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Examining the stylistic aspects of USA v Assange

The recent decision of the High Court (Lord Burnett of Maldon CJ & Holroyde LJ) in USA v Assange [2021] EWHC 3313 (Admin) has attracted a great deal of press attention, but very little (indeed, probably none) of this attention has examined carefully the judgment’s stylistic aspects. In this post, I propose to rectify this oversight by examining a few points of style.

The Notation of Numerals

The judgment quotes from several Diplomatic Notes given by the US. Like most diplomatic documents, the Notes are identified by their number. The Lord Chief Justice’s judgment uses ‘no.’ for each. With the greatest of respect to His Lordship (who exemplifies everything that is dignified and praiseworthy about the English & Welsh judiciary), are several difficulties with this typographic approach. The abbreviation which conventionally indicates ‘number’ is a language specific task for the printer; a German judge would have written ‘Nr.’ and a French judge would have written ‘nᵒ’, for example. In English, as with many of the language’s conventions, we follow the original French example, and use some variant of the first letter ‘n’, and the last letter, ‘o’ of the word ‘numero’.

The issue with the LCJ’s approach is that he has placed a full stop following the last letter of the abbreviated word. This is at odds with the modern style of open punctuation used in the UK, and makes little sense even in the more conservative variant preferred by some ancient university presses, as well as myself (by which words stopped in the middle, such as ‘Prof.’, retain a full stop, but other shortenings, like ‘Mr’, lose it).

One cannot fault, though, the LCJ for adding a full stop to ‘no’, even as he kept (rightfully) a full stop out of the ‘v’ in case stylings. The impetus is quite obvious: the lowercase ‘no’ is identical (homographic, if you will) to the English word ‘no’. Although it is relatively unlikely, by virtue of the basic probability underlying all of open punctuation, that someone would think that the Lord Chief Justice of England & Wales was saying that a given Diplomatic Note was not 123 in the relevant series, as opposed to simply indicating that it was number 123 in the series, it simply looks wrong without added punctuation.

The answer comes from reference to how, historically, abbreviations of this type were handled. ‘No’ has a great deal in common with ‘Mr’, in that both used to be abbreviated (once again, in French style) with the second character in superscript. (It must be noted that this treatment was not reserved for abbreviations of the first and last letter; ‘Company’ was often abbreviated as ‘Cᵒ’) Today, even the most conservative stylists cannot really argue that superscript in ‘Mr’ is correct, but it remains a sensible option for the numeral abbreviation if my preferred option (infra) cannot be implemented due to lacunæ in any given typeface’s glyph coverage.

The best solutions, however, involve a properly pre-composed glyph, referred to as the ‘numero sign’, and encoded in Unicode at U+2116: №. Prior to the digitisation of typesetting, a judge typing out a judgment would have but a typewriter (or, indeed, a clerk who typed up the judge’s longhand) and no ability to add such customised characters. Today, though, typesetting has been democratised and we can all take advantage of wide character coverage in modern typefaces to use a proper glyph. The special № character has been carefully forged and punched (or, today, the digital equivalents) to clearly and elegantly communicate the abbreviation. In a properly equipped typeface, the height of the abbreviation will perfectly match the text figures accompanying it.

It is worth here dealing with the principle objection to the № glyph: that it is resistant to being pluralised. This, certainly, the principle reason French typographers, from the Impremerie nationale downward, have proved so resistant to it; the glyph does not have the simple facility the superscript nᵒˢ does. For my own, personal typography, I have created custom pluralised №s glyphs to make up for this lacuna in Unicode, but I think , in practice, adding an ‘s’ after a bare № glyph is still much better looking than the ugly ‘nos.’ as an alternative. There is, of course, nothing wrong with a (preferably capitalised) Nᵒˢ glyph using superscript, especially as Unicode superscript allows for easier travel across platforms (as opposed to formatted superscripts, which go away when pasted as plain text). Many typefaces do not have a № glyph—although, in my opinion, any good typeface for English will—and thus, superscript will often be necessary. Nonetheless, if your typographer of choice has been kind enough to create a custom glyph for precisely this situation, it is silly to discard this kind effort on your behalf in favour of a botched solution.

The Naming of Extradition Cases

Extradition cases are named according to a delightful, but slightly misleading scheme, named after the requesting State. This can create the amusing false impression that it is the requesting State actually conducting litigation and engaging in the proceedings, leading to mental images of, for example, President Biden asking his diplomats to ring up a good solicitor in London. Instead, extradition proceedings are conducted, ultimately, by the United Kingdom (through the respective prosecuting authorities in each of the UK’s various jurisdictions). The only difference is that instead of proceeding in the name of the Crown as per usual, takes on the name of the requesting State. In my opinion, the clearest way to demonstrate this would be to style extradition cases as relator actions—eg, DPP ex rel USA v Assange. This type of style is already used in Scotland; see, eg, the styling of  Lord Advocate on Behalf of the Repbulic of Poland v  Zagajewska & Ors [2020] SC EDIN 53.

Instead, we have the current system of using country names, which can be a bit inconsistent, as parties are not always clear as to how to style the requesting State in shorthand. The present case provides a good example. The full title of the appellant, as shown on the first page of the judgment, is The Government of the United States of America. This the proper styling for the US government in external relations, because it is under that name that the US concludes diplomatic agreements, including the extradition treaty underlying the case at issue.

However, best practice in case names which incorporate countries is to use the conventional short name of a State. EU cases, with their numerical designations and, for enforcement actions, parenthetical descriptions, already take up enough space without turning every instance of Commission v Germany into Commission v Federal Republic of Germany. How then, to shorten ‘United States of America’? Quite regerettably, the courts appears unsure. The case at issue, and several notable precedents cited in it, use ‘USA’. However, a leading case cited throughout the judgment uses a different schema in its name: Turner v United States [2012] EWHC 2426 (Admin). The use of ‘United States’ has a rather tempting attraction, because in the US, prosecutions are brought with precisely that styling (United States v Ghislaine Maxwell has been in the news recently, for example). As it is ultimately at the request of the United States that the procedings against Mr Assange were instituted, using an ‘authentically’ American case styling is especially appealing in its symmetry.

I, though, cannot bring myself to endorse the use of ‘United States’ in lieu of USA. First, the judiciary must remain strictly impartial in styling case names, particularly with regards to the UK’s foreign policy. While the US may be content domestically to refer to itself as the ‘United States’ without further specificity , they are not the only ‘United States’; the United Mexican States, sometimes translated as the United States of Mexico, have just as much right to the name as their northern neighbour. It is not for courts in this country to unilaterally determine that ‘United States’ is juridically reserved for the USA in case titles, even if it is, in demotic speech, used almost exclusively to refer to the federal republic between Mexico and Canada (and hence my free use of the term ‘US’ in this stylistically casual web-log). Furthermore, it is wrong for English courts to adopt so readily the stylings of American criminal proceedings in extradition, because the CPS, in acting for a requesting State, is independent and impartial rather than merely lawyers serving their American client. The use of ‘United States’ could thus confuse people into mistakenly believing that the US was allowed to simply send in its own counsel to lead extradition cases (I am aware of at least one television programme, Silk, which shamefully furthered this misconception). Finally, ‘United States’ needlessly extends the length of a case name, which should be ideally as short as possible.

Inconsistent Stylings

However, the case law cannot be changed, and as it stands, Turner remains a leading case with an anomalous styling. How should a judge or barrister approach this inconsistency? This is not a question limited to extradition cases, but rather an ever present issue in case citation; think, for example, of the problem of if, variously, Rex, Reg, and The King/The Queen in the title of  older or Commonwealth criminal cases should be shortened to the modern R.

One approach is to, as the Court in this case did, simply cite the inconsistently styled cases as they are, and leave things be. This has an advantage for Internet search (although this is a small advantage given most lawyers search by citation, which is far more reliable), and also reflects the general tendency to extreme honesty in legal style, even at the expense of prettiness. Garner, in Elements of Legal Style, expounds this quite well in his discussion of quotations (lawyers always indicate via copious ugly brackets where they have altered a quotation, even if that looks visually atrocious). On the other hand, it is discomfiting to encounter jumbled stylings, and it is potentially confusing to the unlearnèd who may presume there is a difference between the differently styled cases. A first principle (and an ethical one too) of legal style should be to put no stumbling block before the blind. For my part, I prefer to restyle cases so as to be consistent, knowing that the citation following the case name is an immediate cure to any confusion.

On Quotation Marks

This point can be dealt with briefly: the judgment generally uses double quotation marks for first-order quotations, in contrast to the well-established British practice of using single quotation marks (hence, their more prominent placement on a standard UK keyboard). Even worse, the judgment inconsistently allowed a use of single quotation marks to slip in, at para 22(iii). If the judiciary wish to depart from the accepted practice, they should at least be consistent in this decision.