Joshua Rozenberg on Lord Denning: Worthy of his law student favourite crown?

Today would have been the judge’s 118th birthday

lead1

None of us can forget the first time we came across one of Lord Denning’s judgments. “In summertime village cricket is the delight of everyone”, he began his ruling in 1977 on a complaint from a far-from delighted neighbour. “It was bluebell time in Kent” was the second sentence of a judgment he gave in 1970 about an appalling traffic accident.

Denning’s writing style was simple, vigorous and direct. You knew which way the judgment was going as soon as it started. In fact, you probably knew which side was going to win as soon as you knew that Denning was going to sit. And, by modern standards, he sat for a very long time indeed: from 1962 to 1982 as Master of the Rolls and for 18 years before that in the High Court, Court of Appeal and the House of Lords.

Born in the 19th century, he very nearly made it to the 21st. He lived to be 100 and January 23, today, would have been his 118th birthday.

But Denning’s judgments are rarely cited in court these days. The problem is not the way he wrote them, delightful though it was. It’s that he tended to bend the law to fit what he saw as the justice of the case. Although Denning saw himself as champion of the underdog — the ordinary citizen, the consumer, the deserted wife — he supported employers against trade unions, education authorities against students, and the Home Office against immigrants.

Of course, all judges try to achieve what they see as a fair outcome. But they have to be rather more subtle about it. They can no longer get away, as Denning did, with reading through a few old cases and manufacturing a precedent.

I first got to know the Master of the Rolls in 1982, just before he retired. It had not been a good year for him. After publishing a family memoir the year before, he had tried his hand at a book that was to be called What Next in the Law. It was part anecdote, part polemic.

Among his targets was the right of peremptory challenge, which then allowed defendants facing jury trial to reject up to three potential jurors without giving reasons. Denning was right to criticise it and peremptory challenge was abolished six years later. In his book, though, he noted that it had been used by 12 defendants accused of riot in a black area of Bristol. Because all of them were being tried together, they could challenge up to 36 would-be jurors between them. They rejected 35.

Denning wrote:

It was done so as to secure as many coloured people on the jury as possible — by objecting to whites. This meant that five of the jury were coloured and seven white. The evidence against two of the accused was so strong that you would think they would be found guilty. But there was a disagreement.

It got worse..

“The underlying assumption is that all citizens are sufficiently qualified to serve on a jury,” Denning wrote. “I do not agree. The English are no longer a homogeneous race. They are white and black, coloured and brown. They no longer share the same standards of conduct. Some of them come from countries where bribery and graft are accepted as an integral part of life: and where stealing is a virtue so long as you are not found out… They will never accept the word of a policeman against one of their own.”

This was an appalling thing to write, even in 1982. Denning was not saying that black people should be excluded from juries; instead, he proposed that all potential jurors should be interviewed by magistrates and appointed only if they were “sensible and responsible members of the community”. But the remarks showed that, at the age of 83, he was utterly out-of-touch. Because he had become a judge so long ago, Denning was the last serving judge who was not required to retire at 75.

As review copies of his book began to circulate, there were immediate protests — and threats to sue for defamation. A journalist who turned up at his home seeking a comment reported that the door had been answered by Lady Denning. “My husband is seeking legal advice,” she responded, without apparent irony.

Eventually, copies of What Next in the Law were recalled and the book was then published with the offending passages excised. Denning agreed to stand down at the end of September 1982.

Earlier that month, I visited him at his home in Hampshire. I was working as a radio producer and he had agreed to record what the BBC called a “talk”. Naturally, I asked him to sign a copy of his book. He kindly inscribed it to me “with best wishes and much gratitude for his production of my talk”. I never told him that the copy he’d signed was an unpublished first edition, with all the offensive passages included.

BOOK

I went to see Denning again in 1989, just ahead of his 90th birthday. By then, I was the BBC’s legal correspondent, working in television. “And how would you like to be remembered,” I asked him on camera, as casually as I could. “You want that for my obituary,” he observed, shrewdly. But he still delivered a pithy epitaph in his Hampshire burr, which we were to broadcast a decade later. “As a remembrance of me in good works,” he said. “That is how I should like to be remembered.”

Alas, Denning was not the sort of man to enjoy a quiet dotage. In the summer of 1990, The Spectator sent A.N. Wilson off to interview him. Wilson insisted later that he had not been planning to publish anything controversial. “My intention was to write 1,000 words of praise for the dear old champion of liberty, with, perhaps, a few anodyne memories of pre-First-World-War Hampshire.”

What The Spectator ended up printing was 2,600 words of pre-First-World-War prejudices. The piece ended with a gratuitous personal attack on Leon Brittan QC, the former Conservative Home Secretary who was by then a European Commissioner.

This is an extract from Wilson’s interview, as published by The Spectator:

Self: There are, of course, English Eurocrats, Englishmen who play a part in the European…
Denning: Leon Brittan. He wasn’t much good. He appeared before me several times when he was at the bar, in libel cases. He was no good. Now, he’s whatever it is in Europe. A German Jew, isn’t he? [In fact Sir Leon Brittan’s parents were from Lithuania and their children were born in London.]
Self: What’s that got to do with it?
Denning: Look him up. I think you’ll find he’s a German Jew, telling us what to do with our English law. It’s quite plain that these pan-Europeans do not go by the words of the treaty. That’s why I don’t think there’s much chance of altering things.

When Denning died, Wilson recalled Denning claiming he had been quoted out of context:

He even invented a new law for the occasion, claiming that I had inveigled him into libelling himself. Lady Denning and others expressed their disgust that a journalist from London should have taken advantage of a poor old man. Denning’s reputation was never quite the same again.

But the former judge had done his best to make amends. He agreed to record an interview for Spectrum Radio, which runs a programme aimed at the Jewish community. The interviewer was Harvey Kass, then a theatre producer and subsequently legal director at Associated Newspapers. What the former judge had said about Brittan could be interpreted as antisemitic, Kass told him.

“I am most distressed that those words of mine should have been used by The Spectator magazine in that way,” Denning replied. “They were entirely out of context. And I would like to take this opportunity through you to apologise to Sir Leon Brittan for any distress caused to him and certainly to all my many friends in the Jewish community in England.

He went on:

I’ve been a friend of Israel. I have many friends there: I’ve visited it twice and think it one of the most delightful countries in the whole world.

Pressed by Kass, Denning said he his target had been the attitude of the European Commission rather than the background of its individual members. The Spectator had edited his remarks. Politely but firmly, though, Kass pointed out the damage they had done.

“I appreciate that point,” Denning replied, “and that is why I regret them wholeheartedly, that I should ever have said them.”

The former judge recalled that Jewish refugees from Hitler’s Germany had contributed a great deal in the fields of science, culture, art, law and music. “I’d like to express my gratitude to those of that origin who came and have done so much for England,” he added.

Denning made an extraordinary contribution to the law. But his prejudices demonstrate the risks of letting one man dispense his own version of justice. As Denning himself wrote in the Gouriet judgment of 1977, slightly misquoting his favoured source: “to every subject in this land, no matter how powerful, I would use Thomas Fuller’s words over 300 years ago: ‘Be you ever so high, the law is above you.’”

Joshua Rozenberg is Britain’s best-known commentator on the law. He is the only full-time journalist to have been appointed as Queen’s Counsel honoris causa. This is the latest in a series of articles that he is writing for Legal Cheek about law-related topics in the news.

For all the latest news, features, events and jobs, sign up to Legal Cheek’s weekly newsletter here.

41 Comments

Anonymous

Colourful judgements aside, it’s about time an article didn’t just hero worship Denning, who actually was a racist and a toxic homophobe.

(24)(14)
Trumpenkrieg

His views reflect not only his time, and not only all time in human history that isn’t the last half a century, but also the views of most of the non McDonalds chowing, iPhone clutching, gender bending world of today. It is your views not Denning’s that are an aberration.

(8)(24)
Trumpenkrieg

Who is it that taught you to think that Putin is Literally Hitler? Do your ideas by any chance originate with think tanks established and funded by shysters kicked out of Russia by Putin?

(0)(7)
Casual Observer

Why do we need Rozzer’s opinion on Denning, when we have already formed our own opinion and Rozzer has nothing new to add?

(7)(11)
Anonymous

If we took the same attitude to everything he writes about, poor Rozzer wouldn’t have a career!

(4)(0)
Real

This post has been removed because it breached Legal Cheek’s comments policy.

(1)(6)
Anonymous

This post has been removed because it breached Legal Cheek’s comments policy.

(2)(8)
Anonymous

“Although Denning saw himself as champion of the underdog — the ordinary citizen, the consumer, the deserted wife — he supported employers against trade unions, education authorities against students, and the Home Office against immigrants.”

^I don’t think the Unions can be described as the underdogs, especially given that many of Denning’s most celebrated judgments come from the 1970s.

(9)(8)
Anonymous

Took me a read or two to get the meaning of this. Think he means:

“Although Denning saw himself as champion of the underdog- [insert underdogs championed]- he [also] supported [these people who were not underdogs like] employers against trade unions, education authorities against students, and the Home Office against immigrants”

(7)(2)
Anonymous

Agreed – this is the clear meaning, “although” being the operative word.

(4)(0)
Joshua Rozenberg

That’s right: “although” is indeed the operative word.

(6)(1)
ProfessorConstit

At the risk of being unpopular, anyone familiar with Lord Denning’s judgments would realise that, in his prime, he had a keen eye for justice and a real desire to protect the weak and the vulnerable. That is rare and should be applauded.

The tragedy is that towards the end of his life, he suffered from Alzheimer’s and dementia. As someone familiar with that disease, let me assure you that it can change a person entirely. The tragedy is that he stayed in judicial office for so long that the cracks began to show.

(18)(5)
Anonymous

I’m still waiting for an actual argument that Denning wasn’t a great person. All we have here is subjective opinion, mis-analysis of his doings, and scorning him for being right. I’m not actually sure what it is about Lord Denning that I’m supposed to dislike.

(7)(13)
Anonymous

I think we’re supposed to view him as a reactionary right winger, ergo beyond the pale. That seems to be the editorial line of this website.

(2)(3)
Anonymous

A value judgment as to the “greatness” of a human being is by definition “subjective”. But you either understand and accept that racialist prejudices diminish justice – and the moral worth of those who dispense it – or you don’t. Denning was certainly not “right” that black and immigrant jurists were less able to judge the truth than white natives. Nor was he correct in his unquestioning faith in white police officers: just because he believed that having to admit police officers beat up the Birmingham Six may have opened an” appalling vista” was no justification for his denying the reality of what had occurred. But you have the freedom to form your own values: nobody is demanding that you assume any particular attitude and I’m afraid if you’re spending your life waiting for somebody to guess what arguments will appeal to you in order to tell you what to think, you may be in for a long wait…

(10)(1)
Anonymous

I’ve never cared for these strange and geeky hypes about “Homeboy” Denning or “Beyoncé” Hale.

It’s just plane weird. Get a life.

(16)(0)
Anonymous

So I take it you won’t be ordering a ‘Lord Denning is my homeboy’ t-shirt, then?

(2)(0)
O.M. Blackwell

Oh dear! So sadly superficial.
(1). The usual cliche of ‘Lord Denning being in favour of palm-tree justice.’ I would remind the author to look at the record. What you see is the following. Lord Denning using great ingenuity to use an amalgam of case law to shape of law and bring it up-to-date. Yet the key here is not just that he carried out this legitimate act upon the bench. Far more importantly it was that his initiatives were (almost all) later endorsed either by the judiciary or by Parliament. That is his lasting legacy which lives with us today. Whether it be his decisions on divorce, trusts, the Royal Prerogative, State Immunity, Industrial disputes, Procedure (Mareva Injunctions, & Anton Pillar Orders), negligent misstatement, third parties to a contract etc etc.

(2). No one did more for Commonwealth students that Lord Denning. Personally I always think it a wiser policy to judge people by their actions than by what they say. For all of us are frail and we can all say and write things from time to time which should not have been uttered. Better to judge someone by their life’s worth than by the comment of but a moment.

(11)(3)
Nigel Pascoe QC

I was lucky enough to know Lord Denning for many years. Unconditionally he was a great , kind and genuinely decent man. I do not overlook his mistakes but the bigger picture is of a giant amongst his contemporaries. And what a speaker!

(4)(1)
Nigel Pascoe QC

I was lucky enough to know Lord Denning for many years. Unconditionally he was a great , kind and genuinely decent man. I do not overlook his mistakes but the bigger picture is of a giant amongst his contemporaries. And what a speaker!

(0)(0)
Joshua Rozenberg

He was indeed a kind and generous man. And I was pleased to know him, however slightly. He did a lot for Commonwealth students, as O. M. Blackwell says above. And his “appalling vista” comment (which I didn’t mention in the piece) was, er, appalling.

But the point of this piece was not to revisit his career or give a rounded account of his life. It was to publish material about him that was largely unknown. In particular, it was written as a corrective for students who knew him only through his most quoted cases.

And I thought people might like the chance to hear what he sounded like — again or for the first time.

(6)(1)
Anonymous

I studied law from 2011-14 and am now a pupil. Regardless of how this article may alter my opinion of Lord Denning – which, for what it’s worth, isn’t a great amount as I still regard him as a brilliant judge who acted in so many ways to develop the law as it is today – before I read this, I had no idea about this side of him. So I must say that I am grateful to you for writing a very interesting article which puts a whole new perspective on things. Hearing his voice for the first time was also nice!

(5)(1)
Darren

Joshua – it is unfortunate that Lord Denning referred to Leon Brittan in such terms, but I do find it rather hard to believe that a man who said in the early 1980s that the English are “white and black, coloured and brown” could be motivated by any racist animus. Rather, he was acknowledging the fact that one’s background undoubtedly influences the way you view and interpret the law. Lord Denning grew with the clover in the green fields of Hampshire, and thus became the paladin of the English common law. Leon Brittan grew up amongst a people who had been persecuted for their brilliance right across the face of Europe. He came to prefer forms of law which also cross national boundaries, laws which could safeguard against the horrors which his people had experienced. Lord Denning felt a sense of ownership of the English common law, the same that any Jew feels when they read the Geonim or Rishonim. There is nothing wrong in that.

(3)(2)
Anonymous

You cannot explain away his comments about blacks, Jews and immigrants – or the intrinsic truthfulness of police officers for that matter – with poetic wishful thing. Lord Denning was doubtless a charming, kind, intelligent judicial activist but he had his blind spots. And, like many in his position and of his generation, those blind spots were racialist and carried consequences to those who had to walk within them. You do a disservice to history to attempt away a great law Lord’s contradictions, merely because it gets in the way of a genial narrative.

(3)(1)
Anonymous

Opinions differ on the content of his judgments but they were reasoned, to the point and easily understood. Contrast that with today’s style of massively long and impenetrable discursive analysis in every case of any substance.

(2)(0)
Anonymous

He wrote judgments for the man/woman on the street with no legal knowledge. Judgments are less stuffy now, aren’t they?

(0)(0)
Another actual lawyer on LC

Well said O. M. Blackwell and you can say that again Mr Pascoe.
Nice to see some lawyers here for a change. Well done LC. Every day in every way.

(0)(2)
Bumcheeks McGuffin

Glad that LC has now allowed Joshua Rozenburg the opportunity to give Denning’s bigotry a good airing – maybe those silly t-shirts you’re selling (what was it? “Lord Denning is my bitch” or something like that?) won’t be bought by any more clueless law undergrads thinking his quaint turns of phrase were endearing, when in fact he was in fact a daft old racist and on the quiet probably liked spending time watching boys in sports club changing rooms via secret peepholes.

(1)(3)
anon

So many angry liberals, so little time. Pity that the many problems faced by the unprecedented wave of mass immigration into Europe has proved him right…

(0)(2)
Anonymous

Granted if you are going down a narrow middle class channel Lord Denning is likely to be one of the only heroic figures you will come across on the English bench. If you have a comprehensive field of vision then the character of someone who practiced as KC and a Judge for years on end, is not, I suggest, a character who is ever going to become immortal on merit.

These two are perennials, by contrast, because of their energetic and thoughtful attempts to change the world.

“I will give you a talisman. Whenever you are in doubt, or when the self becomes too much with you, apply the following test. Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him. Will he gain anything by it? Will it restore him to a control over his own life and destiny? In other words, will it lead to swaraj [freedom] for the hungry and spiritually starving millions?”
Then you will find your doubts and your self melt away.”
– One of the last notes left behind by Gandhi in 1948, expressing his deepest social thought.

Or Annie Besant

I would say to those of you who are young today: look forward to a future full of nobler tasks that you may do what we have left undone. Never forget that life can only be nobly inspired and rightly lived if you take it bravely and gallantly as a splendid adventure.”

Hash Tag – find yourself a better hero

(2)(0)
Cockney Geezer

It’s racist, not racialist. Please delete plebs who can’t spoke proper England?

(0)(3)
Country Bumpkin who speaks just like Denning.

Why would anyone want to hear his country bumpkin voice?
This thought had never entered my mind in all my days.

(0)(0)
Anonymous

Denning was a man of his time. Like it or not, those were the values of his day. We don’t share them now, but people in the future may not share ours. Simple as that.

(0)(1)
Anonymous

You presume too much if you believe that every member of a generation shares a single set of values. And too little if you believe that judging people by their race or by their character are equally valid ways of looking at the world.

In fact, many of Lord Denning’s generation passionately believed in equal rights and quietly got on with the fight to make them a reality at considerable cost to themselves.

Lord Denning’s tragic flaw, like many of his position -past and present -was a failure of imagination: he simply couldn’t comprehend the reality of those darker or more foreign than him. His attitude certainly wasn’t universal to his generation: or an attitude to which the latter generations are immune.

(1)(0)
Anonymous

Denning didn’t give a fuck about what other people thought.

That’s why people like love and loathe him.

(2)(0)

Comments are closed.