Lord Toulson
Leading judge who stood up for press freedom and recommended reforms to the law on homicide
LORD TOULSON, who has died during a heart operation aged 70, was a former judge and Justice of the Supreme Court who acquired heroic status in certain sections of the press in 2016 when he dissented from a ruling that granted an unnamed celebrity, known only as PJS, the right to anonymity after reports that he had been involved in a “threesome”.
In January 2016 the two other people involved, known as AB and CD, agreed to sell the story to The Sun on Sunday. The newspaper informed PJS, who obtained an injunction banning publication in England and Wales. In April 2016, however, AB got the story published in America and it also appeared in Canada and a Scottish newspaper as well as on the internet.
Newspapers went to the Court of Appeal, which agreed on April 18 to quash the injunction on the grounds that the publicity had already undermined its effect. PJS then appealed to the Supreme Court which ruled on May 18, by four to one, that there was no public interest in any legal sense in the story, and to lift the injunction would breach the privacy rights of PJS and his children.
As the co-author, with Charles Phipps, of a textbook on the English law of confidentiality, Toulson was well qualified to pronounce. While he sympathised with PJS over the “acute unpleasantness” of the publicity, he stated that the story’s confidentiality had “become so porous that the idea of it still remaining secret in a meaningful sense is illusory”. The court, he said, “must live in the world as it is and not as it would like it to be” if it was not to lose public respect for the law.
It probably gave Toulson little pleasure to be exempted by the Sun from its description of his fellow judges as “out-of-touch old duffers with a predictably contemptuous snobbery towards popular papers and our millions of readers”.
Yet it was not the first time that Toulson had sided with the press in a freedom of information case. In 1998, sitting in the High Court, he had lifted an injunction against newspapers naming 17-year-old Will Straw, son of the Home Secretary Jack Straw, as the cabinet minister’s son allegedly involved in drug dealing.
As the boy’s name had already been published in the French newspaper France-soir and in internet discussion groups, Toulson pointed out, “anyone who wished to find out his name could do so with comparatively little difficulty”. Therefore it was not realistic to try to preserve his anonymity.
In 2000 Toulson refused to grant an injunction against The Sunday Times printing a story concerning the tax affairs of Lord Levy, a confidant of Tony Blair, who had claimed that details of his dealings with the Inland Revenue must have been obtained though deception. Toulson felt that the utterances of the Labour Party in condemning tax avoidance meant that there was a clear public interest in the story. “He who actively involves himself in public life, as Lord Levy has,” Toulson declared, “cannot altogether complain if he is caught by the heat.”
Roger Grenfell Toulson was born on September 23 1946, brought up in Surrey, and was marked out for stardom at an early age. The top scholar in his year at Mill Hill School, he took his A-levels (in Greek, Latin and Ancient History) at 15 and went up to Jesus College, Cambridge, aged 16, shortly after breaking the school record for the mile.
Called to the Bar by the Inner Temple in 1969 aged 23, he joined the Western Circuit the following year, developing a thriving practice in insurance, professional liability and commercial law, and acquiring a reputation as a formidable crossexaminer. A member of chambers at 4 New Square from 1970, he took Silk in 1986 and was head of his chambers from 1991 to 1993.
Toulson served as a recorder from 1987 to 1996 when he became a judge of the High Court, sitting in the Queen’s Bench Division. From 1997 to 2002 he was the presiding judge on the Western Circuit.
From 2002 to 2006 he served as chairman of the Law Commission of England and Wales, the quango which identifies laws that need reform. In 2004, after the commission concluded the law on murder was “a mess”, the Home Office ordered a review which led in 2006 to the publication by the commission of Murder, Manslaughter and Infanticide. This recommended a three-tier classification of homicide, by creating first and second degree murder charges, as well as manslaughter. It would enable a distinction to be made between intention to kill, which would carry a mandatory life sentence, and intention to grievously harm with a “serious risk” of death (together with the more serious types of manslaughter, and certain other cases) for which life imprisonment would be discretionary, not mandatory. But the government remained unconvinced and though it took up some minor proposals it did not proceed with reforms to the structure of homicide.
Toulson was a supporter of the Marriage Foundation, and in 2006, when the Law Commission recommended that cohabiting couples should be given the same legal rights as married couples, he rebutted suggestions that the change would weaken the institution of marriage, arguing that the measures might encourage more people to marry, as partners would no longer avoid financial responsibilities to lovers by living together instead of tying the knot.
Toulson was appointed a Lord Justice of Appeal in 2007, sworn as a member of the Privy Council and appointed to the Judicial Appointments Commission. He was appointed Justice of the Supreme Court in April 2013.
In December the same year he gave the main judgment of the court in ruling in favour of a woman who wanted to marry in a Church of Scientology chapel. The Appeal court had ruled that the organisation’s London Church Chapel could not be registered for the solemnisation of matrimony because Scientology did not qualify as a religion as it did not involve “veneration of God or of a Supreme Being”. In overturning the ruling, Toulson argued that the legal definition of religion should not be confined to faiths which recognise a supreme deity. To do so would exclude Buddhism, along with other faiths such as Jainism, Taoism, Theosophy and part of Hinduism.
After his retirement from the Supreme Court in September 2016, Toulson served on the court’s supplementary panel.
Lord Toulson was knighted in 1996. In 1973 he married Elizabeth Chrimes, who survives him with two sons and two daughters.
Lord Toulson, born September 23 1946, died June 27 2017