The extract from the Memoire below tells you how Lord Denning profoundly influenced my life – and not just as a lawyer.  I idolized him – in the certain and God given knowledge of his failings, and the misgivings of judges who knew so much more than me.  Like Justice T W (Tom) Smith.

I have just read a biography – Lord Denning, Life, Law and Legacy, by James Wilson.  I found it to be excellent.  The author does not lack industry, insight, or maturity, and he is well prepared to square up and avoid idolatry.  I shall not comment further here, but I offer a couple of brief notes – which are reflected in the extracts. 

First, Denning was born in 1899.  In the reign of Queen Victoria, Empress of India.  He put on a uniform and fought – on horseback – in the First World War.  He came not just from a different clime, but a different age.  Do we know what practising law was like when Denning started in it?

Secondly, I am acutely conscious of the differences in judicial technique between Denning and Dixon or Smith.  We cannot afford too much of the former.  About one a century.  Wannabes are bloody dangerous, and self-serving pests.

Thirdly, and relatedly, you would be very unwise not to recognize the sheer horsepower of that intellect.  Again, about one in a century.

Fourthly, I rate Denning as highly as Mansfield – there is none higher – for one simple reason.  They both saw that their main job was to get through their list and release litigants from their agony.  And they did just that, in a way no one since has matched.

Finally, there is that spell-binding courtesy, inside court and out.  It is the first requisite of a judge, and it is just wonderful to see in action, not least so high.  I was so lucky to do just that.  There is something to be said for the good manners they taught under Queen Victoria.

Extract from Memoire

Here is another judge some called ‘Tom’.  Alfred Thompson Denning was known throughout his life as Tom to his friends.  He came from the family of a draper in Hampshire.  He was brought up to avow not only the King James Bible and Shakespeare, but also A Pilgrim’s Progress.  He went to a grammar school and from there on a scholarship to Magdalen at Oxford.  He got First Class Honours in Mathematics and Law. 

Like Oliver Wendell Holmes, Denning put on the uniform, and the Great War had nearly as much impact on him as the Civil War had on Holmes.  One brother became a general in the next war, but another brother died of tuberculosis after the battle of Jutland.  Denning never forgave Admiral Jellicoe for not having a go in trying to finish off the German fleet. 

Like Mansfield, Denning had a horror of unfinished business, and he was never in awe of rank.  He himself survived a gas attack in France, and the snobbery of some at Magdalen, which they say then had a reputation of being a rich man’s college. 

He went to the bench near the end of the Second World War.  He did not give one reserved judgment in his first twelve months.  He almost immediately came under notice as an innovative lawyer with a judgment – given ‘off the reel’- that revived the doctrine of equity precluding people going back on their word in respect of the effect of their contract.  He also wrote prolifically and soon became the darling of law students, and teachers, throughout the common law world.  He had a simple magnetic style that makes governments jittery. 

Denning was the Master of the Rolls, the head of the Court of Appeal in England, for twenty years.  In that time, he redefined the way in which judgments were written in England and elsewhere.  He had a remarkable capacity to state facts simply and then the law just as simply – or so it looked. 

Although he was idolised by academia and younger lawyers, he was distrusted by the old guard on the bench.  He was from time to time criticised, if not savaged, by more conservative lawyers, particularly Lord Simonds.  ‘I, too, was ambitious.  I, too, was accused of heresy – and verbally beheaded, by Lord Simonds.’ 

Our greatest lawyer, Sir Owen Dixon, gave a famous paper (which Smith, J would certainly have agreed with) on the dangers of conscious judicial innovation, and Denning promptly verballed him. 

Denning was protected in his reputation as a radical because this very old-fashioned Englishman, and adherent of the Church of England, was rarely exposed to crime, industrial relations, race relations, or morals generally.  If he had been let loose in those fields, he would have gone down in the esteem of a lot of his admirers. 

Holmes had admired the way that the English Court of Appeal dealt with appeals on the spot.  Denning continued that tradition.  When Denning presided over the Court of Appeal, it heard about 800 cases a year (about the number decided by Lord Mansfield).  About fifty or sixty reached the ultimate court, the House of Lords.  The Court sat five days a week, all day.  Only about one case in ten was reserved.  Judgments had to be written at the weekend.  Only comparatively recently has the court stopped sitting on Fridays. 

Some said that he sat under a palm tree – who knows where the nut may fall? – but it is impossible to find any appellate court in the common law world today operating with the degree of speed, efficiency, rigour, and sheer juristic horse-power, as that over which Denning presided.   Not one appellate court in Australia gets even close now.  Not one of them even tries.  We are only talking of a distance of one generation or so. 

In the course of my grand hitch-hiking tour of Europe, I had a letter of introduction to Lord Denning.  This was a coup for me in January 1967.  Denning was a hero or, as they say now, an icon, for a whole generation of lawyers and law students.  (He still is for me.  He understood Mansfield’s imperative to get the job done and release litigants from their misery.)  I unnerved his associate by asking how you should address a lord.  I found Lord Denning to be a most charming and kindly man.  His first words were, ‘Have we met before?’  After our chat he said that I might care to sit in on the case he was hearing at the moment, but he would not recommend it, because it was a tax case and therefore boring. 

He arranged for me to be shown around the Courts.  His clerk rang me up and asked if I minded if it was a black man.  This sounded odd, but the English were still adjusting to the number of blacks coming there from the former Empire.  A black man did show me around.  We sat down for lunch in Lincoln’s Inn (which goes back to 1422).  There was not a great rush for the others to come and talk to us.  Lord Denning was sitting at the high table.  When he had finished his lunch, he came to ask me how everything was going.  After that, every bastard wanted to talk to us. 

His lordship gave me letters of introduction to big hitters at Oxford and Cambridge.  The envelopes were impressed with the dry seal of his office.  When I produced one to French hitch-hikers at the youth hostel at Stratford, the timbre sec almost blinded them. 

But when I look back now – and I often do – at what Lord Denning did for me, I feel like Charlie Black did when he first saw his King.  Here was the most influential judge in the world, with a forensic mind built like a Rolls Royce engine, at the historical seat of the common law and therefore the British Constitution, meeting a ruffled, pimply law student from the colonies – and remembering him and going out of his way to talk to him.  And he called me by my name.  ‘Hello, Mr Gibson – is everyone looking after you?’  To adapt the response of Charlie Black, ‘it is impossible to overstate the significance of a’ law student being treated by such great man and great judge in this way.  ‘It had simply never entered my mind that I would see this for the first time’ in such a man. 

‘You don’t get over that…’  I floated out to the Strand as if on the clouds.  I would not have been in the least surprised if I had run into Ronald Barassi and he had said ‘G’day, Gibbo – where’ve you been hiding?’  And I often think back on it when I run into one of those bumptious, stuffed prunes or prudes preening themselves as if the world owes them a bloody living, the latterday jumpmasters of footnoted waste.

The civil servant who gave evidence to a committee about the Mandelson appointment looked to me to be a model of a professional office that withers before our eyes even in England now.  We certainly have nothing like it here.  I watched and listened to Sir Olly Robbins for two and a half hours and I thought he was flawless.  By contrast, the woman in the Chair, who is of the same party as the P M, looked to have been committed from the very start to shafting him. 

I thought Sir Olly was entirely professional and objective, and fiercely loyal to those around and beneath him.  He is precisely the kind of person I would like to see in that position.  God knows we could use a touch of it all here.

There is no doubt that serious mistakes were made in the relevant process, and that these were driven by elected politicians.  I could see nothing to criticize in the conduct of this civil servant, but a lot to criticize in his elected superiors. 

Starmer made obvious mistakes.  I doubt whether they are sufficiently clear to warrant his removal by the House.  What his party does is a matter for it.  But I see nothing in the conduct of Sir Olly to warrant his dismissal – and I will be surprised and disappointed if the English courts do not so hold.

Yet the PM dismissed him – and the inference is clear that he did so to protect himself.  I regard this as his most serious misconduct, and my apprehension about the Chair was justified when she later said, after hearing from Sir Olly, that she agreed with her leader. 

This is precisely the cause of the failure of the Westminster System.  It says Ministers are answerable to parliament.  Instead, they blame the civil service – for which they are said to be responsible – and stroll away whistling.  The process is called throwing the target under a bus. It is on that ground that I believe Starmer should be relieved of his office by his party

This phrase is as slippery as it is silly.  Three stories in The Age yesterday show why.

Prince Harry does have some use.  His work with Invictus is good for those in armed services who return from war – and who are seen as failures.  We in Australia have an appalling record on this going back more than seventy years.  In a fine article on the work of Prince Harry, Rob Harris reminds us that a royal commission found that between 1985 and 2021, 2007 defence personnel killed themselves.  That is an appalling indictment on the whole nation.  On which we are silent.

A Canberra Uber driver named Umair Ayub was sacked by the ‘$210 billion global behemoth’ after its robots recorded that he had not maintained the required approval rating.  Uber maintains its huge workforce by algorithms.  (God help anyone who tries to speak to a human being.)  The industrial body recorded that no human being was involved in any of the decision making, and set the decision aside as ‘illogical and arbitrary.’  It was not called on to decide if Uber was guilty of a crime against humanity.

There has been long running litigation about the wealth of Gina Reinhart that has nearly broken the system.  Fifteen years of legal feuding have cost about $100 million.  Gina Reinhart funds an electoral aberration who gets votes by saying there is no such thing as a good Muslim.

Which of those stories best showcases Australian values?

The legal grapevine is inherently unreliable, but some time ago – at least five years ago – I was told by very well-placed sources that some Australian soldiers were in very deep trouble, and would probably face murder charges arising out of events in the war in Afghanistan.  I have some recollection that senior government officials took to warning Australians that they may have to face a difficult legal process as a result.

I was curious then and amazed now that any of this should come as a surprise following our intervention into another military quagmire.  More than ten years ago in a book about revolutions (2014), I wrote about why the American rebels succeeded against the English.  I commented in the terms of the passage cited below.  Clause 13 reads:

Because of its felt superiority, its actual ignorance, and its sustained frustration, the away team resorts to atrocious behaviour that it would never be guilty of in a normal war, or against an enemy of its own kind.

They are facts of life proved over and again since 1776 – not least in Spain when attacked by Bonaparte, when the word ‘guerrilla’ was born.  They were brutally apparent in Vietnam and Afghanistan.  Yes, those sending the men to fight were to blame, but that is no answer for the crimes the men committed while so deployed.

In the case of Roberts-Smith, the charges relate to the acknowledged killings of Afghans.  As I follow it, the case is not one of murder under the general law, but of statutory war crimes.  The allegations involve conduct outside of normal hostilities, and the principal witnesses for the prosecution are soldiers who served with the accused.

That being so, there is little point talking about ‘the fog of war’, or the like.  We are, I gather, speaking of war crimes.  That the conduct alleged occurred during a time of war is a necessary condition of the charge, not a bar to its being proven.

(It is sad to relate that in discussing these charges, it is hard to find in the press any attempt to give details of the charges.  At least in his piece in The Age, Waleed Aly referred to Division 268 of the Federal Criminal Code Act 1995.  Among other things, and at agonising length, it lists as a ‘crime against humanity’ murder, where the conduct of the perpetrator is ‘committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.’  Division 268.70 applies to the killing of a person where that ‘person or persons are neither taking an active part in the hostilities, nor are members of an organised armed group’ and the perpetrator ‘knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group’.)

Put to one side the time and millions of dollars spent in examining these events in a horrendous ocean of libel litigation.  The relevant investigation and the current prosecution were led by Mark Weinberg.  You could not imagine a better guarantee of professional integrity.  The law will take its course with safeguards built over a millennium by our ancestors.  Is the jury satisfied beyond reasonable doubt that the charges have been proved in court?

What on earth can people who complain about the present process have in mind?  The only answer I can give is that the noise comes from the usual suspects – and they are common pests. 

The Weekend Australian went into overdrive on a nostalgia highway.  Noel Pearson said ‘any soldier who serves the country should be able to rely on the presumption that their killing in combat was lawful.’  Henry Ergas said killing prisoners in cold blood is ‘completely indefensible’ but how are ‘norms to be sustained when confronting adversaries who reject them altogether’?  Joel Fitzgibbon said jailing Roberts-Smith was a tragedy ‘largely created by journalistic activism and reactive overreach on the part of those who’ve been intensely and relentlessly pressured to respond to the activism.’  None of these commentators is a lawyer, much less one versed in the perils of libel litigation, and their comments are as helpful as mine on brain surgery.

None of those commentators identifies the legal charges against the accused.  These are legal issues.  There is an inherent problem in discussing something where you do not know what you are talking about.

This is the same mob whose ideological romances are making our two-party system unworkable, and they, or most of them, do it out of the same motive – a heartless hunger for money, or wistful Romance.  At bottom, they are distressed that the very notion of ‘war crime’ should disturb the serenity of their vision of patriotism and the myth of the noble, bronzed Anzac.

What about the facts of life?  This hero and his ornately rich backers were so overcome by their own hubris that they embarked on an exercise that screamed with risk, and after subjecting the rest of us to a legal circus that cost $25 million or so, they ended up in the gutter.

BOOK EXTRACT

Although the Americans like to see themselves as having been the underdogs, they won the War of Independence, as they call it, and it is not hard to isolate some of the reasons why their position was eventually so much stronger than that of the English.  You can apply the following criteria to the American War of Independence – or to the Vietnam War, the Russian war in Afghanistan, the second Iraq war, or the present military operations in Afghanistan.  The phrases ‘home team’ and ‘away team’ are used for convenience and not to detract from the significance of the wars, or the valour shown and losses taken by those who actually fought them and are fighting the present one.

1. The away team is the biggest in the world, or as the case may be, the only empire in the world, or the second biggest.
2. The away team is a regular professional army while the home team consists of amateur irregulars.
3. The professional soldiers in the away team have no advantage over the amateurs in the other team because they have not been trained for this kind of war and people who fight for the cause are more reliable than those who do it for money.
4. People defending their own soil are far more motivated than those who cross the world to try to bring them into line.
5. The away team has massive resources and advantages in population and war matériel (such as the navy) and technology, but the home team has local knowledge. 
6. The home team can move more quickly, avoid pitched battles, and use guerrilla tactics, which are sometimes referred to as terrorism, and which, as we saw, the British objected to as not being fair play.
7. The away team has problems with morale and supplies that just get worse as time goes on.
8. The away team finds that winning requires more than just winning battles – they may beat the army of the other side, but they will not beat the country, which has widespread support among its people (even if the people are otherwise split).
9. The away team has a hopeless dilemma – it has to hit hard to win, but every time it hits hard it loses more hearts and minds.
10. The home team finds it is easy to generate heroes and leaders; the away team finds it is easy to sack losers.
11. The home team out-breeds the others – the result is just a matter of time.
12. The war becomes one of exhaustion and attrition, which in turn exaggerates the above advantage of the home team.
13. Because of its felt superiority, its actual ignorance, and its sustained frustration, the away team resorts to atrocious behaviour that it would never be guilty of in a normal war, or against an enemy of its own kind.

In short, the American colonists felt that they were fighting on the moral high ground, a position that they have never surrendered.  Appalling crimes were committed on both sides, especially in the civil war in the south between the Patriots and Loyalists.  There were, Churchill said, ‘atrocities such as we have known in our day in Ireland.’  Professor Gordon S Wood said that the ‘war in the lower south became a series of bloody guerrilla skirmishes with atrocities on both sides’ (like Vietnam).  But for the intervention of the French, this civil war – guerrilla war may have gone on for years and degenerated into what would happen in Latin America with ‘Caesarism, military rule, army mutinies and revolts, and every kind of cruelty’ (like the Roman Empire).

But the terrorism on both sides ceased, and the result was dictated by the sentiment expressed at the time by another former Prime Minister of England.  The older Pitt, by this time the Earl of Chatham, one of the most experienced war time leaders England has ever had, knew what the home ground advantage meant:  ‘My Lords, if I were an American, as I am an Englishman, while a foreign troop was landed in my country, I would never lay down my arms – never, never, never.’