it is culturally valued, and therefore valuable, at least to Dayaks. Second, it is apparently altruistic. Third, since the Dayaks still survive, it is apparently not as debilitating as it sounds.

Any legislator who decides to make genital mutilation unlawful must decide whether the law will apply to both sexes, or to females only. If it applies to females only, must it not be open to criticism as discriminatory or paternalistic? If it applies to both sexes, then it must interfere with Jewish culture and Aboriginal culture and many others.

Now a larger question emerges. The debate so far has concentrated on genital mutilation. Other forms of body mutilation are common and are deeply entrenched in many cultures.

Deforming the skull is practised on all continents other than Australia. By constant application of pressure on the skulls of infants, the skull shape is grossly and permanently deformed. This is taken as a mark of social prestige.

Perforation of the lips and tongue is a widespread practice. Some Australian Aborigines draw blood from cuts along the underside of the tongue as an initiation rite. Gross stretching of the lips is a famous mark of the Ubangi.

Perforation of the ear for decorative purposes is almost universal, but attracts little attention. We do not think it barbaric, since we do it ourselves. Stretching of the ear-lobe is equally common, except among Europeans.

Insertion of decorative objects through the nose is widespread in South America and Micronesia.

Decoration of the skin by scarring or tattoo is known worldwide. The decorative raised scars on the Aboriginal chest have much in common with the ritual duelling scars which marked the German aristocracy until Bismarck’s time.

Chipping, filing or removing teeth for ornamental purposes is widespread. In Indonesia, they file low relief designs on the surface of the teeth for decoration. Other cultures drill holes in the teeth and embed precious stones in them.

All these practices involve pain, sometimes extreme pain. Speaking for myself, the thought of having the teeth drilled and filed, without anaesthetic, for ornamental purposes makes a swift circumcision look pretty tame.

Should it be unlawful to do any of these things in Australia? Should it be unlawful to consent to the procedures involved, in exercise of cultural tradition? We might condemn the practices as “not our type of thing”; we might say that those who would live in our land must adopt our cultural horizons; but in so doing, we must recognise that, at its foundations, this lofty moral stance rests on an implied assertion of cultural superiority: our cultural framework, which condemns the practice, is superior to yours which condones it.

Since cultural imperialism is no longer politically correct, we might cast about for another way to justify the instinctive desire to ban genital mutilation. One argument might be characterised as “the greater good” argument. This is, that the existence in Society of brutal behaviour is itself a brutalising influence. Thus, the victim is not just the immediate participant, who has consented, but Society at large which does not consent.

This argument is an attractive one for two reasons. First, it sidesteps the problems which beset all victimless crimes. Victimless crimes involve behaviour which is consensual, and which raises no complaint from those immediately involved. Those who would punish it run into the criticism that they are intruding unwarrantably into private affairs. By introducing Society itself as a notional victim, the criticism is avoided.

Secondly, it provides a respectable way to deflect a charge of cultural imperialism. Instead of considering the inherent legitimacy of particular cultural traditions, it concentrates attention on protecting the hypothetical weak and sensitive in our midst. As a virtuous aim, this ranks close to patriotism and motherhood, so it attracts little scrutiny.

The “greater good” argument deserves attention. It rests on some unstated premises. First, that the behaviour complained of is in fact a brutalising influence. This is just cultural superiority in disguise. Ask the Somalis if they think female circumcision is brutal or brutalising, and they will tell you it is not.

Until a generation ago, Aboriginal children were removed from their parents to avoid the brutalising influence of their traditional ways, and to give them the benefit of a white upbringing. This is no longer considered a Good Thing. What is to be regarded as a brutalising influence is therefore obviously relative; and values shift according to time and circumstances.

Second, the “greater good” argument assumes that the benefit of avoiding the remote brutalising effect outweighs the detriment to the group whose cultural traditions are peremptorily banned. This is presumably an implied call on the felicific calculus of the Utilitarians. A faint and remote benefit to the many amounts to a greater quantity than an immediate and direct restriction on the few. In this context, it is significant that the “greater good” argument is generally used in relation to measures against minorities: for example, banning homosexual acts in private between consenting adults.

You may or may not have a view about the legitimacy of the “greater good” argument. I invite you to suspend judgment a moment, since my second theme raises it, but in a different context.

Negligent Barristers

You will remember the other question with which I began.

Suppose the case of a professional person, duly engaged to undertake his professional task. He begins the task well enough, and breaks for lunch. At lunch, he gets drunk. After lunch, seriously worse for wear, he performs so poorly that the task, otherwise relatively straightforward, fails. The person who engaged him suffers loss as a direct result of his obvious negligence.

Question: Is the professional liable in damages for the loss suffered?

As I said, it all depends. If the professional is a barrister, and his professional engagement involves a Court appearance, the answer is No, he cannot be held liable for his unquestioned negligence.

On October 13, 1988, the High Court published its decision in Gianarelli’s case. The essence of the decision is that at common law an advocate is immune from being sued by his client for negligence in the conduct of a case in Court, or for negligence in the performance of work which is intimately connected with the conduct of the case in Court.

Like all barristers, I hold the judgment to be a sound application of an ancient and worthy principle. I hold it in high esteem, and only pause to reflect on it for polemical purposes.

The decision in Gianarelli’s case confirmed the existence of an immunity from suit which barristers enjoy. The immunity has been recognised in England for a long time. It is the basis of the immunity which is relevant to my subject.

The barrister’s immunity rests explicitly on the proposition that to expose Counsel to liability in negligence

“… would create a real risk of adverse consequences for the administration of justice. Litigation would tend to become more lengthy, more complex and more costly”. (Per Mason CJ at 557).

It can be seen from this that the undoubted harm suffered by the hapless client is subordinated to the greater good – the better administration of justice, at least in cases other than his own.

The appeal to the greater good was dealt with in more detail by Wilson J. His Honour said (at page 572):

“The public interest in the administration of justice … remains a valid unifying theme for the various issues of public policy canvassed by the House of Lords in Rondel v Worsley. Five distinct grounds of public policy were advanced in Rondel in support of immunity: the concern that if counsel could be sued for negligence, they would be tempted to prefer the interests of their clients and would be deflected from observing their duty to the court; the adverse effect that the fear of litigation may have on the barrister’s efficient conduct of the court proceedings; the “cab-rank” principle, whereby a barrister is not free within his field of practice to choose whether or not to act for a person who desires his services and can pay his fee; the special character of the judicial process wherein judges, jurors and witnesses are immune from civil action; lastly, the threat to the public interest centred in the finality of litigation.”

His Honour then dealt with each of these considerations in turn. He acknowledged that they were not all of equal weight.

I want to examine only one of the five considerations in any detail. As for the others, I will content myself by saying two things. First, it is rarely that the duty to the client and the duty to the Court are in conflict; clearly the duty to the Court is paramount, so a proper resolution of the conflict could not make counsel liable to the client.

Secondly, it is difficult to see why a barrister’s performance in Court should be adversely affected by the threat of litigation. If it is, there is a clear argument for exempting airline pilots and brain surgeons from liability.

The consideration which I will deal with in detail is the public interest in the finality of litigation. The Courts have always been concerned to avoid collateral attacks on their judgments. Suppose a person is convicted of a crime. Her appeal fails. She sues her counsel, saying he handled the case negligently. The Court finds that the conviction was due to counsel’s negligence. So a conviction upheld on appeal has been found to be unsound in separate proceedings. Furthermore, the negligence action might involve a substantial rehearing of the original charge. The judge and jury in the criminal case may have to be called as witnesses in the civil case.

It is this prospect of collateral attack on judgments which, it seems to me, dominates the argument in favour of the barrister’s immunity. At the risk of heresy, let me say: it happens already.

From time to time, our Society finds ways to mount a collateral attack on a concluded judgment. The Chamberlain case is a recent and striking example. The case of the Guildford Four is another. Likewise the Thornton case in 1817, the Pelizzioni case in 1865, Adolf Beck in 1904, and Oscar Slater in 1908.

Of these, the case of Adolf Beck is perhaps the most interesting.

In 1895, Beck was standing outside 135 Victoria Street, London when Ottilie Meissonier approached him. She accused him of having tricked her into parting with two watches and a ring.

Beck made a dash for it, and Madame Meissonier gave chase. He ran to a policeman, and denounced Meissonier as a prostitute who had accosted him. She, in her turn, accused him of having swindled her three weeks earlier.

They went to the police station. To Beck’s horror, the police believed Meissonier’s story, and disbelieved his. He had never seen her before that day.

Soon afterwards, several other women came forward who identified Beck as being the person who had swindled each of them out of small articles of jewellery.

Each woman told the same story. A man had approached her, mistakenly recognising her as “Lady Everton”. He then apologised for his mistake, introduced himself as Lord Wilton de Willoughby, and struck up a conversation. With a combination of blandishment and rodomontade, he would persuade the lady to part with some jewellery in exchange for a worthless cheque.

The technique was unvaried, and each woman said Beck was the man.

He was charged. At the committal hearing in late 1895, police constable Elliss Spurrell gave evidence as follows:

“In 1877 I was in the Metropolitan Police Reserve. On May 7, 1877 I was present at the Central Criminal Court where the prisoner in the name of John Smith was convicted of feloniously stealing ear-rings and a ring and eleven shillings of Louisa Leonard and was sentenced to five years’ penal servitude. I produce the certificate of that conviction. The prisoner is the man.

There is no doubt whatever – I know quite well what is at stake on my answer and I say without doubt he is the man.”

This was profoundly significant: the offences for which John Smith had been convicted in 1877 were identical in every detail with the offences alleged against Beck.

Beck was sent for trial. Horace Avory (later Mr Justice Avory) appeared for the Crown, with Guy Stephenson. Charles Gill appeared with Percival Clarke for Adolf Beck. The judge was Sir Forrest Fulton.

The defence was simple: mistaken identity. The defence evidence had two components: first, the fact that the person known as John Smith had been convicted of identical offences in identical circumstances in 1877. Second, that between 1875 and 1882 Adolf Beck had lived permanently in Peru. Those circumstances would wholly refute the proposition that John Smith and Adolf Beck were one and the same, as Elliss Spurrell had sworn to at the committal.

Unfortunately for Beck, the Crown vigorously resisted every attempt to call evidence about the 1877 convictions. They did not call Elliss Spurrell. That, despite the fact that the prosecution was based wholly on the unstated premise that Adolf Beck and John Smith were the same person.

The judge, Sir Forrest Fulton, refused to admit any evidence about the 1877 convictions. Beck was convicted, and sentenced to seven years in prison. His prison number was DW 523. Under the system which then operated in English prisons, the D represented a conviction in 1877, and W represented a conviction in 1896. Whilst Beck was in prison, a journalist called Sims began agitating for a review of the case. He was disturbed by the fact that the prosecution case proceeded from an assumption that Smith and Beck were the same person, yet Spurrell had not been called at the trial. If Spurrell’s positive identification could have been refuted, then the defence of mistaken identity was almost certain to succeed. It would have demonstrated the existence of a person with an identical method of operating who looked enough like Beck to mislead Spurrell.

Sims agitated vigorously in the press. Slowly, public opinion swung to the view that Beck had been wrongly convicted.

Eventually a Committee of Inquiry was established. It heard evidence from the prosecutor Horace Avory, and from the judge, Sir Forrest Fulton. It concluded that in its opinion:

“… there is no shadow of foundation for any of the charges made against Mr Beck or any reason for supposing that he had any connection whatever with them.”

The reason for this finding was that the committee was completely satisfied that Adolf Beck was not John Smith. It also found that the prosecuting authorities had known that fact for at least the last five years of Beck’s prison term.

It remains only to mention three remarkable features of the case.

First: in 1904, whilst agitation for a public enquiry was at its height, Beck was again arrested and charged with identical offences. He was convicted. He was pardoned four months later when John Smith, alias William Thomas alias William Wyatt, was convicted of the same offences.

Second: counsel who prosecuted John Smith back in 1877 was none other than Forrest Fulton, who presided as the judge at Adolf Beck’s first trial in 1896.

Third: the decisive evidence which demonstrated that John Smith and Adolf Beck were not the same person, evidence which had been in the possession of the Crown since 1896, was this: Smith was Jewish, and had been circumcised; Beck was uncircumcised.

Conclusion

By that curious symmetry I am brought back to my first topic. If he had turned his mind to genital mutilation, I imagine Adolf Beck would have proved to be an ethical relativist: “Circumcision is alright for others,” he might have said, “but not for me.”

That is a view which appeals to me, but for reasons of philosophy rather than self-interest. I have reservations about the absolutist view in a society which proclaims itself multicultural. Where two cultures come together, and each has conflicting cultural values, the absolutist view leads directly to the subordination of one culture by the other. The absolutist view has, by definition, no mechanism for adjusting between inconsistent sets of cultural values, since the absolutists in each culture would insist on the correctness of their own views to the exclusion of others.

In conclusion, let me say that I do not support, or approve of, mutilation generally or genital mutilation in particular. However, I suggest that disapproval, however vehement, does not automatically mean the practice should be prohibited. Perhaps it should, perhaps not. In my view, it is a mistake to argue about FGM as if it were a single form of behaviour which can be banned or condoned. By treating it as a single form of behaviour, the argument starts from the premise that ritual nicking of the clitoral hood is indistinguishable, morally and medically, from infibulation. That is a nonsense. If the debate is to achieve an informed result, FGM must be recognised as a continuum of behaviour which, at one extreme, cannot be distinguished from other accepted, culturally based forms of behaviour; and which, at the other extreme, goes beyond anything which our culture is prepared to accept. Then the true debate will emerge – namely, where do we choose to draw the line, and how do we justify that choice. There are profound questions of culture, philosophy and jurisprudence between moral disapproval and legal liability.

See also the article by Peter Aikman Female Genital Mutilation: Human Rights Abuse or Protected Cultural Practice?