Book Review
Sir Geoffrey Nice, QC, Justice for All and How to Achieve It, Scala Arts and Heritage
Publishers Ltd, London, 2017, ISBN 978-1-78551-123-3
1 Justice
for All is an eclectic mixture of
memoir, history, ethics, politics and jurisprudence from one of England’s
foremost criminal QCs. It comprises 17 chapters and two appendices, the former
being taken from a series of Gresham lectures Sir Geoffrey gave to an audience
of practitioners, academics and interested laymen.
2 It is an easy
book to read, but a difficult book to review. Largely because each of the
chapters was designed as a standalone lecture for a mixed audience, it is one
that can be dipped into at leisure.
3 Its
centrepiece is Sir Geoffrey’s experiences as a lead prosecutor for the
International Criminal Tribunal for the Former Yugoslavia (“ICTY”),
followed by other historical examples of the difficulty in upholding the rule
of law in theatres of war or in states of emergency. The Israel Palestine
conflict looms large. The question posed is how justice can be done in what is
for law quite extreme conditions—and how justice can be all when
manifestly international tribunals are created for some defendants and not
others. Sir Geoffrey’s review of the selection of conflicts and
defendants reminds us (p 12) of Robin Cook, MP (later praised for his
principles) who stated that the International Criminal Court itself was
“not a court set up to bring to book prime ministers of the United
Kingdom or presidents of the United States”.
4 The difficult
questions posed in these chapters is first as to whether justice is possible
when international politics determines which countries should face inquiry. Secondly,
how can judges and lawyers in an international criminal justice system do
justice when there is a lack of organisational independence from politics that
we in the wider British legal family take for granted? Sir Geoffrey had a front
row seat when the ICTY appointed a Chief Prosecutor, Carla Del Ponte, who
preferred to live in the political limelight. One moment she wanted procedure
ignored against Milosevic; the next moment Western political interests wanted
Kosovan leaders prosecuted for crimes against Serbs. Amid this fascinating tale
from the heart of major world events, Sir Geoffrey’s message is that a
lawyer is never too old to ring up his or her professional body for ethical
guidance; and that this simple step is often the most powerful weapon lawyers
have in holding firm to their duty to do justice.
5 The book
proceeds into a further question of justice: can the law do justice to peoples,
to recognise their collective victimhood in matters of genocide? Again, Sir
Geoffrey has much to offer from the frontline of the Milosevic prosecution, and
the links between the Serbian Government and Bosnian-Serb forces in Srebrenica.
Although not in his professional experience, he relates how non-official
tribunals such as the Bertrand Russell Tribunal on Vietnam (ch 6) or the
Japanese “Comfort Women” Tribunal (ch 7) have sought to use
legal method to highlight guilt for war crimes in other theatres. Whatever the
merits of such tribunals—and Sir Geoffrey acknowledges that such efforts
are often undermined by obvious political biases—they have a legacy in
bringing events firmly into historical memory, even if the informal tribunals
themselves have been largely forgotten.
6 As might be
expected of a book drawn from a lecture series, the earliest chapters are the
strongest. The title perhaps over-promises: Justice
for All: and How to Achieve It. The subject matter drawn from personal experience
and personal interest lacks the clear thread of a treatise—something that
matters less when delivering weekly lectures to a changing audience. The
political selectivity of international prosecutions creates different issues
from the political corruption of actual prosecutions. Justice for individual
victims against the acts of individual criminals is theoretically
straightforward. But justice for a people in terms of a finding of genocide (ch 12,
“Srebrenica: Genocide and Trial”) involves questions of motive—whereas
the point of the law of war is that some things are simply wrong regardless of
context.
7 It is in the
Israel/Palestine conflict in Gaza that Sir Geoffrey faces the problem of how
the law can sit in judgment on combatants if the objection is that their use of
force is disproportionate or unjustified militarily. If Israel believes it is faced
with an enemy which would push them into the sea, and Hamas believes it is faced
with an enemy that would imprison the population forever in Gaza, how can the
process of justice realistically say who is right (ch 13)? Tellingly, the
writer returns in ch 14 to a case where no such issues arise in the Gaza
conflict, namely, the mistreatment of passengers on the MV Mari Marmara when it was stopped and boarded by Israeli forces en route to Gaza. The requirements of
justice are easier when we limit ourselves to wrongs by and against particular
individuals.
8 The final
chapters on “Human Rights: Whether in Europe or Out?” and
“Law and Lawyers: Not all Bad?” are essentially liberal editorial
pieces—although with notably greater attempts at balance than can be
found with a post-judicial Lord Steyn article. It perhaps sums up the
difficulty that lawyers have in writing a book which is not wholly academic: lawyers
tend to have strong political and moral views, but writing as a lawyer requires
a display of objectivity. If the lawyer breaks wholly free from law into
polemic, then what special insight does he offer? Caught in this no-man’s
land of wanting to set out what he has learned as a lawyer, but also what he
believes as a liberal thinker, Sir Geoffrey ends with a postscript that says
that “Justice for All” can be achieved through regard to diversity,
which he sees as a celebration of difference defined by certain characteristics
such as race, gender and sexuality.
9 It is a
provocative idea—and veers away from the celebration of the uniqueness of
the individual, which was where he appeared to be heading when he talked about
how his public school kept a Welsh Communist teacher in post for no other
reason than he was a good teacher (pp 286–287). Fortunately, the
matter is revisited in the appendix concerning Sir Geoffrey’s connection
to Jersey.
The Jersey connection
10 For a Jersey
lawyer, there is a particular interest in this book in that Sir Geoffrey was
the judge in Michel v Att Gen,[1] where a
conviction was overturned by the Privy Council due to what it found to be his
injudicious conduct. Sir Geoffrey offers a vigorous defence. The Michel case forms four pages of the main
part of the book. The writer’s complaint is that the Privy Council
condemned his conduct of the trial not just in terms of asking too many
questions but in being downright offensive. He was (p 88) “condemned
as the worst known form of judge”. As the finding was by the highest
court, the alter ego of the UK
Supreme Court, there was no redress. Sir Geoffrey returns to the subject at
greater length in Appendix 2, which closes the book.
11 Having
previously read only the Privy Council decision, I should start by confirming
Sir Geoffrey’s worst fears as to the impression given of him. My
impression was that, tired of a villain (Michel would plead guilty at the
retrial) wasting the court’s time by pleading his innocence, it seemed as
if Judge Jeffreys was alive, well and trying financial crime in the Channel
Islands. When teaching judicial independence to LLB students, I have used the Michel
case as a rare example of
actual bias. I will be kinder in future. Sir Geoffrey’s defence is that
his lengthy questioning of Mr Michel from the bench reads much worse than it
actually was. The written transcript looks damning but the recording shows that
it was not offensive—a possibility the Court of Appeal allowed for but that
the Privy Council left unmentioned. He argues that the defence lawyer for Mr
Michel’s co-accused has never seen anything wrong with his handling of
the trial, and, apart from one criticism by Mr Michel’s own advocate, no
one raised such issues at the time. The case for the judge’s defence is
not that he necessarily handled the trial well but he was doing his best. He
had not been trying to damn Mr Michel’s defence, but rather Sir Geoffrey
and Jurats (p 322) “did not find the prosecutor or counsel for
Michel to be raising all the issues we felt should have been raised.”
12 Sir Geoffrey
Nice’s Appendix on Jersey is in many ways the making of the book.
13 It is only
with the Appendix on Jersey that Sir Geoffrey comes to the real lesson. It is
an obvious lesson. It is much repeated in history and literature. It is the
lesson that Squire Alworthy teaches in Tom Jones: never to condemn
someone without giving them a chance to explain themselves. Never lose sight of
the individual who might be affected by your words and deeds: they may not
deserve it. This is not to say all of the arguments are convincing: (a) I am
far from sure it was right for Sir Geoffrey to write to the Privy Council
judges to complain—and I doubt if the Jersey policemen criticised by the
Privy Council in Warren v Att Gen[2] would
have even received a reply if they had; (b) his suspicion that he was
scapegoated as an outsider to Jersey is weakly evidenced—it was the role
of counsel on both sides in the appeals to put their cases as best they could,
not to protect the reputation of the judge; (c) without Sir Geoffrey’s
handling of the trial there would have been no ground to overturn the decision
in the first place—scapegoating is surely about shifting the blame; and
(d) a judge should never conduct a trial so that the prosecution makes a
professional judgment not to defend the handling but to concentrate on the
argument that the defendant was obviously guilty. However, and this is the
important thing for the book, his basic point is sound. There was no need for
the Privy Council’s rhetorical polemic against Sir Geoffrey’s
handling of the case—which sits in stark contrast to the remarks of the
House of Lords when overturning the original Pinochet decision due to
Lord Hoffmann being obviously conflicted. Both the Court of Appeal and the
Privy Council could justly conclude that the trial had been mishandled—but
there is nothing unusual in judges lapsing into error. Convictions are
overturned all the time due to judicial error. What the Privy Council should
not have done was to paint a picture of the judge as a latter-day Judge
Jeffreys when they knew nothing about him.
14 In an age
where people rush to judgment by way of Twitter-storms, and ruin careers on a
single quote, refusing to listen to apology, explanation or mitigation, these
are important lessons. These are lessons which we always need to relearn—both
professionally and in our daily lives. The problem is the one that bedevils
human rights: we all agree with the principle but we are often so certain we
are right that we lose sight of it when our own conduct is in issue.
15 For the Privy
Council in Michel, a nice rhetorical
flourish to stress the need for judicial independence casually used the judge
and his reputation as a means to an end. In our adversarial system, lawyers
inevitably treat witnesses in that manner. But achieving justice for all means
that, in the final judgment of the law, the court asks what has really been
proven before reaching a conclusion on the defendant, the victim, the witnesses,
or even the judge.
Conclusion
16 This book
generally contains much that is interesting, as is inevitable insofar as it
provides a memoir of the professional life of such a distinguished lawyer. For
those interested in the former Yugoslavia, it includes much that will be an
education. For a Jersey reader, the book makes an interesting and important
revision to our understanding of an important recent case. It is salutary both
in terms of making us realise that Jersey’s “Case of the Guilty
Judge” was not as clear cut as the Privy Council led us to believe, and
also in terms of how far even a distinguished career can be blighted by one bad
episode.
17 In terms of
the author’s reputation, the reader is left in no doubt of the injustice
of judging him by the Michel case
alone. However, if the author looked at the company he keeps in being invited
to give Gresham lectures, he should know that the damage to his reputation in
the British legal profession was never that bad.
Dr
Dennis Dixon is a Legal Adviser at the Law
Officers’ Department, Jersey, and an Advocate of the Royal Court of
Jersey.