A Judge of The Assizes (1945-1948)
Old fashioned yes but still the heart of oak for our English Judges of the High Court
Tom Denning (Alfred Thompson) was a Kings Counsel and then a Kings Bench Division High Court Judge from October 1945 to October 1948, when he was raised to the Court of Appeal as a Lord Justice of Appeal. When he was Mr Justice Denning he tried Capital Cases as a puisne Judge of the Kings Bench both at the Old Bailey and on circuit in the Assize Courts. As he himself said in his autobiography (1981 – Butterworths) the Red Judge in scarlet robes
“represents the majesty of the law”.
(Page 162 of his book). Denning, when Master of the Rolls, writes in 1981 in this work that in a Jury trial the presiding Judge
“is himself on trial before his fellow countrymen”. “It is on his behaviour that they will form their opinion of our system of justice” – “He must be merciful.”
Denning adds in his life story.
Denning became a High Court Judge at the age of 44 years in 1944 in the Probate, Divorce and Admiralty Division. He translated to the Kings Bench Division in 1945 a year later. He was born in 1899 and served as a Second Lieutenant in the sappers on the Western front in 1918 as his autobiography relates.
Denning postulates the question: Is Capital punishment right or wrong? When I was a Bar student at Lincoln’s Inn (1973-75) and he was Master of the Rolls (also a Bencher of Lincoln’s Inn) the word amongst us students was that Denning never tried a capital case for reasons of conscience. How wrong we were! Look at his personal account at Page 164-165 of his Career:
“I am one of the few Judges left now who have passed Sentence of Death. I have on many occasions using the formula, “You shall be hanged by the neck until you are dead and may the Lord have mercy on your soul.” The Chaplain says, “Amen.”
Lord Denning Rt. Hon. Master of the Rolls does not lie or deceive.
The fact a man of Denning’s fearlessness, acumen, compassion and acute sense of Justice should pass this sentence of death in the 1940’s, not once but many times, is a telling insight in to the strength, solidarity and purity of His Majesty’s Judges in that epoch.
Yes, Denning did change his mind. Before the Royal Commission on Capital Punishment he
“was in favour of it” he tells us “for murder most foul.”
Sometime after he changed his mind as he admits. He regards the matter rightly as a question of policy and an ethical issue not a legal question in his 1981 autobiography. What appears to have turned him was the thought
“none of us individually would be prepared to hang a man or even to witness a hanging.”
I say no one is ever going to perform those roles unwillingly.
Denning’s career as a Barrister in practice began in October 1922 and reached its apogee as a junior in Civil work on the Western Circuit. Later as Kings Counsel from 1st April 1937 he was expected to conduct his advocacy inter alia in Capital Trials in London and in some of the provincial Assize Courts as they were called. He became our top Civil Judge as Master of the Rolls in 1962 presiding in the Court of Appeal Civil Division and was still in that highly esteemed Judicial office in his 80’s as adroit as ever. There is no doubt he defended men indicted for a murder trial as their Kings Counsel. On one occasion at least he secured an acquittal of the Defendant on a capital count. Where does all this lead? Whom am I to contradict this most eminent of English Judges of the 20th Century? I am hesitant to go against Tom Denning KC, Denning. J, Denning L.J., Lord of Appeal in Ordinary Denning and Lord Denning Master of the Rolls Rt. Hon. Yes, I do acknowledge he holds rank over me and moral sway with me. However, as he would have accepted there are two main positions in this Death Penalty debate.We are brothers in the Law (I a retired solicitor and one time criminal barrister). Tom Denning would always defend my right to argue my case: - That is the sacrosanct foundation of English criminal law and practice. I do not deny I am the dissenting voice. I will console myself to have once met the great man and passed a brief moment with him. Now I will always salute him from afar.