Power of Persuasion: Essays by a Very Public Lawyer

376 Pages·2015·4.03 MB·English

by  Louis Blom-Cooper

Power
of Persuasion
Essays by a Very Public Lawyer
Sir Louis Blom-Cooper QC

Power of Persuasion
over the years of the developing judicial review of ministerial and
governmental decisions, Louis Blom-Cooper was a leading advo-
cate who grew up with the advent of a distinctive brand of public
law. His range of public activities, both in and outwith the court-
room, saw him dubbed by his colleagues as a polymath practitioner.
it included chairmanship of plural public inquiries in child abuse
and mental health, media contributions in the broadsheet press and
in broadcasting, and innovation in penal reform, as an ardent cam-
paigner for the abolition of capital punishment and a plea for a
modern Homicide act. He styled himself as a modern, reconstructed
liberal – a man before his time.
This collection of essays is uniquely prefaced by a self-
examination of his unorthodox philosophy towards the law in
action. it covers a variety of socio-legal topics that expresses his
ambition to inform a poorly-educated public on the workings of the
legal system. This aim involves a discussion of the constitutional
history of Britain, unwritten and insufficiently interpreted; it
reflects a commitment to the european Convention on Human
rights and portrays its international origins. The collection opines
on crime and punishment; in the functioning of the courts and else-
where the political shift from the penal optimism of the 1970s to
the reactionary punitiveness of the post-1990s. The essays conclude
with a miscellany of affairs, reflecting on professional practices and
their product of judicial heroes in Lord reid and Lord Bingham.

Power of Persuasion
essays by a Very Public Lawyer
sir Louis Blom-Cooper QC
oXforD anD PorTLanD, oreGon
2015
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© sir Louis Blom-Cooper, 2015
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act 1988, to be identified as the author of this work.
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British Library Cataloguing in Publication Data
Data available
isBn: 978-1-84946-816-9
isBn (ePDF): 978-1-78225-729-5
Foreword
i have known sir Louis Blom-Cooper QC for most of my profes-
sional life. He has always been radical in his views. He was an early
advocate of human rights, long before it was fashionable to be one.
His intelligence has shone through everything that he has done.
Perhaps above all, his enthusiasm for and love of the law has been a
hallmark of his life and remains undimmed even in old age. He con-
tinues to test and challenge received wisdom and has a knack of
asking awkward questions. it is remarkable that he is still question-
ing and writing with vigour and insight.
My first experience of him was when he was a civil practitioner.
But he was then, as he has been throughout his long and distin-
guished career, very much more than that. if three words could
describe the expansive nature of his contribution to the law and
society, ‘peace, order, and good government’, Lord Mansfield’s
words from his seminal decision in R v Barker (1762) 3 Burr. 1264
come to mind. They are words that resonate throughout this majes-
tic work and the essays collected within it. They are words that
underpin this very public lawyer’s life and work. whether the sub-
ject is the development of separation of powers, consideration of
reform to the law of homicide, the role of jury trial in our justice
system, or the proper development of media law and regulation, his
writings demonstrate his keen search for answers to the broad ques-
tion of how the law can help frame a good and just society. That this
is a question that continues to face us only emphasises the impor-
tance and relevance of this collection. each essay demonstrates a
depth of analysis that is matched by the breadth of sources on which
he has drawn. These include personal accounts derived from con-
versations and discussions with past Lord Chief Justices, personal
experience drawn, for example, from his work as chair of the
Howard League for Penal reform or as chair of various public
inquiries, or an examination of the work of Thomas Carlyle or
alexander Hamilton. all of this is as much a testament to sir Louis’
intellectual and practical engagement over the course of a long
and fruitful career as it is of benefit to the reader. Perhaps most
importantly for an advocate who seeks to persuade, the essays are
vi Foreword
immediately engaging. i cannot commend this collection more
highly.
The Right Honourable Lord Dyson, Master of the Rolls
Contents
Foreword by Lord Dyson, Master of the Rolls v
introduction 1
Part I: Public Law: Judicial and Judicious Review
1 The scope of Judicial review and the rule of Law:
Between Judicial restraint and Judicial Creativity 9
2 Judicial review: its Genesis and Growth Post-1977 35
3 Judges in Public inquiries, redivivus 38
4 The road to rome and strasbourg via san francisco:
the Genesis of Human rights 49
5 Towards a Legal forum of the isles 60
Part II: Crime and Justice
6 a Calendar of Murder: the Causes of unjustifiable
Homicide 70
7 Towards a new Homicide act 71
8 The Penalty for Murder: Life after Death 92
9 The apotheosis of amateurism 116
10 english Juries on Trial 136
11 The ambit of innocence 139
12 ‘Consuming Your own smoke’ 146
13 Crime and Justice: a shift in Perspective 150
14 The Magistracy – a Professional Court? 169
15 serious fraud offences: whither Their Trial? 175
16 James Hanratty: a Vindicatory View 187
17 an advocate’s Tale 194
18 Criminal Justice on Trial 207
19 Victims adrift 213
Part III: Penal Affairs
20 The whys and wherefores of Penal Policy 221
21 Community service: Penological Progress 228
viii Contents
22 Prisoners’ right to Vote 231
23 Dangerousness 236
Part IV: Media Law
24 Press (Media) freedom: Constitutional right or Cultural
assumption? 247
25 The Jurisprudence of Privacy 260
26 Media freedom: a new Concept in free speech 276
27 Censors in the Courtroom 278
28 The Historical Background to self-regulation of the Press 289
Part V: Miscellany
29 Jan Christiaan smuts (1870–1950): Middle Templar
extraordinary 299
30 intervention and Amicus Curiae 312
31 Bench and Bar 320
32 Judicial Heroes 330
33 Lord Denning’s Legacy: a Judicial Misfit? 334
34 Pilgrims’ Progress: academics and Practitioners 347
Index 359