David Napley was a senior partner in Kingsley Napley Solicitors. He was born in 1915 and educated at Burlington College. He served with the Queen’s Royal regiment and the Indian Army, being invalided out in 1945 with the rank of captain.
He contested in the general elections of 1951 and 1955. He was a founder of the London Solicitors Association of which he was president from 1960-63. He was chairman of the Law Society’s Standing Committee on Criminal Law between 1963 and 1975. He is the author of several books on the criminal law, and his memoirs, Not Without Prejudice, were published in 1982.
Sir David Napley died in September 1994 shortly after this interview was conducted.
I found him to be a man of great integrity, fair-minded and a solicitor of excellent credentials. Here is the full text of our conversation.
People often regard members of the legal profession with a good deal of suspicion. Do you think this is wholly unwarranted?
Yes, because I suspect that this suspicion is based on a failure to understand what are the functions and duties of the legal profession. People always say that lawyers make their money out of other people’s misfortunes. There’s an element of truth in that, but the real function of the lawyer is to help people either avoid or solve their problems, not to foment them. I have certainly sent a large part of my time trying to persuade people not to litigate on the basis on principle, which is the worst thing to do.
The legal profession has in recent years been involved in a rather public argument, with one group trying to preserve its privileges and the other trying to trespass on them. Do you think this internal squabbling has brought about improvements to the system?
We’re talking here of rights of audience in the higher courts, and I was one of the great proponents of that change. It’s too early to say that it’s had any effect because it’s hardly taken place, but in the long term it’s bound to be beneficial for the simple reason that in the early days the Bar was largely drawn from the public school, and over the last two decades that situation has radically altered. Lawyers in both branches of the profession are now being drawn from the same educational and intellectual pool. Besides, if you do not give both branches of the profession the opportunity to practise every aspect of the law, the public sufferers, because there are an enormous number of solicitors who could adequately deal with the advocacy just as there are barristers who might be better doing the work of a solicitor.
Your autobiography seems to express a regret that you did not go to the Bar…have you stopped regretting that?
I try not to regret it. I would have enjoyed very much having had a wider field to operate in, but I don’t believe in life that you can ever jog backwards. I’ve also been moderately successful as a solicitor and – who knows – I might not have been successful at the Bar.
Most solicitors seem to agree that your greatest achievements are as a reformer. Are you happy with that assessment or would you prefer to be recognized chiefly for other things?
In many of the cases in which I have been instructed it would have gladdened my heart to have been an outstanding advocate, but being denied that I’m perfectly happy with what little I’ve done. What tends to happen in law reform is that you project an idea then you sit back and see somebody else put it into effect, but you just have to accept that it doesn’t matter who gets the credit as long as it comes about.
There is some suggestion that your campaign on behalf of solicitors has caused some embarrassment in the ranks, and that most solicitors take the view that it is wise to have QC and counsel in court…in other words they are happy with the status quo. What do you say to that?
I’m sure that there are a significant number of solicitors who are satisfied with the status quo, but for my part over the years I have not been entirely happy with the way many members of my own profession operate, and the ones about whom I would be most critical are those who pass the buck to QCs. Lloyd George used to say, if you want to understand a subject, promise to speak on it, and there’s a great deal of truth in that. If you know that you might be doing the advocacy you will put much more care and preparation into the case.
One solicitor was quoted as saying: ‘Sir David, I think, takes the view that he is more competent than lots of junior counsel. This has not made him the most popular figure at the Bar.’ Does that worry you?
Certainly not. I believe that I am more competent than some junior counsel, but I also recognize that I am probably less competent than a good many other members of the Bar – it’s relative. But the majority of clients who come to a solicitor pay for his skill and knowledge, and I personally abhor the idea that what they’re getting is the skill and knowledge of a member of the Bar.
In your memoirs you say: ‘It seems to me wrong to exclude solicitors who by and large probably have a much better understanding of and closer connection with the behaviour and frailties of ordinary people than the slightly more remote life provided at the Bar.’ Is there not a case for saying perhaps that both barristers and solicitors are hopelessly removed from the life of an average criminal…?
Yes, both barristers and solicitors must of necessity understand the problems of those people at second hand. All I was saying is that it is the solicitor who talks to the client, listens to his story, gives him sympathy, whereas the barrister gets the case laid out and interviews the man for only a short period against the very long time that a solicitor spends with him.
Outside your profession you are best known as the lawyer who attracts notorious cases and big names. How important and rewarding has that aspect of your career been?
It’s always good and satisfying and gratifying, ego being what ego is, to be involved in notable cases but I think I can say with all honesty that some of the most absorbing and fascinating problems I’ve had to deal with have been much smaller cases with no public interest at all. It doesn’t follow that these big cases are necessarily the most interesting.
One of your most famous cases was the Jeremy Thorpe case. Exceptionally, you appeared in court for him instead of briefing a barrister, something which attracted criticism at the time. What was your reasoning?
I have always taken an enormous part in the preliminary hearings of the cases in which I appear. Throughout the whole of my life, it has been my uniform practice when I’ve been instructed that I do the preliminary enquiry, the committal proceedings, and then pass it over to the Bar because I have had no right of audience in the higher court. If however the client had wished it, I would have gone on with the case. When it came to the Jeremy Thorpe case I took the view that I shouldn’t conduct it any differently from the way in which I had with some success conducted cases in the past. It was discussed at great length with Jeremy Thorpe as to whether we should bring in a barrister or whether I should do it, and we agreed that I should do it. What upset the Bar was the fact that in those days the committal proceedings – as a result of a measure which Roy Jenkins introduced – were restricted from publication in the press unless someone asked for the proceedings to be open to the press. Prior to the hearing it was agreed that we would not open the proceedings to the public. However, the advocate who represented the fourth defendant did not attend this meeting. When we all went down to Minehead this fourth fellow, who is now a member of the House of Lords, got up and without telling us in advance opened the proceedings to the public. The whole thing then became front page news, and that’s what upset the Bar. A number of them thought that I opened the proceedings to the public, which I didn’t.
You and your wife mixed socially with the Thorpes. Was this not rather unusual and perhaps rather unwise, given the circumstances?
In point of fact, I didn’t know Jeremy Thorpe until the case started. The case was to be heard at Minehead magistrates’ court. There was an enormous amount of work to be done in the evenings for the purposes of these proceedings, and it was very difficult to get a hotel room because they were all taken up by the press. Jeremy Thorpe had a small cottage at the side of his house, and rather than get myself involved on a daily basis with the press, and have Jeremy come to see me at a hotel, it seemed more convenient for me to be there. It worked very well, and I don’t think in any way embarrassed me or him, nor was it in any way undesirable or improper.
Have you minded upsetting the barristers of your profession by speaking in court?
No, because the more sensible members of the profession at the Bar have recognized the spirit in which it’s been done. I’ve given an enormous amount of work to the Bar, and I hope that while I’m spared I will continue to do so. I think the Bar has a valuable part to play and there’s a great deal of merit in having true specialists to whom the general rank and file of the profession can have access. But what I’m against is the idea that a young man goes up to university, he reads law, he then qualifies as a barrister, people imagine he’ll be able to solve any problem instantaneously, when in point of face he knows very little practical law and has very little practical experience.
Your profession is an extremely hierarchical one, and there are those who would say that you should have accepted the strictures of the role of solicitor and not tried to tread on other people’s toes…
People are entitled to say that if they wish. It isn’t a question of getting work; happily I’ve not been short of work. It’s more of a question of what the client wants. When a case has to go into court, I would always want to discuss with the client the advantages and disadvantages of having a barrister or having a leading counsel, what it would cost, what influence it would have on the court, and so on. These are issues for the client to decide, and it’s not a question of whether I want to serve the function of a barrister or whether I want to tread on his toes.
In the early days of your career you were known to be diligent rather than charismatic. What do you regard as the turning point in your career?
I’m not really sure that there was a turning point in my career. I think that my career was a progression from the bottom of the ladder. Because of my love of advocacy I was doing cases and preliminary hearings which other solicitors, certainly in those days, tended not to do. I was almost unique. The result was that when a case was reported my name was in the newspaper, and over a period of years I therefore became known to the public to a greater extent than other solicitors.
In 1955 you stood for parliament and fought Gloucester, nearly winning the seat. Have you ever reflected on how different your life might have been if you had gone into politics all those years ago?
I have indeed. At that time I was imbued with the political spirit, and very much wanted to get into parliament. I was so enthused that when I used to visit the House of Commons and stand in the lobby, I almost felt an electric tingle going through my body. But in retrospect I think that god was looking over me and that I was very lucky not to go into parliament. It would have made my life much less interesting, much more perilous, and when I look at politics today I feel that I was well protected in being kept out.
You were not approached to stand again, and felt rather hurt by Eden’s attitude. Did that make you disillusioned with politics?
Yes. After I fought Gloucester I began to realize what an enormous amount of time and effort I was putting into politics without making very much headway. My wife was very influential in bringing me to the conclusion that I could occupy my time to better advantage. Looking around the political scene today fills me with despair. The standard of politics has declined so much over the years. It used to be that you could go into the House of Commons and hear people who had both the knowledge and practical experience of the subject under discussion. That was an enormous virtue in a democratic society. We now have people whose whole existence and experience is within the field of politics; they are now in it to earn a living as politicians and that has inevitably diminished the stature and quality of the House.
You once said: ‘The invasion of privacy which is motivated by greed or the desire for financial gain is indefensible.’ Do you think the private life of people in the public eye should always remain private?
No, but I think that there should be a genuine test of public interest. Motivation is also an important factor. If an editor with his hand on his heart honestly believes that some information which he has about a public figure is something which the public ought to be told, then he should be allowed to do it; but not if he’s doing it merely to increase circulation and make more money.
Newspapers would say they are defending the public’s right to know. If the public interest is to be served, presumably privacy has to be invaded sometimes…
You have to start from the premise that the public does not have a right to know. I do not accept that there is any right in our constitution, or any other constitution, including America, where there is a right to know. There are some things which in the public interest you ought to know, but that’s not the same as having a right to know.
There has never been a whiff of scandal about your own private life. Does that make you more or less sympathetic to those who have not led blameless lives?
It is difficult to think of many people who are wholly bad. One also recognizes that a lot of people are victims of circumstances, and who am I to say what I would have done if I had been in the same position? So one has to approach these cases with a degree of tolerance, and I don’t think the fact that I’ve been fortunate enough not to be involved in anything the newspapers could have a field day with to my detriment colours my view about the position of others.
Presumably you would not dispute that large numbers of people are denied justice on the grounds that they are not rich enough, or poor enough to qualify for legal aid. Do you think you might have done more to change this aspect of the system?
I entirely agree with you. Far too many people are denied access to justice by reason of lack of money, and the rising cost of litigation is making it more difficult by the day. It’s very difficult to know what steps you can take to make the courts more easily available to the public. It’s easy to be critical, and I am critical, but when you sit down and try to resolve it, it’s not all that easy. One of the things I would like to see and I’ve tried to bring about in my time, is a simplification of procedures. I personally think that the public would be happier with a day in court where their grievances would be aired and adjudicated upon by reasonably competent and informed people. It would be better to do it in a much more truncated way, rather than to preserve the English system which aims at excellence.
But don’t you think the legal profession tends to overcharge?
There are some people who overcharge. The cost of employing fashionable barristers today has become prohibitive, and that needs to be reduced because the expenses which a member of the Bar carries are very small compared with the expenses of a solicitor. The vast majority of solicitors who practise in this country earn a very modest income, and a considerable number of them, particularly today, are very hard pressed to make ends meet. The vast majority at the Bar also have pretty modest incomes, but the relatively few high fliers who make enormous sums are the ones who are written about in the press.
You have sometimes been sensitive on the issue of the large fees which some solicitors, including yourself, command. Are you completely opposed to there being any control on the fees charged?
The only professional people in this country whose fees are subject to control, with the possible exception of taxi drivers, are solicitors and barristers, because anyone can go to the court and ask for fees to be taxed, and the court’s job when they’re taxed is to decide what is a reasonable fee. The court can of course set the fee at X thousand pounds, but if the client has chosen to go to a leading silk, it’s no good saying that somebody ought to control the fees; he is the author of his own misfortune.
But sometimes you might feel you have no alternative if you want to best chance of winning…
Some people feel they have no alternative but to have a Rolls-Royce, though they’d probably get there just as well in a Peugeot. If you choose to have the best in order to have what you think is a better chance of success, good luck to you, but I don’t think you can blame that on the system.
Would you agree that our adversarial system sometimes suppresses the truth since victory in a case is sometimes the result of a successful rhetoric?
I would agree with that, but I think the alternative is worse. The adversarial system is based upon the idea that each side will be fairly and equally represented and put its case to its own best advantage, and an independent informed person at the centre will make a judgement as a result of the arguments and the evidence. That’s the theory and that’s the ideal. When you’re dealing with human beings you deal with human imperfections and fallibility; and sometimes you will get a better man on one side than on the other. But the alternatives would produce far more injustice. The inquisitorial system is so disliked on the continent that they are now looking at England with a view to introducing the adversarial system. The only man who seems to think it’s a good thing is Ludo Kennedy, and he’s never practised it. The inquisitorial system has a lot of defects and the principal defect is this: whereas the adversarial system is no better, as you quite rightly say, than the quality of the advocates on either side, at least each is trying to do his best. In the inquisitorial system quality is no better than the quality of the inquisitor, and the result is that if he hasn’t routed out the right evidence or doesn’t deal with it in the right way there will be far more injustice.
You have always had a special interest in advocacy. What percentage of cases would you say are won or lost according to the quality of the advocacy?
The quality of advocacy is not primarily or even principally a reflection of the rhetoric or the presentation in court. The most important thing in advocacy is the preparation, investigation, research and the command of the case. And if a case is properly prepared it will be much more likely won by a poor advocate than a badly prepared case will be won by an outstanding advocate. And so whilst it would be stupid to contend that the quality of the advocacy doesn’t play a part and cannot win cases, the majority of them are won because the case itself is a good case.
Do you think perhaps that as times change society is going to expect the solicitor to play a different role, that of the conciliator and problem solver, rather than someone who engages in battle with another solicitor?
That is already the role of over 90 per cent of solicitors. I spend most of my time dissuading people from going into litigation, and most of my colleagues do the same. One of the curious things about this is that if you’re looking at it from the commercial point of view, a case lost is very often a client lost. So it isn’t really in the interests of any sensible solicitor to force a man into court if he can compromise.
You would like to do away with the House of Lords as a court of final appeal, preferring to leave it to the Court of Appeal. Why is that?
The underlying philosophy of the House of Lords is that you choose a limited number of great brains and you put them into the highest court in the land. In theory that is quite alright, but frankly, the great brains in the House of Lords are not materially different from some of the great brains in the Court of Appeal.
The 1974 Act opened jury service to anyone over 18 and removed the qualification of owning property. Some years later you commented, ‘To say that people who have a house are more responsible than people who don’t may be politically unacceptable, but in my experience it is right.’ Do you still stand by that statement today?
Yes. I think that when a person owns a house and has a family he develops a certain degree of stability which almost by definition isn’t present in people who have not reached that stage. The fact that your name is on the electoral register doesn’t signify that you are the best person to sit on a jury. The jury system needs looking at because some people on juries are not mentally equipped for the job; they can be trying fraud cases and yet be illiterate and innumerate.
Lord Goodman whom you admired once said: ‘There is almost no case that a jury, given proper advice and instruction, cannot deal with better than a judge alone.’ How do you react to that?
I don’t agree with it. In general terms it would be right, but in the modern world it isn’t true. You will remember that in some of the recent city cases involving high finance at least one judge said that he found it difficult to understand what was happening himself. Now that may indicate some support for what is being said by Lord Goodman in the sense that the judge himself was having difficulty it would almost certainly be more difficult for the jury. A common example in the courts is that you will have a case which depends on some technical, scientific or medical problem. Each side calls an expert who gives his opinion of high complexity based upon a lifetime’s research and knowledge, and in theory the jury then has to decide which of those two experts is right. It’s utter nonsense.
Lord Goodman also said that there is something about a jury which inspires confidence; they will arrive at perverse verdicts but never at insane verdicts. Don’t you think there is something in that?
I think there is something in that but it wouldn’t be much consolation for me that the jury were not insane but perverse if I myself had been wrongly convicted.
When Lord Longford published his report on pornography in 1972 you described it as ‘fresh as an egg but a little cracked in parts’. What did you mean by that?
It’s a long while ago and I can’t honestly say that I’ve carried in my mind since then what was in his book. But one of the things I do remember about it was that he was saying in effect how dreadful pornography was, and then – presumably in order to sell the book – they put on a most pornographic cover. [laughs] People were persuaded they were buying a dirty book.
Over the years you have developed quite a reputation for liberal causes – not really the hallmark of your profession. Why do you think this is? Do you have a more highly developed social conscience than your colleagues, do you think?
To some extent that is unfair to my colleagues. There are an enormous number of people in my profession who are liberal in that way – I don’t think I’m in any way exceptional. I happen to have an innate desire to see justice done, and I abhor injustice, but that is true of most of my colleagues.
Do you think your profession would benefit from the presence of more women?
No, I don’t. At the moment the profession has more women than I’ve ever seen in my life. I’m all in favour of men or women getting jobs according to their ability, and I’m not in the business of excluding women, but I don’t think there is a need for any more.
Helena Kennedy QC has argued persuasively that the criminal justice system is not sensitive to the reality of women’s lives. She doesn’t suggest that there is a conspiracy against women, more that the legal world is dominated by men and that myths about women are maintained and perpetuated by the system. Are you sympathetic to her arguments?
There are an enormous number of women who think they’re dominated by men and if you saw them in their own home environment you would find that the men are generally dominated by the women. I have in my practice a number of very able women, and I admire their abilities and qualities, but I wouldn’t be prepared to say that as a general proposition women are as effective as advocates as men. I’m not saying there aren’t exceptions but I wouldn’t say that women speaking in public are as adequate as men. When did you ever hear, save on rare occasions, a woman make a superb after dinner speech? It isn’t really in their nature. To hear women advocates addressing a court, you can admire their ability, you can admire their analysis of the issues, and they can be exceptionally good, but I think at the end of the day there is something in the timbre of their voices which differs in quality from that of their male counterparts.
Kennedy points out in her book, Eve was Framed, that in the case of Sarah Tisdall whom you defended, she was portrayed by both the prosecution and the defence as a sort of ‘silly little girl’ who didn’t know what she was doing, rather than as an adult who had acted on principle. How do you respond to that?
It is awfully difficult for me to comment on a case with which I was concerned, and it’s such a long while ago that I would want to look at the papers again if I were going to comment. All I will say is that Helena Kennedy’s comment is not one which revives immediately some note of recognition in my mind. If she’s saying we don’t take people like Sarah Tisdall seriously, I find that a little difficult to accept because if we didn’t take them seriously they wouldn’t have been prosecuted. I should also be sorry to think that Helena Kennedy or any other advocate would consider it expedient in every case in which a woman was involved to say that she acted on a matter of principle, or she did it because she believed what she was doing was right. Whether that would better serve the client’s purpose than arguing that the probability was that she didn’t realise the enormity of what she was doing is very much in doubt. At the end of the day the object of the exercise was to try to stop Sarah Tisdall going to prison.
Do you always need to believe your client in order to defend him or her?
It is not a question of believing or disbelieving. If my client tells me a story, civilly or criminally, and he doesn’t tell me that he’s lying, it’s my duty to put that case before the court fairly and honestly and to its best advantage. It isn’t for me to form a judgement as to whether he’s telling the truth or not, and if I think he is lying but won’t admit he’s lying I still have to put the case forward. Now, as to what effect that has upon me, I may think he’s ill advised and I may tell him so, but it is no more difficult to do that than to take a man’s appendix when you think he’s a basically unpleasant man.
Do you sometimes have to suspend moral judgement when defending a client?
Yes. I have defended people who have said they are innocent, but who were probably guilty, and in some cases because of the enormity of the crime I have been very worried they might get off. Unhappily you have to train yourself not to allow that to influence you, because the system would break down if you didn’t.
Do you believe your reputation suffered as a result of being involved in the Guinness trial?
The short answer to that is no. Is there implicit in your question the suggestion that in some way I might have behaved improperly?
Well, during the trial you were accused of lying by Oliver Roux…was that a testing time for you?
It wasn’t in any way a testing time. Oliver disagreed with what I said but I’m not sure he ever used the word lying. I think what happened was that Roux gave one account of what happened at an interview, and I gave a different account. It was never suggested at any time as far as I know in the course of proceedings that I was lying. The fact that two people did give a different account of the interview is as maybe, and this happens frequently in litigation, but I’ve certainly never heard it suggested before that it adversely affected my reputation.
You have said that the war against crime requires draconian measures…what would these measures amount to?
The war against crime needs to be fought on two fronts. We have long since moved into a situation where personal safety ought to become more important than personal wealth. One of the peculiarities of the English law historically has been that we’ve always placed more value on wealth than we have on injury; that’s changed but it’s got to change still further. Secondly, we have to recognize, whatever it costs, that the only means we have of curbing people who are prone to violence is to lock them up, and that means that they are locked up until they mature or till the public can be reasonably certain that they are safe. Throughout the history of the penal system we’ve tried all kinds of things – hard labour, flogging, long periods of imprisonment, short sharp shocks, and unhappily none of them has worked and none of them is likely to work. All this political talk about stringent measures which will kill crime is all my eye and Betty Martin. What we have in this country is an inadequacy of discipline in education, and that begins in the home. The other think which is extremely disturbing is that the popular press are prepared to serve the prurient interests of the public in order to increase their circulation, and the result is that you get a constant diet of violence, sexual deviation, misbehaviour, and people conditioned by it.
You haven’t had any time for religion in your life – have you ever found that to be a disadvantage in your career?
No, I haven’t. I’m really an agnostic, I suppose. When I look at a garden or a view I find it difficult to believe that the way nature presents itself is the result of some scientific accident. There is a beauty and a grandeur which I’m not able to explain in scientific terms. On the other hand, I don’t believe that there’s a benign gentleman sitting up on a cloud above me looking over the world. But happily my absence of religion has not made it any more difficult for me to know the difference between right and wrong.
Most people need some sort of spiritual dimension in their lives…what is yours?
I am disadvantaged in that respect. I’ve never had experience of a spiritual dimension, and I’m probably the loser for it. Unfortunately, I’m a very pragmatic sort of person.