Obituary: Lord Brown of Eaton-under-Heywood

Liberal instincts of judge hailed as an uncompromising supporter of legal justice


In 1990, the high court judge Simon Brown made an indelible mark on history in what was arguably the most controversial ruling of the late 20th century. In a landmark decision he uttered the yet unacknowledged truth that a husband could be guilty of raping his wife.

His decision: “There is no marital exemption to the law of rape” was upheld by the higher courts and confirmed in the Sexual Offences Act 2003. For 250 years prior to that a wife was considered to be compliant in all her relations with her husband, a virtual chattel to his every whim, due to her marital status, denied of any power to retract her part of the contract.

With the linguistic elegance that characterised his style, Brown reflected: “I have few boasts to my name by way of legal achievements, few jewels in my judicial crown, but I can and do boast of being the first judge in this jurisdiction …. to rule that a husband is not permitted in law to have intercourse with his wife quite simply whenever he chooses — in short that there is such an offence as marital rape.

That decision was said at the time to fly in the face of centuries of established legal principle but in fact, happily, it was upheld by both the Court of Appeal and indeed the Appeal Committee in your Lordship’s House.”

Lord Brown of Eaton-under-Heywood, who has died aged 86, was considered one of the most distinguished jurists of his generation. Known for his amicable and modest character, his succinct judgements have been upheld as models of their kind. He became a Law Lord in 2004 and a Supreme Court Justice in 2009 at the time when that court was created.

Many of his ground-breaking judgments are said to have helped shape the modern legal landscape. In the courtroom he also had the opportunity to observe closely the the demeanour of the likes of Arthur Scargill and Robert Maxwell, the latter in his libel action against Private Eye.

After representing the government on almost a daily basis as First Junior Treasury Counsel (Common Law) in 1984, Brown was elevated to the High Court bench. Among judges in general he was acknowledged for his particular grasp of the workings of government, and was thus co nsidered less rigid in his attitudes towards it.

Apart from his model judgments themselves, Lord Brown won praise for the finesse of his written style and at the age of 83 he wrote three volumes of his memoirs, tapping them out on his iphone. They were Playing Off the Roof & Other Stories, Second Helpings and Last Scrapings.

The title refers to his passion for golf and recalls an incident when he had to climb up a ladder to the roof of the clubhouse and retrieve an errant golf ball, pitching it onto the green below.

Brown was equally lauded for his liberal principles. Some of his views may well resonate with the current political imbroglio over the government’s treatment of asylum seekers. In his 1996 judgement he struck down secondary government legislation which deprived asylum seekers of support if they failed to claim asylum on arrival.

He stated: “Parliament cannot have intended a significant number of asylum seekers to be impaled on the horns of so intolerable a dilemma; the need either to abandon their claims to refugee status or alternatively to maintain them as best they can but in a state of utter destitution.”

Three years later he declared that refugees did not have to claim asylum in the countries through which they passed to reach safety in order to be protected from prosecution. He said that “some element of choice”should be open to them.

Last year in a similar vein he took issue with the government’s controversial new nationality and borders bill, with its inherent conflict with international law. He robustly declared: “There are not many issues worth going to the stake for but surely the rule of law is one. I have spent 60 years of my life on it and do not propose to stop here”.

Simon Brown was born in Sheffield to Jewish parents, Edna, née Abrahams and Denis Brown, who ran a chain of jewellery shops in the North Midlands founded by his Polish émigré grandfather. Denis Brown was absent for most of his son’s childhood, while fighting in Burma.

Simon was educated at the progressive Abbotsholme School, and in 1950 won a place at Stowe School in Buckinghamshire. There he captained the hockey and squash teams and came under the influence of senior history tutor Bill McElwee, who discouraged him from joining the family business and helped him set his sights on Oxford.

Before that he spent his National Service in the Royal Artillery in Cyprus after some “designedly harsh and humiliating” basic training at a camp near Oswestry.

As he disclosed in his memoir, days would often end with the new recruits driving back drunk from pub crawls, adding: “one would have been judged pretty wet to refuse to drive on grounds of insobriety”.

He initially studied history at Worcester College, Oxford, but finding an Easter vacation reading list too daunting, he switched to law.

This decision gave him the chance to offer his parents “a coherent plan for a professional future career, a promising if challenging alternative to life in the family business, the prospect of which had “clouded my horizons for some years past”.

He spent his holidays hitch-hiking to Naples, working as a tour guide and swimming the Bosphorus. It was at Oxford that he met his future wife Jennifer Buddicom, whom he married in 1963, and with whom he had two sons, Ben and Daniel and a daughter, Abigail.

Brown was called to the Bar by the Middle Temple in February 1961 and did his pupillage in Crown Office Row with Owen Stable, whom he described as “a sound and stylish figure at the Bar, though hardly at the cutting edge of legal distinction”.

He gained a tenancy at Granville Wingate’s chambers in Garden Court, sharing a room with William Macpherson, who later chaired the Stephen Lawrence inquiry. Initially Brown dealt with petty driving cases, supplementing his income by proof-reading law reports for The Times.

He then specialised in personal injury and other insurance cases, with occasional commercial work — including protecting the Paddington Bear trademark — and overseas arbitrations.

In 1979, Brown became the “Treasury Devil”— First Junior Treasury Counsel (Common Law) — the government’s representative in the civil courts, which involved almost daily court appearances for the next five years until his appointment to the Bench. He became a high court judge five years later before moving to the court of appeal.

From 1995 to 2000, Brown was Intelligence Services Commissioner, investigating complaints against the intelligence services and GCHQ, although he later concluded that the vast majority of complaints were unfounded. He observed ironically that “paranoia is surprisingly widespread”. He retired in 2012 , but as Lord Brown of Eaton-Under-Heywood he was an active peer on the crossbenches.

In a tribute from Worcester College, Provost David Isaac, a solicitor and former chair of the Equality and Human Rights Commission,said:“Lord Brown was a giant of the legal world and we at Worcester are proud of his many achievements.

We are grateful for his wise counsel and commitment to the College over many years. It was a privilege to know him — his insatiable humour and friendship will be remembered fondly by many members of Worcester. My thoughts, and those of the whole College community, are with Simon’s wife Jennifer and their family.”

Lord Brown is survived by Jennifer, their children Ben, Daniel and Abigail and five grandchildren.

Simon Denis Brown, Lord Brown of Eaton-Under-Heywood. Born April 9, 1937. Died July 7, 2023.

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