Death Penalty for Trying to Help? The meaning of Words.
Every Notarial Job is the Same – Every Notarial Job is Different. Nothing too unusual in that I suppose. I am sure you can say the same of most jobs. Every lorry driver knows that each trip up the Motorway is the same route, but the hazards are always different. And there is always the chance of a surprise.
Last week’s surprise came from Florida.
In January this year, I saw a couple of Clients at my Office in Leeds. They executed and I witnessed and Certified a Deed connected with their sale of Property in Florida. Since the USA is a party to the 1961 Convention of The Hague, this document should have been submitted for Apostille stamp. [If you want to know more about that, see my earlier Blog link here].
Although I mentioned this to the US Advisors to my Clients, the response was that no further authentication beyond my stamp and seal was required. OK, I sent the Notarised Deed to Florida. Job done and filed away in January.
Until this month, when I was asked to “send over an Apostille”. Bit odd. The Apostille is a certificate physically attached by the British Foreign and Commonwealth Office to the document bearing the Signature and Seal which it authenticates. The USA Advisors appeared unaware, but eventually they understood that they had to send me the January Deed in the post.
The January Deed was of two pages, plus a third page described in the Deed as “EXHIBIT A ATTACHED HERETO”. The Deed therefore totalled three pages and I had in January physically bound them together with brass rivets and green tape under a wafer embossed with my Seal of Office.
I do not understand how Exhibit A could be any longer considered to be “Attached” to the other two pages [as the wording said it actually was] when I found that the envelope from Florida returning the Deed actually contained three separate pages.
Oh Calamity! The original Deed has been unbound. The Cord had been cut and partially removed. One rivet was missing. The three pages were quite unattached one to the other. Also one page had an area of whitener – Tipp-Ex © – applied to some writing beneath it which had not been written there when the bound Deed left my Office.
I had to explain that the Deed, defaced in this way, was somewhat in the state of Humpty Dumpty after the falling-off-the-Wall incident. Not all the King’s Horses, King’s Men, nor the Queen’s Foreign and Commonwealth Office can put it together again.
So it won’t be getting an Apostille stamp. Everyone will have to start again.
Which makes me wonder about the changing meaning of words. If the American Deed wording includes the word “Attached”, what does it mean? What do they understand by it?
Clearly notwithstanding the use of the word, someone in the States has decided that the Deed would not be invalidated or rendered meaningless by being pulled apart – presumably in order to scan it using a sheet feeding device which requires single sheets. This creates a PDF document. Now, are the pages of a PDF “attached” to each other? The whole thing is virtual. I suppose that now, the Exhibit is “included” rather than being “attached”?
Problem is, that the Foreign Office will not issue a virtual – digital – apostille of a digitised version of an original paper document. And further, the problem is that the original, whether paper or digitised, used the word “Attached”.
It seems to me that the IT revolution has completely overtaken the wording and practices of the legal processes which it has been adopted to facilitate.
If paper is no longer to be the medium of legal documentation, why does the wording of such documentation pretend otherwise? It seems to me that we are increasingly living in a world where the unimportant detail is insisted upon – Always use Blue Ink for legal documents in Florida – but the actual meaning of the words in the document are almost irrelevant.
We are faced with a sort of Kafkaesque dream/nightmare world where most of the time we are asked to accept that the significance of the words in a document must be what the writer of them intended to mean, rather than what the words actually mean.
One further example from my own experience:- My client Ms. C lives in Leeds. On a holiday in the States she witnessed from the safety of a car, a street robber holding a gun to a pedestrian and stealing from him. She took photos of the gunman and gave the photos to the Police.
Months later the Police caught the man in the photos and a Court hearing was taking place. The photographs were the best evidence of his guilt, so the prosecutor wanted to put them before the Court. In order to do so, the Court needed evidence that they were genuine and not doctored and so it needed evidence from Ms C.
No-one was willing to pay her airfare to Miami from UK return just for a five minute Court hearing, to take the Oath, then “Do you identify these photos, are they the genuine photos taken by you? – Yes – No further questions – Thank you, you may step down“
So the alternative procedure is for Ms C to appear before me in Leeds to swear an Affidavit. In due course an email of the intended Affidavit arrived in my inbox and Ms C attended to swear it. It read, in essence “I swear that the 10 photographs attached are those taken by me in Florida on [date]”
No problem at all, except that no photographs, digital or otherwise, were included in the email, to be printed and attached to the Affidavit.
When I phoned the US Prosecuting Attorney’s office, he said that the ten photos had been printed onto glossy card and were in his office, and that he would attach them to the Affidavit when it got back to the States.
He agreed with me that the Affidavit wording said “I swear before Almighty God that the ten photographs attached are …” and that it was to be dated, on a date when he knew and I knew and Ms C knew that none of the photographs were even in England. Yet he wanted her to swear the opposite. A lie. And in the context of an Affidavit to be put before a Judge in Court. That is the very definition of the Offence of Perjury with intent to pervert the Course of Justice.
I asked him to get an American dictionary and read the entry for “Attached” in case the USA meaning is different from English. Oh he said, I see what you are getting at, but we just kind of means by “attached” that it exists. Oh I said, in England we mean by the word that it is attached.
By the way, if Ms C had proceeded – [and surprise, she decided not] – to go ahead and commit the offence of Perjury with intent to mislead a Criminal Court, there are two States of the Union – California and Idaho, where that offence is potentially punishable by death.
Sometimes words suddenly leap out of the context of academic argument, and get serious. Link Jail in USA
If you have a document with words in it, for use abroad, please do get in touch. As ever, Louise and I are at email@example.com and firstname.lastname@example.org and phone us on 0113 816 0116