Speech for the Law Society of Jersey Dinner
– 20 September 2024

Your Excellency, Mr Bailiff, Lieutenant Bailiffs, my Lords, Ladies and Gentlemen. It is an honour to speak before you at this evening's Law Society dinner marking the occasion of the Assise d'Héritage and the Opening of the Legal Year in Jersey – and of course we celebrate the 125^thanniversary of the Society as well. 

The Assise is a ceremony steeped in rich tradition, with its roots tracing back to 1309. Outside the Channel Islands, it is the oldest land court where the attendance of the seigneurs to acknowledge their fealty to the monarch is required, and when the members of the Bar renew their oaths. It underscores the deep historical ties and the enduring commitment to justice that are upheld and respected here in Jersey.

There were some irritatingly good jokes on display this morning as well. I am spoilt for choice. But let me select one from the Attorney General's speech – when he spoke about the fact that time spent in X's company that could make one's last minute seem like an eternity. Because it reminded me of an early experience in office when my career seemed doomed to be, by contrast, very short-lived. I took up office on 1 October. I was sworn in on 2 October. At 0956 on 9 October, I received the following email from IT which read along the following lines:

"We have been informed that your employment has been terminated. Please return your computer and MIFI to IT by 4pm on 13 October. In any event, your email account will be discontinued at the end of the month."

And there I was thinking that week one had gone quite well.

Anyway as I prepared for this visit, packing my raincoat but negligently not a swimsuit, I wondered whether I also needed to bring a spare empty suitcase. It has long been the tradition that the sovereign when visiting is presented with two dead ducks. We have seen the tradition in full swing only this July although I understand that, in a nod to modernity, His Majesty was in fact presented with two ducks' eggs – as well as seven wonderfully-named Jersey heifers; Duchess, Oakley, Jordanne, Isis, Blandish, Jemini, and Christella. I, of course, need not have worried. I have been treated simply not only to this morning's magnificent ceremony itself, but also to a host of further historic, visual and gastronomic delights – accommodated at the Government House, treated to the finest fare and of course visits to La Hougue Bie with the Catillon II coin hoard, and the Hamptonne Country Life Museum. I am looking forward to a tour of the island itself tomorrow – and by the way I have now purchased a swimsuit. Thank you for your exceptional and generous hospitality, including this evening in such gracious surroundings. It has been a welcome opportunity to learn more about your judicial system and history. It is clear to me that, whilst our systems are so different, we nevertheless share many areas of common interest, ranging from transparency and press reporting to diversity.

The tradition of Jersey agriculture dates back to 26 August 1833, when the Lieutenant-Governor chaired a meeting in St. Helier agreeing that the founding of an Agricultural and Horticultural Society would be "highly desirable" for the island. May I too venture back to the 19^thcentury – but do not worry, not to discuss agricultural policy. Rather, I want to talk about moral courage in the law.

Today, this manifests itself in Rule 5 of the Law Society of Jersey's Code of Conduct, which provides that advocates have to act in the best interests of each client, promoting their interests fearlessly by all proper and lawful means. This may seem trite to us all – that advocates have to act in the best interests of all their clients – without fear or favour. But this principle has not always been apparent.

Some examples. Let us first consider the case of Thomas Paine in 1791. Britain was in the grip of revolutionary fervour. The French Revolution had taken place only two years prior. George III was in the throes of his madness and the unpopular Prince Regent was ruling – dubbed by the press as the Prince of Whales – with the emphasis on the 'h' in Whales – on account of his weight. In the context of these turbulent times, Thomas Paine published "The Rights of Man", arguing against monarchies and traditional social institutions. He sold an unprecedented million copies.

Unsurprisingly, this went down like sour milk with the establishment and Paine was promptly put on trial for sedition. If there were to be a trial, he needed defence counsel. Step forward Thomas Erskine, the future Lord Chancellor. Erskine at the time was very much part of the very problem against which Paine's book had railed: he was Attorney-General to the Prince of Wales; one might have thought that declining the brief would have been in Erskine's best interests.

But neither pressure, self-interest nor his own personal views of Paine and his seditious thoughts were of relevance to Erskine. He took the brief. In doing so he had this to say during the trial.

'I will for ever, at all hazards, assert the dignity, independence and integrity of the English Bar, without which impartial justice, the most valuable part of the English Constitution, can have no existence. From the moment that any advocate can be permitted to say that he will, or will not, stand between the Crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end. If the advocate refuses to defend, from what he may think of the charge or of the defence, he assumes the character of the Judge. . .'

What he said was not just eloquent. It was brave. It was not said in the abstract. Nor at a time when words bore little consequence. Erskine lost his position with the Prince of Wales. He might have lost a lot more. If he had succumbed to the pressure or placed his own views of Paine and what he stood for above his commitment to secure impartial justice, he would have lost much more than his position, his reputation or his future wealth and security. As he put it, he would have lost his character – he would have ceased to be a barrister.

Fast forward thirty years. The previously unpopular Prince Regent is now George IV and attempting to divorce his wife, Queen Caroline. As was the custom at the time, her trial for adultery was held in the Houses of Parliament. At the time, adultery against the King could easily become High Treason – Queen Caroline was fighting for her life as much as her position and honour. She ultimately chose Henry Brougham and Thomas Denman, both members of the House of Commons, to be her defence counsel. Denman later became Lord Chief Justice – one of my predecessors. But it is Brougham, appearing in the House of Lords, who is our focus this evening.

The trial, depicted in a brilliant painting by George Hayter now in the National Portrait Gallery in London, took place in the House of Lords in front of hundreds of peers. Brougham made a remarkable statement about the advocate's obligation to his client,

"I must not regard the alarm, or the suffering, the torment, or even the destruction I may bring upon another – nay, separating the duties of a patriot from those of an advocate, I must go on, reckless of the consequences, though my fate should be to involve his country in confusion and conflict."

The "another," of course, was the King – a not-so-veiled threat by Brougham. Much later, in his memoirs, Brougham confided that he had been prepared to raise not only the issue of "crimination" (revelation of the King's affairs) in Queen Caroline's defence, but also to try and remove the crown from the King through impeachment, because of his (actually invalid) marriage to Maria Fitzherbert.

The example of Brougham illustrates vividly the moral courage required of advocates. His actions underline the advocate's duty to promote the client's interests even if, in that case, it meant challenging the most powerful individual in the land and potentially plunging the nation into turmoil.

And so, what do Brougham and Erskine tell us about advocates and lawyers today? Moral courage continues to be a practical necessity, not just a theoretical concept. As legal professionals, we must set aside personal views and prejudices to ensure justice is served. This is particularly relevant in our judiciary, where impartiality and integrity are paramount. Judges and advocates must support each other, maintaining vigilance and courage, especially when challenging situations arise.

Back in 1205, just after Jersey and the other Channel Islands opted to stay with England under King John, Magna Carta was sealed. Chapter 45 of Magna Carta, one of the less well-known parts, emphasised the necessity of appointing judges who not only knew the law but observed it well. This principle is enshrined in our judicial oath, which commits us to doing right to all people, without fear or favour. Evidently, this is a principle that echoes through history – both for the bar and the bench. It can be seen, as discussed, in Rule 5 of the Code of Conduct for Advocates; but also, at Rule 11 of the Judiciary of Jersey Members' Code of Conduct, which states that:

Members of the judiciary shall carry out their duties according to the dictates of their conscience, objectively and without fear, favour or partiality, and in keeping with the laws and customs of the Island.

Moral courage – whether at the Bar or on the Bench – therefore, is, and always has been, a cornerstone of our legal system, requiring us to make decisions based on justice and integrity, often in the face of significant pressure and potential.

It might be thought that moral courage might not be as important a feature today as it once was in the past. Direct command by the Crown to a judge may not be an issue. However, we live in a world where pressure can still be brought to bear in many subtle – and sometimes not so subtle – ways. The 2016 press coverage of the Brexit litigation, which culminatedin R (Miller) v Secretary of State for Exiting the European Union, is indicative of this. The judges in the Divisional Court were referred to as 'Enemies of the People' in the national press and there was discussion of marches on the Supreme Court. Before that, during the period when super-injunctions were causing headlines, suggestions were made in Parliament that judges should be threatened with imprisonment for making such orders.

It would be odd to suggest that these were not attempts to put pressure on the judiciary. More overt pressure is evident in other jurisdictions. A particularly telling one was the campaign called 'Jail 4 Judges'. This was a campaign in the United States, the aim of which was to intimidate judges so that they decided cases in line with the campaigners' views.

It is true to say that judges have to have broad shoulders – they must take a robust approach to such matters and not allow themselves to be swayed by campaigns, the media or their own personal views. But judges do not simply obtain the moral courage necessary upon appointment. There is no secret sauce in the judicial oath in that respect. Rather moral courage is something that judges and magistrates develop in their careers before appointment. Where one looks at the moral courage of the judiciary, they look at the moral courage of the advocates they were before. Wordsworth once said that the child is father to the man. It can properly be said that the advocate, the lawyer, is father, is mother, to the judge.

What unites the legal professions and the Bench is the importance of defending justice fiercely and fearlessly – whether this is against political pressure for clients or against the decisions we make. But in this pursuit of moral courage, we must remember that it is our actions that define us. To borrow the words of a former Governor of Jersey – Sir Walter Raleigh: "Talking much is a sign of vanity, for the one who is lavish with words is cheap in deed." Both lawyer and judge must not only talk the talk, they must walk, the walk. It is only when we do that we secure justice for all.

Thank you.