Three stories about justice
by Ken Gibb
Every year of late we have a spent a week around this time in the Austrian Tyrol. And one of the great things about this week is the chance to read. For no obvious reason I picked three books all of which have a legal or justice based dimension at their core. They were all, in their different ways, excellent diversions and genuinely thought-provoking.
The first is a well-known book in Scottish terms, one that I am not sure why I had not already read it, but I really enjoyed it. This is Andy Wightman’s The Poor Had No Lawyers. It is the history of concentrated land ownership in Scotland, its legal structures and the slow, evolving and on-going process of land reform. It is also a first rate scholarly and pedagogical exercise in that it explains very clearly how the law on land and property works, where it came from, how title is registered and the challenges for the researcher to map and detail who owns Scotland.
The edition I have is from 2011 so it is set in the context of the first wave of post devolution land reforms. There is a strong sense of unfinished business in the final chapters’ proposals for further reform and the book has certainly whetted my appetite to follow and try to understand the current wave of land reform happening in Scotland (wherein Andy and also my colleague David Adams have been directly involved).
There were two things I particularly liked about the book: the personal nature of it (Andy was a participant in several of the stories within the book) which added to the strong human sense that it has been institutions rather than individuals that created one of the most concentrated patterns of land ownership in the developed world; second, the tour through the critical sociological history of land and property law is quite fascinating. The feudal laws were supported and amended by the politicians and lawyers who were representative of or indeed were themselves often the principal beneficiaries. Laws that sustained their position and concentrated that ownership and its benefits included: Primogeniture and the law of Succession, feudal land tenure, Prescription and Entail. These allowed land, respectively, to be handed down to one person in each family, weakened the position and rights of tenants, allowed land ownership to be confirmed as a result of possession after a minimum period of years and prevented indebted landowners from losing their heritable land. As the author says, it is important that we better understand how the law has been used in this way in our name.
The second book is American and about a case of wrongful conviction but with a massive twist. In the mid 1980s a young white student in North Carolina was raped. She later identified a suspect in a ID parade and he was subsequently given life imprisonment. Eleven years later and after a 2nd trial also found him guilty and lengthened his term of imprisonment, the advent of DNA came to his rescue shortly after the OJ Simpson case made it famous. He was innocent after all and the correct person was convicted. Now the woman who had identified the innocent man had to come to terms with her error and its consequences.
What is amazing and moving about the book is that the woman and the wrongly convicted man were not only reconciled but became close friends who went on (and still do) speak and write about their experiences, about forgiveness and their work to exonerate the innocent and overturn wrongful convictions. They are also involved in anti death penalty work. If the rape had occurred in the 1970s, the (wrongly) convicted man would have been on death row. Picking Cotton is written by its two protagonists, Ronald Cotton and Jennifer Thompson-Cannino, it spans 25 years and is written very effectively from their very different perspectives. It is genuinely inspiring.
The third book is a wonderful collection of legal cases by a (or the) leading defence QC of his age, Jeremy Hutchison. Hutchison is now 100 and safely retired both from the bench and from a second career in the House Lords. For a period in the 1960s and 1970s, he defended an amazing array of cases at the spear tip of the battles over individual liberties, the early 1960s establishment crisis and censorship. In his time he defended Penguin over Lady Chatterley’s Lover, fought several cases against Mary Whitehouse, he defended the spies George Blake and John Vassall, as well as Christine Keeler. He also defended journalists like Jonathan Aitken (pre-politician phase) and Duncan Campbell, and the inimitable Howard Marks.
Apart from humour, humanity, his belief in liberties and the rule of trial by jury – he also made his mark by presenting some rather unusual defence arguments e.g. in a fraud by forgery case, what appears to be a forgery is actually a pastiche and was never knowingly traded as the work of the artist being imitated.
The book (Thomas Grant – Jeremy Hutchison’s Case Histories) is littered with these famous and important cases that speak to a period of huge change in Britain. Some of the stories are quite incredible. My favourite is about the theft of a Goya painting of the Duke of Wellington, stolen from the National Portrait Gallery in London in 1961, shortly after it was purchased for the nation for £140,000 (a fortune at the time). This was the first time such a theft had occurred in the UK. Originally it was thought to be the work of a professional until ransom letters appeared seeking payments to be made to charity and the thieves given immunity. The theft remained a mystery till 1965 when the painting was found after an anonymous letter. It had even featured jokingly in Dr No.
In 1965, Kempton Bunton, a retired bus driver from Newcastle, confessed. And it turned out he did write the ransom letters. He claimed he did it to support his principled campaign to allow the elderly to be exempt from TV license fees (and had been in prison for non-payment). He argued that he had no intention of either keeping or of damaging the painting, only to make a point. Hutchison used the ‘borrowing only’ defence – and Bunton was acquitted of all charges except stealing the picture frame (which was never returned), for which the defendant was given three months.
Two subsequent things to note about this bizarre story. First, the law of theft was changed the following year to prevent such a legal defence (though as Grant notes – it took till 2000 for free TV licenses for the over 75s to happen). Second, and peculiarly, no-one questioned Bunton’s confession – that a portly 57 year old could unnoticed climb in through a bathroom window of the Gallery, take the painting and leave the same way. In 2012, documents released by the National Archives suggested that it was in fact Bunton’s son, then 20, who had done the act and passed the painting on to his father. The matter was not taken further by the authorities. If it hasn’t been made already, what a great film that would make.
A final point to make about this third book is if you get the chance do read the postscript by Hutchison, written when he was only 98. It is a scorching critique of where the English criminal justice system is heading and its political leadership, written in 2013. Quite amazing.