Monday, 5 December 2011

Just whose side are you on, Judge?

Llewellyn Archer Atherley-Jones QC (1851-1929) was a British politician and Barrister who eventually became a Judge.
He was the son of Ernest Jones, a prominent Chartist leader who was also a Barrister; he adopted a hyphenated surname to include his mother's maiden name. Educated at Manchester Grammar School and Brasenose College, Oxford, he was called to the Bar at the Inner Temple in 1875 and joined the North Eastern Circuit where he was initially involved in criminal defence work.
He shared his father's radical politics and became honorary Secretary of the Westminster Committee which supported William Gladstone on the question of the Ottoman Empire's atrocities in Bulgaria. He was also taken on as barrister for the Miners' National Union; he represented the miners at an inquiry into an underground explosion at Seaham, Co. Durham in 1880. The experience made him even more committed to the left-wing of the Liberal Party, although in 1881 he declined an invitation to fight a by-election in Leeds against Herbert Gladstone, son of the Liberal leader.
He was chosen as candidate for Ealing in 1884, but then had a much better offer from North West Durham, an area full of miners  where a Liberal victory was much more likely. He won that seat with 62% of the vote in the general election of November 1885 and served as their MP until 1914.
Later, as a judge at the Old Bailey in the 1920s, he got a reputation for dealing sympathetically with men charged with consensual homosexual offences.
As early as April 1922, Sir William Horwood, the Commissioner of Police for the Metropolis, wrote to the Home Office about him. He attached a report by the prosecuting solicitors, Messrs Wontner & Sons, on a case of gross indecency (R v John Cecil Blackburn) tried by His Honour on 27th March 1922. Following some preamble the report said:-
“After the Defendant had given evidence the learned Judge summed up the case, and in the course of his summing up in effect said that although people who tamper with young persons, that is to say, people who are not adults, ought to be punished very severely, cases of gross indecency ought not to be brought to Court, but should be a matter for the men’s consciences.
“This extraordinary expression was the view put forward by the learned [Judge] as worthy of consideration by the Jury, who without leaving the box, returned a verdict of “not guilty”; and the Defendant was discharged.”
There was a postscript to the report:- “It is useless to make any further comment upon the way this Judge tries cases of an indecent character. For some reason or another, which we cannot appreciate, practically all cases of alleged indecency between male persons are put in this Judge’s list for trial at the Old Bailey.”
So, not only was the Judge sympathetic towards homosexual men charged with victimless sexual offences, it seems he had a confederate in the Listing Office at the Central Criminal Court.
At an interview with the Secretary of State on 19th May 1927, the Commissioner of Police told him that cases of sodomy were increasing in London and that the police efforts were hampered by Judge Atherley-Jones who declined to regard such offences as serious.

A few days later on 25th May: It was decided not to attempt to get the Lord Chancellor or the Lord Chief Justice to move in the matter. But it was arranged behind the scenes that 'serious cases of this kind' should be put in the lists of the senior Judges at Central Criminal Court, although, of course, “urinal cases” must still ‘find their way with other small fry into Judge AJ’s list’.
And there's a note on the folder of the archived file for that same date: “The Director tells me today that he finds that in any serious cases of his that stray into that list whether indecent cases or frauds this Judge takes a much more reasonable view than he did formerly. Today he gave Major Morris 9 months for indecency with boys.” [‘Boys’ the key word here, I think.]
Sir William wrote again to the Home Office in December 1927. His complaint sounds much the same as in the previous case: “His Lordship in his address to the Jury mentioned that when the offence of this description was in connection with children of tender years, it was much more serious than in the present case; that if two persons of mature age thought fit to make beasts of themselves in such a disgusting manner, they were only corrupting their own morals. But as it was an offence against the Law of the Country the Police were bound to act. His Lordship also pointed out that in the present case there was no question of a mistake on the part of two young constables, the evidence given was that of two old and experienced officers, and if the defence was to be believed these two officers had come into court and had committed wilful perjury. I may mention here that the two constables in question gave their evidence in a very straightforward and convincing manner. After retiring for about a quarter of an hour, the Jury returned with a verdict of not guilty, and both prisoners released.” The prosecuting solicitors said: ‘[his] summing up, as is getting usual in this class of case, was in favour of the defendants.’
In notes for late December 1927, we can see that the Secretary of State was no fool: "SofS can take no action. There is nothing which this Judge would more enjoy than to receive a remonstrance which he would answer in a letter to The Times as the champion of the independence of the Judiciary!"
The Judge was getting wiser in his remarks. They were still clearly intended to encourage acquittal but they were becoming less objectionable in form than others made by him in earlier cases. For example, he might say .“Police are bound to act” instead of “cases ought not to be brought into Court”, and “if the defendants are to be believed there must have been gross perjury on the part of experienced officers”, which was then a common form of invitation to convict, but had the opposite effect in his court!
A note by the bureaucrat in charge of this file says at this point: "I have not the least doubt that this Judge is unfit to try these cases but I fear we must put up with him for a little longer – he was born in 1851." But later we see "He will live for years. The wicked always do!" ['Wicked' for going against prevailing opinion about homosexuals, I assume.]
The last case referred to in the file was in October 1928 (less than a year before the Judge passed away aged 78). This time the Judge had had the gall to stop a trial and discharge the defendant rather than go by the uncorroborated evidence of a single witness. The prosecuting solicitors were a little peeved: .“It is a little unfortunate that the learned Judge took this view as this defendant has two previous convictions for this class of offence and also one for indecent exposure and we have little doubt that on the day in question he was committing the offence alleged against him.” (They obviously had no truck with the principle 'innocent till proven guilty'.)
On the whole, it is clear that the Judge took a comparatively modern view that, if children or those too young to be able to consent were involved it was appropriate to bring a case to court. But he made it clear to juries that, in his view, when the defendants were both adult and therefore only 'corrupting' those already 'corrupted', it was a waste of the Court's and the jury's time. And it seems from the frustrated correspondence between Sir William Horwood and the Home Office and the reports of the prosecuting solicitors, that the juries often agreed with the learned Judge.

Compiled by Chris Park, from file reference HO 144/22298 at the National Archives, with supplementary information from, and others.

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