Witness boxes and lunchboxes

Benchmark
August 8, 2003

I have written several different reviews of this book. Not because of any doubts about its quality, but because every time I am about to send it off, it is overtaken by events. This is a plea by a recently retired High Court judge for stability and for the preservation of the old system. His success may be measured by the fact that since it was written the Lord Chancellor's Office has been abolished, the QC system and the House of Lords are on the scrap heap, and the judges are to be appointed by a quango. Now Lord Falconer is considering "Tesco law" - legal advice through supermarkets. A few weeks ago, I said goodbye to a murderer at the start of his life sentence. The clients are rarely at their best on these occasions, and sometimes quite intimidating. In a few months, presumably, I shall have to ask them if they have a Club card.

The home secretary, David Blunkett, is engaged in a long public row with the judiciary, whose attachment to "airy-fairy civil liberties" he despises. He has little confidence in their ability to lock people up for long enough (although the judiciary provides more prisoners than he provides prison places). He wishes to persuade the public that they also should distrust the judges and the criminal justice system.

He recently had the Police Federation rolling in the aisles with a little joke in which he described himself as a repeat offender, and speculated that the lord chief justice would give him a community penalty rather than a custodial one. Judges are often accused of being "unelected", as though that means that they should do as they are told by those who are.

Oliver Popplewell's autobiography is happily timed to coincide with these events, and he is clearly concerned to make a contribution, and not only to the inside pages. He reminds us that in May 1996 Rupert Allason MP brought a libel action against Alastair Campbell and others that was tried twice, once by Mr Justice Drake and once by Popplewell. Each of them found Campbell to be a less than wholly satisfactory witness. Popplewell remarks:

"It is a rather sad reflection on modern political life that in the face of these findings he should have been offered and accepted (his present) position. Autres temps, autres moeurs ." This is a passage that could usefully be deployed by those who have a more politicised agenda than mine.

Popplewell represents a breed of English judge that is recognisable from a thousand parodies. He was the judge who appeared to fail to understand what Linford Christie's lunchbox is. Charterhouse and Cambridge, cricket and the Marylebone Cricket Club, the Bar and the Bench: a short CV that paints its own picture. He does have many of the conservative political and social attitudes that might be expected in such a person.

What the parodies and prejudiced assumptions ignore is the robust independence of mind and profound concern for the things that really matter that is found in Popplewell and quite widely among our higher judiciary.

It is not very common for retired judges to write autobiographies. Their lives tend to follow a predictable pattern and to lack the sort of scandal or inner turmoil that former weathergirls and footballers use to spice up their sales. Judges were not usually raped by television presenters in their youth or, if they were, they do not generally boast of it. Readers who might be interested in the private thoughts of an artist or novelist may draw the line at those of a judge. Perhaps accountants and actuaries have even greater difficulty placing their memoirs.

There is usually a professional discretion that prevents judges from publishing the interesting things that they could say. In 1985, Lord Devlin wrote a short monograph that he called Easing the Passing about the trial of the alleged poisoner, Dr John Bodkin Adams, over which he presided in 1957. Adams was acquitted, which Devlin thought was due to the bungling of counsel for the crown, one Reginald Manningham-Buller. Manningham-Buller was attorney general and later, as Lord Dilhorne, became a law lord. This caused a fuss. Lord Justice Dunn complained in a letter to the press that criticism of a judge by another was quite inappropriate, and he was supported by Lords Scarman and Bridge. When Lord Denning wrote a series of books about his judicial life, a leader appeared in The Times suggesting that this was contrary to the public interest, because such works might weaken public confidence in the judiciary. Clearly the writer valued this confidence more highly than Blunkett does now. Most judicial memoirs are dull then, partly because they must omit the only interesting material available to their authors.

Popplewell departs from this reticence and expresses his views about Jonathan Aitken. Aitken gave evidence before Popplewell in support of his libel action against The Guardian, which settled before judgment was given.

Popplewell had decided to try the case without a jury. Judges rarely talk about their views of witnesses in these circumstances. However, Popplewell needs to set the record straight.

Many will recall how a young journalist found some documents in Switzerland, late in the trial, that proved that Aitken had lied about who paid a hotel bill at the Ritz in Paris. Aitken withdrew his action and was later sent to prison for perjury. The Guardian line was that the judge had believed Aitken and, but for the miracle of the late documents, would have found for him, having wrongly decided to try the case without a jury.

The implicit suggestion that he was a gullible fool who had dispensed with a jury to save a fellow member of the establishment has rankled with Popplewell for years and he now offers his side of the story. He says that he had decided to reject Aitken's evidence even before the rabbit was pulled from its Swiss hat.

This book is a call for understanding of the quality of our judges, and the system that produced them. Popplewell makes no arrogant claims for himself, but he rightly believes that he has fulfilled a useful function in his career at the law. Although the book is not limited to legal matters (he covers all stages of his life and includes material about his presidency of the MCC and about his family), the description of the way in which a High Court judge operates in the modern era is the most valuable part. He describes, for example, the conduct of a public inquiry and the work of the Parole Board in a way that shows that the judiciary deserves respect and trust for the independent way in which it can deal with government in sensitive political areas. This is also important and topical.

While he needs us to believe that he knows perfectly well that Linford does not keep sandwiches in his lunchbox, his main purpose is to make a quiet plea for support for his profession, the profession of judging.

This necessary function is best performed by decent people whose concern is with justice rather than their own grandeur. They need the self-confidence to express clear opinions that may not be popular. They need the intellect and humanity to be reasonably accurate in those opinions and to be able to explain intelligibly how they were formed. We traditionally found them from the Bar, from the bar of the MCC, and other such places. The pool from which they are trawled has already been widened since Popplewell's day, and further reform in the selection process is required. We should not forget, he seems to say, that the old ways produced him, and he, as it happened, did the job pretty well. Let us not, therefore, throw the baby out with the bathwater. Popplewell is "Exhibit A" in the case for the defence of the old system: a very good High Court judge.

Andrew Edis QC is a practising barrister.

Benchmark: Life, Laughter and the Law

Author - Oliver Popplewell
ISBN - 1 86064 886 X
Publisher - Tauris
Price - £25.00
Pages - 313

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