The lawyer as writer

Print edition : October 14, 2016
Many of the writer’s remarks are strikingly relevant to the Indian judicial system.

“HE has always been radiating his views. He was an early advocate of human rights, long before it was fashionable to be one,” writes Lord Dyson, Master of the Rolls, in his Foreword to this very instructive and engaging volume of essays. They are highly relevant to the Indian scene. Indian writers and lawyers particularly are free from any trace of self-deprecatory humour.

During the latter part of the 1950s, the author had become the legal correspondent of first, The Guardian (then still the Manchester Guardian) and then The Observer. He also began to teach criminology to the social science students of Bedford College, University of London, and became a lay magistrate in first, Greater London and later, the City of London. He took silk in April 1970 and began appearing in criminal cases.

After the Hurtton and Chilcot Inquiries, the institution of public inquiries has suffered in public esteem. In India, the reputation of its counterpart, the Commissions of Inquiry, is mud.

Many of the author’s remarks are strikingly relevant to us, such as this gem: “Even if it is permissible for a judge in the course of his written judgment to pronounce upon some aspect of the law, he or she indulges an appetite for some exposition of law. It is mere obiter dicta and does not represent any part of the ratio decidendi of the judgment. It may be found as acceptable or discombobulation to the parties, but it is an excrescence on development of the law. It should be a golden rule, Judge Learned Hand wrote in a letter to his friend, the Chief Justice of Nebraska, that a judge’s duty is to adjudicate a dispute between the parties, ‘not write for eternity’. It is a dilemma exceptionally facing the judiciary in its search for constitutionality. If there is a desire for reform of the law, should that task be left to Parliament and the Law Commission?” Tell that to the judges of our Supreme Court.

As counsel, Blom-Cooper was utterly fearless in the discharge of his duties. On one occasion, his preliminary skirmish with a witness he was cross-examining made the judge impatient. “At this point the judge, no doubt frustrated at seemingly irrelevant questioning, intervened: ‘I suppose, Mr Blom-Cooper, you will soon be suggesting that the ceiling fell on to the child’s head and fractured his skull.’ Without a moment’s hesitation (it was a characteristic of mine that I often spoke before thinking) I answered the rhetorical question by saying ‘My Lord, that is the kind of flippant remark that ill-befits a High Court judge.’ The moment I uttered those words, I sensed that I had overstepped the mark of permissible advocacy. But the die was cast. Thereafter the judge and I were at hammer and tongs; it lasted throughout the trial. So much so, that when it came to the judge’s summing-up….

“Tactically, I decided (in the appeal court) that it would not help to further my submission on the judge’s behaviour, mainly because on reflection, and having read the exchange between the judge and myself on the transcript, in my response: to which Lord Lane replied that he thought that there was no such balanced judgment; in the eyes of the jury, there is no equality of arms as between judge and counsel. My point was immediately taken by the court. In his judgment allowing the appeal, Lord Lane found a misdirection by the judge on the expert evidence. He also heavily criticised the judge for his unseemly remarks during my cross-examination of the child’s mother. A fair trial includes fairness to the accused’s counsel as well as to the accused.”

As one might expect, the author’s comments on the press and the many inquiries into the state of the press, ending with the Leveson Inquiry, are as well informed as they are trenchant; especially on the Leveson Inquiry.

One hopes this book will be widely read. When is it right for the court to appoint an advocate as amicus curiae, friend of the court, to assist it in presenting a view neither side might present? It is the duty of counsel on both sides to be fair to the court, surely.

“It was formerly a rare practice in our courts for judge to seek help from anyone other than the parties to litigation. But by the beginning of the twenty-first century, faced with unfamiliar challenges—the advent of human rights notably promoting the major challenge—an increasing number of organisations (mainly pressure groups) had entered the forensic scene, usually by way of written and sometimes oral submissions. By 2008 Lord Hoffmann was in a position to say, in E v Chief Constable of the Royal Ulster Constabulary, that ‘the expectation is that their [the interveners’] fund of knowledge or particular point of view will enable them to provide the House [of Lords] with a more rounded picture than it would otherwise obtain’, but pointedly he stressed that ‘interveners must do more than reiterate points of view already made adequately by one of the parties’.

“But this procedural transformation in the process of intervention by third parties, although conceptually accepted as part of the legal process, was traditionally ignored or resisted, even at times declared unwelcome.” It is a rarity elsewhere; not in India.

Anthony Lester, the distinguished Queen’s Counsel (now Lord Lester), remarked to this writer in 1978 that he was surprised at the acceptance in India of rulings of English courts which are regarded as obsolete there. This is true also of some judges and barristers, Lord Denning being a shining example. He had to resign because of his racist remarks after serving as judge for 38 years.

Blom-Cooper writes: “Throughout those years he dominated the legal scene. Undeniably he was the master of court-craft, displaying all the attributes of a judge avoiding the aloofness of wig and gown, presentationally concerned to ensure that justice was seen to be done. Ever courteous to counsel and witness, he exuded all the appearance of a Solomonic wisdom of the English common law at its best. He appeared like some judicial colossus that is unlikely ever to be replicated. His style was Arcadian, exhibited by an affected Hampshire burr. Overall, he was admired —even adored—by a generation of law students and other non-lawyers of the immediate post-war period who felt inspired by a champion for reform of a legal system that had become ossified and needed refurbishment. …

“If Denning’s management of a reforming zeal was instantly attractive, both in and without the legal profession, his legacy in developing the law in a liberal, forward-looking way is decidedly questionable, and today is lost in the mist of a bygone age. Were the personal virtues of a legal luminary in any way justified in terms of rational and logical jurisprudence for a modern democracy?

“Some of his decisions indicated a willingness to please the public; a fault not rare in India. In the twenty-first century it is a rarity for any of Denning’s judgments to be cited by counsel or by today’s judiciary. Denning’s fame lies firmly in antiquity.”

Here is a delightful incident after he had decided against the author in a case. “It was Lord Denning’s practice to lunch on a Friday at Middle Temple Hall, as a member aliunde, since his normal Inn of Court was Lincoln’s Inn. It so happened that our paths at lunch crossed. In a thoroughly genial mode, he said he was sorry to have to find against me, but he was suitably (if over-generously) complimentary of my forensic efforts. But he emphasised that justice had to be done, according to the law. And he was almost certainly right, as the law stood then. When I replied that I was grateful to him, he looked puzzled. I had observed that my side were delighted, because it meant that the Court of Appeal had in effect put thousands of pounds into the pockets of part-time teachers, since the unions had preserved their powerful bargaining position. I should also add that, from past experience, Lord Denning had been hostile to trade unions; he did not like the teaching profession and women were not accorded priority in his way of thinking. When I responded by telling Lord Denning that he had not fully (if at all) appreciated the reality of the posture of the litigating parties, he instantly said—and I can almost repeat verbatim, 30 years later, his words—‘If I had known that, I would have decided the case differently.’ …

“Lord Denning had very strong views on the merits of any claim, and the courts, he considered, should come down on their side irrespective of the legal rules. It was a classic instance of one judge’s pervading sense of justice that had to prevail. Was he in fact a judicial misfit, a man for his times when the law needed to be wrested out of it cocoon, protecting a Victorian vision of the law? Or should we reserve a figure of such judicial prominence and effect on British society—a judicial misfit?”

Dare we expect a similar survey of misfits on our Supreme Court since 1950 and an appraisal of the havoc they had wrought?

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