Even when you do the right thing, it is still wrong

By NHChan

The other day a friend asked me this question: How is it that some of our judges do not seem to know what is the right thing to do, when all of us know what is right or wrong? I was flabbergasted by the question. It was such a simple question, yet I couldn’t give her a direct answer immediately. I just looked at her and shrugged. It was only much later when I got home that I remember what I have read (you joined the Inns of Court to read law, not study law) as a law student some half a century ago – the case of Dudley and Stephens.

We know it is wrong to kill a human being for food in order to survive although necessity is a defence to the charge of murder.

I shall recount the saga of Dudley and Stephens from Lord Denning’s at Next in the Law, Butterworths, London, 1982, pp 48, 49:

I turn now to a case’ where a judge took away from a jury their right of giving a general verdict of ‘Not Guilty’.
The crew of an English yacht, Mignoneue – three men and a cabin boy – were castaway in a storm 1,600 miles from the Cape of Good Hope and were compelled to put off in an open boat. No water. No food except two one-pound tins of turnips. After four days they caught a turtle. After twelve days they had nothing to eat. On the twentieth day the three men decided for the sake of their families to kill the boy. They said a prayer, killed him, and fed on his body and blood. Beyond doubt they would all have died if they had not kill the boy. As it was, four days later they were sighted by the barque Montezuma. They were picked up almost dead. The Montezuma took them and their boat to Falmouth. On landing there they immediately told the whole story to the Customs officers. The men thought they would be able to return home the same night. But no. They were arrested and charged with murder. They were kept in prison and brought before the magistrates.
Counsel for the Treasury knew that his weakest case was against one of the three, Brooks, who had not actually agreed to participate in the murder. He asked the Falmouth Bench to discharge Brooks so that he might be called to give evidence, and the Bench complied. He asked for the other two, Dudley and Stephens, to be committed for trial for murder. Their counsel asked for them to be let out on bail. He quoted that great criminal judge, Mr Justice Stephen (on the Laws of England (1st edn, 1841) p 101) :

“Homicide is also justifiable from the great universal principle of self-preservation, which prompts every man to save his own life preferably to that of another, where one of them must inevitably perish.”

The magistrates let them out on bail. The decision was received with applause in a crowded court. The men were the objects of intense public sympathy.

I asked Maria – the granddaughter of my wife’s sister who is living with us – “Is it wrong for shipwrecked sailors to kill and eat a shipmate so that they might be able to survive?” She replied, “You don’t kill and eat one’s shipmates so that you can survive. I’d rather die than to do that.” I asked, “Why do you think it is wrong?” She answered, “To know what is right or wrong is in a person’s upbringing.” What a shrewed perception from a thirteen year old, Of course she was right – we do not commit murder to survive. I agree with her and so did Baron Huddleston below, and so did Lord Chief Justice Coleridge and the other judges of the Queen’s Bench who sat with him: see further below. She is certainly in good company.

Since necessity is a defence to the charge of murder, it is wrong for a judge to take away from a jury their right to give a verdict of ‘Guilty’ or ‘Not Guilty’.

I shall now return to the story as told by Lord Denning, supra, pp 49-50:

The two men were tried at the Assizes at Exeter. The judge was Mr Baron Huddleston. (The title ‘Baron’ was given to the judges of the Court of Exchequer. The judges were not peers and the title ‘Baron’ was equivalent to that of ‘Justice’. The phrase ‘Mr Baron …‘ was often used just as in other courts ‘Mr Justice …‘) Mr Baron Huddleston took a course which had not been taken for nearly 100 years. He had formed a clear view that the men were guilty of murder. He directed the jury that it was murder, and told them they would have to obey his direction. In this he was wrong. It is the right of every jury to give a general verdict of ‘Guilty’ or ‘Not Guilty’. But he suggested to them that, instead of finding the men guilty of murder they could find a special verdict, that is, set out all the facts and ask the Court of Queen’s Bench to say whether it was murder or not. That is what the jury did. Mr Baron Huddleston himself drew up a statement of the facts.

That was his undoing. By so doing, that is, by asking the jury to find a special verdict instead of leaving it to them to give a general verdict of “Guilty” or “Not Guilty”, Baron Huddleston had angered the general public. But what was so wrong that it made the people angry with the judge? It was wrong because the judge took away from a jury their right to give a general verdict of ‘Guilty’ or ‘Not Guilty’.

David Pannick described it in his book Judges, p48:

So anxious was he [Baron Huddleson] to ensure the conviction of the defendants, and so concerned was he to deny the jury an opportunity to acquit them, that he persuaded the jury to adopt the unusual device of entering a ‘special verdict’, stating the facts of the case, concluding that as to whether these facts established the offence of murder ‘the jurors are ignorant’, and leaving it to a Court of the Queen’s Bench

Division to rule on that issue.

Now, I return to Denning’s What Next in the Law, p 50:

The case was argued before Lord Chief Justice Coleridge and four other judges, including Mr Baron Huddleston himself. They all held that the men were guilty of murder and sentenced them to death. Their finding was supported by all the eloquence at the command of Lord Coleridge.

But the eloquence was to no avail. It “did not receive universal acclaim even in Victorian England” said Pannick in his book, above, p 49, “The Daily Telegraph leader writer cynically observed that judges were perhaps not ideally suited to lecture their fellow human beings on acceptable conduct in conditions of extreme deprivation”.

I append below Lord Denning’s comment in his book, above, p 50:

None of that eloquence [of Lord Coleridge] satifies me that the judges were right. I think that Mr Baron Huddleston ought to have left the decision to the jury without directing them that the men were guilty of murder. He should have left it to them to say whether the men were to be excused by the extreme peril in which they were placed. I have no doubt that, left to give a general verdict, a Devon jury would have found the men ‘Not Guilty’.

Subsequently, Dudley and Stephens were reprieved by Queen Victoria. Their death sentence was reduced to six months’ imprisonment instead. The moral of the story is this: if judges are insensitive to the universal acclaim of the general public, then they might provoke an unexpected reaction from the people.

The next story is a clear example of what I have just said, and it involves the great Lord Mansfield who, as all lawyers know, was one of the great judges of the common law. In fact he was reputed to be the father of the commercial law as we understand them today.

Although Lord Mansfield was morally right, he took the wrong step by ignoring the law of the land

For an account of what caused the Gordon Riots see Lord Denning’s What Next in the Law, pp.23,24:

The greatest tragedy that befell Lord Mansfield was in the Gordon Riots of 1780.

One of the subjects on which he had always shown his enlightened views was that of religious toleration. . . . But he was in advance of his time. On one occasion the City of London elected a man as sheriff They knew he was a dissenter and would not serve. They imposed a fine on him for not serving. Lord Mansfield held that the fine was invalid. It was a piece of persecution. He said:

“Temporal punishment ought not to be inflicted for mere opinions with respect to particular modes of worship.”

The City was so upset that many regarded Lord Mansfield as ‘little heifer than an infidel’.

On another occasion a Roman Catholic priest had said mass contrary to the law of the land. He was tried before Lord Mansfield and a jury. He was undoubtedly guilty as the law then stood. But Lord Mansfield summed up for an acquittal. His final words to the jury were:

“Take notice, if you bring him in guilty the punishment is very severe; a dreadful punishment indeed! Nothing less than perpetual imprisonment !“

The jury found a verdict of ‘Not Guilty’: but many zealous Protestants were scandalised. Rumours were spread abroad that the Lord Chief Justice was not only a Jacobite but a Papist, and some even asserted that he was a Jesuit in disguise.

Lord George Gordon then led the cry of ‘No Popery’ and stirred up the people to violence. The great object of vengeance was Lord Mansfield. The mob marched on his house in Bloomsbury Square. The magistrates wished him to call in the soldiers to defend him. But he refused. The multitude came on, carrying torches and combustibles. They began to batter his front door. He then escaped with his wife through the back door. They burnt his house and all that was in it. His precious library went up in flames.

At p. 25:

The insurrection was quelled. Lord George Gordon was tried for high treason. Lord Mansfield presided at the trial with a jury. Nowadays we should have considered it undesirable, lest he be thought to be prejudiced against Gordon. But Lord Mansfield tried the case with perfect propriety. Erskine defended Gordon. The defence was that Gordon himself had no hand in the violence. It was the ‘lawless herd, with fury blind’ who did it. The jury acquitted Gordon. It was the best thing that could happen.

According to Lord Bingham (see The Sultan Azlan Shah Law Lectures, Bingham: The Law as the Handmaid of Commerce, p. 367):

…..that although Mansfield has left a generally golden reputation behind him, he was in his day the subject of sustained personal vilification perhaps never suffered by any other judge in any place at any time. I refer to the anonymous Letters of Junius, some of which were addressed to him personally and attacked in the strongest terms his partial and pro-government approach in particular to libel trials. During the Gordon riots of June 1780 his carriage windows were smashed by the mob, he was hustled as he left the House of Lords, his house in Bloomsbury Square was burned and his library destroyed. In comparison with penalties such as these the strictures of the press to which the modem judge is exposed may seem a somewhat moderate affliction.

The great Lord Mansfield sewed as Chief Justice for 32 years.

When I tried Mr Param Cumaraswamy for sedition, I applied the law of the land and called for his defence and I was severely criticised by the international press. But when I acquitted him at the end of the trial, I must have done the right thing because the Attorney-General did not appeal

The trial of Public Prosecutor v Param Cumaraswamy [1986] CU (Rep) 606 was a famous Malaysian example of judicial independence. As you know Mr Cumaraswamy was prosecuted for the offence of sedition. The part which I am going to read is at pp 619-621 where I said, as the trial judge:

Lord Denning (in Freedom under the Law, p 36) has said that “the line where criticism ends and sedition begins is capable of infinite variations. This is when the practical genius of the common law shows itself. The line between critcism and sedition is drawn by a jury who are independent of the party in power in the State”. Lord Kenyon has quaintly said, “a man may publish whatever a jury of his countrymen think is not blameable.”: I have taken the quotation [Lord Kenyon’s] from the speech of Fitzgerald J in R v Sullivan (1868), 11 Cox’s CC 44, 50.

Lord Denning (at p 39, supra) gave an example where the value of a jury is most clearly seen. He referred to the celebrated case of John Miller (1770) 20 State Trials 869 who had printed in his paper The London Evening Post an open letter addressed to King George III by Junius. The government could not identify Junius, and so it prosecuted Miller, the printer, for seditious libel in 1770. To quote from Lord Denning (supra, pp 39, 40): “Lord Mansfield directed the jury that the question of libel or no libel was a matter of law for the Judge, and that the jury was only to decide whether the paper was printed and published. In as much as the paper was obviously printed and published, that direction was in effect a direction to the jury to find Miller guilty. But the jury stood out even against that great Judge.” The jury ignored what was virtually a direction to convict and found Miller Not Guilty. In 1791, Charles Fox proposed a Bill which was seconded by Erskine in the House of Commons which became the Libel Act 1792. The Act says that it was the jury, not the Judge, who has finally to decide on whether a libel was seditious. “A jury may always give a general verdict of guilty or not guilty: and no judge can take away that right from them. Parliament has so declared it.” – said Lord Denning, supra, at p 40.

In this country, we do not have a jury for the trial of sedition cases. Nor do we have

Fox’s Libel Act. But we do have independent judges. The line between criticism and sedition is drawn by a Judge who is indepenent of the party in power in the State. Who cay say which is better – jury or independent judge?

This is what Lord Denning said about the independence of the Judges as being the keystone of the rule of law in The Family Story, at pp 191, 192:

“The keystone of the rule of law in England has been the independence of the Judges. It is the only respect in which we make any real separation of powers. There is here no rigid separation between the legislative and the executive powers, because the ministers, who exercise the executive power, also direct a great deal of the legislative power of Parliament. But the judicial power is truly separate. The judges for nearly 300 years have been absolutely independent. And when I speak of Judges, I include not only the High Court Judges, but also all the Magistrates and others who exercise judicial functions. No member of the government, no member of Parliament, and no official of any government department, has any right whatever to direct or to influence or to interfere with the decisions of any of the Judges. It is the sure knowledge of this that gives the people their confidence in the judges, and I would add also the chairman of tribunals when they are independent of the executive, for then they too are judges. It does not depend on the name Judge or Chairman but on the substance. The critical test which they must pass if they are to receive the confidence of the people is that they must be independent of the executive.”

These are fine sentiments and I think they are of universal application to all Judges of the common law. They are as much applicable here. If the Judges are to receive the confidence of the people they must be independent of the executive.

In the Australian case of Burns v Ramsley (1949) 79 CLR 101 there was no jury nor was there Fox’s Libel Act. The case was heard by a stipendiary Magistrate. It came before the High Court of Australia upon a case stated by Mr Stanley Wilson, Chief Stipendiary Magistrate, Brisbane. In that case, an Australian communist said that “in a war with the Soviet Union, the Australian communists would fight on the side of the Soviet Union” or words to the like effect. It was held that the words were seditious.

Latham CJ said, at p 108:

“It is not necessary, in the present case to consider the common law as to sedition. The appellant was charged with an offence against the statute – uttering seditious words – s 24D. Section 24B provides that seditious words are words expressive of a seditious intention, and the case of the prosection depends upon whether or not the words proved to have been uttered express the intention described in paragraph (b) or (d) of s 24A (1) (see Wallace- Johnson v The King [1940] AC 231).”

“That ease [Burns v Ramsley] was very much on the border line; as was shown by the fact that the High Court of Australia was evenly divided on the point.” said Lord Denning (Freedom under the Law, pp 44, 45). As in Burns v Ramsley, in the present ease the line between what is seditious and what is not seditious is drawn by a Judge. In the United Kingdom, it is drawn by a jury. If the Judges are independent, as they are in Australia and in this country, then there is nothing to fear – the rule of law is preserved. It is then the province of the Judge to hold the balance between the competing interests.

To cut a long story short I shall go straight to the verdict. At pp 623-625, I said:

To be seditious the words uttered must have a tendency to achieve one or more of the objects specified in s 3(1).

The question is, did the words uttered by Mr Cumaraswamy have a tendency –

“3(1 )(d) to raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any State or amongst the inhabitants of Malaysia or of any State.”

According to paragraph (d), words which are capable of raising either discontent or disaffection among the people are seditious.

“Disaffection”: I shall start with “disaffection”. Disaffection, in the context of sedition, does not mean the absence of affection and regard, it means disloyalty, enmity and hostility: see per Latham CJ in Burns v Ramsley [1949] 79 CLR 101, at 109. See also Dixon J in the same case at p 115:

“Disaffection is a traditional expression but it is not very precise. It means an estrangement upon the part of the subject in his allegiance which has not necessarily gone as far as an overt act of at reasonable nature or an overt breach of duty. It supposes that the loyalty and attachment to Authority, upon which obedience may be considered to depend, is replaced by an antagonism, enmity and disloyalty tending to make government insecure.”

I can say at once that the statement did not have the tendency to incite Or to raise disaffection among the people. In my judgment, the statement did not contain words which were capable of advocating or encouraging the people to disloyalty. There was no tendency in the words which could create antagonism, enmity and disloyalty among the people to make the government insecure.

“Discontent”: I turn now to the word “discontent”. Discontent means dissatisfaction. FitzgeraldJ said in R v Sullivan (1868) 11 Cox CC 44, at p49:

“Every man is free to write as he thinks fit, but he is responsible to the the law for what he writes; he is not, under the pretense of freedom, to invade the rights of the community, or to violate the constitution, or to promote insurrection, or endanger the public peace, or create discontent, or bring justice into contempt, or embarass its functions.” (emphasis supplied)

And at pp 56, 57, the Judge said:

“I concur with the Counsel for the defendant that, if the law of [seditious] libel was carried out in the full strictness of its letter, it would materially interfere with the freedom of the press. Hence a great deal depends upon the forbearance of Government, the discretion of Judges, and, above all, on the protection of juries. For instance, it is open to the community and to the press to complain of a grievance. Well, the mere assertion of a grievance tends to create a discontent, which, in a sense, may be said to be sedtious. But no jury, if a real grievance was put forward, and its redress bona fide sought, although the language used might be objected to – no jury would find that to be a seditious libel. It might be the province of the press to call attention to the weakness or imbecility of a Government when it was done for the public good. How closely that trenches on the law of sedition; and yet such writing, when bona fide, would receive protection from a jury.”

But there is no jury to try sedition cases in this country. It could be said that an English jury could feel it in their bones if an assertion of a grievance or complaint which tends to create a discontent is seditious or not. Also, they do not have to give reasons for their verdict. But a Judge does not enjoy this luxury. A Judge, on the other hand, has to give reasons for his decision. He has to say why he thinks a speech has a tendency to wise discontent among the people. If he did not think so, he has still to say why he thinks the speech did not have a tendecy to raise discontent. Put in another way, the Judge has to ask himself whether or not he is satisfied that the speech was likely to create discontent or dissatisfaction among the people.

Mr Cumaraswamy says that his statement was an open appeal to the Pardons Board – urging them to exercise their powers uniformly so that the people would not be made to feel that the Board were discriminatory…….

Would those words [uttered by Mr Cumaraswamy] be likely to create discontent or dissatisfaction among the people? This is how Fitzgeral J asked of the jury in Sullivan at p 53:

“Without defining sedition further than for the purposes of this trial, I have to tell you if you, in your honest judgment, come to the conclusion that these publications, or any of them, are calculated and intended to … create dissatisfaction, … then they are seditious libels. I do not think I can put the matter plainer than that.”

Where there is no jury, a Judge has to ask himself if it is in his honest judgment that the statement was likely to create dissatisfaction among the people. If it is likely to do that then the statement is seditious. If in his honest judgment he does not think that the words were likely to create dissatisfaction among the people, then he has to find that the words are not seditious. In my judgment I do not think that the words which were used to point out to the Pardons Board that the people should not be made to feel that the Board was discriminating between Mokhtar Hasim and Sim Kie Chon are words which were likely to creat discontent or dissatisfaction among the people.

Further, the statement was not likely to create such sentiments against Authority – a requirement which I feel is implicit in the definition of the words “discontent” and “disaffection”. “Disaffection” means disloyalty, enmity and hostility against Authority. In the same way, “discontent” means dissatisfaction against Authority. Therefore, “to raise discontent or disaffection” among the people means to create discontent or disaffection among the people against Authority. Consequently, the assertion of a grievance or complaint which tends to create discontent must be directed at Authority for it to be seditious.

I do not think it can be said that the statement was likely to create discontent among the people against Authority. In my judgment, I do not think that there was such a feeling against Authority among the people. “Authority” in this regard means the Yang di-Pertuan Agong, the Rulers, the Government and the administration of justice.

I found Mr Cumaraswamy Not Guilty and I acquitted and discharged him. That was in 1986. How things must have changed since then if we look at the antics of recent events.

Conclusion

Remember what little Maria told me when I asked her how she bows what is right or wrong, and she replied, “To know what is right or wrong is in a person’s upbringing.” I wrote in the preface of the second edition of my book this passage:

Lord Denning inherited his compassion for those who have been unfairly and unjustly treated. He was a draper’s son with a passion for justice: a desire to do right. All those other ordinary folk who come from decent and law abiding homes would have well brought up children who could likely be the ones with integrity. People are generally law abiding. The family background of the person is important. For instance, the son of a robber, burgler or smuggler would likely be dishonest. Beware also of the children of eon men, forgers, thieves and others of their kind and ilk. The son of a public servant who has been living beyond his means, would more likely be on the fiddle. What I am trying to say is this, the upbringing of a person is very important if we looking for a person with integrity. A man’s character is shaped by his upbringing: he is raised to know between right and wrong behaviour.