Review Books - October 2011

Law and Peace
by Tim Kevan
Bloomsbury, May 2011
£11.99 pp320


In the 1920’s, the Law Journal published a series of character-sketches of lawyers under the pseudonym “O”. These vignettes were eventually published as Forensic Fables and the author unveiled as Theo Mathew, son of Lord Justice Mathew and himself a Bencher of Lincoln’s Inn. The enduring popularity of Forensic Fables came from its recognisable and often affectionate caricatures. It is in this tradition that Tim Kevan gives us Law and Peace, the latest instalment in his BabyBarista series.


As with Forensic Fables, much of the fun with BabyB comes from the recognition of the foibles and clichés that permeate life at the Bar. Law and Peace picks up where the first book, Law and Disorder, left off. BabyB has finally got his name on the door in chambers, having secured the elusive tenancy at the expense of rivals TopFirst and BusyBody by a series of cunning brief-swapping and bed-hopping tactics.

But tenancy turns out not to be the answer to all of BabyB’s problems. In a situation which many at the junior Bar will sympathise, the financial problems which dogged his pupillage year continue into practice. Attempting to extricate himself from the mire, BabyB is thrust into the midst of a class action suit against his nemesis, TopFirst, a sex-scandal libel involving a Tory MP, not to mention the race to secure a coveted red bag from his leader, OldSmoothie.

Kevan’s trademark humour is evident throughout the book, and there are some very funny lines (including the caustic put-down: “you could give him a room in paradise and he’d still be arguing over the lease”). Whilst there is a lot of fun to be had at the expense of the profession, there is also real a warmth and affection. For every barrister like TheCreep, there are plenty more like TheBusker and OldRuin.

The moral quagmire that BabyB managed to get himself into in the first book returns in the form of a complaint against BabyB to the Bar Standards Board. The ethics of Law and Disorder were certainly its weakest point, and they remain so in Law and Peace. In the same way that Peter Moffat’s Silk dramatised light-fingered pupils stealing wigs, BabyB’s dubious behaviour gives an uneasy feel to the proceedings. After all, part of the charm of Rumpole was his ability to win through without having to compromise his personal integrity.

The last word should go to OldRuin, who tells BabyB: “You’re part of a wonderful profession which will allow you to do whatever you choose … though we have to be careful to avoid it becoming all consuming”. Theo Mathew would most certainly have approved.

Thom Dyke is a barrister practising in human rights, criminal and public law

Fine Lines And Distinctions

Murder, Manslaughter and the Unlawful Taking of Human Life
By Terence Morris and Louis Blom-Cooper
Waterside Press £35 pp480


In this latest book, Professor Terrence Morris and Sir Louis Blom-Cooper draw upon 50 years of experience in setting out their central contention that the current law relating to homicide is a mess, propped up by the mandatory sentence of life imprisonment for those convicted of murder. Noting that Latin had no separate word for “murder”, they trace the origin of this distinct form of killing back to the penal premium of feudal times to Sir Edward Coke’s Institutes of the Lawes of England 1628-1634, where the definition of murder is set out in terms little changed to the present day (and still cited in Archbold 2011 @ 19-1). It is the flawed doctrine of mens rea, they argue, which has been used to mark out killings which are so culpable as to be deserving of extreme punishment - in the past, by death, latterly by imprisonment for life. It is flawed both because of difficulties in proving the inner workings of a person’s mind, and also because it provides no valid demarcation of culpability; murder may be anything from a brutal gangland execution to the mercy killing of the terminally ill while manslaughter may be a sadistic killing by a psychopath or the unintended consequence of a single blow. The old doctrine of implied malice, propounded by Coke, comes in for particular criticism through a case study of the notorious 1960 House of Lords decision in DPP v Smith, where a politically packed Appellate Committee restored Jim Smith’s conviction for murder for his action in driving on as PC Meehan clung to his car in an effort to stop him, only to be thrown fatally into the path of oncoming traffic. It mattered not whether he actually intended serious harm or death to PC Meehan, provided such was the natural and probable consequence of his actions. A photograph of the very Ford Prefect which Smith was driving provides the illustration for the front cover of the book.

The twin theses at the core of this work are, firstly, that there ought to be a single offence of criminal homicide comprising all offences of unlawful killing, from causing death by driving, through corporate manslaughter and secondary liability ,to the most heinous of deliberate killings; and secondly, that the sentence for criminal homicide should be at large and for the judge to determine according to the facts of each case. These goals, at least in part, came closest to realisation during the passage of the Murder (Abolition of the Death Penalty) Act in 1965, with Lord Parker LCJ’s proposed amendment that the sentence for all kinds of killing be at the discretion of the judge, decrying “fine lines and technical distinctions” and opining “that there is one offence of homicide, varying from the lowest degree of manslaughter up to the most deliberate and calculated true murder”. The eventual outcome, the enactment of the mandatory life sentence for murder, was not, the authors stress, the result of any pact between pro and anti abolitionists, but a compromise whereby the Home Office retained control of the lifer system while providing an element of judicial input in the form of the non-binding minimum recommendation. Political considerations, increasingly populist, through Leon Brittan, Michael Howard and New Labour, have blocked reform ever since.

Much more controversial is their proposal that the function of the jury should be restricted, in homicide cases, to determining whether the accused committed the act of unlawful killing with the requisite knowledge, leaving all issues of intention, provocation, diminished responsibility and the like, which go to the gravity of the offence, for the sentencing judge to decide.  Such a radical shift might be hard for many to accept, either as desirable or as being entailed by abolition of the mandatory penalty - after all, why is a judge more able to determine intention than a jury (or is this Sir Louis’ longstanding distrust of the jury system seeping through?) In his foreword to the book, Lord Judge makes the same point: “This is a thought provoking and, I suspect, intentionally provocative book ... I doubt whether any reader will agree with everything in it ... I readily admit that I do not. To take but one example, I have difficulty with the proposition that mens rea should only be relevant to the assessment of sentence, after conviction when ‘the moral culpability of the offender must be assessed’”  

None of this should detract from what is an erudite, historically rich, intellectually engaging and enjoyable book, lightened by such vignettes as the snippet from Coke’s cross-examination of Sir Walter Raleigh - “COKE: I will make it appear to the world that there never lived a viler viper on the face of the earth than you” - and the following conundrum, born of the Homicide Act 1957, which confronted the judge in the case of R v Matheson (1958): was the brutal murder of a fifteen year old boy by a sexually predatory 52 year old man a capital offence, not by virtue of its being committed in the course of a violent sexual attack (non-capital) but because he went on to steal £35 from the dead boy having already killed him (capital if committed in the course or furtherance of theft)? On such fine lines and nonsensical distinctions did the death penalty once depend!

Michael Grieve QC, Doughty Street Chambers

A Walking Guide to Lawyers’London

by Andrew Goodman
2nd edition
Nova Law and Finance Ltd
£55.00

If you like London and the law, and look forward to exploring unfamiliar aspects of familiar territory, this book may be for you. However, it is more suitable for the coffee table than for taking on the walks.

Bound in hard covers and beautifully laid out on good quality paper, with hundreds of photos and plenty of white space, this book weighs nearly 4 pounds. At 9.5 inches square, it is bigger and heavier than Chitty on Contracts (Vol 1, General Principles) though not as thick. Its clear maps and directions are easy to consult en route, but the tiny print, unbroken by headings, is less accessible. The keenest reader with enormous pockets may still feel unwilling to digest pages of unbroken text on the streets of London. This method of progress, however, is both demanded by the layout and reflected in the time allowed for the first walk – 1 hour to walk round Parliament Square, up to Downing Street, and then back along the Embankment to Westminster. That would be 30 minutes to stroll around and admire the buildings, and 30 minutes to read the chapter.

A better way to enjoy the book would be to walk around Westminster, the Strand, the Inns of Court and the Old Bailey, as most readers of Counsel will have done many times in their working lives, then go home, pick up the book and discover interesting facts you never knew before. For example:

Tanfield Court (in Inner Temple) was the location of the robbery and murder of two women in February 1732, by Sarah Malcolm, a charwoman who strangled an old lady and cut the throat of her maid. She was executed in Mitre Court after her portrait had been painted by William Hogarth as Lady in Scarlet. (See p 115.)
The gown used by junior barristers is the black stuff woollen mourning gown (with a diminutive vestigial mourning hood hanging over the left shoulder) which was introduced in 1685 for official court mourning on the death of King Charles II. (See p 73.)

In 1750 the Lord Mayor of London, two judges, an alderman, an under-sheriff and 50 others died from typhus contracted (at the Old Bailey) from a prisoner. Thus began a tradition observed from 1 May to 30 September on the first two days of each session and on red letter days, when judges at the Old Bailey carry posies of old English sweet-smelling flowers. So do the accompanying Sheriff’s party, representing the City of London, and herbs are strewn on the bench and the ledge of the prisoner’s dock - all to smother the evil odours emanating from the neighbouring gaol. (See p 179.)

So many American and Commonwealth visitors in the last 10 years have enriched their views of London in this way that the first print run sold out. It must have made an excellent souvenir of a visit to legal London.

Daphne Perry is a former barrister, now a trainer, writer and consultant on plain English for law and business.

Ashes and Sparks

Essays on Law and Justice
by Stephen Sedley,
Cambridge University Press £19.99 pp 446

This volume of Sir Stephen Sedley’s essays, lectures and speeches must stand in place of the memoir he chose not to publish on his retirement from the Court of Appeal earlier this year. Tracking his thoughts on history, law and justice over the past 25 years, they set out his views inter alia on the relationships between the citizen and the state and the Crown and the courts - as a common law lawyer, his viewpoint is firmly fixed on the judge, not on the politician. As he acknowledges in the Preface, some themes repeat themselves.  One is his long-standing interest in the Levellers. It was one of their pamphleteers, John Warr, who wrote, “There are some sparks of freedom in the minds of most, which ordinarily lie deep and are hidden in the dark as a spark in the ashes”, thus giving the title to the volume. 

Sedley calls his years of reading English at Cambridge “the best thing I ever did” and the reader will agree. What unites all these pieces is the sheer quality of the writing. The styles vary, from the academic to the relative informality of a published speech. They are best enjoyed individually rather than reading the volume straight through. Many of the pieces first appeared in the London Review of Books for whom Sedley has been writing since 1986. Some are stand-alone articles; others are book reviews though the latter (in typical LRB manner) are only the starting point for an essay on a particular topic. The many footnotes attest to the extent of his own further reading. Once Sedley was on the bench, he was more likely to be called on to lecture, both at universities and on special occasions, and it is those speeches which are reprinted here. He states that the LRB had a “merciless” attitude to slack writing and he can be equally merciless to the slack thinking of others. He has little sympathy for example with some of the decisions of the United States Supreme Court whom he ticks off for allowing the President to do things which we removed from the monarch through the Bill of Rights in 1689.

The role of public law unsurprisingly appears a number of times; this was an area where he made his name at the Bar. “The common law has the capacity and the obligation to move in the next generation towards a principled constitutional order” he wrote when discussing his case of M v Home Office, where the Home Secretary first ignored a court order not to deport a refugee and then the order to bring him back. Sedley points out that the judges were quite “active” in the 19th century until the Northcote-Trevelyan reforms meant that barristers and judges went to the same schools and universities as the upper echelons of the civil service and therefore believed that they could trust the judgment of people like themselves. It was only in the second half of the 20th century that the senior judiciary reasserted themselves and made clear that the prerogative was not some extra-legal power held by executive government. “What judges are still very shy of doing is articulating their philosophical choices, although their critics and supporters generally have little difficulty in discerning what they are”. As for following precedent, “Precedent is a Jewish mother. You don’t have to do what it tells you, but it makes you feel terrible about not doing it”. 

The volume concludes with essays on the issue of human rights. This brings us into the 21st century, which is appropriate for a man whose first senior clerk had begun his working life in the Temple in the dying days of the reign of Queen Victoria. 

“Every right logically carries an obligation resting on someone else to respect it”, Sedley writes, thus asserting his views in line with those of Tom Paine back at the time of the Declaration of the Rights of Man. Judges respond to the values of their own times but in this volume Stephen Sedley has shown how he has always tried to think in the long term.

David Wurtzel is Counsel’s Consultant Editor

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David Wurtzel

David practised at the criminal Bar for 27 years and is a door tenant at 18 Red Lion Court. Prior to his retirement, he was a consultant in the CPD department at City Law School and consultant editor of Counsel. David is a member of the Counsel Editorial Board.