Road To Justice

Lord Denning

[Extract from the Book “The Road to Justice” which prints collection of addresses given by Lord Denning while visiting Canada and United States of America as the guest of the Canadian Bar Associations and the American Bar Associations with the approval and consent of Lord Denning of it being published in the Volume.]

When William temple, sometime Archbishop of Canterbury, went to the Inns of Court to talk to the lawyers, he opened his discourse by saying “I can not say that I know much about the law, having been far more interested in justice.” That was a piece of delicate Irony, gently rebuking the lawyers for losing sight of justice. The rebuke was well merited. His hearers were lawyers who had been brought up in the philosophy of John Austin. Those who believe in that philosophy regard the law as something separate and apart from justice. To them the courts in London are not Royal Court of Justice but the Law Courts, or, if you please, the Supreme Court of Judicature. When they do an injustice, as I fear they occasionally do, they tend to excuse themselves by saying : “It can not be helped. The law will have it so”. I have often heard judges say: “We are only concerned with what the law is, not with what it ought to be”: or “if this leads to an unjust result, it is a matter for parliament, not for us.”. They wash their hands of it, as if it was not their concern.

It is my purpose here to challenge this facile assumption. It is the lawyers who have made the law what it is. Most of our law, as they will tell, is judge-made law. The rest of it is statute law but that is drafted by lawyers and interpreted by lawyers, and, as often as not, it is in the lawyers's part of it that the injustices occur. They can not therefore, escape their responsibility. The legal profession, by its exponents in days past or in days present, must account for every injustice done in the name of law. Yet they do not let it trouble them overmuch. The Judge says with calm detachment that he is reluctant to come to his conclusion but no other course is open to him. And that is the end of it. His conscience is satisfied because he is acting according to law.

Yet therein lies the fallacy. The lawyers assume that the law is an end in itself. They regard law as a series of commands issued by a sovereign telling the people what to do or what not to do: or they regard it as a piece of social engineering designed to keep the community running smoothly and in good order. Lawyers with this cast of thought draw a clear and absolute line between law and morals, or what is nearly the same thing, between law and justice. Judges and advocates are, to their minds, not concerned with the morality or justice of the law but only with the interpretation of it and its enforcement.

THE ROAD TO JUSTICE WHAT IS JUSTICE?

Thence I ask the question, What is Justice? That question has been asked by many men for wiser than you or me and no one has yet found a satisfactory answer. All I would suggest is that justice is not something you can see. It is not temporal but eternal. How does man know what is justice? It is not the product of his intellect but of his spirit. The nearest we can get to defining justice is to say that it is what the right-minded members of the community—those who have the right spirit within them—believe to be fair.

So you see how great is the responsibility which rests upon the lawyers. They represent the right-minded members of the community in seeking to do what is fair between man and man between man and the State : and they can only do this by means of just laws justly administered.

This conception of the task of the lawyer finds its finest expression in the words of the judicial oath, taken by every judge in the land on his appointment. Every word of it is worth weighing. “I do swear by Almighty God that .... I will do right to all manner of people after the laws and usages of this Realm without fear or favour affection or ill-will.” Take this oath word by word :

“I swear by Almighty God”—herein he affirms his belief in God and implicitly his belief in true religion.

“I will do right”—those are the guiding words which govern all the rest— I will do right, which means, “I will do justice,” not “I will do law.”

“To all manner of people”—rich or poor, Christian or pagan, capitalist or communist, black or white—to all manner or people he must do right.

“After the laws and usages of the Realm”—Yes, certainly, it must be according to law, but justice according to law, not injustice according to law.

“Without fear or favour, affection or ill-will”—Those are the words of the oath most frequently quoted, and highly important they are, enshrining the independence and impartiality of the judges: but still they follow the leading words “to do right”—to do justice. Independence is all very well, but if it is not backed with justice, it turns to obstinacy and recalcitrance. And as to impartiality, you can be impartial in distributing injustice as well as justice.

Turn now to the oath of the Queen herself at her coronation and you will find that there too law and justice are treated as inseparable. The Archbishop asks “Will you to your power cause Law and Justice, in Mercy, to be executed in all your judgments?” And the Queen answers “I will”. Now the judgments of Her Majesty's judges are the judgments of the Queen herself. They are her delegates for the purpose . By this oath, they must in her name execute, not law alone, but “law and justice”: and they must do so “in Mercy” : and how shall they be merciful unless they have in them something of that quality which “droppeth as the gentle rain from heaven upon the earth beneath”?

Finally take the great precepts of law and of religion and see how close they are. These are the precepts of the law accepted, by the great lawyers of the past. “To live honestly, not to injure your neighbour, and to render each man his due”. Now take the precepts of religion as found in the Bible “ What doth the Lord require of thee?” asked the prophet Micah” but to do justly and to love mercy and to walk humbly with thy God.”

THE INADEQUACY OF THE FLAW

If you ponder these principles and compare them with our practice, you will find that in only too many respects the law is inadequate for the needs of today. Some lawyers care too much for law and too little for justice. They have become technicians spelling out the meaning of words, instead of being, as they should be, men of spirit and of vision lading the people in the way they should go, making the law fit for the times in which we live.

May I ask you also in your own progress in the law, not to rely over much on legality—on the technical rules of law—but ever to seek those things which are right and true: for there alone will you find the road to justice. When you set out on this road you must remember that there are two great objects to be achieved : one is to see that the laws are just : the other that they are justly administered. Both are important : but of the two, the more important is that the law should be justly administered. It is no use having just laws if they are administered unfairly by bad judges or corrupt lawyers. A country can put up with laws that are harsh or unjust so lo long as they are administered by just judges who can mitigate their harshness or alleviate their unfairness : but a country cannot long tolerate a legal system which does not give a fair trial.

The layman is well aware of this conflict between a lawyer's duty to his client and his duty to the cause of justice. So much so that he is prone to pose the moral question : How can a barrister consistently urge a jury to find a man not guilty when the barrister himself must know that the man is guilty? The answer to that question is that the barrister is not to set himself up as a judge of his client's case. He is only the mouthpiece of the client to put the case before the jury. No matter how improbable or incredible—or even impossible—it may seem for his client's case to succeed, he must put it before the jury for them to judge. The limit is only reached when he actually knows, by the man's own admission to him, that he is guilty. If the barrister gets to know this before the trial starts—and nevertheless the man is determined to plead not guilty—then the barrister should withdraw from the case and ask him to retain another advocate who is not embarrassed by this knowledge. A barrister must not put forward a case which he knows to be false or assert as a fact that which he knows to be untrue. Dr. Samuel Johnson put it succinctly when he said : “A lawyer is not to tell what he knows to be a lie: he is not to produce what he knows to be a false deed: but he is not to usurp the province of the jury and the judge and determine what shall be the effect of evidence – what shall be the result of legal argument.”

A difficult question arises when the barrister gets to know during the trial itself that his client is guilty. If he then publicly announces his withdrawal from the case, it may seriously prejudice his client. It may therefore be his duty to his client to say in the case: but his conduct of the case must be regulated by the higher duty not to be a party to a lie. He must not, therefore assert that his client is innocent, for he knows him to be guilty. He must not suggest that the witnesses for the prosecution are telling untruths, for he knows them to be telling the truth. He must not put his client into the witness box to tell a lie. All he can do is to urge that the prosecution have not proved their case: for even the worst criminal is entitled to require the case to be proved against him. If he then publicly announces his withdrawal from the case, it may seriously prejudice his client. It may therefore be his duty to his client to stay in the case: but his conduct of the case must be regulated by the higher duty not to be a party to a lie. He must not therefore, assert that his client is innocent, for he knows him to be guilty.

THE DUTY OF PROSECUTING COUNSEL

The duty of counsel to see that justice is done is, however, best shown by what is expected of prosecuting counsel. If he knows of a credible witness who can speak of facts which go to show the prisoner's innocence, he must himself call that witness. Moreover, if he knows of a material witness who can speak of relevant matters, but whose credibility is in doubt, then although he need not call him himself, he must tell the prisoner's counsel about him so that he can call him. This was illustrated in a case a few years ago. The London County Council used to have their ambulances repaired by some garage proprietors.

It is interesting to find that the American Bar Association expects the same high standard. The Cannot of professional Ethics declares that the “Suppression of facts or the secreting of witnesses capable of establishing the innocence of the accused is highly reprehensible.”

YOU MUST TELL THE TRUTH

Take next sort of question which a barrister is asked every day. A man who is about to give evidence says : “If I am asked such and such a question what shall I say?” The only proper answer is: “You must tell the truth, whether it hurts your case or not.” I have been asked that question by a man charged with murder. My answer was the same: “You must tell the truth whatever the consequences.” It is one of the cardinal rules of the English Bar that counsel must not suggest to witnesses what their evidence ought to be. The reason is that it is an unfortunate failing of litigants that they are very apt to alter their account of the facts so as to help them win their case. If counsel were to pander to this failing, they would be acting contrary to the interests of truth and justice.

So also when points of law arise, it is the duty of counsel to inform the court, not only of the cases in his favour but also of those against him. Even if the opposing counsel has not found them, he must himself cite them in pursuance of his duty to see that justice is done.

Until recently there was felt to be one great defect in our legal system. The rich man, who could afford the best counsel, thereby had a great advantage over the poor man who could only afford a very junior counsel or none. This has now been remedied by the legal aid system. The legal profession is not nationalised in the sense that the Health Service is nationalised. It is not subject to the directions of a Minister. All that has happened is that the State is providing money to pay the lawyers; fees. The people who go to law have to make a contribution according to their means: if they can afford to pay, of course they have to pay, but if and to the extent that they cannot afford it, then the State pays. This scheme, although financed by the State is not controlled by the State: it is controlled by the lawyers themselves: and the scheme preserves still the independence of the profession. Lawyers are not afraid of taking up cases against the State or against nationalised undertakings or public authorities, because the lawyers themselves run the scheme. But what I want to emphasise is that the scheme depends for its success on the members of the profession conducting their cases and their work in accordance with the high principles of the profession which have always been set before them.

The lawyer must not only treat the Judge with courtesy— that goes without saying―but he must also treat his opponent with courtesy and the witnesses too. Good policy itself commends this. Many cases have been won by courtesy and lost by rudeness. It is also good manners. It is particularly true of the Bar as of all professions, “manners maketh man.” This tradition of courtesy is, however, not one that can be enforced by the court itself. It is enforced by the simple fact that anyone who offends against it forfeits the goodwill of his fellows; and that is a thing no one would willingly do. If you should try to enforce courtesy on to others, you would certainly fail. That is shown by a case from India when a man who was conducting his case in person was opposed by a member of the Bar. The barrister suggested that the man was not being quite frank with the court, at which he retorted: “I do not keep anything back at all. My fault is that I disclose everything, unlike members of the Bar, who are in the habit of not doing so, and misleading the court.” The barrister was so offended by this accusation that he applied to commit the litigant for contempt of court. The Court in India held that it was a contempt and committed the man to prison for eight days and fined him 1,000 rupees. But the privy Council reversed this decision. It was, they said, the sort of tactless and intemperate statement which is not infrequently made in the court of argument and not only by litigants in person. It would have been more consonant with the dignity of the Bar to have ignored such a foolish remark, instead of making a mountain our of molehill.

The first and most important principle is that the judges should be absolutely independent of the Government. We regard the judges as standing between the individual and the State, protecting the individual from any interference with freedom which is not justified by the law.

And upon the moral issue I would go back to Plato: for he discussed this very matter over the thousand years ago in the third book of The Republic. He recognises that it is a good thing for a physician to have some personal experience of illness so that he can know better the feeling of his patients. Likewise it is good for an army officer to know what it is to carry a pack so that he can know what the men have to go through. But Plato says that it is not right for a judge to have personal experience of evil-doing. If you are appointing men to a police force you will not act on the motto “set a thief to catch a thief”. So also if you are appointing a judge you will not, says Plato, appoint a man who has committed the whole catalogue of crimes on the theory that he knows best what crime is. You will appoint a good man whose knowledge should be his guide, not his personal experience. The reason he gives is because vice cannot know virtue : but a virtuous nature, educated by time, will acquire a knowledge of both virtue and vice. The answer would seem to be therefore that a man should not be appointed a judge if he has been found guilty of a grave offence against the law : even though it is not generally known. And when it is publicly known it is worse because the people will then point a finger of scorn as they did long ago saying : ”Who made thee a ruler and a judge over us”. Such scornful remarks destroy the confidence which people should have in the judges.