Patrick Devlin, Baron Devlin

The Right Honourable
The Lord Devlin
PC, FBA
Lord of Appeal in Ordinary
In office
1960–1964
Personal details
Born 25 November 1905
Chislehurst, Kent, England
Died 9 August 1992(1992-08-09) (aged 86)
Pewsey, Wiltshire

Patrick Arthur Devlin, Baron Devlin, PC, FBA (25 November 1905 – 9 August 1992) was a British judge and legal philosopher who served as a law lord. In 1959, he headed a Commission of Inquiry, the Devlin Commission, which reported on the State of Emergency declared by the colonial governor of Nyasaland. In 1985 he became the first British judge to write a book about a case he had presided over, the 1957 trial of suspected serial killer John Bodkin Adams.[1] Devlin is also well known for his part in the debate around homosexuality in British law; in response to the Wolfenden report, he argued, contrary to H. L. A. Hart, that a common public morality should be upheld.

Early life and career

Patrick Devlin was born in Chislehurst, Kent. His father was an Irish Roman Catholic architect whose own father came from County Tyrone, and his mother was a Scottish Protestant, originally from Aberdeen. In 1909, a few years after Devlin's birth, the family moved to his mother's birthplace. The children were raised as Catholics, two of Devlin's sisters became nuns, and a brother became a Jesuit priest (another brother was the actor William Devlin).[2]

Patrick Devlin joined the Dominican order as a novice after leaving Stonyhurst College, but left after a year for Christ's College, Cambridge. At Cambridge, Devlin read both History and Law, and was elected President of the Cambridge Union in 1926.

Graduating in 1927, he joined Gray's Inn and passing the bar exam in 1929. He worked as junior barrister for William Jowitt while Jowitt was Attorney-General, and by the late 1930s he had become a successful commercial lawyer. During the Second World War he worked for several government ministries. He took silk in 1959 and was Attorney-General of the Duchy of Cornwall between 1947 and 1948.

Juducial career

High Court

In 1958, Jowitt (by then Lord Chancellor) made Devlin, then aged 42, a High Court judge, assigned to the King's Bench Division; he received the customary knighthood later that year. He became the second-youngest person to be appointed to the High Court bench in the 20th century. From 1956 to 1960 he also served as the first President of the Restrictive Practices Court.

Trial of John Bodkin Adams

His most famous case as a trial judge was the 1957 trial of John Bodkin Adams, an Eastbourne doctor indicted for murdering two of his patients Edith Alice Morrell an elderly widow and Gertrude Hullett, a middle-aged woman whose husband had died four months before her death.

Bodkin Adams was tried on the Morrell charge. Devlin considered that the prosecution had not prepared its case adequately as the Attorney-General was a busy minister and the next most senior member of his team Melford Stevenson did not make up for his leader's absence.[3] It had not presented a coherent case, particularly on motive, and in his summing up Devlin said that the defence case was a manifestly strong one.[4] He directed the jury not to find for the prosecution unless they rejected all the defence arguments, and accepted this was a summing up for an acquittal.[5] Adams was then found not guilty on the Morrell charge. Controversially, the prosecutor – Attorney-General, Sir Reginald Manningham-Buller – claimed in parliament that the acquittal was the result of Devlin's judicial misdirection[6] and even more controversially, he entered a nolle prosequi regarding the Hullett charge. Devlin later termed this "an abuse of process", done because the prosecution’s case was deficient, and left Adams under the suspicion that there might have been some truth in talk of mass murder.[7]

Devlin also received a phone call from the Lord Chief Justice Lord Goddard at the time defence and prosecution were making their closing speeches. In the event of Adams being acquitted, Goddard suggested that Devlin might consider an application to release Adams on bail before the Hullett trial which was due to start afterwards. Devlin was surprised because no one accused of murder had ever been granted bail in British legal history.[8] Unknown to Devlin, Goddard had had lunch with the defendant's close friend Roland Gwynne at a hotel in Lewes before the trial had commenced.[9] Home Office pathologist Francis Camps suspected Adams of causing 163 deaths in total, although he performed no autopsies.[9]

In 1985, two years after the death of Adams, Devlin wrote an account of the trial, Easing the Passing – the first such book by a judge in British history. Easing the Passing provoked a lot of controversy within the legal profession. Some disapproved of a judge writing about a case he had presided over, while others disliked Devlin's dismissal of Manningham-Buller's approach to the case. Lord Hailsham told judge John Baker: "He ought never to have written it" before adding with a laugh, "But, it's a jolly good read".[10]

Devlin Commission: Report of the Nyasaland Commission of Inquiry

In 1959, soon after the declaration of the state of emergency in Nyasaland, the British Cabinet under Prime Minister Harold Macmillan decided to set up a Commission of Inquiry into the disturbances there and their policing, and appointed Devlin as chairman. Devlin was not Macmillan's choice for chairman, and he later criticised Devlin's appointment, criticising him for having "that Fenian blood that makes Irishmen anti-Government on principle" and for being "bitterly disappointed at my not having made him Lord Chief Justice". He also called him a "hunchback".[9]

In response to an early draft of the commission's report, which was highly critical of repressive police methods, the government hurriedly commissioned the rival Armitage Report, which was delivered in July of that year and backed Britain's role there. Bernard Levin, among others, was of the opinion that "The Government refused to accept the Devlin Report because it told the truth".[9] Despite Macmillan's's rejection of the Devlin Report, once Iain Macleod became Colonial Secretary later in 1959, he approached Devlin for advice.[11]

Court of Appeal and House of Lods

In 1960, Devlin was made a Lord Justice of Appeal, and the following year he became a law lord and life peer, as Baron Devlin, of West Wick in the County of Wiltshire. He retired in 1964, at the age of 58, having completed the minimum 15 years then necessary to qualify for a full judicial pension. It is speculated that his retirement was due in part his boredom with the large number of tax cases that came before the House of Lords.[12] He himself explained in an interview: "I was extremely happy as a judge of first instance. I was never happy as an appellate judge ... for the most part, the work was dreary beyond belief. All those revenue cases ..."[12]

After retirement, Lord Devlin was a judge on the Administrative Tribunal of the International Labour Organization until 1986. He was also chairman of the Press Council from 1964–69, and High Steward of Cambridge University from 1966 until 1991. He also spent time writing about law and history, especially the interaction of law with moral philosophy, and the importance of juries. He was active in the campaigns to reopen the Guildford Four and Maguire Seven cases. He died aged 86 in Pewsey, Wiltshire.[13]

Lord Devlin received several honorary degrees, including from Oxford, Cambridge, Glasgow, Sussex, Leicester, Toronto, and Durham.[14]

Personal life

In 1932, Devlin married Madeleine Hilda Oppenheimer (1909–2012), daughter of the diamonds magnate Sir Bernard Oppenheimer, Bt. Together the couple had six children.[15]

Hart-Devlin debate

After the Wolfenden report in 1957, Devlin argued, initially in his 1959 Maccabean Lecture in Jurisprudence at the British Academy,[16][17] in support of James Fitzjames Stephen that popular morality should be allowed to influence lawmaking, and that even private acts should be subject to legal sanction if they were held to be morally unacceptable by the "reasonable man", to preserve the moral fabric of society (Devlin's "reasonable man" was one who held commonly accepted views, not necessarily derived from reason as such). H. L. A. Hart supported the report's opposing view (derived from John Stuart Mill) that the law had no business interfering with private acts that harmed nobody. Devlin's argument was expanded in his 1965 book The Enforcement of Morals. As a result of his famous debate with Devlin on the role of the criminal law in enforcing moral norms, Hart wrote Law, Liberty and Morality (1963) and The Morality of the Criminal Law (1965).

Devlin argued that a society's existence depends on the maintenance of shared political and moral values. Violation of the shared morality loosens one of the bonds that hold a society together, and thereby threatens it with disintegration. Devlin proposed a public morality that, in certain situations, would override matters of personal or private judgment.

He argued that because an attack on "society's constitutive morality" would threaten society with disintegration, such acts could not be free from public scrutiny and sanction on the basis that they were purely private acts. In Devlin's view, homosexual acts were a threat to society's morality. In short, he maintained that legal intervention was essential to ensure both individual and collective survival, and to prevent social disintegration due to a loss of social cohesion:

Devlin believed that "the limits of tolerance" are reached when the feelings of the ordinary person towards a particular form of conduct reaches a certain intensity of "intolerance, indignation and disgust". If, for example, it is the genuine feeling of society that homosexuality is "a vice so abominable that its mere presence is an offence", then society may eradicate it.

Devlin's views evolved over time. In May 1965 he was one of the signatories of a letter to The Times calling for the implementation of the Wolfenden reforms.[18][19]

The American legal philosopher Joel Feinberg stated in 1987 that to a "modern" reader, Devlin's responses to Hart's arguments "seem feeble and perfunctory" and that most readers "will probably conclude that there is no salvaging Devlin's social disintegration thesis, his analogies to political subversion and treason, his conception of the nature of popular morality and how its deliverance is to be ascertained, or the skimpy place he allows to natural moral change".[20] Feinberg does allow that Devlin has an important challenge to liberalism in his formulation of an argument as to why we "treat greater moral blameworthiness ... as an aggravating factor and lesser moral blameworthiness as a mitigating factor in the assignments of punishment".[20]

Bibliography

  • Devlin, The Hon. Sir Patrick, Trial by Jury, Stevens & Sons, 1956, 1966
  • Devlin, Patrick, The Enforcement of Morals, Oxford, Oxford University Press, 1965, 1968
  • Devlin, Patrick, Too Proud to Fight, 1974 (biography of Woodrow Wilson)
  • Devlin, Patrick, The Judge, Oxford University Press, 1979, 1981
  • Devlin, Patrick, Easing the Passing, The Bodley Head, 1985

References

Notes

  1. ↑ Devlin, Patrick; "Easing the Passing", London, The Bodley Head, 1985
  2. ↑ "Obituary: Lord Devlin". The Independent. 10 August 1992.
  3. ↑ Devlin, (1985), p. 121.
  4. ↑ Devlin, (1985), pp. 167, 177.
  5. ↑ Devlin, (1985), pp. 167, 177.
  6. ↑ Devlin, (1985), p. 187.
  7. ↑ Devlin, (1985), pp. 180-1.
  8. ↑ Devlin, (1985), p. 178.
  9. 1 2 3 4 Cullen 2006, p. ?
  10. ↑ Ballot Box to Jury Box.
  11. ↑ C Baker, (1997). Nyasaland, 1959: A Police State? p. 23.
  12. 1 2 Times, 11 June 1985, p. 10
  13. ↑ Honoré, Tony (2004), "Devlin, Patrick Arthur, Baron Devlin (1905–1992)", Oxford Dictionary of National Biography (online ed.), Oxford University Press |access-date= requires |url= (help) (subscription or UK public library membership required)
  14. ↑ The Press and the People. London: The Press Council. 1968. p. 92.
  15. ↑ "Madeleine Devlin". The Times. 2012-04-13. ISSN 0140-0460. Retrieved 2018-04-06.
  16. ↑ "Maccabaean Lectures in Jurisprudence".
  17. ↑ “But study destroyed instead of confirming the simple faith in which I had begun my task; and the Maccabean Lecture... is a statement of the reasons which persuaded me that I was wrong.”
  18. ↑ "Law on Homosexuals", The Times, The Times Digital Archive (56318), p. 13, 11 May 1965, retrieved 20 July 2012 (subscription required)
  19. ↑ Robert CL Moffat, "“NOT THE LAW’S BUSINESS:” THE POLITICS OF TOLERANCE AND THE ENFORCEMENT OF MORA\ LITY" in Florida Law Review (2005) vol.57 p.1097
  20. 1 2 Feinberg, J. (1987). "Some Unswept Debris from the Hart-Devlin Debate". Synthese. 72 (2): 249–275. doi:10.1007/BF00413641.

Sources

  • Baker, Colin., Nyasaland, 1959: A Police State?, The Society of Malawi Journal, Vol. 50, No. 2.
  • Cullen, Pamela V. (2006), A Stranger in Blood: The Case Files on Dr John Bodkin Adams, Elliott & Thompson, ISBN 1-904027-19-9
  • Devlin, Patrick (1985), Easing the passing: The trial of Doctor John Bodkin Adams, The Bodley Head, ISBN 0-571-13993-0
  • Hallworth, Rodney (1983), Where there's a will... The sensational life of Dr John Bodkin Adams, Capstan Press, ISBN 0-946797-00-5
Media offices
Preceded by
George Murray		 Chairman of the Press Council
1964–1969		 Succeeded by
Edward Pearce
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