The Most Just Judges -
LORD DENNING

Compilation by Ms. Suchitra Vijayan 2nd year LLB(Hons) with European Union Law University of Leeds U.K.

An American Philosopher, Ralph Aldo Emerson once said that when nature has work to be done, she creates a genius to do it. Nature had work to be done. There was a crying need for a systematic reform of our laws by judicial precedent. So, nature created a genius to do it. That genius was Lord Denning.

It was to that genius, Lord Denning, that I appealed to assist me in my dispute, with the Law Society. I made it clear in my appeal, that if, for any reason, he could not assist, he should just dump the bundle of documents, that I posted to him, in the waste paper basket. And that was what he did. He was, as usual very sweet about it. He apparently tried and concluded that persuading the Law Society, was out of the question. It had to be a battle. And, so he wrote to me a letter in which he pleaded his age. He was then over 90 years of age. He pointed that out that his age no longer allowed him to start yet, another battle.

I agreed wholly with him. I was about 30 years younger than him at the time. But, I had already started to feel the burden of age.

Although Lord Denning did not try my case, I consider it right and proper to write about him, so that the reader would know, how the greatest judge of all judges, would have judged my case.

From 1957, when I became a law student, Lord Denning (Alfred Thompson, in short, Tom) OM PC former Master of the Rolls, who died on 05/3/99, has been my idol. I read quite a bit about him. I concluded that the seed, that was to lead to his greatness was sown, began to grow, and to flourish, at the beginning of the twenties when he was, for one year, a school teacher in Winchester.

That seed, that is, the attribute, that was to single him out as the greatest lawyer that ever lived, was not, as many have stated, his assiduity, his engaging manner, or his delightful conversation. It was his being a teacher. As a teacher he acquired the discipline for explaining to his pupils, with apparent ease and grace, any point at all. His secret was to explain the point in the simplest language possible, and, exhaustively.

DENNING THE LAW TEACHER

Thereafter, though he had ceased to be a teacher, and became a student of law, yet, Lord Denning still remained a teacher! Never a student! He was always a leader! Never a follower! When he ceased to be the teacher to pupils at Winchester, he became the teacher of law to litigants, jurors, lawyers, fellow judges and, through his judgements, to the world at large.

The law became his greatest concern. It filled his heart. Its study became, to him, a labour of love. And he studied it with deep penetration. So enamoured was he, of the subject, that whenever he sat down to talk, or write about it, the overflow was a lesson in law, in the way in which that aspect of the law, had never been taught before!

He called this gift of his, the Power of Exposition. He regarded legal reforms as the object of his life. He regarded his power of exposition, as the means for achieving that object. This is how he puts it:

"By expounding the law, you pave the way for reforming it. You must need point out its deficiencies - and to pave the way for remedying them".

Why was Lord Denning so concerned about the reform of law, as to devote his adult life on achieving it? In his own word: "After all, every one should be concerned - seeing that the law affects the lives of all of us at some time or other".

So successful was Denning in his chosen object of life that without his pronouncement on any given legal topic, any lawyer, worthy of the name, always felt that there was something missing! The final lesson, in that piece of law, was yet to be given!

JUDICIAL BIAS

Take the point of law of judicial bias, which is central to my case against the Law Society! A person like Judge Mitchel, seems not to have the foggiest idea of what the law is! Had Lord Denning been the Master of the Rolls, he would have told Judge Mitchel, that it had nothing to do with personal bias which Mitchel mistook it to be! It was based on a conflict of interest situation. To repeat, briefly, Lord Denning's precedent on the issue, which I have already quoted, the precedent states:

"The court does not look at the mind of justice itself or at the mind of the chairman of the tribunal, or whoever it may be who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The Court looks at the impression that would be given to other people. Even if he was impartial as could be, nevertheless, if the right minded-persons would think that, in the circumstances there was a real likelihood of bias on his part, then he should not sit. And if he does so, then, his decision cannot stand..."

DENNING'S FIRST MISSION OF TEACHING THE LAW

Although he is famous, all over the world, as a legal reformer, yet, his greatest achievement is actually not in the realm of legal reform, as such, but in the sphere of giving lessons in law

Of all the lawyers, he was, by far, the most accomplished artist, the most distinguished man of letters. He was a master of style. And he attached great importance to style. This is how he put it: "You will see too, that style plays a great part - the style of writing, - the style of oratory - the style of giving judgement".

His judgements were ever authoritative, not merely because of their original contributions to the developments of both the letters and spirit of the law, but also because of the memorable way they were presented. Reading his judgements was never an arduous task, but the greatest pleasure.

His mixture of style and tones, his figurative technique, his exact punctuation, his elaboration of the particulars of facts and the points of law that they raise; his technique of pointing out the absurdity of the views that he opposed, by striking comparisons and contrasts, as well as his rhetorical technique, imbued his judgements with both lucidity and force.

A good example of how Lord Denning would have tried this case, is to be found in the case of Sykes v. Director of Public Prosecutions [1962] A.C. 528. It was an appeal from the decision of the Court of Criminal Appeal to the House of Lords, Lord Denning's judgement, which as usual, was a remarkable lesson in law, explained the offence of misprision of felony in a way crucial to my case. Lord Denning held, in the same way that Judge Altman held that I had a duty to report the crimes committed by Lord Lester and his Gang! The precedent, on the obligation to report a criminal offence committed has already been quoted above. But, since I was punished for obeying that law, there is need to repeat, briefly, his classical statement of the law:

"My Lords, it has always been an offence for the last 700 years or more, not always under the name, `misprision of felony`, but still an offence. Ever since the day of hue and cry, it has been the duty of a man, who knows that a felony has been committed, to report it to the proper authority so that steps can be taken to apprehend the felon and bring him to justice".

While still a practising barrister, Lord Denning himself realised that his statements of the law exhibited fascinating individuality and originality and were, a great lesson in law. He accordingly went all the way out, never to stultify any special views he held on any legal subject, but to express them, copiously and effectively.

DENNING'S SECOND MISSION OF REFORMING THE LAW

To many people, Lord Denning's law reform was his magnus opus. And it is certainly true to say that no modern judge has set out, to the extent that Lord Denning did, to supply lawful remedies to the loopholes in the law. He was dedicated to ensuring that the society felt secured in the knowledge that the law covered, most of the contingencies, which call for legal remedies.

The England of Lord Denning, was not the England of Queen Victoria. Nor, for that matter, of King George VI. Drastic changes were taking place in all walks of life. Education was spreading fast. The public mind was approaching, as it never did before, its maturity. It could no longer be laid to sleep with the song about our having the best judicial procedure. Nor could it be amused by a rattle, about our laws being established on immutable principles! The changes that were taking place daily, in the state of public knowledge, called for corresponding changes in our judicial system. It would be most absurd to argue that while such revolutions were taking place, the judicial system ought to have remained unchanged

Naturally, the legislators could only effect fundamental changes, which called for the repeal of an existing law, and its replacement. But changes, which fell short of that, changes that called for the filling of loopholes in the existing law, had to be effected by way of judicial interpretation. And that was what Lord Denning went all the way out, to effect.

As he saw it, the main problems with our law, was not its object. He had no quarrels with the objects of our law. The main problem was that the statement of the law fell short of saying what the objects of the law impel it to say. The reforms of Lord Denning were simply to remedy these manifest lacunae. And the remedy, that is, his reforms, consisted in spelling out the logical consequences of the objects of the law. It was as simple as that.

ABUSE OF POWER OF A PUBLIC OFFICE:

When the medicine no longer cured the disease, because the disease had developed some new strains, then, the spectrum of the medicine had to be broadened, to combat the new strains. In the same way, when new instances of abuses of the law have emerged, and they do fall within the objects of the law, but outside the statement of the law, then, it was necessary to re-state the law, without affecting its object, so as to bring the new abuses within the law.

The area of law in which Denning considered legal reforms most needed was in the field of abuse of power of a public office. And he dealt specifically with the kind of abuse of power that the Law Society, the Bar and the Judiciary have perpetrated against me. This is how he put it:

"The most important function of the law is to restrain the abuse of power by any of the holders of it - no matter whether they be the Government, the newspapers, the television, the trade unions, or the multi-national companies, or anyone else".

THE PRECEDENT OF FAIRNESS:

As seen from the examples given above, Lord Denning's definition of misprision of felony is so broad as to allow the offences committed by just any person, whether he be Lord Lester, or the Lord Chief Justice, to be reported.

In the same way, Lord Denning laid down the standard of judgement of what constitutes abuse of power of a public office. It is in his precedent of fairness. As quoted below, his definition of fairness is also so broad as to cover all aspects of misconduct by public servants.

As Lord Denning saw it, law is not amoral. It imposes on all public officials, including judges, general standards of conduct. The best known of them all, he called the standard of fairness. And that is my main accusation of the Law Society. They had abused the power of office by not abiding by the legal requirement of fairness. This is how Lord Denning M.R. states the Standard of Fairness:

"A public body must not misuse its power; and it is a misuse of power for it to act unfairly or unjustly towards a private citizen where there is no overriding public interest to warrant it"

The legal requirement of fairness dictates that where any law has stopped short of spelling out the assumptions upon which it rests, or its necessary implications, then it is the duty of the courts, acting fairly i.e. in the interest of justice, to spell out those assumptions or those implications. And that is what Lord Denning did. His re-statements of the law, were, very properly, called reforms and very improperly, called revolutions. They were formal reforms, in that, although they had been implied in the objects of the law, yet, they had never been specifically stated. But, they were not revolutions, because they have always been incidental to the law and not entirely new.

It was to be expected, that those who attack abuse of power, as Denning did, and as I have done, must expect to be rewarded with conspiracies and victimisation.

CRITICS OF LORD DENNING'S REFORMS

Although Lord Denning embarked on his legal reforms with a disarming, pacific and conciliatory manner, yet, the language of those who disagreed with him amounted to scathing attacks against him. They accused him of deliberately ignoring the law! And of substituting his views in place of the law! They accused him of creating precedents that would make the law depend on the whims of judges!

Lord Chancellor Simonds claimed that Lord Denning reforms were "a naked usurpation of the legislative function under the thin guise of interpretation"

Simonds was accusing Lord Denning of trying to usurp the Chancellor's function! The conduct of Lord Chancellor Simonds, in that respect, recalls to mind the unparalleled cruelty of Mercury who, in Plautius, knocked down Sosia, for being so impudent, as to have the same name with him!

There are, indeed, many persons to whom reforms are loathful for being reforms! They fear the unknown because it is unknown! Lord Chancellor Simonds appeared to have been one of them. His legal opinion was clearly at variance with those of Lord Denning. Although rivalry was disclaimed, and hostilities denied, yet, the end result of the differences between the 2 legal giants was clear. One of the two, either Lord Denning, or Lord Chancellor Simonds, had to leave the House of Lords. It was Lord Denning who left it.

What has happened between the Law Society and me appear to be the history of Lord Denning and Lord Simonds repeating itself, albeit with a difference. It appears that there are some persons within the Law Society to whom reforms are loathful for being reforms! They fear the unknown because it is unknown! The Gang of Four appear to be amongst those staff. Their legal opinion was clearly at variance with mine. Although rivalry was disclaimed, and hostilities denied, yet, the end result of the differences between the 2 sets of legal giants was clear. To the Gang of 4 it became the question of either I remain outside the Law Society, or they get out of the Law Society. So far, I have remained out!.

When he was kicked out of the House of Lords, Lord Denning sought to make a virtue of necessity. Like the fox who consoled himself that the grape that he failed to get, was sour anyway, Lord Denning said that it was, anyway, more difficult to effect reforms from the House of Lords. In the House of Lords, he had to win the support of 4 colleagues. In the Court of Appeal, he needed to win the support of only 2 colleagues!

This was a confession by Lord Denning, who was a judge for some 38 years (i.e. from 1944-1982) ) that a number of his colleagues, had placed obstacles on his path to reform the laws. His being called a radical and a revolutionary had something to do with it.

Perhaps, like Denning, I also should begin to look for ways of making a virtue of necessity.

However, for the accuracy of history, it is necessary to point out that Lord Denning was never a radical. Never a revolutionary. The two objects of his mission were simply to teach and reform the law. It was never to break the law. It was always to fulfil the law.

None has ever said, and even now, none dares say:

"This is the new law, that Lord Denning has made"!

Nor could Lord Denning have tried to make any law! He knew that it was the function of Parliament, not of the courts, to make laws.

Further, he knew that for a court to make law, and then to interpret it, would have amounted to an intolerable dictatorship. He loathed all forms of dictatorship. He loathed all forms of abuse of power of office.

When Lord Denning advocated that the House of Lords, in its judicial capacity, should take powers to itself, and should change the law when it needed changing, rather than wait for more leisurely parliamentary processes, he meant exactly what he stated, namely that:

When the statement of a given statute falls short of the requirement of the object of the statute, then, the House of Lords, in its judicial capacity, should take powers to itself, and should change the law in compliance with the object of the statute.

It would have been unreasonable to wait for the more leisurely parliamentary process, to change such laws.

Yet, Lord Chancellor Simonds, who championed orthodoxy, expressed his distaste for a:

"naked usurpation of the legislative functions under the thin disguise of interpretation"

CRITICS OF LORD DENNING'S CREDIBILITY

The most inexplicable of all the accusations, made against Lord Denning, was that he did not practise what he preached. His critics claimed that although Lord Denning held that his sympathies lay with the underdogs, yet, in practice, he tended to support the "superdogs" against the underdogs! They allege that he sided with the employers, against the unions and with the Home Office, against the immigrants!

There is no doubt that Lord Denning was grievously hurt by these unfair criticisms.

Clearly, like any other person, Lord Denning must have had his own prejudices and bias. But, as a judge, he did not act upon them. He possessed the all-embracing sympathy that enabled him to be the impartial judge that he was.

Lord Denning had simply found himself in an embarrassing position in which I found myself. I had only respect for the Law Society. But when it abused its power of office, I had no alternative but to point out the abuse.

The fact that the sympathies of Lord Denning were with the underdogs, did not mean that he should be blind to the abuses of union law by some unions, or to the abuses of the immigration laws, by some immigrants.

To challenge his credibility merely on the basis of his pointing out what he saw to be abuses was cruel.

Perhaps it is fair to point out that the allegations on the basis of which the credibility of Lord Denning was being impugned, appeared to have been justified by time. His criticisms of the unions ultimately culminated in the Margaret Thacher's laws against abuses of union powers. His criticisms of some immigrants ultimately ended in Jack Straw's laws for Fairer, Faster, and Firmer - a Modern Approach to Immigration and Asylum.

SUMMATION:

To sum up, I believe that the attacks launched against Lord Denning, while alive, will die away. They will be seen for what they have always been: errors of judgement. Critics who quibble that Lord Denning ought not to have found fault with the underdogs, with whom he sympathised, or that he ought not to have reformed certain aspects of certain laws, because the main law had not been either amended or repealed, deserve from us, no censure. Their punishment, lie in their being who they are!

No doubt that both, as a lawyer and as a judge, Lord Denning must have had his weaknesses. But, I confess that I have looked for them, but did not find them.

I believe that even his worst critics would admit that the name of Lord Denning is justifiably associated, in the minds of his generation, much more than the name of any other lawyer or judge, past or present, with legal justice, at its best.

Those who agree with him, and those who disagree with him, will continue to agree that his judgements, remain the authoritative lessons in law and the classical examples of legal reforms by the judiciary.

I believe that the approbation of the nation to whom his lessons in law, and his reforms of the laws have conferred great benefits, will confer on his memory, the affection it deserves.

His death has brought to an end, the search for the model for the future judge. He has become the model for the judges of the future.


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