LORD DONALDSON
John Donaldson was born in 1920-2005 and educated at Charterhouse and Trinity College, Cambridge. After being commissioned in the Royal Signals, he was called to the bar in 1946, becoming a QC in 1961. From 1966-79 he was a judge of the high court, and from 1971-4 he was president of the National Industrial Relations Court. He was the presiding judge in several high-profile cases, including the MacGuires, the Guildford Four and the Bridgewater Three. In 1982 he became Master of the Rolls, an office which he held for ten years. He was made life peer in 1988.He is best known in some circles for his role as presiding judge in the infamous Guildford Four miscarriage of justice, especially his closing remarks where he regretted his inability to hang those wrongly convicted
I interviewed him in 1996 and here is the substance of what he told me then.
The typical caricature of a judge is of a rather pompous and unapproachable character. You obviously don’t fit into that category … have you felt rather set apart from most of your colleagues in that regard?
It’s a complete myth that judges are like that. I’m not saying that there isn’t the odd judge of whom that might be said, but in general it certainly isn’t true. And in so far as I’m not pompous, I don’t feel set apart.
Your education and background – Charterhouse and Trinity, Cambridge – are, however, rather typical for a high-court judge. Is it a good thing, do you think, that you were in the traditional mould?
You have to go back to that period when most of the jobs, not only in the law but elsewhere, were held by people who came from public schools and Oxbridge. It wasn’t that there was anything special about the judiciary. Today it is very different; it would be quite wrong to think that the current judiciary comes from public schools and Oxbridge. This has to do with an evolving society in which there are much wider opportunities than existed in pre-war times.
In 1984 you say that one thing lawyers are trained to do is to know their prejudices and their preconceptions and to isolate themselves from them. How would you identify your own prejudices and preconceptions?
[Laughter.] I don’t actually keep a check list of prejudices and preconceptions. The context is everything. Suppose, for example, you believe that in the shipping world there are certain nationalities which are more suspect than others, you still have to approach each individual from that nation on the basis that he is honest until the contrary is proved.
Do you think you have succeeded in standing back from these prejudices in your own professional life?
The answer to that must be yes, but if I hadn’t succeeded I’m not sure I would be conscious of the fact. As a barrister, however, you are trained to be objective, it’s in the interest of your client that you should be objective, and when you go on to the bench you’re merely continuing the objectivity. As a barrister you sometimes have to act for someone whom you regard as a most objectionable character, but you just have to ignore your dislike. When you are a judge it’s the same thing – you just put it on one side.
You once said that you have always regarded the law as a benevolent force in our complex society. Have you ever had reason to take the opposite view – also a common perception – that the law is an ass?
Individual laws perhaps, but the law as a whole, no. It’s much misunderstood, notably by the media, but I don’t regard it as an ass at all. There are of course people who litigate in circumstances where the costs grossly exceed what’s at stake. One of the things that most irritates me is when litigants tell me that there is a point of principle involved. I’ve only ever known one man who litigated as a matter of principle and that was one of the McWhirter twins. He himself probably had only a marginal personal interest but he thought that the point was of general importance, and significantly he was proved right.
You first rose to fame – or perhaps notoriety – at the time of the ill-fated National Industrial Relations Court [1972-4]. Rightly or wrongly you were seen as a political appointment, and a number of Labour MPs signed a motion calling for your dismissal on grounds of political bias. How did you cope with being in the firing line?
The fact that I was irremovable made the whole thing so much easier. The pressures from various segments of society were absolutely enormous, but it would all have been much more difficult if I could have been removed. If somebody is standing on the edge of a cliff and there is a gale blowing, his difficulty is knowing to what extent he can lean forward into the gale without falling over the edge. If you know that you are planted firmly you don’t have to bother. Of course, I’d rather not have had those numbers of people objecting, particularly when it was on entirely false grounds. You must remember that I was well aware at the time that much of the comment being made about the way I was carrying on the job had nothing to do with how I was performing; it was a political campaign. One irritation which I suffered was a story which ran and ran that I had been a Conservative parliamentary candidate. It was totally untrue. I believe the originator of the story was somebody who should have known better, namely Lord Jenkins of Putney. What he was actually referring to was an election for the Croydon Burgh Council in which I was a ratepayer candidate. I agree that the ratepayers were Conservatives, but in those days they called themselves ratepayers because they were purely local politicians and didn’t wish to have anything to do with national politics.
You took the unusual step of defending yourself against the charge of political bias at the time … were you absolutely confident that you could be free of such bias?
I can’t remember doing so … but if you tell me I did I suppose I must have done. There was certainly no question of political bias; what we were there to do was to try and smooth the course of industrial relations, and in many ways we were quite successful actually. It was an interesting world in which nothing was as it appeared to the public at all. We had excellent relations to the unions, subject to the proviso that we never revealed that we were talking to the unions. The unions, while perfectly reasonable in talking to us, remained free to be totally unreasonable in public. It has been a feature of trade-union life – certainly in my experience – that they operate on two levels. People may regard that as dishonest or reprehensible; I actually don’t, because unions have been brought up to do this and that’s fine by me. As long as you understand the system then it works perfectly well.
In 1972 you spoke to the High Court Journalists’ Association and made a most colourful remark in defence of the charge of political bias which has followed you around ever since. You said: ‘My attitude towards political life is much the same as that of a monk towards sex – nostalgic memories of youthful indiscretion, a frank acknowledgement of its attractions, and an unshakeable conviction that I could do better than those engaged in it.’ What puzzles me is this: granted that we allow the monk a bit of sexual experience, albeit in the past, it is surely not unreasonable to assume that during his sexually active period he might have developed certain preferences for one thing rather than another, and that these might remain with him, even if at a purely imaginative and notional level. In other words, your own politically active life, albeit in the past, might continue to influence you later opinions and judgements…
What the remark was really meant to reflect was that during the 1930s I was an active Conservative politician, not in the sense of being a member of the House of Commons, but in my capacity as chairman of the Federation of University Conservative and Unionist Associations. I was secretary of the Cambridge Union and if I had been asked at the stage about my future career I would have said I wanted to be to be a Conservative politician and the prime minister. It was partly with that in mind that I became a member of the Croydon County Burgh Council, but it became perfectly apparent to me as time went on that as a junior barrister it was impossible to have a political career. It was like sitting on a three-legged stool, one leg being family, another politics and another the bar, and it was quite clear that one leg was going to give way. So beyond being active in the Inns of Court Conservative Association and similar organizations I did nothing about it. By the time I took silk I had become a good deal less enchanted with the political life. I once heard a member of the Commons, a Conservative politician, talking complete rubbish in Croydon, and that made me question whether the career was a sensible one. I certainly mitigated my enthusiasm. When it became quite apparent that as a silk I couldn’t do it, I became more and more non-political. My philosophy at that time would certainly have been much more on the Conservative or Liberal wing of the spectrum than on the Socialist wing, and I think that is probably still true, except that New Labour seems to have caught up. But it never occurs to me now to be party political; I’m a cross-bench peer and that’s not out of loyalty to my past profession – it’s my actual philosophy.
Would you agree, however, with the public perception that most judges are conservative in both senses … to what extent is it reasonable to expect them to overcome their natural leanings in court?
It’s probably true to say that most judges are conservative with a small c, but one thing which is not sufficiently appreciated is that when the heads of divisions and the Lord Chancellor meet to discuss what name should be put forward to the Queen, the political views of the judge are never discussed.
The law, or the complex workings of the law, is often perceived to be remote from ordinary people and sometimes unavailable to them. Is this something which worries you?
Yes, indeed. The remoteness takes two forms. First of all there’s limited access, and secondly there’s the fact that the law has its technicalities, for most of which there’s a good reason. It’s very difficult to get rid of these technicalities or explain them in terms which would make sense to the general public. To say it’s a public-relations problem is perhaps misleading, but it is an education problem. There’s also the business of costs which are absolutely formidable. I don’t think that in general it is the fault of the lawyers, since it has become vastly more expensive to run a practice nowadays. If you decree that no solicitor was allowed to make a profit, I don’t believe that costs would come down all that much because such a very high proportion of solicitor’s fees represents pure expense. What we’ve really got to do is try and find systems which render the skills of a lawyer unnecessary. We also have to see if we can’t develop systems for dealing with disputes which are simpler and are perhaps taken outside the ordinary mainstream of the courts.
On the question of legal costs, it’s surely the case that some illustrious QCs today demand fees like film stars … do you think that’s justifiable?
Well, it’s a market, isn’t it? I also wonder just how much they do actually earn. For example, I remember once when the question was raised about having subscriptions to the bar council put on a voluntary basis, I thought it would be a very good idea to ask members of the bar to declare what their incomes were and to pay one pound per thousand. I thought the bar would make a large sum of money because everybody would be very happy to exaggerate their income, but that wasn’t the case at all.
You were one of England’s youngest high-court judges at the age of forty-five. Did you feel that as an awesome responsibility?
Not on grounds of age. I don’t think that people are conscious of the age of judges, and in any case I’d had an army career, I’d been a junior barrister, I’d been a QC – it was a natural progression. I was lucky in that a vacancy occurred which I was thought suitable to fill, but it didn’t bother me at all that I was young.
In 1974, after a Labour victory, you spent some years in the wilderness until Mrs Thatcher sent you to the Court of Appeal in 1979. Three years later she appointed you Minister of the Rolls. Setting aside the merits of your own case, do you think it is actually healthy that these appointments should be political? Doesn’t that make them open to abuse, or at least to the charge of abuse?
Obviously they are open to the charge of abuse. I’ve no idea whether or not my appointment to the Court of Appeal was on political grounds – I’m not privy to that. We’ll have to wait until you and I are both dead before any documentation emerges about that. I do know there’s a popular belief that that was the case. As I said to you, however, in the discussions to which I was privy, politics just didn’t enter into it at all; they were as irrelevant as the colour of the judge’s hair. Yet the charge persists. There are some who think that it would be a good idea to have a judicial appointments commission in order to get rid of the charge. One of the troubles is that a judicial appointments commission is also open to the charge of being political. And there are real difficulties if you start revealing the considerations which go towards appointments.
You succeeded Lord Denning as Master of the Rolls … was that a particularly hard act to follow?
Yes, quite impossible. One of the first things I had to do was to make it clear that I wasn’t Lord Denning, the second thing was to make clear that I was not Lord Denning mark II.
When you took up the appointment you immediately introduced changes to speed up the hearing of cases. In fact, your ability to dispose of cases became quite legendary. This led some clients and barristers to believe they were getting a less than fair hearing. How would you respond to that?
That was never the case. The plain fact is that in many cases when you first read the papers you can form a pretty accurate view as to what the answer is. The one vital thing is that you must always be prepared to change your mind, and I was. I once said, with only slight exaggeration, that the art of being a presiding judge in the Court of Appeal was to ensure that you never heard arguments from more than one side; the trick was to know which side.
You seem to be defending yourself against criticism by saying that as long as the right answer is arrived at, there is no harm in taking short cuts. But surely the point is that by speeding up the process and cutting short the argument, the right answer may not be arrived at.
Obviously that’s a risk you’ve got to guard against. It’s true I have always been conscious of the face that in trial work you get a barrister who bangs on and on and eventually you tell him that he’s made that point three times already, and suddenly, perhaps because he slightly alters the way he puts it, you become aware that he has in fact got a point. That has always worried me a little bit, because if I had succeeded in shutting him up I wouldn’t have understood it. The answer is, you’re not infallible.
When English law comes under attack, the normal defence is that even if it doesn’t always establish the truth, it tries to be fair. But over the years we have discovered that the big trials of the 1970s and 1980s were not fair. Surely this is a serious indictment of the system.
I don’t want to talk about the 1970s trial, because I was the presiding judge at two of them. It would be quite wrong for me to discuss them. What I would say is this: in every one of these cases the problem was one of evidence which has subsequently been found not what it appeared to be at the time. That is certainly not an indictment of the judges, and I don’t think it’s an indictment of the juries either. A case has to be tried on the basis of the evidence as it is presented to the court. The crown counsel in a criminal is not there to get a conviction, he’s there to present the prosecution case, and if anything comes to his knowledge which casts doubts on the prosecution case, he’s under a duty to either bring it out himself or hand it over to the defence. The defence on the other hand is there to get the man off within professional limits which are well known. There is a major difference between the two roles.
But shouldn’t we be much more tough on police evidence than we’ve been before?
Who is it who has to be more tough on police evidence? It is the jury that decides under our system, and a judge would be stepping outside his role if he said to the jury, look, you ought not to believe the superintendent. All that a judge can and should do is to advise them to weigh up the evidence. I’ve certainly said on many occasions to juries that the accused goes into the witness box in exactly the same position as a police officer: either may be telling the truth or not be telling the truth. It’s a great mistake to think that judges have suddenly woken up to the fact that there are bent policemen; we’ve known this for years.
Let me put it this way, shouldn’t the public prosecutor be more vigilant about police evidence?
Obviously it’s desirable that he should be as vigilant as possible. But when you suggest to me that he should be more vigilant I honestly don’t know to what extent he is vigilant at the moment, so it would not be fair for me to suggest that he should be more vigilant.
In the tricky area of miscarriages of justice your own record is rather worrying, because in 1976 you were responsible for sentencing the Guildford Four and the MacGuires. Do these cases still haunt you?
Not in the least.
Why is that? It was surely wrong to sentence them?
I said I didn’t want to discuss those cases. It would be quite wrong of me.
All right, we won’t discuss them, but they were innocent men, were they not?
Well, this is where we get into difficulties. The plain fact is that the courts are not in the business of deciding whether people are innocent; they’re in the business of deciding whether people are guilty. These are not two sides of a single coin. If you had something like a swingometer where the vertical position is the truth, you’re going to be to one side of vertical or the other in a significant number of cases, human fallibility being what it is. What the courts have done traditionally for a couple of centuries is – rather than to aim at the truth – to aim in favour of acquittal to a degree where we are reasonably satisfied that no innocent man will be convicted, bar the exceptional case. Now it follows from this that if on appeal a man is found not guilty it means that the needle hasn’t gone far enough towards the truth point to justify convicting him. The media always say that when somebody is acquitted, or if a conviction is quashed, that a man’s innocence has been established. Well, that just simply isn’t true. There are exceptional cases where that could be said, where, for example, a man put forward an alibi defence which wasn’t accepted by the jury and at a subsequent stage it was shown by unimpeachable evidence to be a watertight alibi. Then it could be said that he was innocent of the charge against him, but that is a very rare event.
If I might just take this a little further … Sir John May who enquired into the trial of the MacGuires in 1990 suggested that you seriously misunderstood and mishandled critical evidence during the trial. He said, ‘The conduct of the trial can be validly challenged on at least two counts.’ How do you respond to that?
There are two responses. One is that I don’t think that such a comment was within his terms of reference. Secondly, I don’t agree with it. He’s entitled to his view, but I think he’s wrong.
You declined to give evidence to Sir John May’s enquiry … why was that?
My recollection is that I didn’t decline to give evidence; what I said was that I thought that it was wrong for a trial judge to say anything other than that which was contained in the transcripts. One of the features of a criminal trial is that only communication between the judge and the jury is open in court. It is the jury who convict, and find the man guilty, and it would be wrong for the trial judge to say anything afterwards other than that which he said at the time.
Are you saying that a judge does not have much influence over a jury?
I think he has influence to secure an acquittal; I don’t think he has influence to secure a conviction. As I’ve said it is extremely important that the innocent shall be acquitted, even if some of the guilty are acquitted as well. I have done a very considerable body of criminal work, and never in that time was anybody ever convicted whom I wouldn’t have been quite happy to convict. There were also a very large number of cases in which I was totally satisfied that the accused was guilty and yet the jury acquitted. The whole thing is stacked, and rightly stacked, in favour of the accused.
Robert Kee said of you: ‘He does his best to be dispassionate, but he cannot see his unconscious prejudice in favour of prosecution.’ How do you respond to that?
If I cannot see my unconscious prejudice, it’s difficult to know how I can comment on it. He’s entitled to his view. I’m very glad he thinks I do my best.
But what is puzzling, and really rather worrying, is that in your case you have something of a reputation for not leaning towards the establishment, for not necessarily going for the obvious solution, and yet terrible mistakes happen…
What terrible mistakes?
For example people are sent to prison and after about eighteen years they’re suddenly released…
Well, mistakes will happen, it’s a fallible system. You’re obviously talking about the Bridgewater case, and as I’ve said, neither judges nor juries can do other than try cases on the evidence presented to them. Of what I’ve heard of the Bridgewater case, that’s precisely what happened. What worries me is that members of the juries who convicted in these so-called miscarriages of justice cases may feel that they have a responsibility for what happened. I don’t think they do, because they did their jobs, and they did it to the best of their ability. They have nothing to blame themselves for.
Shouldn’t the prosecutors bear a heavy responsibility for the number of wrongful prosecutions? I mean, either evidence was improperly obtained or faked, as in the case of the late Patrick Malloy, the fourth Bridgewater man, or details which might have helped the defence were withheld … Shouldn’t the prosecutors be accountable as they would be in any other profession?
Accountable to whom? The plain fact is that if individuals don’t do their job properly they don’t get employed again. It’s different with judges and barristers, but they are immune for a very good reason. If they could be challenged there would never be any finality in litigation. The losing party would probably start an action against his or her counsel and enthusiastic litigants would make sure that the process went on for ever.
Is there perhaps a more general problem built into our legal system? Since we have an adversarial system, have you ever been worried that in some cases the truth will not necessarily prevail because victory is sometimes merely a function of successful argument?
I think I’ve only once or twice thought an advocate so good that I really had to be a bit careful about accepting his arguments. But in general, adversarial justice is probably the best possible system.
But would you accept that there may be a small percentage of cases won or lost through advocacy, rather than the prevailing of truth?
There are perhaps one or two cases that are lost through bad advocacy, but I’m not sure that cases are won by good advocacy. The theory is much exaggerated if it’s true at all.
After the appeal of the Birmingham Six, Lord Denning said on television that public confidence in the law was more important than one or two people being wrongly convicted … what was your reaction to that remark?
It was an unfortunate remark.
Lord Denning also said that Chris Mullin had done a great disservice to British justice. Many people believe that Lord Denning ought to have been publicly condemned and brought to account for that remark. Do you?
I don’t know about the remark, but I do think there is a problem with programmes like Rough Justice and their newspaper equivalents, because they only present one side, and the great British public assumes that there is no other side. I don’t criticize journalists for not going into it objectively – they don’t have the facilities to do it – but what that means is that you then get two systems of justice, trial by media and trial by the courts; and that is bad for the courts. I really would be much happier if investigative journalists would reach their conclusions and then pass them on to the appropriate authorities rather than making them public. That would serve the interests of justice, just as much as what they’re doing at the moment. Of course, it wouldn’t serve the interests of newspapers, and that’s the problem.
Is that why you intervened when the Daily Mail accused the five men of the murder of Stephen Lawrence?
Yes. There could be nothing more directly designed to destroy confidence in our legal system than for the Daily Mail to denounce the five men as murderers and suggest that therefore the system of justice had failed. In truth, of course, the Daily Mail may or may not have been right that they were responsible for the killing of the Lawrence boy, but as I said, the system is designed not to establish that fact but to establish whether we were all so sure that they could be properly convicted. The fact was that on the available evidence, the court was not satisfied. It’s not then the business of the Daily Mail to say that they were satisfied that the men were murderers. They could have done no greater disservice to our system of justice, but the public at large don’t understand this.
Some years ago I interviewed Hugh Callaghan, one of the Birmingham Six, and that put the enormity of miscarriages of justice in a very human context. It’s difficult not to feel a sense of shame and humility in the face of an innocent man’s life having being largely destroyed. Aren’t we all demeaned by such a tragedy?
No, certainly not demeaned. Human justice is fallible. We have in every case to examine what went wrong and the degree to which it went wrong, and then we have to try and see how the system can be improved.
How do you view people like Robert Kee, Ludovic Kennedy and Chris Mullin and more recently Paul Foot? Have they been thorns in the flesh of the legal system?
They are not thorns in the flesh. They are pursuing campaigns; whether they are as objective as one would like is a matter for argument. I suppose it can be said that they do good when where eventually convictions are quashed, but some things they say go a good deal further than are fully justified.
But if it does some good in the end…
But it’s also doing harm in the sense that it is destroying confidence in the system. The assumption the public make is that if people complain enough then they must be right, and that isn’t true, if the system rejects the claims, then the public feel that there are innocent people in jail, which may also not be true.
Looking back on your career, do you have any regrets about anything – things you might have done differently?
We will always make mistakes, and I will give you an example of a case where I certainly got it wrong. In the Industrial Relations Court with the Midlands coldstore dockers, they were defying the court and it seemed to me to be perfectly clear that if we imposed a small fine they would go round to the pub and have a whip round and laugh all the way to court to pay their fine. If we imposed a large fine which would seem disproportionate if they were individuals (which of course they weren’t because there was an enormous organization behind them) they would all claim that they were being oppressed by the size of the fine. Since I thought this was all perfectly obvious to everybody, I decided the only answer was to imprison them. That turned out to be an error of judgement. What I should have done was to impose a small fine, let them have their laugh at the incompetence of the judge, and then put them inside because the public would have understood. It was really an error of presentation, not of justice.
You have had a long and happy marriage, ahead of its time perhaps in the sense that your wife had her own independent professional life, and you were sometimes in the Denis Thatcher role. Did you mind that?
Not in the least, though I think it would have been more difficult if I hadn’t had my own role in life. Of course Denis Thatcher has his role but it wasn’t a public role. We never felt competitive because we were operating in totally different fields. My wife would certainly have been very unhappy not to have an independent role once the children were of an age where they could be left. Of course in the early days of their growing up she devoted herself full time to them. We both think there are enormous stresses and strains in families where the children are young and both partners are working full time. It may be necessary, but it is not an ideal situation.
Are you a religious man?
I don’t know if that really has much to do with my professional career. The public does not have a legitimate interest in one’s personal beliefs.
I just wondered if you think it necessary or desirable for our judges to be religious, to be seen to live a good life?
Well, they’re two quite different things. You can live a good life without being religious … as it happens I’m not actually religious, but I believe in the values of Christianity.
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