Tribute to Sir Harry Ognall QC, 9th January 1934 -13th April 2021, by Robert Smith QC

Sir Harry Ognall will be remembered for his breadth of intellect and his exceptional ability to convey precision in both speech and in the written word, and absolute clarity of meaning in everything he said or wrote.

Even after his appointment to the High Court Bench he remained an advocate at heart, as everyone who had the privilege of appearing in front of him was aware.

He had a commanding presence both at the Bar and on the Bench. On the Bench he had a habit during summing up to a jury, of sliding his hands into the cuffs of ermine or silk that adorned the sleeves of his judicial robes while he effortlessly guided the jury through the facts of the case and his directions in law. His delivery was faultless and was still that of the advocate that he was, for he had the ability to command the undivided attention of the jury in every one of his cases as a Judge. His long experience at the criminal Bar of England and Wales equipped him with an exceptional ability to manage juries in order to help them to achieve the correct and just result in every case that he tried.

He was also a particularly fair tribunal. He was scrupulous in ensuring that every one of the trials which he presided over was conducted to the highest standard by those who appeared before him. He commanded enormous respect from the Bar. He had the ability to promptly and effectively dismantle flawed legal arguments with his devastating and incisive intellect, as many of his opponents or protagonists when he was in practice at the Bar knew to their cost. He could not and would not tolerate deficiency in standards but he also made allowance for inexperienced members of the Bar and anxious witnesses. Many Judges would have benefitted from the experience of watching and listening to Mr Justice Ognall in his management of cases on the Bench.

These memories of him and admiration for him will have been shared by a host of other lawyers and professionals who came before him or had contact with him in whatever capacity, not just in this jurisdiction, but also overseas where his talents at the Bar were displayed in a number of particularly high profile cases.

Above all, Sir Harry was a very human man with a compelling sense of humour and he was a splendid conversationalist. He enjoyed the camaraderie of the Bar. During his years at the Bar his love of the profession and his close relationship with colleagues was all too evident. In those days the Bar took time to have lunch together, juniors being welcomed and indeed privileged to find themselves in the company of experienced and powerful advocates whose talent was concentrated on the North Eastern Circuit. The conversation at lunch was vibrant and intellectually stimulating, as was to be expected from the combination of legal talent in practice on this Circuit during those days. They included his close friends, Peter Taylor Q.C., who was to become Lord Taylor of Gosforth and Lord Chief Justice of England, and Gilbert Gray Q.C., two advocates whose styles could not have been more different.

Harry frequently quoted the advice of Peter Taylor, that in criminal practice on Circuit a member of the Bar needed two important text books. One was Archbold – Criminal Pleading Evidence and Practice, the standard work for criminal practitioners. The other was the Good Food Guide.

Harry missed that camaraderie when he left the Bar to assume high office but he always remained a true Circuiteer and he undoubtedly remained a true friend to the Bar, not just to the Circuit, but to all practitioners, throughout his illustrious career.

Harry went up to Lincoln College, Oxford to read law in the Autumn of 1953. He worked hard and became President of the University Law Society in his last year. Following that he spent a year in the United States of America and wrote a comparative law thesis for a Masters Degree. He was called to the Bar by Gray’s Inn on 25 November 1958, wearing a hired dinner suit from Moss Brothers and he then became a pupil in the Leeds Chambers of Alter Hurwitz, his father having paid 100 guineas for the privilege in those days, in order to advance his son’s chosen career.

Harry’s clerk quickly recognized his  talents and his  reputation started to build. In those days licensing work for the bookmaking industry was well remunerated and he and Gilbert Gray cornered that particular niche on this Circuit as well as being immersed in common law litigation and serious crime. Gilbert was to become a life long friend and opponent in the early days at the Bar and they shared Chambers together.

Harry and Gilbert often appeared against each other at numerous County Courts throughout the Circuit dealing with small claims and personal injury cases. Harry was always greatly amused by a case in which he was retained for the defendant at Malton County Court and in which Gilbert was his opponent. The case involved litigation over the sale of some pedigree pigs. The Judge and Gilbert clearly knew a great deal about farming but Harry was very much out of his depth although supremely confident that his client would be successful. The evidence and the law all supported Harry’s client’s case. There came a time when the Judge began to express either exasperation or frustration over Harry’s inability to grasp the nuances connected with the breeding and selling of pigs, at which point Gilbert rose and said to the Judge:

“Your Honour, you must forgive my learned friend, for he is but a city boy and is unfamiliar with our country ways.”

Needless to say Gilbert obtained judgment for his client and he and Harry drove back to Leeds together. He and Gilbert remained close professional friends throughout their careers but their respective styles of advocacy could not have been more different.

In 1972 Harry was appointed to part time judicial office as an Assistant Recorder. Shortly before he took Silk he was commanding the pick of the high profile criminal cases on Circuit. In 1973 he was appointed Queen’s Counsel. He became one of the first choices for the Director of Public Prosecutions in high profile cases and his abilities as a defence jury advocate became both  nationally and internationally recognized.

His first major case in Silk was the prosecution of a man named Thomas Anderson, also known by his professional title as ‘The Harehills Rat Catcher.’ Anderson was tried for the murder of an eighty-three years old lady named Daisy Morris who lived at Veleta Cottage on the outskirts of Leeds. In 1906 her great uncle had composed the music and the steps for the waltz which was known as ‘The Veleta’, which derives its name from the Spanish word for a weather vane. By the time of her death she was living at the cottage as a virtual recluse.

Mr Justice Caulfield was to commence his summing up to the jury in that trial with the words: “The Veleta was a beautiful waltz, but there was nothing beautiful about the way Daisy Morris died.” Indeed there was not, for she had been strangled inside her home with a ligature made of baler twine. Her body had been discovered by a milkman. Before the police arrived, and while the milkman was still there, the Harehills Rat Catcher made an appearance at the open door of the cottage and made a comment which the prosecution was to contend demonstrated that he was aware that she had met a violent death, a fact which would not have been apparent to anyone standing in that doorway who did not have direct knowledge of the circumstances in which she died. Anderson was convicted at the end of a skillfully conducted prosecution in Harry’s hands which involved the careful presentation of a circumstantial evidence case.

One of the many high points in Harry’s career as an advocate was the trial of Peter Sutcliffe for the serial murder of a number of women over a five year period in Yorkshire and Lancashire. Sutcliffe had been responsible for the murders of at least thirteen women and the attempted murder of another seven. Sutcliffe was to become known as ‘The Yorkshire Ripper’ having regard to the occupations followed by some of his victims and the appalling injuries that he had inflicted upon them, using a knife and a ball-pein hammer. His offending attracted huge interest over many years as West Yorkshire police tried unsuccessfully to identify their suspect. By chance, Sutcliffe was arrested on the evening of the 2nd January 1981 by a police officer who had been conducting routine motor patrol on the outskirts of Sheffield and had approached Sutcliffe’s motor car which was stationary on the driveway of some business premises. The car was bearing false number plates. Sutcliffe’s next intended victim was seated in the passenger seat. Sutcliffe was taken into custody and while at the police station he deposited a knife in the lavatory cistern, which was discovered by the police. The police also discovered a knife and and a ball-pein hammer close to where the vehicle had been parked. These items were of the type that had been used on the earlier victims. Shortly thereafter Sutcliffe made a statement to the police in which he admitted the offences with which he was to be charged.

Such was Harry’s reputation that his clerk received the instruction from the Director within two days of Sutcliffe’s arrest and plainly the Director was anxious to retain the leading criminal advocate on Circuit. In May 1981 the case came on for trial before Mr Justice Boreham at the Old Bailey. The Indictment contained thirteen counts of murder and seven counts of attempted murder. In terms of his defence, Sutcliffe had asserted to the psychiatrists who had examined him that he had been commanded by God to commit these murders. This was to be referred to throughout the trial as ‘the Divine Mission’ and appears to have been accepted as a truthful account of Sutcliffe’s state of mind by the medical experts who had been instructed on both sides. The ‘Divine Mission’ was to form the underlying factual basis for Sutcliffe’s defence.

Harry had been confronted with a unanimous body of psychiatric opinion to the effect that Sutcliffe was suffering from an abnormality of mind at the material time and that he was, accordingly, of diminished responsibility. If that reasoning was correct it would mean of course that Sutcliffe could not be guilty of the charges of murder but would be guilty of the lesser crimes of manslaughter. Despite the weight of unanimous medical opinion in favour of this defence, Harry held the clear view that the public interest required this issue to be tried by a jury and that the prosecution should not accept Sutcliffe’s plea of guilty to manslaughter. Harry was supported in his judgment by the trial Judge and the trial went ahead. Harry had formed the clear view that the conclusions of the psychiatrists, who had unanimously expressed their views in favour of a finding of diminished responsibility, relying as they did on the theory of the ‘divine mission’, were flawed, and he set about the task of dismantling the theories and opinions that they offered through particularly damaging and incisive cross examination of those experts. The result was that the psychiatric evidence and the case for the ‘divine mission’ was rejected by the jury, and Sutcliffe was convicted of that series of quite brutal murders. Harry had spent many hours in detailed preparation of his cross examination of the medical experts and in so doing bore in mind a principle that he often quoted in the course of his career as an advocate: “If you can’t poison the atmosphere in the first ten minutes of your cross examination you may as well sit down.”

However, the pinnacle of Harry’s forensic achievements at the Bar was the successful defence of six Zimbabwe Air Force officers who faced trial for alleged acts of sabotage and damage said to have been  committed by them on July 25th 1982 at Thornhill Air Force Base in Central Zimbabwe. These officers were arrested after saboteurs had cut their way through a security fence and blown up 13 fighter aircraft at a cost to that country’s Government of millions of dollars and the destruction of half of its fighter force. One of the defendants was an Air Vice Marshall, another defendant was an Air Commodore. It was alleged that they had conspired with South African security forces to commit the damage in question and they were charged with treason. When Harry received the brief he learned that all of the accused had made written and signed confessions of their involvement. However, once they had access to legal advice they made it clear that they had been tortured and compelled to confess against their will. Their confessions were not made in the presence of legal representatives and it was apparent that steps had been taken to deprive them of legal assistance. If they were to be convicted, the penalty would be the death sentence.

The stakes could not have been higher and there could not have been a more challenging brief to receive and it is probable that it placed on Harry the greatest demands that he had ever experienced during his career at the Bar. However, one of his great qualities was to ensure accuracy in the presentation of evidence and he prepared every case in the finest detail. That approach was to gradually work in the defendants’ favour as the evidence in the trial progressed. It had become  immediately clear to Harry that the outcome of the trial was going to turn upon the impact of his cross examination of the security officers who had obtained the written confessions. He set about preparation of the defence by examining every conceivable detail of the case and began to closely analyse the evidence relating to the conduct of the security officers who had obtained these confessions.

Once the trial began in Harare in May 1983, Harry began to conduct a careful and detailed cross examination of the security officers who had extracted the confessions over the course of evidence which lasted  a number of weeks. By the end of it he was mentally and physically exhausted but he had destroyed the credibility of the security officers entirely and he remained confident of one thing. If the Tribunal was one of independence and integrity the only proper outcome would be the acquittal of his clients.

Ultimately, in a reserved ruling delivered a number of months later, the Court concluded that all of the alleged confessions should be disregarded. There was no other evidence against the defendants and they were acquitted. There could have been no more demanding an experience facing any advocate or the professional satisfaction that must have been achieved in its result. The aftermath of the trial was that the defendants were re-arrested immediately after the verdict on more trumped up charges, but the Government of Zimbabwe intervened and they were all released. They owed their lives and their reputations to Harry’s forensic skill.

Shortly after his achievements in Zimbabwe, Harry was elected to be a Master of the Bench of Gray’s Inn. He found that to be a great honour and was to point out to his friends that the last time he had been addressed as ‘Master Ognall’ was when he had been at school.

There followed many other important cases, both nationally and internationally, all of them becoming more and more demanding. It is probable that Harry welcomed the offer of his appointment to high office given that the work load which followed his successes had begun to bear heavily upon him. He loved his life with his family at home in Yorkshire and he had spent another lengthy period of time overseas, conducting long and complex committal proceedings for the Attorney General  in Hong Kong.

On the 13th January 1986 Sir Harry was appointed to become a Judge of the Queen’s Bench Division of the High Court. He viewed it as a great honour and a recognition of all his achievements at the Bar. And so it was.

Shortly after his appointment he was invited by the then Lord Chief Justice, Lord Lane, to become Chairman of the Criminal Committee of the Judicial Studies Board. That too was a recognition of his skill and reputation in the criminal law. In that capacity he enjoyed three years in charge of seminars and training for newly appointed Judges and refresher training for those already appointed. He thereafter spent three years as Vice Chairman of the Parole Board and Chairman of its Life Sentence Review Committee. No member of the Judiciary could have been better equipped to discharge the duties demanded by these important functions.

Harry always remembered the support that he had received from the various clerks who served him throughout his career at the Bar and on the Bench. He spoke warmly of Roy Kemp who had been his clerk from the time of his appointment to Silk and to whom he said he owed a great deal in terms of the progress of his career.

Following his appointment to the Bench, Harry’s first clerk lasted a matter of weeks until his services were dispensed with. He was replaced by Bob John, a recently retired Metropolitan Police Inspector, who was to remain as Harry’s clerk throughout the remainder of Harry’s judicial career. Many of us will remember Bob and will have recognised the degree of affection and regard that Harry held for him.

In terms of the cases that Mr Justice Ognall presided over in the course of his ensuing and distinguished career as a Judge of the High Court it is fitting to mention one criminal case in particular. This case, above all others, serves to  exemplify the man that he was and it also serves as a testament to his enduring sense of fairness together with his conspicuous ability. His rulings in that case emphasize the importance of a strong and independent judiciary. It is the paradigm example of why Judges must retain their independence and why the legal system requires Judges of such integrity as Sir Harry.

On the 15th July 1992 a woman named Rachel Nickell was brutally attacked on Wimbledon Common and died from the most dreadful injuries. The Metropolitan Police made little progress with the case but eventually focused their hitherto fruitless investigation on Colin Stagg, a single man, who was known to walk his dog on the Common. For reasons best known to themselves, the Metropolitan Police obtained a profile of the killer from a psychologist and decided that Mr Stagg corresponded with that profile. The police then set about preparing what could be called a ‘honey trap’ for Mr Stagg. They used the services of a police woman to make contact with Mr Stagg and to covertly record her numerous conversations with him. Once this evidence was obtained the Crown Prosecution Service concluded that it was sufficient to satisfy the appropriate test to commence a prosecution against Mr Stagg for Rachel Nickell’s murder. Thus it was, that in September 1994, just over two years after this lady’s death, Colin Stagg appeared before Mr Justice Ognall at the Old Bailey for trial. As events proved over the course of the years that followed, English Justice did not take a wrong turn in this case, although at the time of the trial many asserted that it had.

The defence argued that the evidence of the recorded conversations  should be considered in the absence of the jury in order that a ruling could be made in relation to its admissibility and they contended that the evidence had been obtained unlawfully. Their arguments were that the actions of the police contravened the well established requirement that a suspect must be cautioned before being ‘interviewed’ and, alternatively, that the words spoken by Mr Stagg and recorded by the police could not in themselves amount to evidence of Mr Stagg’s involvement in the murder. The Press was particularly interested in the case and it had received a considerable amount of publicity.

Mr Justice Ognall, as one would expect, considered the evidence and the competing submissions with great care. He concluded that he was entirely satisfied of two things. The first was that the conduct of the Metropolitan Police represented “deception of the grossest kind” and that it infringed the long established rule in criminal cases that a confession should not be secured by the police from a person who has not first been cautioned. He also found that there was nothing in the remarks made by Mr Stagg which were capable of supporting a case against him. The conduct of the police, in his judgment, constituted the clearest breaches of the procedural rules governing criminal cases. He was also concerned that the prejudice created by the media could only increase the risk of a wrongful conviction. All of his experience in the criminal law and, in his judgment, the correct application of legal principle, told him that this prosecution was deeply flawed.

Many Judges may not have had the courage to dismiss the case but may instead have ruled in favour of admissibility, seeking refuge in such arguments as the prosecution had advanced in favour of this case going to the jury for trial. One thing that Harry was not lacking was an abiding belief that his office required him to discharge his duty in accordance with legal principle and correct professional judgment.

There was no other evidence against Mr Stagg than these recordings so that when Harry ruled that they were not to be admitted in evidence at the trial, that meant that there was no case to go to the Jury. Mr Stagg was acquitted.  But that was not the end of the affair.

Harry was immediately subjected to criticism by the media and, even more regrettably, from some sources in the Metropolitan Police and even in the Crown Prosecution Service. On the following day one newspaper proclaimed in its headline “Judge in the Dock.” There followed a campaign of criticism of Harry by that newspaper which lasted many years. Other publications followed suit, implying or expressly alleging that the trial Judge had allowed a man, guilty of a dreadful murder, to ‘get away with it’.

Many years later, in 2006, a police cold case review team investigated the activities of a man named Robert Napper who was then detained at Broadmoor Hospital for the murder, in 1993, of another woman and her daughter. In due course that man was to admit and to plead guilty to the murder of Rachel Nickell in a prosecution supported by the clearest scientific evidence against him.

It is fortunate indeed that Harry’s enduring sense of fairness and forensic experience produced the result that it did. Not only were his rulings in that case correct in law but he would have known, from long experience at the criminal Bar and on the Bench that this outcry from the media could be predicted as something that would follow his rulings and Mr Stagg’s acquittal. None of that deterred him or deflected him from the legal rulings that he concluded were necessary in accordance with the law and he would undoubtedly have faced the public criticism that followed with the same resolve that guided him throughout the whole of his distinguished career. No apology was ever forthcoming from the press for their reporting and commentary on his rulings in that case but at least he had the satisfaction of knowing that the public would eventually realize that he had made the correct decision at the time of Colin Stagg’s trial.

Harry retired from the Bench in 1999. His intellect required of him  more than the constant diet of homicide trials on Circuit and he made known his views that “a bored Judge was a bad Judge.” A bad Judge he never was nor would let himself ever become but he was becoming tired of life in the Judge’s Lodgings and in London. He sat on this Circuit, at Leeds Crown Court, for the last six weeks of his judicial career. Since then he has been sorely missed. He was the last of that group of advocates who had adorned the Circuit with their conspicuous ability and which included Harry’s good friends, Lord Taylor of Gosforth and Gilbert Gray Q.C.

That was not however the end of the profession’s insight into a great man’s career. In November 2017 Harry asked me if I had a wig stand on which to place his full bottom wig. I asked him why. He told me that he had just completed his autobiography and that it was about to be published by Harper Collins. The publishers wanted an image of a full bottom wig to adorn the front cover. We met in a Spanish restaurant for lunch and discussed a possible ‘book signing’ event in Chambers. Harry was delighted with the idea and it went ahead. To my deep regret, as so often happens, I was engaged with clients in London and could not attend but I was anxious, the following day, to receive from the staff in Chambers a full report of the event. I was reliably informed that the very large pile of copies of “A Life of Crime” which had been delivered to Chambers before I left to go to my meeting had all been signed by Harry that evening and had sold out and I am also reliably informed that the Chambers Chief Executive and the Chambers Administrator were in due course sent out to obtain greater quantities of fine wine, that having run out as well.

His autobiography contained a chapter by way of advice to young advocates and the following extract serves to confirm the high standards that he demanded of himself and of others and to which mention has already been made.

“Everything you do as an advocate at the Bar should be founded on the bedrock of the interests of justice, and subordinate to that principle. Personal ambition drives most of us. It is an entirely laudable feature of life, but it must never obscure your chosen role as a servant of the machinery of justice.”

The final words of the ‘Acknowledgements’ section of his autobiography, serve also to remind us of the fact that Harry was always a ‘Circuiteer’ and that he remained devoted to the camaraderie of the Bar of the North Eastern Circuit of which he had once been an important part. It reads as follows:

“Finally, to all those at the Bar who were my colleagues, my adversaries, and my boon companions as fellow members of the North-Eastern Circuit. In my time with them lies the genesis of these recollections. To have spent most of my professional life with them was a rare and cherished privilege, and a source of unbridled pleasure.”

While Harry had many able contemporaries there was something very special about him which placed him head and shoulders above all of his contemporaries. He had great style, not only as an advocate but personally. When he was at the Bar he always drove fine motor cars which were the envy of many juniors and aspiring Silks and he was still driving a Porsche 911 well into his eighties. In Court he was always immaculately turned out. His bands and collars would have been a tribute to any laundry. He was admired for his professional courtesy, something which every good lawyer must strive to achieve and maintain, even in the face of adversity. He was respected at the Bar and on the Bench for his intellectual skills and his decisive intellect. His command of language and the clarity of expression which accompanied it was second to none. I know of no one who did not hold him in the greatest admiration or look on him with respect. One could not do otherwise. Those of us who worked along side and in front of him have enduring memories of his powerful and commanding presence both at the Bar and on the Bench and we will indeed be fortunate to see his like again.

ROBERT SMITH Q.C.

April 30th 2021

Authors

Robert Smith KC

Call 1971 | Silk 1986

Related areas

Crime

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