Centuries of common law precedents were overturned by Simon Brown in 1990 when, as a high court judge, he ruled that a husband could be found guilty of raping his wife. His decision that “there is no marital exemption to the law of rape” was upheld by the higher courts and confirmed in the Sexual Offences Act 2003. Until then, the 250-year-old principle that a husband cannot be guilty of raping his wife “on account of the matrimonial consent which she has given, and which she cannot retract” was accepted in the courts.
Brown, who has died aged 86 of cancer, later told the House of Lords: “I have few boasts to my name by way of legal achievement, few jewels in my judicial crown, but I can … 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.”
Renowned for his finely written judgments and entertaining memoirs, Brown, who went on to become a supreme court justice, was liberal in his sympathies, and also made a lasting impact on immigration law. In a 1996 judgment he struck down secondary government legislation that deprived asylum seekers of support if they failed to claim asylum on arrival.
Brown concluded that: “Parliament cannot have intended a significant number of genuine 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, in another landmark ruling, he held that refugees do not have to claim asylum in the countries through which they pass to reach safety in order to be protected from prosecution, saying that “some element of choice” should be open to them.
Born in Sheffield, Simon was the son of middle-class Jewish parents, Edna (nee Abrahams) and Denis Brown, who ran their own jewellery business. On leaving Stowe school in Buckinghamshire, he undertook national service in the Royal Artillery, where his military exploits included driving his car off the road after a pub crawl before returning to barracks to drink champagne. “Many a driver, 30 years later, I was to sentence to lengthy prison terms for less,” he remarked in his memoirs. Having been commissioned as a second lieutenant, he was sent to suppress disturbances in Cyprus.
At Worcester College, Oxford, he initially read history before switching to law. During holidays he variously hitchhiked to Naples, worked as a tour guide for wealthy Americans and swam the Bosphorus.
He was called to the bar in 1961 and shared rooms with Sir William Macpherson. As a young barrister he appeared in civil and criminal cases. In 1979, Brown was appointed as Treasury Devil – the lawyer who represents government departments in civil courts. Five years later he became a high court judge and in 1992 moved up to the court of appeal.
He heard Robert Maxwell’s libel action against Private Eye and reversed the jury’s verdict over alleged match-fixing involving the goalkeeper Bruce Grobbelaar. In 1995, in what became known as the “gays in the military case”, he opened his judgment: “Lawrence of Arabia would not be welcome in today’s armed forces; homosexual men and women are not permitted to serve.” Although legally obliged to uphold the ban, he made it clear that he believed its days were numbered.
Between 1989 and 2006, Brown was president of the security service tribunal and the intelligence services tribunal, and was also intelligence services commissioner, investigating complaints against the security agencies and reviewing surveillance warrants. Around 99% of complaints he found to be baseless, prompting the observation that “paranoia is surprisingly widespread”.
He became a law lord in 2004 and a supreme court justice, when the new court was created, in 2009. Brown retired in 2012 but remained an active crossbench peer in the House of Lords as Lord Brown of Eaton-Under-Heywood. There he called for an end to the imprisonment for public protection regime that left inmates stranded on indefinite sentences, labelling it “the greatest single stain on our criminal justice system”.
His two memoirs, Playing Off the Roof and Other Stories (2020) and Second Helpings (2023), were written on a mobile phone, revealing his love of golf, gossip and good company. His anecdotes, often told against himself, included tales of judges falling asleep in hot, airless courts, and of the time his own father came to watch him but ended up snoring on the public benches.
Last year Brown opposed the nationality and borders bill, the cornerstone of the government’s new plan for immigration, over non-compliance with international law, declaring: “There are not many issues that it is 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.”
At Oxford he met Jennifer Buddicom, and they married in 1963. She survives him, as do their two sons, Ben and Daniel, a daughter, Abigail, and five grandchildren.
• Simon Denis Brown, Lord Brown of Eaton-Under-Heywood, barrister and judge, born 9 April 1937; died 7 July 2023
