OBITUARY : Lord Brand

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The Independent Online
In the Scottish criminal community, word had it that great was the misfortune of the accused if they were to appear in the court of Lord Brand. "Anyone but him!" was the refrain. Indeed, on most occasions - but not all, because Brand was a discerning judge - he dished out heavy sentences, frequently apparently ferocious sentences.

As my constituent - he was not shy in raising his personal concerns, and those of the villagers of Dalmeny, where he lived in the old manse, with his Member of Parliament - I once asked him why he was the latter-day Judge Jeffreys of the Scottish legal system. The reply was far from the crusty, stock answer which might have been expected from the publicly perceived (but mistaken) image of a stuffy, out-of-touch, judge.

"It's like this, I suppose. Some of my most formative years were spent in the appalling conditions of Burma in the last years of the Second World War. I was one of the lucky ones: I was neither captured nor killed. But I saw a lot of good men who were and I just think that those for whom they have laid down their lives should jolly well behave themselves.

"Those whom I have sent to Barlinnie or Saughton [the Edinburgh prison] do not know how lucky they are compared to those poor bastards despatched to Changi gaol or the Japanese camps, and those who now lie in Taukkyan [the war cemetery in Rangoon] or Thanbyuzayat [the huge and moving Commonwealth War Graves Commission cemetery]."

Years later, when Brand was much in the public eye as the prosecuting counsel securing the second murder conviction of Donald Forbes, who had struck again within six weeks of being released on licence from his first life sentence, a gnarled old sergeant from the Argyll and Sutherland Highlanders who came to my surgery on entirely different business said as he was leaving: "See, yon Brand. He was a very brave lad. Mind you he was clumsy too. Ought to have got an MC. Good officer when the chips were down."

This was an unsolicited testimonial from a man, himself a holder of the Military Medal, in a position to know.

It was perhaps indicative of Brand's spirit that he got himself seconded to the King's African Rifles and set about learning Swahili, a task well within the compass of one who had studied Classics for two years at university when he entered Glasgow at 16. Forty years on Brand was to be honoured by being made a Judge of Appeal at the High Court of Botswana in 1994 partly on account of his interest in and knowledge of the local languages.

David Brand's father, a Sheriff Substitute and Writer to the Signet in Dumfries, died when he was nine. His uncle financed his education at Stonyhurst College and throughout his life Brand was a staunch and devout Roman Catholic, contributing in particular to the parish life of St Margaret's Roman Catholic parish in South Queensferry. After the war, which he ended as a captain, he completed his legal studies at Edinburgh University, joined the Faculty of Advocates in 1948 and became Junior Counsel to the Department of Education for Scotland in 1951.

This was invaluable experience when he was the minister who had to deal with the cause celebre which rumbled on for a decade and more of the case of Malloch vs Aberdeen Corporation which reached the House of Lords in April 1971 before Lords Reid, Morris of Borth-y-Gest, Lord Guest, Lord Wilberforce and Lord Simon of Glaisdale. It involved natural justice, public authority, dismissal of an employee, statutory protection, dismissal being invalid unless the employee was receiving not less than three weeks' notice of motion for dismissal and the whole question of teacher registration. Brand was thought to have acquitted himself with distinction in such high- powered legal company.

After being Sheriff of Dumfries and Galloway and Sheriff of Roxburgh, Berwick and Selkirk he was appointed Solicitor-General in the Heath government. He led the evidence at the fatal accident inquiry into three major disasters. The first was at the Glasgow Rangers stadium when 66 football supporters were crushed to death when the crowd turned at the barriers hearing of a late goal. Secondly, Brand led the evidence into a gas explosion at Clarkston in Glasgow which claimed the lives of 21 shoppers, and thirdly he dealt with the Cairngorm case when six schoolchildren perished in atrocious weather conditions because of bad supervision.

He was well known for his meticulous preparation, something that he had learnt from Professor Sir Ernest Wedderburn, the distinguished Professor at Edinburgh University and founder of the legal firm of Shepherd and Wedderburn, who had taken an interest in Brand after his father died.

Throughout his life Brand was supported by two strong and remarkable women. His first wife Josephine died in 1968 and his second wife Vera to whom he was married for 27 years had been Josephine's bridesmaid at their wedding. In his memoirs, An Advocate's Tale (1994), Brand describes the arrangement whereby he was a government minister but not a member either of the House of Lords or the House of Commons as being highly satisfactory, as he was able really to give his attention to the Crown Office side of a law officer's work without having to trudge up and down for parliamentary divisions. He was an ornament in the best sense of the word to the Scottish legal system.

Perhaps Brand's most lasting contribution will be for the work that he did as chairman of the Medical Appeal Tribunal from 1959 to 1970. As a constituency MP in those years representing ex-shale-miners and coalminers angry that their chronic bronchitis did not entitle them to pneumoconiosis benefits I was involved with Brand as chairman. Harsh he may have been in the criminal court, lenient and human he was in the medical tribunal. I asked him how he had become interested in medical problems. Again it was back to Burma.

The 14th Army had instituted Malaria Forward Treatment Units (MFTUs), which were in effect field hospitals tented, or more often in bashas, a few miles behind the forward edge of the battlefield. Such a system reduced the load on lines of communication and meant that a soldier was away from his unit for considerably less time than would otherwise have been the case. Since for five months in every year (May to September) the monsoon bore down on the jungle in a monthly rainfall 10 times that of Ireland destroying roads and preventing air movement, these forward hospital units were most important.

Brand had a lot to do with this innovation and it started him on a lifelong interest in medico-legal problems.

David William Robert Brand, judge: born Dumfries 21 October 1923; admitted to Faculty of Advocates 1948; Standing Junior Counsel to the Department of Education for Scotland 1951; Advocate-Depute for Sheriff-Court 1953; Extra Advocate-Depute for Glasgow Circuit 1955; QC 1959; Chairman, Medical Appeal Tribunal 1959-70; Senior Advocate-Depute 1964; Sheriff of Dumfries and Galloway 1968, Roxburgh, Berwick and Selkirk 1970; Solicitor-General for Scotland 1970-72; Senator of the College of Justice in Scotland (as Lord Brand) 1972-89; Judge of Appeal, High Court of Botswana 1994; married 1948 Josephine Devlin (died 1968; four daughters), 1969 Veronica Lynch (nee Russell); died North Berwick 14 April 1996.