Over a long and in some ways remarkable legal and judicial career, Lord Denning made a significant and substantial contribution to English law and jurisprudence. Every law student will remember the decision in Hightrees and many other cases where Lord Denning changed the law. I had the pleasure of meeting him twice, twenty five years apart, and he recalled the first meeting, which surprised me. While the chill winds of constructionalism prevailed in the years after his retirement, and the House of Lords did much do undo some of the impact Denning had on English law, Denning was not always of a liberal or libertarian disposition and, at times, revealed a remarkable reluctance to admit of the fallibility of the justice system.
A note in Wikipedia reveals a glimpse of this illiberalism:
“In the summer of 1990 he agreed to a taped interview with A.N. Wilson, to be published in The Spectator. They discussed the Guildford Four; Denning remarked that if the Guildford Four had been hanged “They’d probably have hanged the right men. Just not proved against them, that’s all”.His remarks were controversial and came at a time when the issue of miscarriage of justice was a sensitive topic.He had expressed a similar controversial opinion regarding the Birmingham Six in 1988, saying: “Hanging ought to be retained for murder most foul. We shouldn’t have all these campaigns to get the Birmingham Six released if they’d been hanged. They’d have been forgotten, and the whole community would be satisfied… It is better that some innocent men remain in jail than that the integrity of the English judicial system be impugned.
I haven’t checked all these references for this blog post, but the wikipedia note appears to be a reasonably accurate summation.
I can, however, discuss another example of reluctance to admit of the possibility of a miscarriage of justice. I watched, in the early hours of this morning, an excellent BBC film covering the interesting and excellent work of the Rough Justice series – the first time television journalists had been instrumental in bringing a miscarriage of justice to the attention of the Court of Appeal and securing a quashed verdict.
The Rough Justice programme is a must watch for any law student. They say, it is the reason we have the the Criminal Cases Review Commission; an independent body which is a valuable observer and practical overseer of our criminal justice system.
It was strange to see Lord Denning, a judge who did much to protect the vulnerable, to act judicially in the interest of the ‘common man and and woman’, reveal a reluctance to admit of judicial fallibility when he expressed the view that once a judge and jury had dealt with a case, journalists should not be poking their noses in. (I paraphrase).
I am pleased however: (a) that we no longer have the death penalty (b) that we have The Criminal Cases Review Commission (c) that we have investigative journalists who are prepared to ‘poke their noses in to the workings of government and judiciary and, to be fair, (d) a higher judiciary prepared to apply the law of our land and act as a break on the government and executive, perhaps, more fairly than in days gone by – this latter point made by Lord Bingham, one of our most distinguished judges.
I urge you to watch the Rough Justice programme on iPlayer before it is is taken down. Another excellent programme from the BBC.
I agree with the rough justice program, a lovely surprise late into the morning hours.
What does deeply sadden me is that such investigative journalism which focussed on the ordinary man rather than the cause célèbre, has all but vanished from the country.
And whilst the CCRC I’m sure does good works in correcting miscarriages of justice, with the changes to the criminal justice system made by the last government it’s a sure thing that there are people languishing in prison as we type who simply do not deserve to be there but because they are not famous (or infamous) they are likely to stay there for a long time.
Bring back this show. The nation needs it.
I know lawyers revere Denning so I am probably speaking out of turn.
One only has to read his irrelevant, unnecessary, and disgraceful comments about Graham Gaskin in Gaskin v Liverpool City Council (Court of Appeal 1979) to understand why I detest him.
Gaskin had appealed against a lower court’s decision to deny him unfettered access to his file compiled on him during his childhood spent in social services “care”. Denning was scathing about Gaskin. Why? Denning’s comments were unnecessary and irrelevant. Unsurprisingly, Gaskin lost his appeal.
Graham Gaskin took his case to the ECtHR and won in 1989. The ECtHR held that it is is a breach of Article 8 for the state to deny individuals knowledge about their origins and the reasons for being placed in care. Denning missed the point completely. The reasons Denning gave for his judgement have now been shown to be spurious – the care system has not collapsed as a consequence of care records being accessed by their subjects.
As a consequence of Gaskin’s victory in the ECtHR the Data Protection Act 1998 contains special provisions that grant people from the care system the right of access to their records. That is Graham’s legacy. R.I.P.
Gaskin was a victim of the State, which was negligent in its care for him. Denning was totally condemnatory of Gaskin, who probably had serious mental health issues. Not an ounce of compassion was given to him by Denning and, as he frequently did, Denning came out on the side of the state and the establishment. Indeed, it was his siding with the establishment in the Profumo scandal of the early 1960s that precipitated Denning’s rise within the judicial ranks in the first place. It was his reward for defending the establishment when it had been caught with its pants down. It should be remembered that the character of Stephen Ward, a participant in the Profumo scandal, was assasinated by Denning. I believe Denning played no small part in Mr Ward’s suicide.
Denning was an appalling man and we are better off without him.
Stephen – Being fair to Denning – he was of his time… those were the values held by many in our country then. He did some remarkably good law..and many of his judgments did change our law for the better.
On this issue (and some others) he was illiberal.
It is easy to look back in wonder….. Would we, for example, tolerate a monarch like Henry VIII today? Some may 🙂
I am not so sure that Denning is “revered” without any reservation. However, if he were to return to view the modern landscape, I think he would, taking all things into account, have reason to be proud of the part he played. As Charon says – He was a man of his time. Indeed, he went on rather too long and fell into the trap of making some ill-considered extrajudicial comments. He was the last judge with a freehold on office and the modern rules for retirement are probably about right though perhaps with 72 substituted for 70 !!
Interestingly, I remember Denning coming on TV and being “torn apart” by certain politicians who stooped to nothing to “win” a debate. Denning was out of his depth in that arena. It was all very embarrassing. He was much more used to the generally civilised and structured “debates” of the law courts and, of course, the deference shown by the Bar to the professional judiciary.
I liked the point about the “chill winds of constructionalism.” This is absolutely right. It was very noticeable how things altered when Lord Donaldson became Master of the Rolls.
Denning warned the English lawyer of what might lie ahead with what is now the EU. Their purposive approach was very different to the traditional English method of reading enactments. He also got a “Class 1 shellacking” from the Lord Chancellor for daring to admit that he read Hansard to see what Ministers had said as a bill went through Parliament. An obvious thing to do one might think but not to most of the legal hierarchy of the day. (All change since Pepper v Hart).
Denning also believed passionately in an independent judiciary with the right to require government to abide by the law. His decisions on “administrative law” are perhaps his greater legacy. Also remember Gouriet where he told the mighty Attorney-General that the law was above him. Wonderful stuff.
Looking at the system of today – almost 30 years after Denning – it has changed massively and, I believe, in many ways for the better though there are considerable concerns at present in almost all areas. The major change for the better has been the Human Rights Act 1998. On that I have no doubt despite all the various “issues” it has raised.
I think that the Home Office should make serious efforts to answer the question, What is the probability that a person has commited a crime given that he has been convicted of that crime.
I appreciate that it would be difficult to do but that was said about the Iraq war dead.
However, I think that the Home Office would share Denning’s view when the system was found to be poor.
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