Patrick Devlin, Baron Devlin

Patrick Arthur Devlin, Baron Devlin,

In 1959, Devlin headed the Devlin Commission, which reported on the State of Emergency declared by the colonial governor of Nyasaland. In 1985 he became the first British judge to write a book about a case he had presided over, the 1957 trial of suspected serial killer John Bodkin Adams.^[1] Devlin was involved in the debate about homosexuality in British law; in response to the Wolfenden report, he argued, contrary to H. L. A. Hart, that a common public morality should be upheld.

Devlin's daughter Clare, then aged 81, said in 2021 that her father had sexually abused her from the age of 7 until her teens.^[2]

Early life and education

Patrick Devlin was born in

In 1985, two years after the death of Adams, Devlin wrote an account of the trial, Easing the Passing – the first such book by a judge in British history. Easing the Passing provoked a great deal of controversy within the legal profession. Some disapproved of a judge writing about a case he had presided over, while others disliked Devlin's dismissal of Manningham-Buller's approach to the case. Lord Hailsham told judge John Baker: "He ought never to have written it" before adding with a laugh, "But, it's a jolly good read".^[12]

Court of Appeal and House of Lords

In 1960, Devlin was made a

Lord Devlin received several honorary degrees, including from the universities of Oxford, Cambridge, Glasgow, Sussex, Leicester, Toronto, and Durham.^[16]

Other public activities

Hart–Devlin debate

After the Wolfenden report in 1957, Devlin argued, initially in his 1959 Maccabean Lecture in Jurisprudence at the British Academy,^[17][18] in support of James Fitzjames Stephen that popular morality should be allowed to influence lawmaking, and that even private acts should be subject to legal sanction if they were held to be morally unacceptable by the "reasonable man", to preserve the moral fabric of society (Devlin's "reasonable man" was one who held commonly accepted views, not necessarily derived from reason as such). H. L. A. Hart supported the report's opposing view (derived from John Stuart Mill) that the law had no business interfering with private acts that harmed nobody. Devlin's argument was expanded in his book The Enforcement of Morals (1965). As a result of his debate with Devlin on the role of the criminal law in enforcing moral norms, Hart wrote Law, Liberty and Morality (1963) and The Morality of the Criminal Law (1965).

In the first lecture in "The Enforcement of Morals", Devlin argued that "society means a community of ideas; without shared ideas on politics, morals and ethics no society can exist". Violation of the shared morality loosens one of the bonds that hold a society together, and thereby threatens it with disintegration. So an attack on "society's constitutive morality" would threaten society with disintegration. Such acts could therefore not be free from public scrutiny and sanction on the basis that they were purely private acts. He explained:

It is not possible to set theoretical limits to the power of the State to legislate against immorality. It is not possible to settle in advance exceptions to the general rule or to define inflexibly areas of morality into which the law is in no circumstances to be allowed to enter. Society is entitled by means of its laws to protect itself from dangers, whether from within or without. Here again I think that the political parallel is legitimate. The law of treason is directed against aiding the king's enemies and against sedition from within. The justification for this is that established government is necessary for the existence of society and therefore its safety against violent overthrow must be secured. But an established morality is as necessary as good government to the welfare of society. Societies disintegrate from within more frequently than they are broken up by external pressures. There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government... the suppression of vice is as much the law's business as the suppression of subversive activities.

While thus concluding that violations of the "moral code" were the law's business, Devlin observed that this did not mean that society necessarily had the power to intervene. He noted that the chief of the "elastic principles" limiting the power of the state to legislate against immorality was "toleration of the maximum individual freedom that is consistent with the integrity of society". He suggested that "the limits of tolerance" are reached when the feelings of the ordinary person towards a particular form of conduct reaches a certain intensity of "intolerance, indignation and disgust". If, for example, it is the genuine feeling of society that homosexuality is "a vice so abominable that its mere presence is an offence", then society may eradicate it.

Privately, Devlin felt that antipathy to homosexuality had not reached an intensity of "intolerance, indignation and disgust". In May 1965, he was one of the signatories of a letter to The Times calling for the implementation of the Wolfenden reforms.^[19][20]

The American legal philosopher Joel Feinberg stated in 1987 that to a "modern" reader, Devlin's responses to Hart's arguments "seem feeble and perfunctory" and that most readers "will probably conclude that there is no salvaging Devlin's social disintegration thesis, his analogies to political subversion and treason, his conception of the nature of popular morality and how its deliverance is to be ascertained, or the skimpy place he allows to natural moral change".^[21] Feinberg does allow that Devlin has an important challenge to liberalism in his formulation of an argument as to why we "treat greater moral blameworthiness ... as an aggravating factor and lesser moral blameworthiness as a mitigating factor in the assignments of punishment".^[21]

Devlin, for his part, considered (mainly in the last lecture in "The Enforcement of Morals") that the supporters of John Stuart Mill's doctrine had not plausibly fitted into their own theories such violations of the moral code as euthanasia, suicide, a suicide pact, duelling, abortion, incest, cruelty to animals, bigamy, bestiality and other obscenity, committed in private between consenting adults, causing no harm to others.

Devlin Commission

In 1959, soon after the declaration of the state of emergency in Nyasaland, the British

In response to an early draft of the commission's report, which was highly critical of repressive police methods, the government hurriedly commissioned the rival Armitage Report, which was delivered in July of that year and backed Britain's role there. Bernard Levin, among others, was of the opinion that: "The Government refused to accept the Devlin Report because it told the truth".^[22] Despite Macmillan's's rejection of the Devlin Report, once Iain Macleod became Colonial Secretary later in 1959, he approached Devlin for advice.^[23]

Personal life

In 1932, Devlin married Madeleine Hilda Oppenheimer (1909–2012), daughter of the diamonds magnate Sir Bernard Oppenheimer, Bt. Together the couple had six children.^[24]

Devlin's daughter Clare claimed publicly in evidence to the Independent Inquiry into Child Sexual Abuse in 2021, when she was 81, that he had sexually abused her from the age of 7 until her teens.^[2]

Bibliography

• Devlin, The Hon. Sir Patrick, Trial by Jury, Stevens & Sons, 1956, 1966
• Devlin, Patrick, The Enforcement of Morals, Oxford, Oxford University Press, 1965, 1968
• Devlin, Patrick, Too Proud to Fight, 1974 (biography of Woodrow Wilson)
• Devlin, Patrick, The Judge, Oxford University Press, 1979, 1981
• Devlin, Patrick, Easing the Passing, The Bodley Head, 1985

References

Notes