Edition 2WFRI 28 FEB 2003, Page 43
Professor Sir John Smith;Obituary;The Register
FEATURES

Academic lawyer whose sometimes stinging commentaries made courts sit up and take notice.

John Smith's wife died in 2000. He is survived by his two sons and a daughter.

Professor Sir John Smith, CBE, QC, FBA, legal commentator, was born on January 15, 1922. He died on February 14, 2003, aged 81. An academic knighted for his services to the law, John Smith had an influence over the modern criminal law as teacher, writer, law reformer and scourge of the judiciary extending over more than half a century. He was still commenting in the press in his 82nd year, demonstrating the conviction and unfailing grasp of principle that were his hallmark. These characteristics earned him the respect and affection not only of generations of students, but also of the senior judges who were so often on the receiving end of his lessons in legal analysis.

John Cyril Smith was born in Co Durham in 1922 and educated at St Mary's Grammar School, Darlington. His formal education was interrupted by a distinguished period of four years' military service in the Royal Artillery, during which he served as captain and adjutant in India and Burma. As part of an army educational programme he attended a law lecture which fired his enthusiasm to read law, and he then took a first in the wartime two-year law degree at Downing College, Cambridge.

On the strength of that, and the prediction of an equally distinguished performance in the LLB, he was appointed to an assistant lectureship at Nottingham University. He came with a reputation for critical ability, modesty and good humour that characterised him to the end of his days. It was also said of him that he had the advantage of looking older than his 28 years, which was a mixed blessing. Smith later recalled his elder son asking him whether he had served in the Crusades.

 In its early years Nottingham attracted, but did not retain, anumber of other academics destined for distinguished careers, among them Sir Peter North and Sir David Williams, subsequently the Vice-Chancellors of Oxford and of Cambridge, respectively. What was needed, though, was someone to bring stability, and this was provided by the inspired appointment of Smith as head of department in 1956, and to a chair in the following year.

For 30 years with only short breaks -one of them to serve as Pro-Vice Chancellor -John Smith presided over an expanding and successful department, laying the foundations of a School of Law which today has 17 professors and nearly 900 students.

In 1957 Smith married Shirley Walters. She had been the departmental secretary, and in impish moments Smith was wont to heap praise upon his wife, omitting reference to all but her typing skills. Yet it was clear to all who knew them that this was not only a marriage of minds but also of the very strongest of characters.

A Commonwealth Fund Fellowship had taken him to Harvard in 1952, where he became convinced of the merits of the casebook method of teaching, by which students prepared materials and were then encouraged not only to take a view but also to defend it in class. Smith would listen with an encouraging half-smile and with great attention to the views of even the most misguided contributor, and would fashion light out of darkness without ever making an individual feel foolish.

Smith's prodigious publication record included casebooks on the law of contract with J. A. C. Thomas (running to 11 editions) and criminal law with Brian Hogan (running to eight). His more famous work with Hogan, their textbook on criminal law, is both a leading student text and an internationally recognised work of reference. But it was through his commentaries in the Criminal Law Review, from 1957 until the present day, that Smith established a new tradition of frankness in legal discourse, whereby the decisions of the appellate courts were subject to blistering criticism of the sort that others might have wished to express, but dared not. He left their Lordships' ears burning with: "This is a dangerous area in which to rely on arguments from absurdity, and their Lordships obligingly provide their critics with ample ammunition to demonstrate the morass in which they have landed us." Only a master of his discipline could have got away with such bluntness, yet Smith's legacy can be seen in the readiness of criminal courts now to consider and adopt academic arguments.

Only recently the Court of Appeal noted that the failure of Smith to be impressed by one of its decisions was "not always and necessarily fatal to the authority of a decision of this court" -which is tantamount to saying that it often was.

The reform of the criminal law was a cause close to Smith's heart,and afforded him the opportunity to work alongside senior members of the judiciary. In 1960 he was co-opted on to the Criminal Law Revision Committee to work on the first of many projects, this culminating in the Theft Act 1968, and an authoritative monograph, The Law of Theft. He also served as a member of the policy advisory committee of the Home Office, the May committee, which inquired into the Guildford Four case, and the House of Lords select committee on murder and life imprisonment.

By far his most ambitious project, undertaken with others for the Law Commission, was to produce a criminal code for England and Wales. Although this was completed in 1989, the momentum to enact the Draft Criminal Code Bill was lost in the 1990s and it continues, as Smith frequently lamented, to gather dust when it might have brought certainty and clarity to an outdated and frequently contradictory set of rules.

Many honours were bestowed on Smith in later life, culminating in a knighthood in 1993, but he remained true to a favourite quotation: "Flattery is all right, as long as you don't inhale." As emeritus professor in residence he remained ready to help students and colleagues, many of who knew him only during the years of his so-called retirement.

LIVES REMBERED
Lord Justice Judge, Senior Presiding Judge for England and Wales & Lord Justice Waller, Chairman, Judicial Studies Board, write: The obituary of Professor Sir John Smith (February 28) affectionately captured the personal and professional impact this delightful and brilliant man had on all who knew him, as well as his enormous contribution to the development of criminal law. May we just add a few words about one facet of that contribution.

For very many years, his lecture on recent developments in criminal law was an essential ingredient, and unfailing highlight, of every Judicial Studies Board criminal justice seminar. It was a privilege to be present. He was, of course, thoroughly entertaining, as he poked impish fun at recent decisions, particularly those which did not merit his approval. This, however, was but one manifestation of his talent for illuminating the essential principles of the criminal law, giving them practical application to the real world in which judges in the Crown Court have to operate. Crown Court judges throughout the country will, as we do, remember John Smith's lectures with admiration and gratitude.

Alan Prichard writes: Your obituary (February 28) captures well the flavour of John Smith's case method teaching but the pioneering nature of John's venture deserves mention too. He had to face much scepticism, even hostility, among both academics and publishers. John, always a superb lecturer, perceived that lectures can instil knowledge and insights but are much less suited to developing students' legal reasoning and technique. Moreover, he was convinced - I am sure, rightly - that the process should take place in the first year and that contract law was the ideal vehicle for it. 

To this end Smith & Thomas was a remarkable book, arguably his best - he always had a special fondness for it. The number and size of American law schools, even back in the Fifties, provided a market for casebooks two or three times as large as the UK market could manage. John's selection of material capable of use by contract teachers of very diverse preferences was as brilliant as anything he ever did and it revolutionised law teaching.

John, too, was not just a classroom teacher. He had a wonderful ability to turn from deepest concentration on scholarship to respond to knocks on his door by students or colleagues and give them the time and attention they felt they needed. They were never hustled and were always received with kindness and helpfulness. 

When they left he slipped back effortlessly into his scholarship. Similarly, when the department grew to an intake of more than 50 a year, he was distressed that he could no longer get to know all the students and write personal references for every one. For their part, the students held him in great admiration, even reverence, but just as much in affection and gratitude. He was very special to so many of us. 

Finally, he would have taken the praises rightly conferred on him with a diffidence bordering on embarrassment but he would have been most anxious that those who helped him most should be acknowledged. In particular, that most brilliant and entertaining of law teachers, Freddy Odgers, who was the lecturer at the army course that inspired John to take up law; his two predecessors as heads of the Nottingham law school, Roger Crane and Harry Street; and Glanville Williams, the friend and mentor he most revered.

David Jeffreys, QC, writes: John Smith was easily the criminal law practitioner's favourite academic. His slot at judicial seminars was that rarity: something the attenders looked forward to listening to. His modesty, his impish sense of humour, his passion for his subject and above all his gentle demolition of some of the more intellectually arrogant speeches of our revered law lords were a constant delight. His ability to make the complex simple was the envy of all who were fortunate enough to hear him.

I had particular reason to be grateful to him. After he had given me professional advice in one case, we became firm friends. I picked his brain on innumerable occasions afterwards, often on the telephone at a time when professors of a certain age might be expected to be engaging in postprandial relaxation -or in bed. He was, of course, as alert as ever, apparently delighted to be of any help and instantly shed light on my problem, however mundane. The facts might be against me (they often were) but I knew I'd ot the law right.

A delightful and charming man who will be remembered not only with admiration but with enormous affection.

Francis Bennion writes: Your obituary of Professor Sir John Smith (February 28) rightly praised his unfailing grasp of the principles of the criminal law. I would add that he also unfailingly gave effect to this grasp in his luminous writings. I never took up a piece he had written without a thrill of expectation. I never put it down without a sense of admiration for its clarity, authority and sheer readableness.

My only quarrel with your obituary concerns the passage near the end about the 1993 draft criminal code, which was never enacted. You say this code continues to gather dust when it might have brought certainty and clarity to an outdated and contradictory set of rules.

This is simply not the case, as I demonstrated at length in an article in the Statute Law Review in 1994.

What the draft criminal code would have brought was uncertainty and obscurity, so the authorities were right not to enact it. The fault does not altogether lie with Sir John Smith. The Law Commission has largely failed to carry out the duty imposed on it by the Law Commissions Act of 1965 to codify our law. It did not even carry out the first required step, which was to enquire into the techniques needed and work out the methods by which this formidable task was to be accomplished.