A Life of Crime: The Memoirs of a High Court Judge

On a cold winter’s day during my pupillage year I went there to represent a young man in Affiliation Proceedings. This process was used if an unmarried woman became pregnant and alleged that a certain man was the father. If she satisfied the magistrates as to her claim, then the man would be ordered to pay weekly maintenance for the child until it reached the age of sixteen. Of course, this was long before DNA made issues of this kind obsolete.

The tiny courtroom was heated only by a coal fire, regularly and noisily stoked up by the court usher when not occupied with other tasks such as swearing in a witness. The girl gave her account, my client having been her boyfriend. At the relevant time, they had been in her parents’ house. The parents went to bed, leaving the young couple in the sitting room downstairs. The girl alleged that it was then that they had unprotected sexual intercourse.

I called my teenage client, an agricultural labourer of limited intellect. ‘The girl says that on that night you had sex with her on the sitting room sofa after her mam and dad had gone to bed. Is that true?’

‘Yes I did.’

‘Did you take any precautions?’

‘Yes, of course.’

‘What precautions did you take?’

‘I wedged a chair under the sitting room door knob.’

Humour (intended or otherwise) was not the monopoly of witnesses. One morning I was sitting in Dewsbury Magistrates’ Court, waiting for my case to be called. The defendant in the dock was addressed by the chairman.

‘Young man, we see that you are not legally represented.’

‘No, I’m not.’

‘The charge against you is quite a serious one. We think that you should have legal aid so that your interests can be looked after.’

‘I don’t want it. The Good Lord will take care of me.’

‘The bench thinks that you would be well advised to have the services of someone who is better known locally.’

This prompts me to say that there were indeed advantages in being represented before the magistrates by an experienced local solicitor who appeared frequently before them, rather than by a member of the Bar, who might have been thought to have the edge as an advocate. I learned that lesson in my very early days. The experience still brings a rueful smile to my face.

I was instructed to represent a bookmaker in an application before magistrates at Leeds for a betting office licence. There were objections, but suffice it to say that on any impartial view of the merits, the application was bound to succeed. The objectors were represented in court by Jack Levi, a very well-known Leeds solicitor, whose extensive practice often involved his personal role in representing clients before local benches.

The appointed day came. The magistrates came into court. As protocol dictated, all those legally involved stood up until the bench was seated – in this instance, all except Jack Levi. At once, from a seated position, he addressed the chairman of the bench.

‘Please excuse my rudeness in remaining seated, Your Worships,’ he said. ‘The fact is that I have been very poorly.’ (Repeated thumping of his breast with a clenched fist.) ‘My doctor has advised me that I should take a break. But when I discovered that my opponent was to be represented by a rising young star of the local Bar, I felt that I owed it to my clients to turn up and do my very best on their behalf. I hope that you will understand.’

The chairman responded. ‘Of course, Mr Levi. We fully understand. We are concerned for you, and you may remain seated throughout the hearing of this application, whether dealing with witnesses, or addressing the court.’

Do I need to tell you the outcome of the application? I prefer not to do so, though the phrase ‘defeat from the jaws of victory’ may give you a clue.

I am unsure whether what took place is properly characterized as a demonstration of part of the art of the advocate, but (like so many other episodes during my times in those courts) it was something I never forgot!

In another court in the West Riding of Yorkshire I was before a bench renowned for its toughness. At the end of my submissions, I placed heavy reliance on the burden of proof ‘beyond reasonable doubt’. I was heard out with scarcely concealed impatience. The members of the bench put their heads together for a very short time. It was clear to me already that the lofty principles of English criminal law had come up against a brick wall.

The chairman said to my client, ‘Stand up. We have listened with great care to what your barrister has said to us. We have to say that in this case we do have a doubt – but we are most certainly not going to give you the benefit of it.’

Acting for an Alderman of the City of Leeds, stopped by the police when driving erratically home from a civic reception, a police sergeant gave the following evidence: ‘We overtook the car, and switched on our “police-stop” light. I walked back to the car. The defendant – who I see and now identify in court – was in the driving seat, alone. I opened the driver’s door. There was a powerful smell of alcohol. I said to him, “I am a sergeant of police, will you please get out of your car, sir?” The defendant smiled at me: “Why, sergeant, is there another party?”’

Acting for a youngster who had been stopped one night by a police officer in Birkenhead because his car was showing no tail lights, this was a PC’s evidence: ‘I asked the defendant to come with me to the back of his car. He did so. I pointed out that there were no illuminated lights. The defendant gave the boot of his car a hard kick, whereupon the lights came on. He then smiled at me, and said “There we are, officer, all’s well that ends well, eh?”

‘“Very good, sir,” I replied. “Perhaps you will now give your windscreen a similar kick and it will then display a valid tax disc.”’

On my side of the Pennines, vehicle rear lights also featured before Wetherby Magistrates’ Court. The police had followed a truck for some two miles. It displayed no tail lights. They stopped the truck, took the driver – my client – to the back of it, and pointed out the offence. The defendant scratched his head and said, ‘Lights be buggered. Where’s my bloody trailer?’

A witness before the Bradford bench: ‘I drove along the M602, heading for the centre of Bradford. I lost my way, and at the end of the motorway I saw a man walking his dog and asked him if he knew the Bradford turn-off. “Know it?” he replied. “I bloody do. I’ve been married to her for thirty years.”’

An important factor in some instances is for the court to know whether the witness before them is giving his or her testimony freely or under compulsion. Hence this exchange in York Magistrates’ Court between prosecuting solicitor and witness:

‘Is your appearance here today due to a witness summons?’

‘No, I’m very sorry. I was late this morning and I didn’t have time to shave.’

I must acknowledge with sadness that the room for joyous experiences like those is almost certainly no longer to be found before a bench of lay magistrates. The ethos has changed. There is an increasing emphasis on professionalism in the training of those who sit. It is no longer enough for a legally qualified clerk to advise the bench on matters of law; the bench must now be inherently ‘judicial’ in doing the job. There are also complex legislative restraints on their powers, for example regarding juvenile offenders.

In my own experience, this has deterred many who might otherwise have sought appointment – and caused some who have sat for many years – to quit. Common sense, maturity and worldly experience were in my day the criteria for appointment and continued fitness for office. Nowadays, it seems to me that a Justice of the Peace is treated as though he or she had a legal education and background. But they are not so equipped, and I dare to suggest that it is their ‘lay’ status that gives them the qualities that should matter. Since the huge majority of offences in our country are disposed of before magistrates’ courts, those who visit them (under compulsion or otherwise) should be encouraged to find a community between themselves and those who sit in judgement on the less serious offences that form the calendar. Ordinary folk should be dealt with at this level by other ordinary folk. It makes for a less resentful, and therefore less divisive and better-ordered society.

Well, those were happy days, and a vital part of the learning curve of any aspiring advocate. I look back on them with gratitude and huge affection. But they soon fell away as I began to gain a toehold at Quarter Sessions and even sometimes at Assizes, when visiting High Court Judges sat for periods of some weeks in all the major cities on my circuit. This period of my life contained two events that came as a great relief to me.

The first was that the Homicide Act of 1957 marked the beginning of the end for capital punishment in this country. By 1965, hanging as a form of punishment was abandoned, and in 1969 it was abolished. The burden of defending someone who faced the death penalty if convicted fell only upon Queen’s Counsel, and I was and still am eternally grateful that I never had to bear that dreadful responsibility. I remember talking to some who had the traumatic experience of going down to the cells after the judge had put on the black cap, and saying a literal goodbye to their client.

I ought also to acknowledge that for a judge presiding over a murder trial, the duty imposed on him to pass sentence following a conviction must for many – if not all – have proved an equally fearful burden. The defendant, surrounded (and often physically supported) in the dock by prison officers, was confronted by the judge, who wore a black silk square placed on his wig. The High Sheriff and his chaplain (both robed) were alongside. The judge was then enjoined to address the defendant in these archaic terms, which were only slightly modified in 1947:

[Name], you have been convicted of the crime of murder. You will be taken hence to a lawful prison, and thence to a place of execution and there be hanged by the neck until you are dead. Thereafter, your body be buried within the precincts of the prison. May the Lord have mercy upon your soul.

The chaplain endorsed this incantation with an ‘Amen’.

It is difficult for me to imagine the pressure that participation in this macabre ritual must have imposed on all those involved. In at least one instance of which I am aware a very distinguished QC (Gerald Gardiner – later Lord Chancellor under a Labour administration) declined appointment to the High Court for fear that he would be called upon to pass the death sentence.

I must say something more about capital punishment, not least because in these most troubled times, where acts of terrorism are our constant companions, it would be remarkable if there were not a groundswell of public opinion in favour of restoring the death penalty. I do not share that view. My approach is founded both upon pragmatic considerations, born of a lifetime in the law, and upon a strongly held personal conviction. As to the former, I offer the following.

First, there is the well-rehearsed risk of a miscarriage of justice – and one that is beyond repair. However rare such cases may be, I find it impossible to reconcile myself even to one such instance.

By way of notable example, many will still recall the case of Regina v Craig and Bentley, tried before Lord Goddard, Chief Justice, at the Central Criminal Court in 1952. It may be an extreme example, but I remind myself of the aphorism that ‘hard cases make bad law’. Christopher Craig was sixteen years old; Derek Bentley was a mentally retarded nineteen-year-old, an epileptic with a reading age of four who had been adjudged unfit for military service due to mental retardation. Both burgled a warehouse. Craig had a loaded pistol. (Significantly, Bentley was carrying a knife supplied to him by Craig, but never produced it at any stage.) The pair were confronted by a number of policemen on the rooftop of the building, one of whom urged Craig to hand over his weapon. The evidence that was obviously accepted by the jury was that at about this juncture Bentley shouted to his accomplice, ‘Let him have it, Chris.’ Craig fired the pistol, and killed one of the police officers, PC Miles.

Both youths were charged with and convicted of murder, on the basis of joint enterprise. The law, however, was that nobody under eighteen could be hanged for a capital crime. So it was that Craig was sentenced to life imprisonment (and was released after serving ten years). Despite the jury’s plea for leniency, the Home Secretary declined to intervene. Nineteen-year-old Bentley (who did not fire the shot) was hanged. What did ‘Let him have it, Chris’ mean? Did it mean ‘shoot’, or did it mean ‘Do as the bobby says, and hand over the gun’? On this nuance of language, Bentley went to the scaffold.

After a campaign led by Bentley’s sister for nigh on half a century, in 1995 Bentley was granted a royal pardon, expunging the death sentence – but not overturning the conviction. In 1998, an appeal court did just that. The Chief Justice, stating that the trial judge, Lord Goddard, had failed to direct the jury adequately on the issue of joint enterprise, in respect of whether Bentley’s cry just before Craig fired the fatal shot meant that, whatever his original intentions, Bentley wanted no further part in the criminal enterprise.

Bentley’s sister had died one year earlier. What comfort was it to her in the last year of her life to know that her brother should never have been hanged, or to die not knowing that at last he was to be exonerated of murder?

In that immediate context, it is especially interesting to note that, in R v Jogee in 2016, the doctrine of joint enterprise in homicide was the subject of a substantial reappraisal by the Supreme Court. The court held that the doctrine had been wrongly interpreted and applied inappropriately in directions to juries for over thirty years. How fortunate it is that no one had been hanged on the basis of joint enterprise as wrongly understood by the lower courts during that period because, of course, capital punishment had already been abolished.

I also remind myself that for some years after 1957 the death penalty (although substantially abolished) was still in force for those, for example, who killed ‘in the course or furtherance of theft’. You may have thought that the words ‘course or furtherance’ were plain English, and brooked of no ambiguity. If you did think that way, you would be wrong. It led to repeated argument in the Court of Criminal Appeal, on which the issue of whether or not the guilty party should hang depended on the study of etymology as much as upon the evidence. The confusion that successive decisions created was a powerful factor in leading ultimately to the total abolition of capital punishment. What did I say about the nuances of language?

As to the deterrence argument, my experience suggests that very few murders are the product of true premeditation. The killer rarely considers the consequences before the fatal act. And – going back to where I started – the terrorist actively seeks martyrdom.

Finally, and irrespective of all the above, I reject the principle of ‘an eye for an eye’. It is a matter for each one of us to examine our consciences and ask whether we find state-authorized killing a justifiable exception to the injunction that ‘Thou shalt not kill’. You know where I stand on that.

The second source of relief was a purely personal one for someone like me, who in those days, if defending, generally did so under the auspices of legal aid. In the early 1960s, the level of legal aid fees was greatly increased. With a wife and burgeoning family now to support, that was very good news for me.