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“50 YEARS IN CRIME”MIDDLE TEMPLE – GUEST LECTURE9.11.15
Two years ago, in Februarymy younger daughterjoined me for lunch in this great Hall. It was a special day for me, because it was exactly 50 years to the day since, in this very place, I had been called to the Bar.I don’t mention this to encourageyou to work out how old I am, but because I have had the good fortune to observe the development of criminal justiceand its place in the Rule of Law over all this time.
‘Justice’ is a variable concept. It tends to begauged by the standards of the reasonable man and woman of the day, butthe Rule of Law governs all ages. The integrity of criminal justice was recently referred to in the Court of Appeal as ‘a benchmark of the Rule of Law’, and if the Rule of Law has a shop window, the criminal law is it. The changing displays in this window show that what we had in place,and indeed what reasonable people were thinking,only one or two generationsago would strike manyequally reasonable people today, as outmoded, even incomprehensible.I hope it mayinterest you to have anidea, however sketchy, of some of these changes; and that you won’t mind a few stories of my own along the way. Mymemories take us way back to a time when you, like me, may find it easier to picture them in black and white.
To give you a flavour of what life was like in those early days. I joined Bar on the North Eastern Circuit with Chambers in Leeds; andviewing those days, much else was in these colours: Dress: black jackets and waistcoats, striped trousers, and bowler hats, strictly enforced by bowler-hatted clerks. In court, black gowns and white wigs. As for women, they wore a variation on this strict theme: although we might bear in mind thatthere were just two women barristers in Leeds, and no more than half a dozen on the whole Circuit. We might remember that these were dayswhen Arthur Smith, clerk to recentlyretired Lord Chief Justice Goddard,felt able to say in a biography of Goddard: ‘I never feel happy at hearing a sweet-voiced creature making a speech on a subject, which I feel she would be far better knowing nothing about.’
And ethnic diversity? Almost non-existent. The Circuitcould boastjust one non-whitebarrister: an Indian gentleman. Peter Das was a former Prince of the Raj.He told me about the time he had been led by a London Silk ofgreat renown, who didn’t speak a word to him from the moment they met in the Robing Room to the moment their trial ended. Also, I should tell you, it was routine in those days, when defendingsomeone belonging to an ethnic minority, for counsel to say in his final speech: ‘Don’t hold it against my client that he’s coloured’! In just 50 years, after a succession of Discrimination Acts, beginning with the great Act of 1965, the law has developed to the point wherewords like these would seen as sopatronising and offensive as to be unthinkable – a good example of how law can change behaviour – and attitudes.
Of course, we are not there yet, and many complain that the Bench is not sufficiently diverse. Whilst this may well be true, we do at least have the benefit of knowing that in the Crown Courtwe have tens of thousands of judges from all backgrounds:and they are called jurors. All these people, and their families and friends, know they have a real stake in the administration of justice; and I feel sure that this ‘cosmopolitan’ feel to the trial processis an important factor in ensuring confidence in the justice system.I have often thought not merely how very wrong, but how very foolish are those police officerswho misbehave towards ethnic minorities. They should remember that thosetheyill-treat today could very well be the people who willjudgethem, and their comrades, tomorrow.
I always believed that if I could get a foothold in chambers, then this might be the profession for me. I was lucky: After my Bar finals, I was accepted as a pupil by Alter Hurwitz, a fine lawyer, and noted Hebrew scholar, who was awarded a Certificate of Honour when he took his Bar finals in 1924. The fee I paid Alter for my 12-month’s apprenticeship was the standard - 100 guineas. There were just six barristers in chambers. Today, many chambers have more than 10 times, even 20 times, that number – so many that, regrettably, their Heads don’t even know all of them personally.
I havesaid – the 60’s were very different days. Until 1972, there was no Crown Court. Criminal courts trying the more serious, indictable crimes did not sit all the year round, but at Assizes and Quarter Sessions, which were held in rota in the major towns and cities for a week or so, or even just a few days at a time. Legal aid was thin on the ground, and I was the recipient of more than one dock brief. This was a system whereby counsel would be seated in court. An unrepresented defendant would be brought up into the dock to examine the goods on offer, namely us, and select the one of his choice.
My first dock brief came atDoncaster QS. An old lag was brought up; he scanned counsel’s benches, and after inspecting us for what seemed an age, said: ‘I’ll av’ young’un wi’ glasses.’ The judge kindly said: ‘I think hemeans you, Mr Rivlin’ – and so for £2.4.6, of which 4/6 went to my clerk, I descended steep,stone, steps from the dock down tothe tiny, airless cells, to meet my new best friend, who soon made it plain that he had chosen me, not because he expected that I could do anything for him,but because he felt I might be in need of work experience.
Even now I cannot imagine why I thought I might succeed at the Bar. None of my family had ever been lawyers; I had no professional connections,and two of my greatest failings were a lack of confidence and a fear of public speaking! But somehow or another I think I managed to turn at least the first of these to my advantage. Needing the reassurance, which only comes to me, at least, from preparation, I suppose I found myself working pretty hard, and studying the different ways in which I could grasp evidence and make use of it. That stood me in good stead, although the fear of failure is ever present. To this day, as you see, I still need the comfort blanket ofdetailed notes.
My early work was in the main crime, ‘divorce’ (as it was then known) and general common law. I am happy to say that my time as a junior barrister and as the Junior (i.e. Secretary) of the Circuit was one that I recall with nostalgia and great affection. Whether driving through glorious countryside to light and airy courts in beautiful county towns, or appearing in the darker, heavily panelled courts of selfimportant industrial towns; whether coming away from court with a spring in my step, or suffering the cringing embarrassments of many early mistakes, and yet somehow managing to move little by little up the ladder, it was, looking back, a working life of great happiness and contentment.
At this point let me mention the first of themore dramatic changes tocertain aspects of criminal justice system I wish to tell you about:
Juries:When I was called to the Bar each defendant in a criminal trail was entitled to challenge seven jurorswithout giving any reason at all. The prosecution had a similar right, and could for no reason ask jurors to ‘stand by for the Crown’.At one time the defence was allowed many more challenges, but this was reduced to 7 (in 1948) and then 3 (in 1977), before its total abolition in 1988.Since then, one can only challenge a juror for cause i.e. by giving a reason to the judge which he or she regards as acceptable.
In the early years jurors always wore their ‘Sunday best’, and Yorkshire juries were not to be trifled with. I was sent to Wakefield to prosecute a gentleman who played rugby for Wakefield Trinity. He was one of their stars,and a local hero.Immediately after I had opened the case to the jury, and before calling any evidence, there was a break for lunch, and we all filed out of court – at which point one of the jurors was kind enough to give me a preview of the verdict. He sidled up to within earshot, and said, in a friendly, but determinedwhisper, ‘You’ve nochance lad’.
Again, in those early days, and indeed since the fourteenth century,jury verdicts had to be unanimous, and once they had retired to consider themjurors were not permitted to separate and go home after each day.They were isolated to avoid accidental or deliberate tainting.Oneconsequence of this, in sharp contrast to what often happens today, was the speed with which juries reached their verdicts – even in capital cases where the death penalty was at stake, some of these verdicts were returned literally within minutes. I mention only two of what are now generally recognised as amongst the greatest miscarriages of justice:Derek Bentley, 1952 and Timothy Evans 1953. In each case the jury was out for less than one hour and a half. [1 hour 15 minutes;: 1 hour 20 minutes.]
It wasn’t untilthe Juries Act, 1974 that majority verdicts were introduced, normally meaning that not less than 10 had to be agreed. Also, unless there were exceptional circumstances, jurors were now permitted to separate and go home. At this time there werestatutory exemptions from jury service, the most obvious being e.g. members of the police force; the most notorious, albeit inaccurate,groupingbeing – I use the words of the day – ‘criminals, lunatics and members of the House of Lords’! But in 2003 a newmammoth Criminal Justice Act came into force, and in relation to juriesit achieved the good, the bad and the ugly.
The good was that it protected juries and the integrity of the criminal trial, for where a Judge is satisfied that there has been an attempt atjury tampering, or ‘nobbling’, he can now discharge the jury and try the case himself.
The bad was that in sweeping away many of the exemptions, the Act now provided that those professionally involved in the criminal justice system, includingpolice officers,probation officers, even Judges, werenow obliged to serve on juries. This continues despite, concerns about bias expressed both in the Supreme Court and Strasburg.
The ugly was that the Act also provided that (only)the prosecution should be able to apply for trial by judge alone, where“the complexity or the length of the trial is likely to make the trial too burdensome to the members of a jury …”Thisdangerous provisionwas calculated to undermine the right to jury trial. Thanks to the House of Lords it was not implemented, and thanks further to the Liberal Democrats,it was formally repealed following the 2010 Coalition Agreement. This is a big topic, but we now have quite enough experience of trying complex cases to know that if they are well prepared and presented, and well tried, juries can cope very well. Neither the trial judges, nor the prosecutors, nor the defenders want judge-alone criminal trials,and we should leave it at that.
Of course, jurors can always be excused for good reason: When I was at Southwark a senior member of the cabinet was summoned to serve on a jury. He asked to be excused on the grounds that he needed to be available to deal with crises around the world.I am sorry if this disappoints you, but Iimmediately agreed. It might, however, be difficult to better the reasons given by the acerbic art critic, the late Brian Sewell, whose mother was called for jury service. He was so pleased with the letter he wrote to the court that he included it verbatim in his memoirs:
To The Jury Officer, Southwark Crown Court, July 1992:
Sir – Something must be amiss with your computer. My mother, Jessica Sewell … is well beyond her ninetieth year, paralysed by strokes, almost blind, hard of hearing, incontinent and incapable of rational judgementthat I once knew.of a steamra restorer'g army lorry, leaving his stokc of ghastly painti.
You are welcome to have her in your court, but you must send an ambulance and nurses; you must feed her by hand and put her on the potty; and you must learn to ignore her random yelps and exclamations.
Do let me know if you intend to insist on her attendance.
Returning tothe Bar:I have mentioned a certain lack of confidence, and the need to prepare well. Needless to say, all this took its toll; and it came to a head in one case in which I was prosecuting and the late, greatly lamented Gilbert (Gilly) Gray was defending. Gilly was one of the great characters of the Bar, and in Silk, he became one of the most sought-after defenders (and after dinner speakers) in the country. A man of immense natural flair, he never approved of my level of preparation. He regarded it as a poor substitute for raw talent. When he saw that I had a schedule summarising the entire fraud on one large sheet of paper, with ‘nerdish’ lines of different colours, linking up dates, events, bank entries and the like, he could take it no longer, and in his final speech he abandoned his usual inimitable practice of recounting anecdotes of amusing local interest, and instead, spent much of it expressing his disgust with me.
Describing me with everincreasing scorn as ‘the watchmaker’, the jury was made to see me, as if I were peering through a jeweller’s eyeglass at tiny pieces of evidence, carefully picking at them with a pair of tweezers and gently fitting them together.In Gilly’s eyes, it did not matter at all that they did fit. What outraged him was the notion that anyone might go to all this trouble to make them fit. No doubt the subtext of his speech was, ‘For goodness sake, Geoffrey,get a life’, but far from seeing matters in that light, I suppose I regarded this description as “the watchmaker” in a very small way, as my “Thatcher” moment - being as gratified with this intended insult as she was at being called ‘The Iron Lady’.
At all events, attention to detail must have appealed to some solicitors, for little by little, the watchmaking business grew to the point where I became junior counsel for the defence in three of the five Poulson corruption trials. The year (again) is1974. Those of you with extra-long memories will recall that these cases centred around the activities of a Yorkshire architect called John Poulson, who was said to have been at the centre of a web of corrupt payments to secure large architectural contracts.Indeed, at one time the scandal was in danger of enveloping the establishment, as one politician after another had to reveal receiving some kind of gift from the architect. The most seniorpolitical head to roll was that of the Home Secretary, Reginald Maudling. Poulson had given him a silver chalice – no more; but it turned out to be poisoned. Maudling’sHome Office Department superintended the police who were investigating the case,and this gift was so embarrassing that it led to his resignation – and the return of what he called ‘that damned pot’.
I mention this case for three reasons:first is for its advocacy. The two leading counsel for the Crown were John Cobb QC and Peter Taylor QC.Indeed, it was while Peter was making his devastating final speech to the jury that Wilfred Steer, my leader, passed me a note that simply read, ‘You are listening to a future Lord Chief Justice’. And so I was. Peter was a great advocate. Of course, I remember only too well his lethal cross-examination of our client,a senior Scottish civil servant;and the impression he left upon the whole court by that final speech. But, interestingly, what impressed me above all was the facility and brilliance with which he took important prosecution witnesses through their evidence in chief –through them, telling a story, logically, seamlessly, and even at that stage, keeping the jury on the edge of their seats.
But to those of you who are students of advocacy, please bear in mind that the idea is to keep the jury on the edge of their seats;not to string things out for so long that they fall off. I defended a man for burglary. In the police station he had admitted the offence. His defence was that hehad only confessed because the police had promised that if he did, he would be given bail. This was important, as his confession was the only evidence against him.The police did indeed allow him bail, and in court I asked what he had then done.He said he had been so badly treated that in state of deep depression he had gonehome. And what did you do next?He had gone straight to the bathroom. And then? To the bathroom cabinet. And then?He had reached inside to open a bottle of pills. Andthen?At last, his moment had arrived:“Ah”, he said triumphantly: ‘I committed suicide’.
At its height, advocacy involves championing the individual against the might of the State – even against a battering from the media – and it has always been seen as one of the most highly prized attributes of an independent Bar. Today advocacy is,rightly,a very important part of the syllabus. In my day there was no advocacy training. My lessons came, first, from sitting in court, day after day, watching my betters, and talking to them about their cases, from experience, and from being a Court Clerk. This was one of the perks of being the Junior of the Circuit, for at two lots of Quarter Sessions, as Clerk, I had a ‘head on’ view of the Bar as they addressed the Bench – a perspective andeducation worth far more than the 15 guineas a day I was paid.