After Jowitt

AFTER JOWITT

When Jowitt was Attorney General, he required a devil to assist him with his work. Colin Pearson, who had been a pupil to Walter Monckton and remained in Monckton’s chambers thereafter, had been offered the job. Pearson was born in Canada but came to England when he was seven, and took a first in classical honour moderations at Balliol in 1920. He was a socialist and when Jowitt crossed the floor in 1929 Pearson had written to him to welcome him into the Labour party. Pearson was doing cases, mostly rating cases decided by magistrates, for Jowitt as the Attorney General’s devil.

In Gray’s Inn in 1929 Jowitt had attended, as President, a moot which was a problem concerning the escape of some tiger cubs from a travelling circus and involved an application of Rylands v Fletcher. 16

The Master of the Moots was Sir Plunkett Bastion (yes, seriously). A young Patrick Devlin made an impression in his moot speech. Devlin happened to be introduced to Pearson some time thereafter who told him that Jowitt was looking for a second devil. Cheeseman telephoned Devlin and invited him for interview and he was duly appointed. Pearson and Devlin resided in the secretaries’ room at the Law Courts (the Attorney General had several rooms in the Law Courts at his disposal) and on most days either or both of them went after court to Jowitt’s room in the House of Commons. Thus they both got to know Jowitt, and started spending time socially with him and his wife both at their house in London and at weekends at their farm.

Patrick Devlin had achieved a lower second both in the history and then law tripos at Cambridge17, albeit he had been President of the Union, and passed the bar exam with a third in 1927 notwithstanding managing to fail constitutional law. He came to the bar after a short period working in the solicitors’ firm of Sir John Withers. Devlin did

16 John Sackar, Lord Devlin (2020) Hart Publishing (“Sackar”) p43 17 Academic success eluded a number of the distinguished lawyers and judges of prior generations. Robert Megarry, Vice Chancellor in the 1970s and distinguished property lawyer, was congratulated by his tutor at Cambridge on his economy of effort as if he had obtained one less mark he would have failed.

pupillage in a modest common law set; he was not offered tenancy there and joined another common law set in Cloisters where he had no work.

Devlin is a difficult person to write about now. Often regarded as one of the great judges of the twentieth century, Devlin’s reputation has recently been tarnished by evidence given almost thirty years after his death by his daughter, now aged 81, to the Independent Inquiry into Child Sexual Abuse as to sexual abuse by her father when she was a child. Her evidence, in circumstances where she went public with her family’s support, is shocking.18

Pearson appears to have been something of a detail man, who was happy doing de-rating cases for Jowitt that others (including Devlin) found dull. Pearson seems never to have had a great reputation as an advocate but was regarded as a first-class lawyer with an immediate grasp of any point put to him. Jowitt appointed him Junior Counsel (Common Law) to the Ministry of Works in 1930.

Work as the Attorney General’s devil was not in the event limited to rating cases. The Attorney General was the ex-officio leader of the bar and was paid for the briefs he undertook on behalf of the Crown. Jowitt liked to have one or both of his devils sitting beside or behind him in important cases. Thus Jowitt prosecuted (with Devlin) the Sidney Fox matricide case because, by long-standing custom, one of the law officers appeared for the Crown in major criminal cases19, and also the enquiry

18 The Guardian, 25th July 2021 19 Sidney Fox strangled his mother. This was probably the only case of a matricide in the twentieth century. In April 1929 Fox persuaded his mother to make a will in his favour, despite her poverty, and on 1st May insured her life against accidental death, the policy to expire on 23rd October. Just before 23rd October, they arrived together at a hotel in Margate and booked adjoining rooms with a communicating door. On 23rd October, Fox and his mother ate dinner, Fox buying a half-bottle of port as a “nightcap” for her. At 11.40 pm that same evening, Fox raised the alarm that there was a fire in his mother’s room, and her partly clad body was pulled out of it by another guest. Fox said he went into his mother’s room, saw the smoke and then shut the door. Jowitt subjected Fox to a ferocious cross-examination.

“Why did you shut the door?” asked Jowitt. Fox said that he had closed his mother’s door

“so that smoke should not spread into the hotel”. “Rather that your mother should suffocate in that room than the smoke should get into the hotel?” Fox had no sensible answer and that was said to have sealed his fate. The jury convicted Fox and he was hanged at Maidstone Jail on 8th April 1930, the Home Secretary having declined to intervene. Defence counsel for

Fox later remarked that Fox might have saved himself by answering “I don’t know” to Jowitt’s question “Why did you shut the door?”.

into the crash of the R101 airship, which had barely crossed the Channel on its maiden voyage to India before it crashed. The first case which Devlin did with a leader other than Jowitt was the Hearn poisoning case, which was notable because his leader, Herbert du Parcq QC, fainted just before commencing his final speech to the jury and it looked as though Devlin would have to deliver it until du Parcq recovered quickly. In 1930 Jowitt appointed Devlin as Counsel for the Mint (which involved prosecuting counterfeiters) and Counsel to the Ministry of Labour (prosecuting benefit fraudsters).

When he returned with Cheeseman to 1 Brick Court in early 1932 after his expulsion from the Labour party, Jowitt offered Devlin the fourth room, which was otherwise being used as a clients’ waiting room. Jowitt’s loss of his clients’ waiting room when Devlin took it over was not a great inconvenience. The solicitors of the time were not used to such luxury and preferred to stand outside Sir William’s door until the great man was ready to see them.

Jowitt himself advised Devlin against the move, but Devlin was getting very little work from his common law chambers and joined Jowitt in 1 Brick Court. He was also continuing to prosecute counterfeiters and benefit fraudsters. Moreover, where Devlin had devilled work for Jowitt, and on the many occasions when Jowitt was otherwise engaged or too busy to see a client on an ongoing case, Cheeseman proved surprisingly adept in persuading them to see Devlin “who has been devilling the case for Sir William and is very familiar with it and might be able to help you”.

Those willing to accept a junior’s services in cases where Jowitt was instructed but unavailable did not provide repeat business for the junior. However, Thomas Cooper, which was one of the leading firms in the Commercial Court (where most of the cases involved trade by sea that was still predominantly in British ships), had a connection with a small firm which handled non-commercial matters, and the same managing clerk handled the smaller cases for both firms. Devlin impressed whilst handling a divorce and the managing clerk then sent him one of Thomas Cooper’s commercial cases and that gradually led to Devlin acquiring a practice at the Commercial bar. A further brief which came his way unexpectedly led to him acquiring initially the

common law work for Shell Petroleum and subsequently all of Shell’s work.20

These were the days when Lord Hewart was Lord Chief Justice. His famous aphorism that justice must not only be done but must manifestly and obviously be seen to be done was not borne out by his conduct in court. As was said about him:

Hewart … has been called the worst Chief Justice since Scroggs and Jeffreys in the 17th century. I do not think that is quite fair.

When one considers the enormous improvement in judicial standards between the 17th and 20th centuries, I should say that comparatively speaking, he was the worst Chief Justice ever. 21

By 1935 Jowitt was leading Devlin in the House of Lords22 in a case on the role of the jury in civil cases. Their opponent was Sir Stafford Cripps; this was a time when a number of leading figures at the bar were involved in politics. Cripps, later Chancellor in Attlee’s government, had been Solicitor General to Jowitt in 1930. Jowitt was an anti-appeaser in the 1930s and was re-admitted to the Labour party in November 1936. Critical of the Chamberlain appeasement policy, he called for state control of the arms industry and rapid rearmament, and by early 1939 called for the recreation of the Ministry of Munitions. In October 1939 he was elected as Labour candidate in a by-election in Ashton-underLyne after the member died. As his predecessor had a majority of only 114, it was perhaps fortunate that Jowitt was able to take advantage of the all-party truce that marked the start of the war and was returned unopposed. When Churchill became Prime Minister in May 1940 Jowitt was appointed Solicitor General, with his old chambers colleague, Donald Somervell, as Attorney General, after Attlee had objected when Churchill wanted to appoint conservatives as both law officers. Despite a little local difficulty when he was convicted and fined £15 by Canterbury

20 Devlin later discovered that Mr Boyle, the non-lawyer who handled Shell’s litigation, selected him after looking down the list of practising juniors and choosing the one he thought had the most Irish name. 21 Patrick Devlin, Easing the Passing: The Trial of Dr John Bodkin Adams (1985) Bodley

Head p82 22 Mechanical and General Inventions Company, Limited v Austin and Austin Motor

Company [1935] AC 346

magistrates for breach of the rationing regulations (the problem apparently lay with an incompetent bailiff on his farm)23 Jowitt became Paymaster General in 1942, then Minister without Portfolio (responsible for post war reconstruction planning) and in 1944 Minister of Social Insurance. He was returned with an increased majority in the Labour landslide of 1945 and was immediately appointed Lord Chancellor, as Lord Jowitt of Stevenage, with a seat in the cabinet.

Jowitt’s political renaissance left Devlin as the head of 1 Brick Court. Like Jowitt, Devlin was ineligible for war service: the rickets he had contracted while at school had left him with a permanent stoop. He joined the Home Guard instead.24 He also joined the Ministry of Supply. Devlin remained in practice during the war doing part-time work as junior counsel to the Ministries of War Transport, Food and Supply (1940–42) and to the Legal Department of the Ministry of Supply (1942–45).

Inevitably, the work of the bar was limited during the war years and Brick Court was heavily bombed. The first bombs fell on the Temple in September 1940. On 15th October 1940 a land-mine attached to a parachute caused a tremendous explosion and widespread damage including the buildings of Crown Office Row, Pump Court, Cloisters, Lamb Building, Brick Court, Essex Court, Plowden Buildings, Garden Court and Temple Gardens. On the night of 10th May 1941 Middle Temple suffered more devastation than in all the previous raids when high explosive and firebombs rained down for five hours. An incendiary lodged on the top of Temple Church. A bomb had earlier smashed the water mains and there was insufficient water to extinguish the fire. The church roof fell in, leaving standing only the outer walls of the round church built by the Knights Templar and the nave. The fire spread, destroying the Master’s House, Christopher Wren’s Cloisters, most of Pump Court and Lamb Building, Brick Court, Hare Court and Harcourt Buildings. All the wardens could do was to try to save as many human lives as possible and rescue the contents of buildings, while trying to do anything possible to prevent the spread of the flames. As in the Great

23 Heuston p92 24 Sackar p57