Former Master of the Rolls says ‘get rid of wigs in court’

LORD Dyson doesn’t appear in the least what you might expect a judge to be like. He’s youthful looking, belying his 76 years, not in the slightest bit severe and was in shorts when I interviewed him at his Middlesex home.

Perhaps this reflects his view that barristers wearing horsehair wigs “look ridiculous”.

“We got rid of the wigs in civil cases, thank goodness,” he sighs. “I was so pleased when we did that.

“I would get rid of them in criminal cases as well, but then I come to the conclusion that criminal lawyers are more conservative than civil lawyers, They are very wedded to their wigs.

“They say, ‘Oh well, you know this is more the local judges and circuit court.

“‘It means that when I go into the supermarket I can’t be recognised’.”

But, says Lord Dyson, that is ridiculous since 90 per cent or so of criminal cases are heard by magistrates.

“They don’t wear wigs,” he points out. “They’re local judges. They go to the supermarket. They run the gauntlet of meeting a defendant who appeared before them in the morning.

“I think it’s a pathetic reason to be honest. The other argument is that overall the public likes to see us dressed up in this way.

“I’ve no idea whether they do or they don’t, but as far as I’m concerned, get rid of them. I think a gown is okay, a simple black robe with some tabs or something.”

Perhaps even more controversially, he says he would dispense with wigs for judges, too.

They are no longer worn in the Supreme Court or for civil cases in the Court of Appeal.

Lord Dyson, an Oxford Classics’ graduate who at one time considered a career in the civil service, but changed direction to become a barrister, was, for four years, Master of the Rolls, the second most senior judge in Britain.

He tells his story in the recently-published Judge’s Journey (Hart).

Both on the bench and as an advocate he was involved in some high profile and hugely influential cases.

Two involved football and one, the emotive Hillsborough Inquiry involved the deaths of 96 Liverpool football fans during the FA Cup semi-final against Nottingham Forest in April 1989. A court case has been reopened.

Leeds-born Lord Dyson acted for the Football Association at the Inquiry.

There are aspects of our interview which cannot be reported because they could be considered prejudicial in the context of the ongoing case, but Lord Dyson has some strong views which in due course deserve airing.

He insists: “The FA should never have been there. It was because of the Liverpool fans blaming the FA for holding that match at Hillsborough for the second year running, to the disadvantage of Liverpool. It was ridiculous.

“The main role I performed was in the second part of the Hillsborough Inquiry, where I made a real difference in forming this little committee which put forward proposals for the future of football, like all-seater stadiums, really talking down Margaret Thatcher’s plan to have identity cards.”

Lord Dyson said he took “great pride” in the fact that he managed to persuade “this little group to come up with some sensible middle of the ground proposals. And Lord Taylor accepted all of them”.

He believes that Lord Taylor produced a “fantastic, good report, so quickly on the limited information that he had, and he got it pretty right”.

Acting again for the The Football Association versus the Football League, Lord Dyson could, in some way, be considered responsible for the birth of the Premier League, satellite television coverage of football and the billions of pounds pumped into the game.

The FA had become frustrated that the Football League was not making the most of commercial possibilities.

“I knew at the time this was a brilliant case because it was just so interesting. I knew it was a very important case,” recalled Lord Dyson.

He added: “I think it became apparent that they had hugely underestimated the commercial possibilities of this thing.

“It was legally and factually extremely interesting. And it was a great joy. I wish I had had more cases like that when I was at the bar because it’s nice to have an interesting case which you know is going to make a real difference.

“It was a bit surprising that they [the Football league] never took it any further, never appealed it.”

For someone who has little interest in football, Lord Dyson has nevertheless been involved in some interesting cases surrounding the sport.

As Master of the Rolls. he wrote the judgment on the issue of who should bear the cost of policing football — the club or the local authority.

This involved Leeds United who had refused to pay police.

“Initially,” revealed Lord Dyson, “I thought surely it must be Leeds because it’s their match and the local authority had to put loads and loads of policemen on Leeds Central Station, even though it’s a couple of miles from the ground.

“The more I thought about it, I thought it couldn’t be right, because you can’t start saying that everybody is responsible for an increase in the number of resources, say if you’re putting on a march.

“So if you have a little protest, the local police bring out a few more policemen who have to be paid. It’s part of society. It seemed to me the same should apply here.

“So we said Leeds had to pay for the provision of extra police within the curtilage of the ground. But anything outside there, they are not responsible.”

Lord Dyson these days has also been involved in Football Association disciplinary cases.

He was involved, too, in a football-related case which had strong ramifications for the right to privacy.

Sitting in the Court of Appeal in a case brought by then footballer Gary Flitcroft, Lord Dyson and his colleagues decided that the married Flitcroft had the right to demand that a newspaper did not publish material relating to his sexual dalliances.

“I'm not sure we got that decision right,” he admitted. “If he extols the virtues of being a happily married man and says ‘look at me, I’m a role model, happily married’, then he has put his fidelity and his private marital relations into the public domain.

“He can’t then complain if people start asking questions about that.

“If he’s trying to keep his private life absolutely private, people may think that he’s happily married but he just gets on with his life and says nothing about it then I don’t see why there is a public right to know that he’s actually having an affair with somebody.

“If they’re saying, ‘I’m not prepared to talk about my private life’ then the fact that they are having an affair with somebody I don’t think the public does have a right to know about.

“I think everybody has a right to privacy is a question of what the extent of that right is.

“The Prime Minister or the Queen will have a right to privacy. For example, not to have what they’re doing in their bedrooms photographed.

“And that applies just as much to people in the public eye as it does to ordinary people.

“But if people in the public eye choose to put their character into the public domain then they can’t complain if the media start challenging, poking, probing, to test whether the picture that they’re portraying of themselves, or seeking to portray, is a fair and true picture.

“Like so much in life and in the law, as I discovered, it’s all quite nuanced and so it should be. It’s not black and white. Lots of greys here. People in the public eye probably do have a right to privacy.”

He recalled former Daily Mail editor Paul Dacre once telling him that what interests the public is in the public interest.

Lord Dyson is a strong advocate of the jury system — 12 good men and true — and became the first judge actually to sit on a jury when the law changed to allow it.

“I think on the whole it does work pretty well even though how they get to a fair result in some way might be a bit hair-raising,” he said.

He describes his own experience in the book, adding that in part he found it very unsatisfactory because he was being party to a decision with which he fundamentally disagreed.

“My fellow jurors were reaching that conclusion in a way in which I thought was completely impermissible in the light of the correct directions that had been given to us by the judge,” he said.

“That experience really was just consistent with what I saw as a judge.

“There were occasions when juries produced decisions which were plainly perverse in the sense that they couldn’t really be rationally justified on the evidence that they’d heard, but one could understand why they’d reached those decisions for reasons of a broader sense of justice.

“Sometimes juries produce decisions which I as a judge, if I had been deciding it, having to write a judgment, could not have written a judgment to that effect.

“But against that, I have been hugely impressed with the care that juries show in the way they approach these things. They take it very, very seriously.

“I do remember as a judge in some really difficult cases where you had to decide basically who is telling the truth and you didn’t have much to go on, you didn’t have documents to help you as you have in civil cases.

“You really just had what the witnesses said, your commonsense and your understanding of humanity really and I thought to myself ‘I’m so pleased I do not have to make this decision’.

“I felt much more comfortable that the decision was being taken by 12 people or at least 10 of the 12. And I think they nearly always get it right.

“Sometimes they go a bit haywire and you have the possibility of an appeal, but on the whole I think it’s a good system.”

He believes that sooner or later cameras will be allowed in court for most cases, but not those involving children or vulnerable witnesses.

“In principle, I don’t have objections to cameras in court,” he says.

There is already filming of proceedings in the Supreme Court and the Court of Appeal too.

“That's good as far as I’m concerned. I am in favour of openness and transparency.” he continues.

“I know that there are quite a lot of lawyers and judges who feel pretty queasy about having cameras in court where you have witnesses and I don’t think I’d share that concern.

“Courts are open places. People have a right to know what’s going on in a court. Proceedings are described by journalists much less now because we have fewer journalists in court.”

He did admit that there is the fear of witnesses playing to the gallery.

“I think I would take a chance on the odd barrister or witness playing to the gallery,” he said.

“I just can't help thinking that this will happen sooner or later.

“I think people need to know what goes on in court. And so I’m a bit less cautious than some of my colleagues.”

Lord Dyson is dismissive about swearing oaths on the Bible, insisting: “I don’t think that the fact that someone swears an oath on the Bible is going to mean that person who would otherwise have told a lie will tell the truth.”

He is highly complimentary of the Israeli legal system, having sat in on cases in the country’s Supreme Court a number of times.

He describes the quality of the judges as “extraordinarily high. In my view, they are fiercely independent of the government and they are very proud of being independent.

“They hear cases brought by Palestinian Arabs which succeed, but the court is coming under increasing pressure from an increasingly right wing government,” observed Lord Dyson.

He recalled a case about the positioning of the security fence that protects Israel from the Palestinian territories.

“What was so impressive was the care and attention to this. I can’t remember what the outcome of the case was. The point was that they were really getting down to it.”

Lord Dyson gets “so angry” hearing Israel described as an apartheid state, regarding it as “a grotesque allegation”.

Lord Dyson, who has never experienced any real antisemitism throughout his career, says he has “a hunch” that many casual antisemitic remarks are no more than that.

“They’re not born of some sort of deep-seated hatred of Jews,” he said. “It’s just that people do fall into the way of making these casual remark, They are to be deprecated, of course. They are hurtful.”

He writes in his book: “I felt slightly awkward about revealing the fact that I was a Jew in non- Jewish company.

“In recent years, since I have climbed to the top of the judicial ladder, and the fact I am a Jew has become well-known, this feeling has largely evaporated.

“I am now rather ashamed to admit my previous sense of awkwardness.”

He says that Judaism has been a core part of his identity and he has always belonged to a “moderately Orthodox” synagogue.

Reflecting on his career, he says: “I’ve been incredibly fortunate in having really stumbled into a career, which really was brilliant for me, both as a barrister and as a judge. I found the law fascinating.”

He describes his wife Jacqueline as “a proper lawyer because she read law at university as I didn’t”.

Before the birth of their children, she was employed by the then Inland Revenue.

“I was a bit sniffy about law to start with,” said Lord Dyson. “It wasn’t really that interesting but certainly once I became a judge I got more and more interested in the law which permeates so many aspects of our lives.

“The whole idea of establishing rules by which to govern behaviour and so on, sorting out how to resolve disputes when people fall out, I just found it absolutely fascinating.

“I loved being a barrister. I enjoyed the challenge of civilised warfare, trying to win cases, persuading judges, cross-examining witnesses. I love the excitement of it all.

“And I think probably even better for me was being a judge because I just found that so satisfying just to sort out problems in a way I hope was fair and sensible.”

He was also delighted to have had the opportunity to play a small part in the development of laws, particularly the Human Rights Act.

Lord Dyson may have officially retired, but he remains as busy as ever.

At the age of 73, he became an arbitrator, working out of chambers again.

“So here I am at the age of 76 and I’m still excited and buzzing along,” he enthuses.

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