Law and Practice in the 1960s: (4) Crime (including driving offences)

 

When I started to practise at the Bar in 1964, formal advocacy training was unheard of. The Council of Legal Education arranged four talks for pupils. The only one I remember was given by Frank Milton, the stipendiary magistrate at the North London Magistrates’ Court[1], who told us how much he enjoyed hearing able young advocates (particularly if they made him laugh): it was such a change from the police officers, lay defendants, and very dull advocates which was his usual daily fare.

During our pupillage we would watch good advocates at work, on both sides of a case, and wise clerks would then allow us to start on our own in very shallow waters at first. As pupils we did not even have to wait for six months before we could appear in court, although our appearances during our pupillage year were carefully rationed.

Sometimes we would go across to the Royal Courts of Justice to watch famous advocates in action: I recall a tussle between Desmond Ackner QC and James Comyn QC, two of the foremost advocates of the day, examining witnesses before Mr Justice Edmund Davies and a civil jury when Mr Alfie Hinds successfully sued a senior police officer for libel for saying he had been correctly convicted of robbery: the law was changed very soon afterwards. I think I also watched Gerald Gardiner QC once, during the libel trial in which Dr Wladislaw Dering failed to persuade a jury that he was entitled to substantial damages because of what had been written about him when he was a doctor at Auschwitz.

Although our ultimate aim in common law chambers was to develop a strong civil practice, appearances in the magistrates’ court for driving cases or petty crime were where we cut our teeth as young advocates. This table shows the breakdown of my appearances in these cases at magistrates’ courts, Quarter Sessions and the Old Bailey, year by year, before things started tailing off:

1964 1965 1966 1967 1968 1969 1970
Mags’ Ct 17 62 45 21 25 19 17
QS 2 7 17 12 6 6
CCC 2 1 2 1 1

I appeared in these cases at 94 different magistrates’ courts during this period.

By 1971 my civil practice had developed to such an extent that on the whole I stopped doing criminal cases (because they would always have to take priority if there was a clash of dates). My most frequent appearances in those first seven years were at Marlborough Street Magistrates’ Court (18 times), Romford (11), Hampstead (9), Balham (8), Bow Street (7), and Guildhall, Wells Street and Barking (6 each). London was a drab city in those days, and very few new courts had been built since the war. An exception was at Romford, when I first appeared at an old court which occupied a prime building site very close to the railway station. My later appearances were at the new Magistrates’ Court, which was built further away where land was less expensive.

Because I was a member of the South-Eastern Circuit, I was able to appear at Quarter Sessions in Kent, Surrey and Sussex without having to pay the “place-money” required of a member of a different circuit. I would sometimes appear there before Conservative MPs, such as Charles Doughty QC MP or Edward Gardiner QC MP who found it possible to combine part-time judicial work with their Parliamentary careers.

So far as the London courts were concerned, Wood Green, Snaresbrook, Blackfriars and Belmarsh were still in the future. I often went to London Sessions (at Newington Causeway: I have a memory of very elderly and rather decrepit members of the junior Bar sitting in the front row there in hope when dock briefs were being offered to unrepresented prisoners), and twice to Middlesex Sessions, whose courthouse in Parliament Square was later requisitioned to become the site of the new UK Supreme Court. I also appeared at West Ham Quarter Sessions, where juries were reputed to acquit anyone charged with receiving stolen goods (as handling offences were then known) on the basis that a unanimous jury could not be found in that part of London which would be willing to convict. The Courts Act 1971, which abolished Quarter Sessions and replaced them with a single Crown Court, was implemented the following year.

As with family law and practice, criminal law and practice were changing fast in the late 1960s, and the creation of the Law Commission in 1965 accelerated the trend, at least in relation to the abolition of a number of old common law offences. An extract from its 1966 Report on Proposals to Abolish Certain Ancient Offences gives a flavour of the times:

“The five misdemeanours which are proposed for abolition include the issue of a challenge to fight, an offence which relates to and dates from the efforts to suppress duelling. The other offences in this group were aimed at various forms of social nuisance-listening to private conversations and spreading scandals (eavesdropping), persistently stirring up quarrels in the Courts or out of them (the common barrator), indulging in persistent abuse (the common scold) and being out and about when decent folk were abed (the common night walker). There have been no indictments for any of these offences for many years and it is, indeed, doubtful whether in the ordinary way persons charged with commission of the four latter offences were dealt with by indictment. As indictable misdemeanours, therefore, it is true to say that these offences are wholly obsolete.”

When I started to practise, the death penalty was still (until 1965) the mandatory sentence for the five types of murder identified by the Homicide Act 1957 which created a number of indefensible anomalies. Abortion was still a crime in virtually all cases.[2] So was a homosexual act between males, even between consenting adults in private. [One of my first pieces of written advice was given to a major public company when I assured them that they would not be guilty of the criminal offence of “misprision of felony” if they failed to report such an act to the police].   The law of theft was governed by the Larceny Act 1916.

Unanimity was required of a jury before it could convict. The defence had to make its closing speech before the closing speech for the prosecution. No prior notice of alibi evidence had to be given. Although no publicity could now be given to committal proceedings (unless requested by the defence) following the disquiet caused by cases like those of John Bodkin Adams and Stephen Ward, the police could not yet proffer to a court statements signed by a witness under section 9 of the Criminal Justice Act 1967. I recall some laborious committal proceedings at a magistrates’ court in Kent which every prosecution witness had to attend to give their evidence orally. Their statement was then typed out in court, and it would have to be signed before the witness was allowed to leave. Breath tests had not yet been introduced to detect drunk drivers.

A lot of the appearances I have listed were concerned with driving offences of one kind or another. I recall an appearance at London Sessions when my client, charged with driving under the influence of drink, admitted to having had ten pints of beer at lunch-time and a further six before he drove home late at night.[3] Although a young doctor and nurse, whose soft night-time whispers had been disturbed when he scraped their parked car on Sydenham Hill, both testified to the effect that he was drunker than anyone they had ever seen in their hospital’s casualty department, and although a police surgeon said he failed every known test for drunkenness, a jury at London Sessions could not reach a unanimous verdict, however hard it was encouraged to try. The chairman, Reggie Seaton, was very tough on most crimes, but he had a reputation for being quite relaxed about drunk drivers and did not order a retrial.

I recall another case at London Sessions when my client, who had been wanting to contact someone unknown to him, was directed to a house in Ladbroke Grove where he arrived just before a raid by the local drugs squad, who were fore-armed with appropriate search warrants. Drugs were found there, and he found himself caught in cross-fire from the denizens of the house who said he had brought them with him, and from the police who attributed to him (as well as to all the others) some suitably incriminating “verbals”. The case lasted all week, and parts of it were so boring that we lightened the trial by asking for, and obtaining, a demonstration of the sniffer dog’s talents at identifying drugs. A small piece of the seized drug was seized in court, and the dog (a black labrador, I think) bounded into court and had a long sniff at the judge’s trousers before leaping down and finding the drug in the place in the well of the court where it had been concealed. At the end of all this, the jury acquitted my client and convicted the rest.

The mention of “verbals” reminds me of the days before PACE when the admissibility of evidence was governed by the Judges’ Rules, and tape recordings had not yet been introduced into police practice. Interviewing officers were allowed to write up their notebooks together when the interview was still allegedly fresh in their memories, and then to use their notebooks in court to assist their memory: they usually had no independent memory of what had been said.   They would always testify to the effect that their training enabled them to retain a very detailed memory of exactly what was said, and that the introduction of tape-recordings would have a deleterious effect on their investigation techniques.

Allegations of threats and, sometimes, violence were routinely made whenever a signed statement was produced at a contested trial, and all the police evidence had to be gone through twice, once before the judge (on a “voir dire” to decide whether the jury could hear the evidence at all: it was usually allowed), and then again when the jury was brought back into court. In the 1960s juries tended to believe the police. This was to change, at any rate as far as Inner London juries were concerned, by the time I returned to sit as an assistant recorder in the early 1980s when there would usually be at least one member of each jury who had had direct or indirect knowledge of actual or perceived police malpractice.

One surprising victory I achieved was at the Old Bailey (then sitting, I think, at the Lord Mayor’s Court which was being used for overflow cases) when I successfully defended one of the porters at Smithfield Market whose defence to a charge of stealing a very large hunk of meat weighing about 100 kilograms was that he had carried it out of the market by mistake: he didn’t notice that he still had it. The jury returned its verdict at lunch-time and it was greeted with applause by a number of other porters on their way home, to the dismay of the judge who ordered the court to be cleared before he could be tempted to commit anyone for contempt.

On another occasion I was sent down to the Old Bailey at very short notice to mitigate, following a plea of guilty, for a man charged with committing a homosexual offence with another male worker when they were both digging the Victoria Line. When I got there, I found that I was listed before Mr Justice Waller as a “fill-in” case before he started the trial of the former Chief Constable of Southend the following day.   I discovered, however, that the “victim” was 17, and that because my client was charged with the offence of “assault with intent to commit buggery” (an offence of which I had never previously heard) it was incumbent on him to plead not guilty, because consent was in issue.

The judge, one of the nicest of men, was a bit grumpy when confronted unexpectedly with a 24-hour trial (which delayed the start of the chief constable’s trial) and grumpier still when my jury sent him a question in mid-afternoon that necessitated a further delay to his new trial while the chief constable was sent down to the cells and my Irish labourer brought up again so that the jury’s question could be answered. In the event the jury acquitted soon afterwards, but my client still received a nine-month sentence for admitted conduct which would not be a criminal offence at all today.

I always appeared for the defence, except on those occasions when I was being instructed by solicitors for Marks & Spencer or Woolworth’s to prosecute shoplifters: on only one of these appearances did a defendant exercise her right to opt to be tried by a jury, so that I appeared for the prosecution at London Sessions.  Lovell White & King (a firm which has now merged and re-merged into the Hogan Lovells of today) acted for Woolworth’s, and they would send me increasingly far afield: Redditch, Swansea and Oxted in 1967; Camborne, Worcester, Andover and Northwich in 1968; and Birmingham, Littlehampton, Stourport and Penarth in 1969. I think they thought it would enhance their client’s status if they were represented by “counsel from London”: I recall the afternoon’s list at the Swansea Magistrates’ Court being interrupted one day when the justices’ clerk told the Bench that “counsel from London” had now arrived, and could they please break off what they were doing and hear his case immediately.

Looking back on all this across a space of fifty years, it was an experience I thoroughly enjoyed. We did not come to the Bar with the intention of making money (or indeed any expectation that we would). The income and surtax regimes of the time made it impossible to build up capital (if we did not already possess it: my wife and I put all the money our parents had given us before our marriage into the deposit for our very first house, a Queen Anne terrace house at the top of Heath Street Hampstead, which we bought for £16,500 in 1968).

My total professional income in 1967, net of expenses, was £2,300: by 1970 it had risen to £4,600. We came to the Bar not to make money but to practise a profession in which we could use our skills to be of service to others – and to have a thoroughly enjoyable time as well (if we could). In 1989, when the Bar took fright at the impending loss of its monopoly of rights of audience in the Crown Court and advocacy training was being introduced for the first time, I remember telling the Bolton magistrates in an after-dinner speech that I had learned my trade in the magistrates’ courts in and around London. Those courts wanted a presentation that was clear, courteous, concise and uncondescending. We did our best to fulfil their need.

The last judgment I ever delivered in the Judicial Committee of the Privy Council was in a case in which we had set aside a murder verdict obtained in Trinidad 23 years earlier because the judge had told the jury of his finding (after a voir dire) that a confession had been voluntary and because he had failed to give a proper direction about how to treat the evidence of an accomplice.[4] It brought back memories of days at quarter sessions all those years ago.

 

 

 

 

[1] He later became the chief stipendiary magistrate.

[2] Subject to the possible defence identified by MacNaghten J in his summing up to the jury in R v Bourne (1938) 3 All ER 615: “If the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are entitled to take the view that the doctor is operating for the purpose of preserving the life of the mother”.

[3] The driver of a following car testified that he had driven carefully round every pool of light thrown on the road by the street lamps.

[4] Rajendra Krishna v The State (2011) UKPC 18.

5 thoughts on “Law and Practice in the 1960s: (4) Crime (including driving offences)

  1. Junior Barrister

    When did the order of speeches in a criminal trial switch to the prosecution going first? I have often thought the Criminal Procedure Rules Committee might be tempted to revert to the old system…

    Like

  2. Pingback: Sir Anthony Hidden – Henry Brooke

  3. Andrew Tucker

    Thank you, Sir Henry. I have only just discovered your blog, to my shame. I have just emailed a link to this article to all members of the Cornwall Street Chambers Criminal Team with the instruction that it is compulsory reading!
    Yours ever,
    Andrew Tucker

    Like

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