On 30 January 2018,
SCL members were greatly saddened to learn that Sir Henry Brooke had passed
away while undergoing cardiac surgery. Most of us heard the news on Twitter
from Sir Henry’s son, Nick Brooke, who wrote as follows: ‘the surgeon says my
Dad’s heart was just too big: this won’t come as a surprise to anybody who knew
him’. Indeed so. Sir Henry was a remarkably accomplished individual but our
memories of him within SCL will be of an unfailingly kind and considerate human
being.
He was born on 19 July
1936, educated at Marlborough College (1949-54) and Balliol College Oxford
(1957-61), and served in between with the Royal Engineers (1955-1957). He was
called to the Bar in 1963, took silk in 1981, and was appointed to the High
Court (Queen’s Bench Division) in 1988. He was Chairman of the Law Commission
(1993-1995) before being elevated to the Court of Appeal in 1996. Later he held the office of
Vice-President of the Civil Division of the Court of Appeal (2003-2006).
In the many tributes
that have been written to the life and work of Sir Henry, we have read of this illustrious
legal career as well as the many and diverse causes and fields to which he gave
so much – the prevention of racial discrimination, prison reform, the
development of law centres, access to justice, legal aid reform, mediation, and
the Slynn Foundation. To name but a few.
Less has been said,
however, of his prodigious efforts over the decades to use technology to
improve the administration of our courts. His earliest formal contribution to this
field was as Chairman of the Bar’s
first Computer Committee in 1985. Some
years after, in 1992, he became president of SCL and worked tirelessly for our
society in this capacity for nine years. In 1997, while still our president, he was appointed as the Judge in Charge of
IT, a role that expanded to become the Judge in Charge of Modernisation, which
he held until 2004. By that time, he had for three years been the
Chair of the Trustees of BAILII, the British
and Irish Legal Information Institute. He stepped down from
that position in 2011. For around a quarter of a century, therefore, he was at
the heart, and was in many ways the soul, of major projects devoted to the computerization
of our justice system.
I first met Henry in
the late 80s, at a conference in London on the use of technology in the
criminal justice system. We immediately clicked, sharing the conviction that
legal practice and the courts could benefit greatly from the application of
technology. We worked together on many projects from the early 90s, but most
closely in 1992, when he was president of SCL and I was chair. He was an
ever-present president, supportive of me and all of the Society’s initiatives. His
charming wife, Biddy, often accompanied him to SCL events, which was widely
appreciated.
I was struck by Henry’s
generosity of spirit. He was warm, kindly, approachable, good-humoured, and always
inclined to see the rosy aspects of people and situations. He was a master at
bringing together the diverging views of diverging people – as the Judge in
Charge of Modernisation, he achieved a level of harmony between the judges and
court officials on IT matters that had been barely imaginable in the fraught 90s.
When he stepped down
from the Bench, Henry felt able to speak and write more forcefully on a wide
range of pressing concerns. This is most visible in his blog, ‘Musings,
Memories and Miscellanea’. This is a priceless resource, covering access to
justice, diversity, human rights, technology, law reform, mediation, and much
else. Each blog is carefully crafted and of publishable quality in its own
right. Although it is sad now to browse this site, knowing that he is no longer
with us, it should remain as an inspiration to us all. It is a masterclass in
intelligent, accessible, and informative prose – https://sirhenrybrooke.me/. Needless to say, he supplemented his blog with a formidable Twitter
presence – almost 10,000 followers were able to enjoy his pithy and yet
literate tweets (more than 2,000 of them). No senior judge in the world,
retired or serving, has engaged so actively and effectively on social media.
And so, ineffably tragic as it was to learn of his passing on Twitter, I have
the strong sense that Sir Henry would have liked the news to have been released
in this way.
The scale of Henry’s
social media activity in late life offers a hint at his earlier industry and
productivity. He applied himself with singular energy and focus to any task at
hand, whether in reviewing the entire history of technology in the courts, or in
launching some new initiative or programme of work. Two examples of his
determination are still evident to the legal community on a daily basis. The
first is paragraph numbering in our law reports, without which it would be impossible
to conduct online research of case law. This may now seem unremarkable but
Henry himself wrote of ‘the monumental battle we had to wage to persuade some of our
most senior judges to introduce paragraph numbering into their judgments’. This
battle took place in the late 90s, when most judges were steadfastly in
opposition to this typographical innovation (as they saw it), unable to see the
benefits of online legal research. But through sheer grit and power of
persuasion, Henry prevailed, supported initially by Lord Bingham, when Lord
Chief Justice, and later by his successor, Lord Woolf, who issued the
victorious practice direction in 2001 (All England Law Reports/2001/Volume 1 /Practice Note (judgments:
neutral citation) – [2001] 1 All ER 193).
Characteristically, Lords Bingham and Woolf had needed little encouragement –
they heard the case for paragraph numbering, understood it immediately, and
stood behind Henry.
The
second illustration of Henry’s perseverance was his relentless support for the
development of BAILII, the online service that offers free access to British and Irish legal
materials, including large bodies of legislation and case law. In November
1999, Henry chaired the meeting at Chatham House that led to the launch of the
system in the first place. He went on to chair the BAILII board for a decade. For
many lawyers and lay people, this system has been the only affordable way of
accessing the law of our land.
Even in the darkest
hours of our attempts to modernise the courts, Henry remained positive. In one
of his best papers, ‘Technology and the Judicial Process’ (published in a festschrift
for Sir Brian Neill, edited by Lord Saville and me), Henry charted 15 years of
progress in computerising the court system. But, with evident emotion, he lamented
the news on 15 July 2002, that the Government had earmarked no extra money for
modernising the civil and family courts. As he put it, ‘the bubble burst’. He
concluded that paper by saying it would be wrong ‘to despair too much’ despite
the fact that ‘(in) July 2002 other social needs were adjudged by our rulers to
have a higher priority than the need to provide a system of justice for the
citizen which is not totally overwhelmed by mountains of paper. Perhaps in my
lifetime, if not now in my judicial lifetime, a brighter future will really
arrive’.
It is heartening to
confirm that Henry did catch a glimpse of that brighter future to which he had
pointed us. In November 2015, when the Spending Review
of HM Treasury announced that the UK Government would be investing ‘more than
£700 million to modernize and fully digitize the courts’, Henry wrote that ‘there was at last to be real progress in
meeting the challenges involved in modernising the courts’. That said, he was
not popping the champagne corks. He wisely went on to warn that his papers over
the years ‘show that what we will be undertaking here will simply enable us to
catch up with other jurisdictions whose political and financial governance was
wiser than ours.’
He seemed
more convinced and enthused by the
Online Courts Hackathon that SCL hosted in July 2017. Henry attended towards
the end of the event and smiled throughout as a
new generation of legal technologists presented
promising ideas for the court system of the future. Like the late Sir Brian
Neill, with whom he sat, Henry should rightly have regarded the outcome of the
Hackathon as the fruits of his own labour. In his blog, Henry later wrote of a
conversation that he and Brian enjoyed in the taxi home. ‘We reminisced about the days
when we would be lucky if we attracted seven people to a meeting to discuss
possible uses of applied technology in support of the courts. This week’s event
was heavily over-subscribed, and 200 would-be participants had to be turned
away.’ He seemed pleased.
My last contact with
Henry was early in the evening of 26 January 2018. He had been in touch to tell
me about his surgery and to ask if I might offer some help to an overseas judge
he had been advising. In his final message, he spoke positively about the
surgical team, he asked after one of my sons, and he concluded by saying, ‘Love
to you both’. This exchange was typical – generous, affectionate, and focussed
on the interests of others. He was a very fine man and will be deeply missed in
the world of computers and law.
On behalf of SCL, I
send our heart-felt condolences to Biddy and the Brooke family.
