In my blog I hope to include memories of times past (and there may be quite a lot of these) as well as commentary on current issues.
This talk, given to a black-tie dinner organized by undergraduates at Durham, was an attempt by me to bring to life some of the excitement and variety of a lifetime in the law, along with some thoughts about advocacy because they had asked me to speak about this, too. Now I am nine years into retirement and my life is a bit less busy than it was in 2008. Like Sherlock Holmes’s brother Mycroft, I can now enjoy most of it without having to move from my armchair at home. However, I don’t think Mycroft ever learned how to blog.
A lifetime in the law
A talk to law students at a dinner at Durham University on 8th March 2008
It is very good to be back in Durham. In a sense it is where it all started for me nearly forty-five years ago. I was up here as marshal to Mr Justice McKenna, staying on the top of the hill in the Castle for the summer assizes in 1963. And it was from Durham that I went south to be called to the Bar by the Inner Temple one night in early July.
You have asked me to talk about advocacy and a life in the law, and 1963 is as good a moment to start as any. We weren’t taught advocacy in those days. We picked it up as we went along. That is why it was such a treat to be a judge’s marshal, watching really good advocates at work from a seat on the bench.
I remember when we went on to Newcastle, watching a wonderful young advocate called Peter Taylor. He later became the Lord Chief Justice and one of my three heroes. I also remember how kind and helpful everyone was to someone who was just about to start in the profession. This is what the membership of a great profession is all about.
When I finished being a marshal, I spent a year as a pupil to Peter Webster, who had once taught law at university and later became a High Court Judge. And then I was thrown in at the shallow end. I remember I had to go to the Mount Pleasant Sorting Office with my solicitor on my way to court in Romford because my first brief had got lost in the post.
In those days a young barrister in common law chambers did everything and went everywhere. I learned my trade in magistrates’ courts, and county courts and coroners’ courts; in courts of quarter sessions and before High Court Masters and in rent tribunals and medical appeal tribunals and, a little later on, in industrial tribunals and lots of other judicial bodies and non-judicial bodies I had never heard of before. The art of the advocate is to read the papers very thoroughly, to obtain the trust of your client by showing that you understand his case inside and out, and then to present that case to the court as attractively as you know how. We are all different, and different advocates have different styles, but the principles are always the same.
One of the books I read which attracted me towards the Bar was the life of Sir Edward Marshall Hall. He was the great criminal silk who saved people from execution in much the same way as his modern day equivalent saves people from bankruptcy. I sat as the red judge once in the Carmarthen Crown Court, where the Under-Sheriff told me that when Marshall Hall had gone there to defend the solicitor called Greenwood on a murder charge, his client was so mean that after Marshall had gone back to London exhausted after a wonderful closing speech and left his junior to take the verdict, he refused to pay his QC’s fee for that final day of the trial even though he had saved his life.
Of course we used to watch great advocates, and read books about great advocates, but I have come to think more and more that the greatest advocates are simply born that way. I know Demosthenes didn’t do badly by practising advocacy with a pebble in his mouth, and I have watched lots of third rate advocates become second rate advocates through sheer hard work. They learn the hard way to get rid of awkward mannerisms and to speak cogently and concisely and to understand what the court wants. But the really great advocates are born, not made. Gerald Gardiner and Desmond Ackner and Jimmy Comyn in the generation before mine, and Bob Alexander and Tom Bingham among my contemporaries, and Sydney Kentridge and Jonathan Sumption and David Pannick, among today’s stars, didn’t get where they are by learning advocacy in a classroom and watching videos of themselves. They were just wonderful advocates the moment they opened their mouths.
I gave a talk the other day about my new career as a mediator, and at the end I was asked what was the most important skill a mediator has to acquire. I said “learning how to obtain the trust of both parties, and then to keep that trust once you have got it. The minute you lose it you are sunk.” Advocacy is a bit like that. The courts and tribunals before whom you appear have got to trust you. They have got to trust you to put all the law in front of them, warts and all. They have got to trust you not to mislead them, not to put forward a case which you know to be untrue. And if you once lose their trust, they are never likely to trust you again, and word will go round the market that you are not to be trusted.
Now a few minutes about a life in the law. None of my family were lawyers. I didn’t get a law degree, and I have always been a bit of an outsider looking in. At the age of 25 I thought I would give the Bar a try for five years, but when those five years were up, I had a wife and two children and a mortgage, and it wasn’t very sensible to give it up even if I had wanted to. And the last 13 years of my career, first as chairman of the Law Commission, and then as a judge in the Court of Appeal, were easily the happiest of my working life. Towards the end, I used to tell myself how lucky I was that people were actually paying me for a job I enjoyed so much. And then I gave it all up 18 months ago at the age of 70 because I believe very strongly that judges ought to retire from full-time judging at that age, unless they are very remarkable, which I wasn’t.
What is a life in the law about? I will talk about three cases just to show where it may all finish up. One Tuesday in August eight years ago I was coming to an ending of a fortnight’s vacation duty in the Court of Appeal when I was told that there was a very urgent case coming up to us from the Family Division. In the end it wasn’t ready that week, and we agreed to stay on and hear it for a day and a half the following week. When I read the papers at the weekend I read that two children had just been born who were joined at the pelvis. Their parents came from a tiny island in the Mediterranean, and when the twins were born in a hospital in Manchester it was immediately obvious that one of them had no heart and no lungs to speak of. She only stayed alive because she shared an aorta with her sister, whose heart was pumping blood into both their bodies at once. The sister on the other hand had a good chance of life if only the surgeons could separate them, and the surgeons were willing to try. But the parents said “no”. Their Catholic priest told them that they must let nature take its course. They mustn’t agree to anything which would mean that one of their children would immediately die.
So the surgeons came, first to the High Court and then to the Court of Appeal for permission to do the operation. The family law issues were fairly straightforward, because the Children Act told us to put the interests of the viable child first of all. But the criminal law issues were not at all straightforward, and nobody had thought of them until the case reached us. There wasn’t a criminal lawyer in sight when the case was opened on the Monday morning. It was left to me to point out that the act of cutting the common aorta would constitute murder (because the death of the non-viable child would be inevitable) unless the common law showed us a defence or justification which would make the act lawful after all. And we had to decide the case very quickly, because it seemed certain to go up to the House of Lords, and there might be a crisis any moment up in Manchester which would call for an immediate “yes” or “no” answer.
So we ploughed through Bracton and Coke and Hobbes and Hale and Locke and Blackstone, and all the other early sources of the common law, and a lot of modern academic writing, and eventually we all came up with the answer that the operation would be lawful. We heard quite soon that the parents accepted our decision and weren’t going to appeal after all.
I believe that story has had as happy an ending as it was possible for it to have. The parent had another daughter whom they called by the name they had given to the child who died, and three years ago I read in a newspaper how the mother looked across at her beautiful four year old older daughter and said that there was no way that she and her husband could have said “yes” to the operation, but she was glad that the English judges took that decision for them.
Now another life or death case. Again I was sitting in a vacation court, and we agreed to hear an urgent appeal on a Friday afternoon when there wasn’t time to get hold of a judge who was a specialist in the area of law we had to consider. Two claimants had come without a lawyer to court that morning and had begged a judge to allow the sister of one of them and the mother of the other to die as she would have wished. She had had multiple sclerosis for twenty years and had virtually no quality of life for ten, and now the peg by which she was fed artificially had come out and they didn’t want the hospital to put it back. But she still retained some feelings of sensation, and the Family Division judge had said “no” to them, and we had to say “no” to them, too. She had never made a clear statement of a wish to die even if it meant starving to death, and the common law has always put life before death, unless a person’s existence is so meaningless one cannot call it a life at all.
The final judgment I gave before I retired was in the case of the Afghan hi-jackers. They had terrorised the crew of the plane they hi-jacked as it stood at Stansted airport, but they had been acquitted on all counts after two criminal trials and one appeal. This was because the common law defence of duress is in a mess. Two experienced trial judges probably both got the law wrong, and Parliament has been disinclined to devote any time to straightening it out. Later a panel of immigration judges found on the facts that the hi-jackers faced the risk of inhumane treatment from the Taliban if they were sent back to Afghanistan, and there is now no right of appeal on the facts.
They were therefore entitled to leave to remain and find work here. But the Home Secretary sat on the papers for 18 months, and he then gave a direction which we held he had no power to make. This meant that they were still not entitled to find jobs here. There was nothing particularly out of the ordinary about the law to be applied. What was out of the ordinary was that when Mr Justice Sullivan threw a book at the Home Office and directed them to pay indemnity costs, the Prime Minister had some fairly rude things to say about the judgment. When the case came before us, we simply held in a low-key manner that the judge had got things right, and that the Home Office had got things wrong. This is what judging is all about in a country governed by the rule of law.
Forty-five years separated that search for a brief in the Mount Pleasant sorting-office, and the case of the Afghan hijackers. I have been very lucky. In the first seven years I spent a lot of time in the criminal courts, fighting for people’s liberty. I spent another four years doing cases involving marriage breakdowns and what to do about children with warring parents or children in care. I often defended doctors and hospitals in the courts, appearing in the two leading cases in the 1980s. Before I took silk, I spent three years acting for the Crown in employment cases. ACAS was one of my favourite clients all the way up to the House of Lords as it tried to sort out bitter union demarcation disputes in the late 1970s. I spent two unforgettable years as Counsel to the Sizewell Inquiry. I spent 14 months as a Department of Trade inspector inquiring into the takeover of Harrods by the Fayed brothers. And I spent three years near the top of the Bar Council, before they asked me to come back as chairman of their race relations committee after I became a judge. That led on to spending three years teaching judges and magistrates for the very first time what judging in a multi-cultural society is all about. And apart from all the judging I was asked to do, I spent three years doing law reform projects at the Law Commission and four years leading for the judiciary in a brave attempt to introduce proper IT systems into the courts which failed because justice does not have a high enough priority in the Treasury’s eyes.
Six weeks ago I was in Bangkok, lecturing on judicial ethics. In three weeks’ time I will spend a long weekend in Swaziland, repeating those lectures and telling them about mediation as well. On Monday I will be helping to plan a big conference on public legal education, in which law students’ pro bono work plays a most important part. Last week I chaired a seminar on environmental justice. Next week I will be chairing a seminar on third party funding of civil litigation. I am sometimes asked to hear Caribbean appeals in the Privy Council. I now conduct six mediations every month. And so a life in the law doesn’t have to end with retirement. My wife encourages me to say “no” rather more often. This is why I said “no” when it was suggested I should go to Afghanistan for six months this year to help the Afghan judiciary.
Just before I retired, the son of a university friend who was switching to the Bar came to see me, and I talked to him as I have talked to you. He told me afterwards how much he had enjoyed our talk, because he had encountered a surprising level of cynicism and sense of tedium about a life in the law among other legal professionals he had spoken to. Don’t you believe it. A life in the law is what you want to make of it. It can be amazingly fulfilling. I remember an evening at a law dinner at my old Oxford college when all the very clever students there seemed to think that they would be going into the law to make lots of money, and Henry Hodge, a solicitor who is now a High Court judge, told them what it was like to be at the top of the rota for night duty when he was senior partner of a firm of criminal legal aid practitioners in Camden Town. I was really pleased that those students heard someone of that quality enthusing about a life in the law which involved visiting police stations at two o’clock in the morning a very long way from the life in the big city firms that most of them wanted to join. And I am very grateful to you for being willing to listen to someone who is now able to look back on an exceptionally happy life in the law.