Over butterfly prawns and stir fried duck at Fleet Street’s Wig & Pen, the former High Court judge who presided over the Jonathan Aitken and Mohammed Fayed libel actions, talks about the Aphrodisiac of Power, judicial appointments, being a mature student, and that ‘lunchbox’ question.
Sir Oliver Bury Popplewell, the son of a civil servant, was educated at Charterhouse School and Queen’s College, Cambridge. Called to the Bar in 1951, he took silk in 1969 and served as a High Court judge from 1983 to 2003, taking charge of the defamation list.
A nifty right-handed batsman and former president of the MCC, he remains a member of London’s Brick Court Chambers. He is a regular visitor to The Strand area of legal London, where his wife since 2008, Dame Elizabeth Gloster sits as a Court of Appeal judge. Law, it seems, runs in the family – his son Andrew is a High Court judge and his grandson fancies a career at the Bar.
He is the author of four books, two of which are about himself – Benchmark and Hallmark. ‘The great thing about writing an autobiography is that you can write what you like,’ he quips.
His most recent, The Aphrodisiac of Power, chronicles the affairs of a motley selection of politicians, media magnates and crooks, from Lloyd George and Edward VIII to Beaverbrook, Maundy Gregory and JFK. It looks at how they wield their power and how their hubris frequently leads to their downfall.
His inspiration for the book, which is cloaked in a bright red jacket, came from an article penned by Matthew Parris in The Spectator and David Owen’s book The Hubris Syndrome: Bush, Blair & the Intoxication of Power.
In The pathology of the politician, Parris wrote ‘power is indeed an aphrodisiac: but for the powerful, for the predator rather than his prey’.
Popplewell’s book, mostly about politicians and their mistresses, looks at where the power lay in their relationships and why men risked much for love.
He rejects the suggestion that High Court judges wield power. ‘They just try to decide things as best they can in accordance with the law,’ he says.
To my enquiry about who was the predator and who the prey when it came to his relationship with his now wife, who famously left her QC husband of 30 years, Stanley Brodie, for Popplewell, he replies with a smile: ‘I always say she chased me, but I think it was mutual’.
Contrasting his entry to the Bar with today’s competitive entry process, he says: ‘You could get into chambers, but there wasn’t any work, so we sat about earning two guineas a week.
‘You didn’t get paid on time either. When I became a judge I had fees out-standing from about 30 or 40 years earlier’.
‘I started very slowly at the Bar and never had a very big practice,’ he states – his work was mostly personal injury and general practice on circuit, something he enjoyed. ‘One became the barrister to certain solicitors on circuit. In those days it was good fun – the Oxford circuit was small and everyone knew each other’.
Now, he says: ‘The Bar is rather sad in many ways. The criminal Bar has really suffered, as have other areas of publicly funded law, as a result of the reduction in legal aid and so there isn’t so much work around.”
Nonetheless, he recommends it as a career, having never wanted to do anything else: ‘You’ve got to be lucky and you’ve got to be determined. When you win a case it’s marvellous and when you lose, it’s terrible’.
He and his first wife Margaret, who died in 2001, were chums with the parents of comedian and author Stephen Fry. In 1975 he was a character witness for the young Fry, in defence of a charge of credit card fraud. And when Fry went awol during the West End production of Cell Mates, it was to the Popplewells’ Norfolk cottage that he fled.
On the Bench, he says: ‘I thoroughly enjoyed being a judge. At the Bar you got led by a whole lot of leaders who you didn’t think were any good, so eventually you took silk, and then you appeared in some cases where you didn’t think the judge was very good…. So you felt that you had to progress!’
Appointed long before the Judicial Appointments Commission came into being, he recounts his tap on the shoulder moment, which came following a building dispute that had gone all the way to the House of Lords.
‘When they came to give judgment, one of the Law Lords repeated my written submissions. The next thing I found was a message in my chambers’ cubby hole that the Lord Chancellor’s office had been trying to get hold of me.
‘I’d been on circuit and got back to chambers on Friday. I rang his clerk, who asked if I could go down that afternoon. I had no idea what was in the wind, so I said “actually I’ve got a chambers party at 4 o’clock”.’
The clerk suggested he attend before the party, which he duly did. Much to his surprise he was offered an appointment to the High Court bench. He recalls: ‘Quintin Hogg said “I don’t know anything about you, but you’ve got good reports. When can you start? Have you outstanding work?”
‘I said “no”. He said “can you start on Monday?” to which Popplewell replied that he could.
‘That was just how it was done,’ he says – ‘Someone from the House of Lords had obviously recommended me’. And he reckons, it is not a bad way of doing things. ‘No system is perfect, but the view then was, if you had been at the Bar for 30 years, everyone knew you and knew if you would make a good judge or not’.
He is not a fan of the current process, which involves extensive written applications and interviews by a panel, including lay people. ‘It’s meant to be transparent, but the truth is nobody really knows why they don’t get appointed and rejection can be harder to face when you have wound yourself up to apply and gone through a tough interview process’.
The need for increasing diversity in the senior profession and on the Bench, he agrees is an issue that needs to be cracked. While he says there was, in the past, outright discrimination, he does not think that there is now.
Rather, he suggests: ‘The real problem for women is that if you have a family it’s very difficult to keep your practice going if you take extended periods of time off. You can delegate care of your children to others, if you can afford it, but if you’re away for five years, realistically you have to start all over again.’
For women looking to the Bench, the requirement to sit on circuit, he says may put off many able candidates because of family responsibilities. Turning to the vacancies at the High Court, he says the pool of sufficiently senior women, who actually choose to apply for appointment, appears to be small. “So there needs to be a real initiative to persuade women practitioners to consider the possibility of a judicial career and to apply.”
In any event, he adds the reduced pensions, as well as the application process, can put both sexes off applying.
‘I doubt whether I’d apply now. It’s meant to be secret, but if word got out that you’d applied – to be a QC who has failed to be appointed …’ he trails off at the fear of it.
One of the highlights of his career was presiding over Jonathan Aitken’s action against The Guardian and Granada TV. ‘I found it absolutely riveting. He was a very impressive figure. ‘I think, truth be told, he’d had a great row with the press. He’d been a stringer in Nigeria and was thought to have ratted on a story. Then, when in government, he arranged a great arms deal with the Saudis and was attacked by the press, The Guardian in particular, and I think he just got fed up’.
Aitken, then John Major’s Minister of State for Defence Procurement, had famously gone to Paris; he claimed it was to spend the weekend with his wife and daughter, not to meet business associates of the Saudi royal family to broker a dodgy arms deal.
Says Popplewell: ‘The Paris business was really stupid. Aitken had been to Paris for the weekend, it hadn’t gone in his diary. The Guardian asked what he’d been doing, he said something that turned out to be untrue and the pair pursued litigation by letter for about a year before the case. Aitken got more and more involved in fibs.
‘No one still quite knows what he was actually doing there’.
Popplewell was also the judge who presided over sprinter Linford Christie’s claim against John McVicar, the former armed robber turned journalist, over doping allegations. It was during that trial that he asked the question that has dogged him ever since: ‘What is Linford’s lunchbox?’
Putting his case, Popplewell says: ‘I’ve been rather unfairly pilloried. It was a jury trial in a libel action. The charge against him was that he was on drugs. In the middle of it, someone said it [Linford’s lunchbox] and the jury looked absolutely baffled.
‘So, I though somebody better say something and I asked what it meant — for the jury – I knew what it meant’.
No amount of telling he says, stops the references to it. ‘I’m sure when I die it will come out again’.
Controversy hit Popplewell in 2011 when in a letter to The Times newspaper he appeared to criticise the families of the Hillsbrough football stadium disaster calling on them to behave more like the relatives of he victims of the Bradford City disaster, the enquiry into which he had chaired.
Does he regret his words? ‘I’ve vowed I’m not mentioning Hillsbrough ever again. I won’t say anymore’.
On a more light-hearted note, Popplewell was involved in a case concerning a libel action brought by the wife of the Yorkshire Ripper, Sonia Sutcliffe, against satirical magazine Private Eye.
‘She was suing Private Eye for saying she knew about her husband’s activities. Before the trial, it published further articles repeating the allegation and adding others. The Attorney General thought it should be prosecuted for contempt of court’.
He continues: ‘Hislop came along with his backpack all packed with his pyjamas and toothbrush. I thought the whole thing was bloody nonsense. I refused to allow the prosecution to proceed. But the Crown went to the Court of Appeal, which said I had got it all wrong.
‘About once a year on Have I Got News For You, my name comes up and he [Hislop] says “that was a fine judgment”.’
In 2003, aged 76, Popplewell returned to the classroom as an undergraduate to read PPE at Harris Manchester college. ‘I was the oldest undergraduate at Oxford and caused a bit of stir’.
He was given no special favours and, like all other candidates, had to sit an entrance exam and undergo an ‘absolutely terrifying’ interview.
‘I shared a set of rooms with a nice chap – John White a retired senior partner from Cameron McKenna , who was a young 69-year-old’.
During the ‘three marvellous years’ he spent there, he was asked to stand in to cover some law lectures when the tutors went on strike ….but graciously declined.
Another time, he recalls: ‘I went to see the Principal, who was a bit older than my eldest son. He told me “the essence of this college is that we like to send our graduates out into the world to contribute to society”.
‘I told him “When I leave I’ll be 79 – I think I’ve made my contribution’.