Mr Justice Darling: “an impudent little man in horsehair”

 

Mr Justice Darling

Mr Justice Darling, “Judicial Lightweight”, by Spy

This blog is written about an English judge who died, aged 87, a month before I was born, and inhabited a totally different age..He had served as a High Court Judge in the Queen’s Bench Division for 27 years and was made a peer (not a law lord) the year after his retirement. He is mainly remembered today for an incident which occurred four years after his appointment, which I describe below.

I am again indebted to my Canadian friend, John de P Wright, for alerting me to the information on which most of this blog is based.

Charles Darling was born in 1849. He was privately educated – no public school or university for him. Indeed, in due course he lost no opportunity to poke fun at sporting Britain. He thought football “muddy” and cricket “a bore”, and maintained that his game was marbles.

He was called to the Bar by the Inner Temple in 1874 and was appointed a QC in 1885 at the age of 36 in the days when loyalty to the political party in power might represent sufficient (and sometimes the only) qualification for that appointment. It should be remembered that throughout the nineteenth century the attorney-general of the day had virtually the right of first refusal if a vacancy occurred in the office of chief justice[1]: party politics and the Bench were very closely connected, in a way that had become unthinkable by the time I started to practise at the Bar.

Such practice as he had was on the Oxford Circuit. His chambers (in junior practice) were in Birmingham. He was rarely seen in the Law Courts in London. While still at the Bar he wrote “Scintilla Juris”, which was described by the novelist and barrister F.C.Phillips as “the wittiest book ever written by a legal luminary.” The author stopped its circulation when he became a judge – or so it was said.[2]

In 1888 he became a Conservative MP. He is said to have won his seat at Deptford “in circumstances of peculiar difficulty” and he held it until his appointment to the Bench. He was known as “Deptford’s Darling”.  Mr Jasper Pyne, the Irish Nationalist MP for Waterford (who has been described as “being in many ways an amiable lunatic”), used to infuriate him by catching his eye from the Opposition benches when he got up to speak in the House. After attracting his attention, Pyne proceeded to hypnotise him, staring at him, and without removing his gaze, getting onto his feet and moving to the centre gangway, up which he would back, with Darling unable to break the glance. Pyne would lean on the swing door when he reached it, and then scream out in a high falsetto voice “Kiss me Darling” before disappearing through the door before the Speaker had a chance to see him and name him.[3]

Darling’s “impudent antics” in Parliament are said to have dismayed William Ewart Gladstone during his final years in the House.[4]

In 1897, Lord Halsbury, the Lord Chancellor, nominated him to succeed Mr Justice Collins on his promotion to the Court of Appeal. He seems to have done well as a Commissioner of Assize, an office he had held off and on for a year, but otherwise his appointment had nothing to say for itself. It raised an uproar. The Solicitors’ Journal wrote:

“Lord Halsbury has never shown his contempt for the opinion of the profession – and, we will add, of the bench – so markedly as his appointment of a successor to Lord Justice Henn Collins. The way to the High Court bench is once more shown to be through contested elections and general service as a political hack. When these claims are present, learning, experience and practice, and the moral qualities which go to make an efficient and trusted judge, are altogether unnecessary. We do not remember a more unanimous or sweeping condemnation than that with which the new appointment has been met by professional opinion”.

The Law Times wrote:

“We do not recollect any outburst of indignation and protest similar to that which greeted the bare announcement by a press agency that Mr. Darling, Q.C., a purely political barrister, had been nominated to fill the vacancy caused by the elevation of Mr. Justice Collins.”

A number of practising barristers signed a petition to the Bar Council protesting about the appointment. Only the Law Journal sounded an optimistic note:

“He will prove a far better judge than some of his critics believe.”[5]

This appointment was not unique. Quite recently an Australian judge wrote, in his book on Judicial Ethics in Australia:

“Earlier in this century, there were four English judges- Grantham, Darling, Ridley and Lawrance- who were described by various commentators[6] as a quartet of the worst judges that England has suffered in recent times…. They all suffered from a lack of desire to hear both sides….

All were appointed on Lord Halsbury’s recommendation. The first three were Tory members of parliament and the latter had been a Tory member previously.”[7]

In 1900 his behaviour in court prompted a newspaper story in Birmingham which led to the editor being fined for contempt. The journalist had written:

“…[I]f anyone can imagine Little Tich upholding his dignity upon a point of honour in a public-house, he has a very fair conception of what Mr. Justice Darling looked like in warning the Press against the printing of indecent evidence. His diminutive Lordship positively glowed with judicial self-consciousness… No newspaper can exist except upon its merits, a condition from which the Bench, happily for Mr. Justice Darling, is exempt.  There is not a journalist in Birmingham who has anything to learn from the impudent little man in horsehair, a microcosm of conceit and empty-headedness… One is almost sorry that the Lord Chancellor had not another relative to provide for on the day that he selected a new judge from among the larrikins of the law. One of Mr. Justice Darling’s biographers states that ‘an eccentric relative left him with much money’. That misguided testator spoiled a successful bus driver…” [8]

Although in 1899 the Judicial Committee of the Privy Council had described as “obsolete” the way in which criticisms of judges were being treated as a contempt of court[9], this did not deter a Divisional Court of the Queen’s Bench Division from fining the editor £100 (with £25 costs) after he had apologised for what had appeared in his paper.  The Lord Chief Justice[10] referred indignantly to the “scurrilous abuse” which the judge had had to endure.

Sir Charles Darling (as he now was) would always be impeccably dressed. He would wear a silk top hat when he rode to Court on a horse, accompanied by a liveried groom. He fancied himself as a wit, both on and off the bench, and would irritatingly grin before making one of his own jokes. Max Beerbohm drew a cartoon of him handing his black cap to an usher to have bells sewn on it.[11]

He often presided, with a jury, at high-profile criminal and civil cases, and he also sat in the newly created Court of Criminal Appeal when it dismissed the appeals of Dr Harvey Crippen (for murder) and Sir Roger Casement (for treason). He attracted a good deal of criticism for his conduct of the trial of Pemberton Billing MP (who represented himself successfully) on a private prosecution for criminal libel.  In that case Billing had brought into evidence the existence of a German “Black Book”, which was said to contain the names of 47,000 British subjects of doubtful loyalty and doubtful morals.   The judge tried to prevent the witnesses from naming anyone who appeared in the book, but failed in that endeavour when Billing asked a witness “Is Mr Justice Darling’s name in it?” only to receive the answer “it is”.

The witness later said that this answer had not been true.

In 1917 he was made a Privy Councillor (an honour which used to be bestowed on a very senior Queen’s Bench judge from time to time: Sir Melford Stevenson was similarly honoured half a century later), and he retired from the bench in 1923.

He then became quite active in the House of Lords. He tried, but failed, to introduce a defence of irresistible impulse into the law of murder[12], and was responsible in due course for introducing what became the Infant Life Preservation Act 1929.

The first Lord Hailsham, as Lord Chancellor, said of him that while he was not distinguished as a lawyer,

“he was a kindly gentleman, a lover of England and of the life and pursuits of the countryside, with a wide general culture, great industry, complete impartiality on the bench, a distinguished bearing, and complete control both of his temper and of himself.”[13]

He also possessed a clarity of language when bringing the law to life, whether for a jury or otherwise:

“It is agreed that if anyone ordered Bombay ducks and somebody supplied him with ducks from Bombay the contract to supply Bombay ducks would not be fulfilled. Another obvious instance is eau de Cologne. Whatever eau de Cologne may be, as to which I know nothing, it certainly is not water from the Rhine. If eau de Cologne were ordered and you simply supplied a gallon of water from Cologne that would not fulfil the contract.”[14]

“Of course, the difficulty with regard to the amount of interest to be allowed is always that there are some people to whom no one would lend anything at any rate of interest whatsoever. In such a case it would be impossible to say, if anybody did lend to such people, that any amount of interest was unconscionable or extravagant. I think there is an extravagant case put somewhere by Lord Bramwell.  He says: ‘Suppose you were asked to lend a mutton chop to a ravenous dog, upon what terms would you lend it?’”[15]

“[Baron Bramwell refused to] lay down that there must be a fence so close and strong that no pig could push through it, or so high that no horse or bullock could leap it.  One could scarcely tell the limits of such a requirement, for the strength of swine is such that they would break down almost any fence, if there was a sufficient inducement on the other side. But the landowners are bound to put up such a fence that a pig, not of a peculiarly wandering disposition, nor under any excessive temptation, will not get through it[16]….

The evidence in the case before me proves that these Scotch sheep are of a peculiarly wandering and saltative disposition, straying and jumping in a way which distinguishes them from sheep which have hitherto been turned on to the unenclosed land, wandering as other sheep do not and jumping as other sheep do not.”[17]

“Counsel for the defendant has very properly told you, members of the jury, that it is no part of the law of England that a man who in selling goods has got to say harsh things about them. He is quite right. A fishmonger is under no obligation to cry ‘stinking fish, stinking fish’, but if he knows that his fish do stink he is not entitled to cry falsely “fresh fish, fresh fish’, nor is he any the more entitled to do that if he happens to know that his customer cannot smell.”[18]

Nobody could scour the judgments I wrote in my 18 years on the Bench and come up with anything as vivid as these quotations, but then the times when I addressed a civil jury[19] could be numbered on the fingers of two hands.

 

 

 

 

[1] Only two chief justices of the two principal common law courts in the nineteenth century (Lord Tenterden, Chief Justice of the Court of King’s Bench, and Sir William Erle, Chief Justice of the Court of Common Pleas) were not former law officers.

[2] I have just accessed some pages in this book at https://archive.org/stream/scintillaejuri00darl#page/22/mode/2up

 

[3] A.M.Sullivan, The Last Serjeant (1952, London), p 315.

[4] Time Magazine, June 1936.

[5] Heuston, Lives of the Lord Chancellors, 1885-1940 (1964, Clarendon Press, Oxford) pp 55-56.

[6] One of these commentators was Henry Cecil who later wrote: “No one disagreed with me about the other three judges, but several judges and barristers whose experience of the judge was greater than mine have told me that Mr Justice Darling was not at all a bad criminal judge…” Henry Cecil, Just Within the Law (1975) pp 67-68. I used to appear from time to time before Henry Cecil, otherwise known as His Honour Judge Leon, at the Willesden County Court 50 years ago.

[7] James Thomas, Judicial Ethics in Australia (Butterworth Heinemann, 3rd edition 2009) p 22.

[8] The text was published in 82 Law Times 534, but omitted from the report of the case in the official law reports (See R v Gray [1900] 2 QB 36.) See R.E.Megarry, Miscellany-at-Law (1955), London, Stevens and Sons Ltd, p 23.

[9] McLeod v St Aubyn [1899] AC 549.

[10] Lord Russel of Killowen, CJ.

[11] Court jesters would wear a cap with bells.

[12] Sally Smith, Marshall Hall: A Law unto Himself, Wildy, Simmons & Hill Publishing, 2016, pp 174-5. “The law lords objected strongly to any blurring of the standards by which mental state was to be assessed and even more strongly to what they perceived as the supremacy of medical opinion over legal principle. Some went so far as to express the view that the law was there to make people resist their impulses.”

[13] Heuston, Lives of the Lord Chancellors, p. 56.

[14] Lemy v Watson [1915] 1 KB 731, 752.

[15] Jackson v Price (1909) 26 TLR 196, 108.

[16] Child v Hearn (1874) LR 9 Ex 176,181

[17] Cooker v Willcocks [1911] 1 KB 649, 654

[18] Quoted by Henry Ccil, Just within the Law (1975) pp 67-68.

[19] In libel cases and actions against the police. Although in theory a civil jury could still be empanelled to try an allegation of fraud, I cannot remember this ever happening during my time in practice. I have written elsewhere how I watched some of the proceedings in which Lord Denning MR presided in a court of five judges to put to an end, for all practical purposes, the empanelling of a civil jury in a personal injuries action. (Ward v James [1966] 1 QB 273.

[HB1]

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