The Defence Rests

Desmond Browne QC follows John Mortimer’s career through the Law Reports


When John Mortimer QC died aged 85 in January this year, it inevitably brought to mind the words Rumpole wanted on his grave-stone: “The defence rests”. Will there ever be another barrister whose obituarist could describe him (as did The Independent’s) as “defender of free speech, devoted luncher, national treasure and lord of Chiantishire”? Of course, by creating Horace Rumpole, John provided his own memorial, and a global one at that. There are Pommeroy’s wine-bars serving Chateau Thames Embankment from California to New South Wales – all apparently named after the Royal Academician responsible for the sculptures of Truth, Fortitude and the Recording Angel at the Old Bailey.


Tales of adultery and probate

John was called in 1948, and can be found as early as May 1949 in a reported case in the Court of Appeal: Macrae v Macrae [1949] P 397. Appearing unsuccessfully for a wife deserted by a husband who crossed the border to Scotland, he was forced to confront the principle that ordinary residence can be changed in a day. Following his career through the Law Reports, one can see why John attached so much importance to what Camus called “lucid indifference”. His barrister father, Clifford, had brought him up on tales of adultery proved in unlikely ways; for example, the case where the only evidence was a pair of footprints upside down on the dashboard of an Austin 7 parked in Hampstead Garden Suburb.

John proved adultery in more prosaic ways: in Alderman v Alderman [1958] 1 WLR 177, where the co-respondent in an adultery petition was a minor, John, acting for the husband, persuaded Sachs J that there was no reason why evidence of the minor’s admissions should be excluded. As the judge remarked, it was a “daily occurrence in so many courts where the young man who has been arrested … says something of the nature of ‘It is a fair cop’.” Twenty years later, when the first series of Rumpole was broadcast, the “fair cop” verbal was still in vogue. However, such was the portrayal of the police and the crusading appeal of Rumpole that Geoffrey Robertson QC has attributed to the series the genesis of a novel willingness on the part of Old Bailey juries to acquit.

Like his father, John dealt in probate as well as divorce. From February to July 1965, shortly after the failure of his first application to take silk, John was instructed with Roger Parker QC and Hugh Griffiths QC for the plaintiff executors in the immensely complex probate case, In the Estate of Fuld [1968] P 675, 727. All in all, 11 silks appeared for the various parties, debating (amongst other matters, such as undue influence) whether the testator whose estate was valued at £6m had abandoned his German domicile of origin. Scarman J held that the acquisition of a domicile of choice was not to be lightly inferred from slight indications or casual words, and the testator’s will was duly admitted to probate.

The Fuld case coincided with the rise of the TV satirical show Not so Much a Programme, More a Way of Life produced by the onetime barrister, Ned Sherrin. It is said that a pupil in court, the future Lord Lester, watched John writing sketches for the programme in long-hand, and never crossing out a single word. Following Fuld, and with the support of Scarman J, John received silk from Lord Gardiner. By this time he had grown tired of “the tormented wives or deceived husbands” trapped “in the maze of the old divorce law”, and he was asking himself why he was still harrowed by cases about the custody of children. John’s misgivings must have increased with his appearance for a husband, who had once attended hospital “scratched all over”: Kelly v Kelly [1968] 1 WLR 152. The evidence heard by Wrangham J led him to the conclusion that there was nothing logically impossible in a finding that each spouse could be guilty of cruelty to the other.

In his engaging autobiography Clinging to the Wreckage, John described how on taking silk, his uneasy affair with the law entered a new phase and he took to crime. To his surprise, he found that criminals were “often less malevolent than divorced wives in pursuit of their husbands’ property, and a great deal less grasping than beneficiaries in will cases”. In contrast, he viewed murder cases as often the most understandable, the murderer having killed the one person he was ever likely to kill. Ironically, it appears that the only client John (questionably) refused to represent was a divorcing husband who gave his occupation as “assistant executioner”.


The obscenity trials

John found himself out of sympathy with the Divorce Reform Act 1969, concluding that “having treated women with monstrous unfairness for centuries, the law swung heavily in their favour”. Thus he found himself doing the obscenity cases for which he became so well known, starting with Last Exit to Brooklyn. This was the only obscenity case in which witnesses testified that (in Cockburn CJ’s words of 1868) they had actually been “depraved and corrupted”. The evidence of Sir Basil Blackwell and the Reverend David Sheppard led to a conviction, despite John’s efforts to defuse it by pointing out that Sir Basil was in his eighties and therefore depravity was impractical, and that Sheppard went on to become Bishop of Liverpool.

John had a more sympathetic hearing in July 1968 before a Court of Appeal presided over by Salmon LJ: R v Calder & Boyars Ltd [1969] 1 QB 151. The latter recalled that in Cockburn CJ’s day the Venus in the Dulwich Gallery was regarded as obscene. Quashing the conviction, the court held that the jury should have been directed to consider whether the passages in the book dealing with homosexuality, drug-taking and senseless violence were compassionate and condemnatory, as the defence argued, and thus would have had precisely the opposite effect to depraving and corrupting.

John relied on Calder & Boyars in the notorious trial of the Oz School Kids issue. This time it was Lord Widgery CJ who quashed the conviction on the ground that the jury had not been properly directed on the aversion defence: R v Anderson [1972] 1 QB 304. According to Valerie Groves’ authorised biography of John, it was rumoured that James and Bridge JJ had sent a clerk out to Soho to buy some real hard-core porn, and this convinced the Chief Justice that Oz was pale stuff by comparison.

It was Bridge LJ who presided over the unsuccessful appeal in R v Staniforth [1976] 2 WLR 849, when John’s argument failed that hard pornography would be beneficial to certain people in relieving their sexual tensions and diverting them from anti-social activities. John recounted how “the unwise bookseller” appealed to the Lords: DPP v Jordan [1977] AC 699: “No one has felt the full glory of a barrister’s life who has not, in wig and gown, been called to the podium in the committee room of the House of Lords by an official in full evening dress and, on a wet Monday morning, lectured five elderly Law Lords in lounge suits on the virtues of masturbation.”


Personal memories

My own memories of John date back to his defence of Private Eye in 1982 in the libel action brought by Desmond Wilcox. The latter brought out a book, The Explorers, produced from the scripts of the television series. The scripts’ authors recovered damages for breach of copyright, but in the libel action Jupp J gave judgment for Wilcox, finding that he had been a guileless plagiarist. Valerie Groves confirms my recollection of how hard John worked in court. His industry was astonishing; he is certainly the only leader to have had me on parade in chambers at 5am. If his manner initially appeared diffident, it soon became clear it was not due to unfamiliarity with defamation, but was part of his natural, forensic style. Certainly his performance belied the flippancy of his remark that knowing the law only cramps your style as an advocate. But style was what John certainly had. I felt like repeating what Marty Feldman said to him as John called him to the witness box in the Oz trial: “Great to be working with you at last”.

Desmond Browne QC is Bar Chairman

 

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