A stroll through London's historic legal precinct

Damien Carrick: Hello, and welcome to the Law Report. Today we go on tour. A walk around London's historic legal precinct.

[Rumpole Theme]

With the possible exception of Indigenous Australians, I think it's fair to say that most of us are pretty happy with our system of government and our legal system. And of course in large measure we've inherited both of those from the English.

On a recent trip to London I came face to face with that vigorous tradition of raucous democracy and rule of law when I visited Parliament Square.

[Chanting]: 'Tony Blair, change the law'.

Damien Carrick: Standing in London's Parliament Square, with its imposing gothic-style Palace of Westminster, the Houses of Parliament, with Big Ben ringing, with various groups of protesters promoting their causes; with black limousines whisking politicians through security gates manned by bobbies; with crowds of tourists and bureaucrats, you do feel very much as though you're in the cradle of parliament democracy, well certainly our Anglo-Australian version of it.

But London isn't only the birthplace of many of our political institutions, it's also the birthplace of our legal institutions.

Only two stops on the tube away from Parliament Square is London's legal precinct. And in the basement of a well-known legal haunt, that's where I met leading criminal barrister, John Cooper. He's also an occasional columnist with another leading British institution, The Times.

John Cooper, where are we? We're sitting in a rather atmospheric old pub and restaurant in central London; where are we?

John Cooper: Well we're in a place called El Vinos. El Vinos has been in existence now for about 150 years. Until very recently it had an all-man policy, but it's a little more avant-garde now, and women are allowed in here. But it's perhaps a little more famous for the haunt where Rumpole of the Bailey, John Mortimer's creation, played by Leo McKern in the television series, used to come here and drink his port and generally communicate with other members of the bar. So it's quite a well-known, factual and literary place to be.

Damien Carrick: Let's describe it for listeners. We're actually in the basement restaurant. There are wooden beams holding up the ceiling, it's very olde-worlde, and the heavy wooden furniture and heavy wooden seats and lots of wine posters.

John Cooper: In fact if you look around the room you'll see a lot of the famous cartoons that have appeared in the London Evening Standard which have featured El Vinos. As you can see around the walls they're printed in frames with the captions underneath.

Damien Carrick: Now when we walked in you said hello to quite a few people. This obviously is very much a watering-hole and eating place for the legal community.

John Cooper: It is very much a place, as you say, where particularly members of the legal community come, be they barristers or be they judges as well. So it's right to say we have to be on our best behaviour here. It's very close to the Inns of Court, it's very close to the courts around legal London, and so it's one of the most convenient places to come, have something to eat, and maybe discuss what's been happening during the course of the day.

Damien Carrick: Terrific. Well why don't we set off and go on a trek through some of those very, very interesting areas.

We're now leaving the restaurant and walking up the stair. Now we're stepping out onto a rather noisy London thoroughfare. We're in the heart of the legal precinct here. Just ahead on our right we have a rather famous street. Can you tell me what that is?

John Cooper: Yes, this is Chancery Lane. This is a famous street, made so famous by Charles Dickens. Those of your listeners that know Bleak House will remember Chancery Lane as the place where Dickens described dinosaur lawyers inhabiting and walking up and down smog- and fog-filled streets in Victorian London.

Damien Carrick: Have things changed?

John Cooper: It's noisy. Far more noisy than traffic, and the new regulations on smoke make sure it's not smoggy, but as to the dinosaurs-well perhaps you should be the judge of that.

Damien Carrick: Hopefully the same kinds of work aren't taking place and the same kinds of delays aren't taking place.

John Cooper: The wards of Jarndyce and Jarndyce as depicted by Dickens have gone by now. Justice now is far swifter and, in all seriousness, far better.

Damien Carrick: Now let's just describe the scene. We've got black cabs roaring up and down and a plethora of double-decker buses. But this is really the heart of the legal community. How did this became the heart of the legal community?

John Cooper: Well purely by historical accident in many respects. The centre of the legal community is governed by where the courts are, and indeed where the centre of commerce is. Only just around the corner is the City, and of course Westminster, the Houses of Parliament, obviously the centre of government as well.

Damien Carrick: So just to tell listeners were we are: we're right near the River Thames, a block in from the River Thames, and we're wedged between Westminster, which has the Houses of Parliament and Big Ben and what-have-you, and the city, which is the financial zone with all the skyscrapers and modern architecture. Why did the legal community establish itself so early here in this area?

John Cooper: Well the Inns of Court, where we are, are the centre of the legal community here in legal London. Many, many hundreds of years ago, during the times of the Crusades, the Knights Templars set up their base here, and that was a collegiate base not only of people involved with military activity, but also thinkers as well. And it's from that centre of thinking and legal thinking that the tradition arose that lawyers should centre here.

Damien Carrick: Now up on our right I can see a very impressive building, they're the major courts here in London; what is this building?

John Cooper: Well these are the Appeal Courts here in London. They're the Central Courts where in criminal and indeed civil cases, when there's a point of appeal to be raised, people come here to resolve those issues. This building here is effectively where all the big law is made that governs the country. It's a very gothic looking building, built around about the middle of the 1800s, lots of turrets, it looks a little bit like a fairytale castle, doesn't it? With its turrets and with its balustrades as well. But effectively it's a functioning building.

Damien Carrick: Now, not only are some of the decisions made here still taken very seriously in other courts around the world, but this is important in British terms-this is the heart and soul of the common law world which stretches from Australia to New Zealand to the USA and Canada. It really is the crucible of an entire legal system.

John Cooper: Well it's probably still one of our greatest-if not the greatest-exports. It's the basis of many not only Commonwealth but the American system as well, and it is rather strange sometimes to walk around here and realise that you're in prehistoric legal development.

Damien Carrick: Here on our left is an extraordinary kind of wooden gate. If I look at the building it's sort of a Tudor building with the black wooden beams with the plaster in between, and there's an ornate arch with horses with wings on it, and beyond the black gates is a lane. What's down this lane?

John Cooper: Well this effectively is the archway that leads us into the Inns of Court, and you'll probably hear now as we walk through the archway, suddenly the noise of traffic disappears and it becomes rather tranquil.

Damien Carrick: Goodness me, and now you feel like you're walking in a little country village, with open windows which look like legal offices, and a lot of people in suits. Tell me, what are the Inns of Court?

John Cooper: Well the Inns of Court are effectively places where every single barrister in the United Kingdom needs to belong. There are approximately 12,000 barristers in the United Kingdom, which isn't that many when you think we've got a population of about 58 million people. Every single barrister must belong to an Inn of Court, and there are four: Middle Temple, Inner Temple, Gray's Inn, and Lincoln's Inn.

Damien Carrick: And which one have we walked into?

John Cooper: We've just walked in to Middle Temple. And directly opposite us you'll see the Temple Church, which is a very famous old church which has its foundations going right back to the Crusades.

Damien Carrick: Temple-you say temple-is that as in the Knights Templar?

John Cooper: That's exactly what I mean.

Damien Carrick: So the Crusaders, the cast of brotherhood of Crusaders who went out from Western Europe into the Holy Land.

John Cooper: It's amazing to think this is where they worshipped. The history of the Temple, and particularly the Temple Church, goes right back to the Crusades and Richard I.

Damien Carrick: Now all around us there are very lovely old buildings three, four storeys high, and in each of the large windows I can see a barrister sitting working hard at their desk, either at a computer terminal or sitting discussing a case with one of their colleagues. All of these buildings essentially house barristers.

John Cooper: Yes, they do. They're barristers' chambers where, effectively, barristers work. They're like co-operatives, all barristers in the United Kingdom are self-employed, but they gather together in chambers to be clerked by an administrative team and have a central administration. There are four Inns of Court to which barristers belong, but within the Inns of Court there are many, many chambers, as you can see.

Damien Carrick: So what happened to the Knights Templar, and why did the lawyers move in?

John Cooper: Well the Knights Templar met a very gruesome end. They became more and more corrupt and depraved, and so much so, the king at the time decreed that they should be arrested and rather gruesomely put to death. Fortunately we lawyers have survived to date.

Damien Carrick: So what year was that?

John Cooper: That was around about the time of the Crusades, which was about 1100.

Damien Carrick: And then after that, the lawyers moved in?

John Cooper: Yes, effectively, as all good lawyers well know, you see a bit of real estate going free and you move in. It's a perfect location; location, location.

Damien Carrick: Now where are we-we're now walking through, I guess, a series of beautiful squares, again on all four sides lovely old buildings which look 17th, 18th century to me.

John Cooper: Absolutely right. Again, these are old chambers where barristers live and work effectively. It's a lovely quadrangle as well, flowers and trees; it's a lovely environment.

Damien Carrick: Now when the lawyers moved in did they just move in here to work and then go home at night?

John Cooper: Well in many respects the lawyers moved here to work and play. The halls of the Inns of Court were places not only of learning where barristers would learn their trade (because there was no formal learning at the time), fledgling barristers would come here to eat their meals and drink their wine and sit opposite more experienced barristers who would teach them the tricks of the trade. But it's also a place of socialising as well. Even to this day at Christmas we have what's called the Revels whereby barristers and students come together in a review; eat, drink and make merry. Nowadays they only last one evening. Many hundreds of years ago they lasted two weeks.

Damien Carrick: So it was in effect a university, but also a social club. It was somewhere where people lived, studied, worked and acquired the skills of their trade?

John Cooper: Absolutely, a very important community and to a degree it still maintains that community feel about it.

Damien Carrick: How so?

John Cooper: Well here at the Inns of Court there are lots of structures, for instance, for barristers to get advice, not only on legal matters, indeed, on matters of leisure and recreation, but there's also systems whereby those barristers who had fallen on hard times are provided for by a central fund.

Damien Carrick: That's very socially advanced of the community.

John Cooper: Well, that's us lawyers all over, you see, we get a very bad reputation sometimes but we are cuddly, fun bundles at heart.

Damien Carrick: Now one of the other customs which continues to this very day is that these Inns of Court-which of course did actually go around inns, as you mentioned-it's still a requirement for barristers to eat a certain number of meals in each of these inns.

John Cooper: Yes, it is, it harks back to the time when barristers would only learn their trade by eating opposite more experienced barristers, and chatting over a meal and a glass of wine the intricacies of the law. Well nowadays we have far more formal education, but the procedure whereby barristers are required to dine in their early years is important, because it enhances the collegiate community, which is very important, certainly at the Bar in England and Wales.

Damien Carrick: Cynics or critics might say Well that's just about developing close networks and closed shops.

John Cooper: Well it certainly isn't a closed shop. I for one come from a working class background with no lawyers in the family. If you've got ability nowadays in the 21st century, you'll get on, as with any other job. The positive side of it is that people meet with others; like-minded people support each other in getting on and giving them advice, and so it's a positive thing, certainly not a closed shop.

Damien Carrick: Now we're walking down, again, a lovely cobbled street towards another building, another very beautiful church.

John Cooper: In fact this building isn't a church, this building is the Middle Temple Hall, which must be one of the most historic buildings in the Inns of Court generally. In this very Inn of Court that you see before you, this very hall, Shakespeare's Twelfth Night was performed in the presence of Shakespeare.

Damien Carrick: For lawyers?

John Cooper: Not just for lawyers, but also, it has to be said, for someone called Queen Elizabeth I. The first time it was performed in the presence of the Queen under Shakespeare, in this very hall.

Damien Carrick: Now within this very precinct, these are the very streets where the Common Law developed, the system of law which is essential to the Australian legal system and that of many other countries. Why did it develop, and how did it develop?

John Cooper: The Common Law is effectively the law by word of mouth, the law passed down by judges after hearing cases. In short, case development, case precedent, as opposed to statute law which is laid down by statute of Acts of Parliament.

Damien Carrick: In other words, you look and see what principles have been established in prior cases rather than just referring to a piece of legislation or a code?

John Cooper: Absolutely. Common law is, how shall I put it? Organic. It grows; it grows with each case and develops with each case and is adapted, certainly a good common law, is adapted through development and culture.

Damien Carrick: And, if you like, that is the strength which people in common law countries cherish, that idea of evolution and constant change to keep the law up to date with the needs of the country or the needs of the society.

John Cooper: Absolutely, growing with the people and the country that the common law serves, it's adaptable and, hopefully, it's relevant.

Damien Carrick: Why did it develop here? Why didn't it develop in Paris or any of the other major centres of learning?

John Cooper: Well, the law is different in Europe, in fact it's radically different in Europe, going back to Anglo Saxon times whereby even in those days commoners, even peasants, would meet in the middle of a field at the King's court and decide their disputes. So it's cultural, it's historical, just as it's cultural and historical that in France and other European countries the law was very much laid down by statute and dictate.

Damien Carrick: Way back even in mediaeval times, there were restrictions placed on the absolute power of the King; do you think that has something to do with it?

John Cooper: Well, yes, one looks back, for instance, at the Magna Carta, back in 1215, when a mediaeval, absolute monarch in King John was dragged to the field of Runnymede and forced to sign a document even then that enshrined certain rights, perhaps not of the commoner, but certainly of the lesser aristocrat.

Damien Carrick: And you think there might be a connection between those kinds of developments in terms of absolute power versus more constricted power, and the development of an organic legal system which took on a life of its own, which took away the absolute power of the state?

John Cooper: Well, certainly in England in historical times, the country had some very bad experiences of absolute monarchs, from King John for instance. Even now the rumour is that no king will ever be called John again, which is bad news for me, perhaps. But also going to Charles I, who again believed in the Divine Right of Kings. Both monarchs, and indeed others before them, met grisly ends, and since then there's been an inherent trait within English culture and certainly English legal culture, to make sure that people never have those powers again.

Damien Carrick: Now, more recently, since the time of Shakespeare and Queen Elizabeth and the Knights Templar, there have been a lot of other famous people who've spent time in these buildings, both in this Inn of Court and the other three.

John Cooper: Indeed. It's a roll of honour of historical figures over the last 300, 400 years, from Gandhi to Margaret Thatcher.

Damien Carrick: And I understand that Nehru, the first prime minister of modern India, also spent time here, and he was apparently a bit of a wild boy.

John Cooper: So I gather, indeed, although I wouldn't dream of commenting on the airwaves.

Damien Carrick: And what about some of the more recent politicians, like Margaret Thatcher?

John Cooper: Margaret Thatcher was a member here of the Inns of Court, as indeed has been every prime minister for the past 200 years. No, it is a centre, as it were, for people who have made contributions not only in politics, but also in the arts, and of course in the law.

Damien Carrick: So Tony Blair was also here?

John Cooper: Tony Blair was a barrister, in fact. So he was a member of the Inns of Court as well.

Damien Carrick: Now we're now just walking along the side of the Middle Temple, Inns of Court-and we're walking along, and you're putting some keys in a gate here, and there's a garden on the other side. Where are we going?

John Cooper: Yes, this is the Middle Temple gardens, which aren't open to the public but are available to barristers to wander around and pontificate.

Damien Carrick: Why are we going in?

John Cooper: Well these gardens not only are very beautiful and situated right next to the River Thames, they are also very historic, and I want to take you to the exact place where the Lancastrian King, Henry VI as he would be, and the Yorkist King, Richard III, picked the roses which stimulated the Wars of the Roses in this country back in the 1400s.

Damien Carrick: So this area has always been at the heart of big disputes, be they legal or warfare?

John Cooper: Absolutely. If you want something to happen, this is the place to come.

Damien Carrick: Do you think part of the reason that lawyers have hung around is because of that history, that deep history, and perhaps a sense of conflict which hangs in the air here?

John Cooper: Well it's always been said, if you want to rumble come to the Inns of Court with a few lawyers. Yes, in seriousness, it's where history was made, certainly where English history was made, which in that time had a great ramification for certainly Europe, and when one walks round this environment and actually sees-and we're standing there now, directly opposite the wall where the roses were situated, that were picked, the red Lancastrian rose and the white Yorkist rose, it is quite stunning. Remember, Shakespeare wrote a play about it again, Richard III: 'My horse, my horse, my kingdom for a horse'. Well that was the Battle of Bosworth that was started in this very place where we're standing.'

Damien Carrick: There is still a rosebush, or a number of rosebushes against this, say, 6, 7-foot high sandstone wall, which has some lovely engravings in it.

John Cooper: Absolutely. One would like to think in a romantic moment that they are in some way related to the roses that were picked by the Kings themselves, but the fact of the matter is, this is the very spot where that history was made.

Damien Carrick: Now John, these Chambers which encircle this garden where the War of the Roses effectively began, they're all again, barristers' chambers?

John Cooper: They're barristers' chambers, but also in the higher levels of the buildings we're looking at, they're flats. Flats where certainly barristers stay and sometimes bring their families along with them as well. So it's still a domestic community as well as a professional community.

Damien Carrick: So people still live here all together in a weird legal community?

John Cooper: Absolutely right, yes. It is still a very close-knit community whereby people, not all people, but some people, choose to live and work.

Damien Carrick: And do they rent the flats, or do they buy them?

John Cooper: The flats are rented from the Inns of Court Administration, at a particularly decent rent at times. But it varies.

Damien Carrick: And just describe the scene for us where we're looking down a gentle hill towards the Thames, and there are barges moving in both directions and then a busy road, and then a lawn leading back up to where we're standing, and on either side some 4, 5-storey buildings, again pretty beautiful old buildings which look like they date back from anything from the 16th century on.

John Cooper: Yes indeed, twilight falls now and you often see the lights twinkling as it were in the chambers where the barristers are working. The trees losing their leaves as they do in this part of the world, and looking across there now, you can see the River Thames, and just across the other bank on the South bank is the National Theatre, the centre of culture, certainly in London. And if one looked further down to the right, one would see Big Ben and the Houses of Parliament.

Damien Carrick: London barrister, John Cooper, my guide through London's legal precinct, and in particular, Middle Temple.

Prue Vines is an Associate Professor at the University of New South Wales Law School. She says when it comes to the law, Australia has inherited an enormous amount from the English.

One of the most important gifts is the Common Law system.

I asked Prue Vines how that tradition of writing down legal decisions and then relying on those judgments when arguing future cases, began? And how was that process connected with the way lawyers were trained at the Inns of Court?

Prue Vines: The writing down of courts really comes from the records that were kept because the King was in control of things. But when we look at what's in the early year books, in the 1200s, 1300s, and so on, we see lots of reports of the argument that got the matter into court to be decided, so what we call the pleadings. And we often don't actually see the outcome. So they don't say, 'Well, you win'. They say, 'Well, you have to say this in order to get it into court', and you have to establish that your jurisdiction is this. And this relates to the way they were training lawyers, because lawyers of course didn't go to university, they did these very long apprenticeships at the Inns of Court where they would practice pleadings, and they would practice how to get their matter into court. It's really not until the 1530s that we begin to have reports that look a little bit more like what we see today, so that's the report that tells you what the facts of the case are and what the arguments or the issue that had to be decided was, and then who won and why, and what the rule was. So what we now call the Doctrine of Precedent really only became full-blown in the 19th century, but it was a long road from the early year-books through to the time when people started to make proper reports like those of the 1530s and 1550s, until the Society of Legal Reporting was established in the 1870s in both England and in Australia.

Damien Carrick: So you're saying that the pleadings were recorded more as a way to train lawyers in how to present a case, rather than to kind of have some kind of record of what decisions were.

Prue Vines: Yes. Yes, they were very much for the apprentices to use, so the apprentices would go to Westminster during the day and watch what was happening in the court and the way the lawyers were getting it in and what sort of arguments they were making, and then they'd come back to the Inns of Court at night and have their dinner, which was essent6ial, and then after dinner they would practice, and they might do this sort of process for about 15 years before they became a fully-fledged lawyer who could work in the courts.

Damien Carrick: So gradually the sort of system of recording the pleadings evolved into something where you'd actually record what the judge decided. So the idea was to kind of hold the judges accountable to what they'd already decided previously. I mean how was that possible, that idea of Rule of Law, that idea of there being consistency and accountability in terms of decisions made by judges

Prue Vines: Well I think in the very early days, that probably didn't really exist, because the accountability of the judges was probably directly to the King. In the early days judges got a fee for each service for example, they weren't paid salaries. In fact New South Wales was the first place to pay judges salaries.

Damien Carrick: The first place in the Common Law world?

Prue Vines: Well something like that, and they did it in 1823, I think, and before that judges mostly got a fee for service. And they continued to do that in England until the late 18th, early 19th century. So we're probably not talking about that sort of aspect of independence of the judiciary.

Damien Carrick: We haven't only inherited our system of law, our black letter law, our Common Law, our adversarial law, we've also inherited a legal culture as well. I mean we don't have Inns of Court but we do in all Australian cities have barristers being members of Chambers and we do have these sort of legal precincts, where we have our courts, our barristers chambers and a lot of solicitors' offices. That kind of culture has also been transplanted, hasn't it?

Prue Vines: Yes, and the idea of the legal profession as something special, I think maybe it's only the view of the legal profession that they're something special, but there is this sense that the legal profession is significant not just because it's fun for lawyers to be together, but because they all actually are part of this general role of maintaining the Rule of Law, and if you think of the Rule of Law in terms of preventing the arbitrary abuse of power, and preventing that abuse of power from affecting individuals, it is a very noble cause. There are some traditions and sense of culture associated with that.

Damien Carrick: It's funny though, it's a fine line though isn't it, because that's the good, but there's also what many people regard as the kind of silly anachronistic and indeed quite clubby and exclusive.

Prue Vines: Oh yes, and sometimes I think lawyers are their own worst enemies in that respect because it's very easy when you're within some culture not to see what it looks like from outside.

Damien Carrick: Well that's right. I mean as well in those legal precincts, you have those weird kind of 'Ye Olde English' expensive, clubby wine bars and restaurants, and ordinary people when they walk along the street they see the barristers in their black robes and their horsehair wigs and it does look all very anachronistic and silly.

Prue Vines: Yes, well I suppose maybe in Darwin it doesn't look the same as it does in Melbourne. I don't know. I think all the legal traditions that we have are certainly affected by the new environment. So there's a strong legal tradition and so on, and you can see it in Darwin or Perth as well as in Melbourne and Sydney, but perhaps Sydney and Melbourne because they're the older ones, they're more conservative.

Damien Carrick: But you're saying that there is good and there's bad to it, because it comes from this very kind of ancient tradition which springs from mediaeval London, and here we are on the other side of the world where this culture has taken a hold and there are good reasons for it.

Prue Vines: Yes, well I think the upholding of the Rule of Law is a profoundly important thing, to live in a country where the Rule of Law actually operates is an enormous blessing, and it's very easy in a country like Australia to take for granted that that is mostly what happens. There are certainly things wrong with our legal system, but most of the time lawyers actually do operate to prevent the abuse of power. And when they are doing that, that's the highest role of the profession. Sometimes they're doing other things that are not nearly so admirable.

Damien Carrick: I understand that here we are in the early 21st century, but there are still some customs which hark back to the times when the legal community huddled itself into this precinct behind closed doors.

John Cooper: Yes, nowadays it's right to say that in 99 per cent of situations lawyers and barristers now in the United Kingdom are very modern business people, but a few of the traditions still maintain. One, for instance, barristers should never shake hands.

Damien Carrick: Why not?

John Cooper: Well you'll probably think it's because they're not friends, but it's quite the contrary. The old reason for shaking hands, particularly the right hand, was that you clasped the hand of someone else so they couldn't go for their sword against you, so it was a sign of distrust, that whilst you were clasping hands they couldn't stab you. And of course barristers would never dream of stabbing another barrister, and therefore to offer your hand to be shaken was the ultimate insult.

Damien Carrick: It was an insult because you should be able to trust them, they weren't going to pull a sword on you...

John Cooper: Precisely. Of course what people didn't know is that with their left hand they probably had a dagger.

Damien Carrick: Terrific. John Cooper, thank you very much for speaking with The Law Report.

John Cooper: It's my pleasure, thank you.

Damien Carrick: Leading London criminal barrister, and my guide around London's Middle Temple. And before him, Associate Professor Prue Vines from the University of New South Wales.

That's The Law Report for this week. A big thank you to producer Anita Barraud, and technical producer, Carey Dell.