Joshua Rozenberg on Lord Denning: Worthy of his law student favourite crown?
Top legal commentator’s insight into legendary judge
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 2017 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.
HAPPY 118TH BIRTHDAY LORD DENNING ???? pic.twitter.com/FcRVogqMMr
— Legal Cheek (@legalcheek) January 23, 2017
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.
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.
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.
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