My last post considered How judges get around the official ban on writing or contributing to ‘web logs’ – essentially by writing content that would sit comfortably in a blog post and is little different from the sort of things any other person might blog about, but just not calling it a blog. I gave some examples, and it provoked a lively discussion on Twitter.
We can come back to that in a later post – the subject is not going to go away. But this month I want to discuss what happens when the judge is no longer subject to the same official constraints. There is no reason why they should not go (or go back) on Twitter, and blog away to their heart’s content. Which is exactly what Sir Henry Brooke did, until his sudden and much mourned death earlier this year.
Musings, Memories and Miscellanea
Sir Henry served as a High Court judge and then as a Lord Justice in the Court of Appeal, until his retirement in 2006. His practice at the Bar had been general, and he deprecated the tendency towards over-specialisation. So he was really a bit of a legal omnivore, or polymath. He was very active in terms of judicial policy and administration, promoting diversity in the legal profession and judiciary, and an early adopter of computer technology in the law. He was a major driving force behind the British and Irish Legal Information Institute (BAILII). He was passionate about access to justice and public legal education. After retiring as a judge, he continued to work in the law by acting as a mediator and by volunteering at a law centre.
All of these interests and activities are reflected in his blog, Musings, Memories and Miscellanea – as well as more personal things like a piece about his Welsh grandfather, memories of his national service, and something as poignant as a quotation in Greek from Homer’s Odyssey, to mark his Golden Wedding anniversary.
For a judge who was always more attuned than most to the possibilities of computers and the Internet, this is a much more appropriate way of recording his intellectual legacy than an old fashioned printed autobiography. (If there is a posthumous volume of essays to celebrate his life, it too should take the form of a website.)
Life and death
His first post, I was rather chuffed to see, celebrated the fact that what he called the ‘most moving and intellectually demanding case I was ever involved in’ had been chosen as one of the top 15 cases published by ICLR in its 150-year history (see The Law Reports 1865-2015 Anniversary Edition). This was the famous ‘Conjoined Twins’ case, reported as In re A (Children) (Conjoined Twins: Surgical Separation)  Fam 147;  3 FCR 577. The court had to decide whether to approve a surgical separation that would inevitably result in one of the twins dying, to save the other’s life.
The case finds its way into Ian McEwan’s novel, The Children Act, but that focuses mainly on the judgment of Lord Justice Ward, who came from the Family Division. Lord Justice Brooke’s key contribution was to draw attention to the criminal law issues, particularly the defence (to murder) of necessity (to save life) – something every law student will remember being highlighted in the case of the shipwrecked mariners who resorted to cannibalism and, out of desperation, ate the cabin boy: Regina v Dudley & Stephens (1884) 14 QBD 273.
Law and Technology
Sir Henry devoted a whole section of his blog to IT and the Law. The posts here are about his attempts over the years to introduce computer technology into the courts. Judicial Luddism may have been an obstacle, but the main one was lack of funding. One post is wearily entitled ‘IT and the Courts: Treasury intertia for 15 years’. Another, rather more positively, recalls his participation in ‘The Online Court Hackathon’.
How many 81-year-olds do you know who would enthusiastically take part in something as geeky as a hackathon? Yet he was joined on that occasion by his predecessor as president of the Society of Computers and Law, Sir Brian Neill, another former Lord Justice, who was by then 94.
‘We reminisced about the days when we would be lucky if we attracted seven people to a meeting to discuss possible uses of applied technology in support of the courts. This week’s event was heavily over-subscribed, and 200 would-be participants had to be turned away.’
In another post he reflects on the darker side of technology and social media, in the context of the Charlie Gard case (Re Gard (A Child)  EWCA Civ 410;  4 WLR 5) – another life and death decision, in which the court was asked to approve the termination of life support for a terminally ill baby. He observes:
‘The case has been notable for showing off the best and the worst aspects of modern technology. For the best, we had Joshua Rozenberg’s stream of tweets from court, and the almost instantaneous publication on the Internet of the judge’s two judgments and Great Ormond Street’s two poignant position statements, which enabled us all to read what was being said or written without having to rely on a not always reliable “messenger speech” via the media.
For the worst, we had the unspeakably vile trolling. In the old days an English court had power to order a troll to be sentenced to corporal punishment, and, in an earlier age still, to a stint in the stocks where the populace could throw rotten vegetables at him/her. I am not suggesting for one moment that either of these remedies should be restored to the statute book, but “short, sharp, shock punishments” are surely called for in order to try and bring this contemporary beastliness under control.’
The ‘contemporary beastliness’ of trolling was the dark side of social media, but elsewhere Sir Henry’s blog celebrates the lighter side, including both the usefulness and the fun of Twitter. I hope I may be forgiven for quoting a mention of myself in another of his posts, which begins:
‘One of the delights of social media is that from time to time there is a sudden rush of superb contributions on a single topic, and then people move on with equal precipitousness to something else.
Two days ago the barrister Gordon Exall prompted Paul Magrath, of the Incorporated Council of Law Reporting, to host such a happening, when contributions were sought for the best opening lines in a judgment of the English courts.’
He then cites my post, Battle of the Bailii, whose contents – a series of tweets quoting memorable opening lines from judgments – he ‘tidies up’ and adds to. Having written so many judgments himself, he must have had a keen eye for the skill necessary not merely to set out the facts, the law and the decision, but also to make of it something both literary and memorable. Few judges manage it, but one who frequently did was Lord Denning, about whom Sir Henry writes warmly in several other posts.
In one of them, he describes Denning as ‘the most inspirational figure I ever had dealings with’. Another post recalls the time, early in his career, when he acted as Lord Denning’s assistant in setting up study weekends for the Inns of Court at Cumberland Lodge, a tradition that continues to this day.
Sir Henry blogged about lots of other things, including legal history, law reform (he was chair of the Law Commission for a while), and his recent involvement as vice-chair of the Bach Commission into legal aid and the right to justice. Although he wrote with a freedom born of his retirement from active judging, I don’t think there is anything on the blog that a sitting judge could not have written in a book or speech or at a conference. Indeed, much of it is repurposed from that kind of source. But even the material specially written for the blog, demonstrating his passionate support of justice, equality and the rule of law, could not embarrass or compromise an active judge.
No doubt some judges might not manage so well, just as some judges’ conduct can, as it were, lose its appeal. And we’re lucky in this jurisdiction not to have a politicised judiciary, hungry for votes, for whom social media would be a tempting source of public attention. (The complaint that judges here are ‘unelected’ has always seemed a fatuous one, especially when you look at some of the parliamentary legislators who have been elected – yet barely understand the laws they are enacting.)
In this, as in so many other ways, Sir Henry will no doubt prove himself to have been ahead of the curve. Sad though his sudden demise has been, we are truly blessed to have this glorious hoard of his wisdom, his Musings, Memories and Miscellanea.
Paul Magrath is head of product development at the Incorporated Council of Law Reporting for England and Wales (ICLR) and a member of the Transparency Project. He is one of three authors of Transparency in the Family Courts: Publicity and Privacy in Practice