Essays in Criminal Law in Honour of Sir Gerald Gordon

Essays in Criminal Law in Honour of Sir Gerald Gordon

James Chalmers
Fiona Leverick
Lindsay Farmer
Copyright Date: 2010
Pages: 376
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  • Book Info
    Essays in Criminal Law in Honour of Sir Gerald Gordon
    Book Description:

    This volume is a Festschrift in honour of Sir Gerald Gordon who has been one of the most influential figures in Scottish criminal law and procedure in the last century.

    eISBN: 978-0-7486-7929-4
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-vii)
    James Chalmers, Fiona Leverick and Lindsay Farmer
  4. List of Contributors
    (pp. viii-viii)
  5. List of Abbreviations
    (pp. ix-ix)
  6. Table of Cases
    (pp. x-xvi)
  7. Foreword
    (pp. xvii-xix)
    Lord Rodger of Earlsferry

    In June 2009 scholars, practitioners and judges joined in a Festakt to mark Sir Gerald Gordon’s eightieth birthday. Now, in a happy double celebration, we have the Festschrift containing papers which are all, in one way or another, the fruits of that occasion. No Scots lawyer has more deserved a double celebration.

    It is actually very hard now to recall just what an innovation Gordon’s Criminal Law represented. The great fat book dropped like a bomb into a legal world where nothing had apparently changed for decades and where, if the judges and most of the practitioners were to have...

  8. 1 Sir Gerald Gordon: An Appreciation
    (pp. 1-11)
    Christopher Gane

    “Nobody who knows anything about the criminal law of Scotland is unaware of the name of Sir Gerald Gordon”,¹ and no one reading this book can be in any doubt about the significance of Sir Gerald Gordon’s contribution to criminal law and criminal justice in Scotland. But even those who are familiar with these branches of the law of Scotland may be forgiven for overlooking the sheer range of that contribution dating back more than fifty years.² First and foremost are his contributions to the literature of the criminal law, evidence and procedure,³ and it is on this aspect of...

  9. 2 Corroboration and Distress: Some Crumbs from Under the Master’s Table
    (pp. 12-26)
    Lord Hope of Craighead

    Nobody who knows anything about the criminal law of Scotland is unaware of the name of Sir Gerald Gordon. Some, no doubt, are more aware of its significance than others. The host of accused persons who have had the privilege of appearing before him in his various judicial capacities in the Sheriff Court and the High Court of Justiciary cannot, of course, be expected to view the name of Sheriff Gordon with the same affection and admiration as the generations of law students, academics and practitioners for whom Gordon’s Criminal Law has been an unfailing source of guidance and inspiration....

  10. 3 Child Defendants and the Doctrines of the Criminal Law
    (pp. 27-53)
    Andrew Ashworth

    In recent years the question of the proper approach of the criminal law to child defendants has been debated extensively, both in Europe and beyond. Despite the existence of a number of international conventions, there are still considerable divergences of approach among legal systems that appear similar in some other respects. There are well-known differences between Scots law, which sets the age of criminal responsibility at eight years¹ but in practice deals with the overwhelming majority of accused under the age of sixteen in Children’s Hearings and consigns those aged sixteen and over to the adult criminal courts, and the...

  11. 4 Codification of the Criminal Law
    (pp. 54-69)
    Eric Clive

    The topic of this chapter is the codification of the criminal law, specifically the draft criminal code for Scotland, which was developed over a number of years by a group of academics – of which I was one – and published as a consultation paper by the Scottish Law Commission.¹ The chapter assesses the results of that consultation, addresses the only two arguments advanced against codification, looks briefly at developments since the draft was published and asks where we go from here.

    The draft criminal code for Scotland was an unofficial project, the initiators of which were Professor Sandy McCall...

  12. 5 Public and Private Wrongs
    (pp. 70-85)
    R A Duff and S E Marshall

    Gordon’s Criminal Law begins, as textbooks on criminal law often and naturally begin, by seeking a definition of “crime”. After a brief but incisive discussion, he concludes that only a formal (and far from precise) definition is possible:¹

    The criminal law is probably, therefore, sufficiently defined as that branch of the law which deals with those acts, attempts and omissions of which the state may take cognisance by prosecution in the criminal courts.

    His concern here is, of course, descriptive or analytical rather than normative: the aim is not, that is, to define what should be criminal, with a view...

  13. 6 The Idea of Principle in Scots Criminal Law
    (pp. 86-102)
    Lindsay Farmer

    In writings on Scots criminal law, from Baron Hume to the present day, it is common to find reference to the principles that are taken to found or to have shaped the law. In their separate introductions to the 1986 reprint of Hume’s Commentaries on the Law of Scotland, Respecting Crimes, both Lord Cameron and Professor D M Walker refer to the principled basis of the law. For Lord Cameron:

    Our Scottish system of criminal law derives its flexibility and capacity to adapt to changing social and economic conditions from the fact that it is founded on certain principles which...

  14. 7 A Human Right to a Fair Criminal Law
    (pp. 103-125)
    Victor Tadros

    Here’s a puzzle. Article 6 of the European Convention on Human Rights (ECHR) protects the right to a fair trial. Although various articles of the ECHR provide limits on the scope, quality and content of the criminal law, there is no comparable article providing a right to a fair criminal law. Why not?

    Suppose that a defendant wishes to contest a criminal charge that has been brought against him. The criminal trial (as well as pre-trial procedure) provides the procedure that governs his contest. The content of the criminal law provides the basis of the contest at trial. At first...

  15. 8 The Pain of Pleasure: Consent and the Criminalisation of Sado-Masochistic “Assaults”
    (pp. 126-140)
    Sharon Cowan

    This essay offers an analysis of the criminalisation of certain sexual practices that have been (wrongly) labelled as assaults. It discusses the criminal cases in Scotland and in England and Wales that address the question of whether sado-masochism (SM) counts as sex or violence, and thus whether consent can work its “moral magic” to render SM lawful.¹ The essay examines the legal approach to SM in both jurisdictions, and the (hetero)normative construction of certain kinds of sexual subjects as perverted and “risky”, before moving to inquire as to the possibility of Scots law offering a discursive and legal space for...

  16. 9 The Mental Element in Modern Criminal Law
    (pp. 141-157)
    Peter Ferguson QC

    When the first edition of Sir Gerald Gordon’s important textbook on Scots criminal law was published in 1967,¹ it was plain that criminal law had been until then an area of Scots law not studied in depth. The standard textbook at that time was still Macdonald’s Criminal Law² which had been first published in 1867 and, according to its preface, was intended by its author, who was subsequently Lord Justice Clerk, to be “a brief summary of the Criminal Law”.³ Indeed, even by the time of publication of the second edition of Sir Gerald’s work it was still lamented that...

  17. 10 Theft by Omission
    (pp. 158-177)
    Stuart P Green

    Other things being equal, should the law regard a crime committed by means of an omission as any more or less blameworthy than the same crime committed by means of an act? The question has arisen mostly in the context of homicide, where significant disagreement about the moral equivalence of killing and letting die persists.¹ Even if we were to assume, however, that these two ways of committing homicide were equally blameworthy, it would be worth asking if the principle of equivalence could be generalised to other offences.

    My focus here is on theft. The question is whether thefts by...

  18. 11 Statutory Rape and Defilement in Ireland: Recent Developments
    (pp. 178-194)
    Finbarr McAuley

    This chapter is based on a report written in my capacity as Criminal Law Rapporteur for the Legal Protection of Children,¹ which I had the honour of submitting to the Dáil and Seanad for consideration and debate on the subject of statutory rape and cognate offences. It tells the story of what happens when the fundamental doctrines of the criminal law are perceived to conflict with constitutional norms; at all events, it offers an Irish perspective on this difficult problem. I am honoured to be able to contribute a chapter to this Festschrift. I have known Sir Gerald since the...

  19. 12 Don’t Look Back in Anger: The Partial Defence of Provocation in Scots Criminal Law
    (pp. 195-217)
    Claire McDiarmid

    Provocation privileges homicidal fury. It allows certain persons who kill in that state to be convicted of culpable homicide rather than murder. It does not do this overtly and it does not, in theory, exclude those who kill under the influence of other extreme emotions but, as will be discussed subsequently, the conditions of the defence still lend themselves to a response of excessive anger to the initial provoking act. It has not been particularly problematic operationally in Scots law¹ but this is because its scope is extremely limited rather than because it works well in identifying circumstances in which...

  20. 13 “The Most Heinous of all Crimes”: Reflections on the Structure of Homicide in Scots Law
    (pp. 218-240)
    Gerry Maher

    One of the classes taught by Sir Gerald Gordon during his tenure as Professor of Criminal Law, and later in the Chair of Scots Law, at Edinburgh University was honours criminal law. I inherited this class and Gerald’s reading lists when he left to take up an appointment to the shrieval bench in 1976. The topics taught in that class over thirty years ago are not very much different from those included in honours criminal law classes today.¹ But one matter not covered then but almost without exception considered now is the structure of homicide offences, an aspect of the...

  21. 14 Witness Anonymity in the Criminal Process
    (pp. 241-263)
    Ian Dennis

    It is a privilege to have been invited to contribute to this Festschrift in honour of such a distinguished criminal lawyer. Gerald Gordon’s work has had a major impact on the thinking of many scholars and practitioners, not only in Scotland but south of the border also, and indeed in many jurisdictions overseas. His work has spanned criminal procedure and evidence as well as the substantive criminal law, and it is in the area of criminal process that I am delighted to offer this contribution.

    My subject is witness anonymity. Its focus is witnesses who provide evidence adverse to a...

  22. 15 Disclosure Appeals: A Plea for Principle
    (pp. 264-285)
    Peter Duff

    The purpose of this chapter is to examine critically the approach of the Scottish courts to determining appeals based on the failure of the Crown to disclose material evidence to the defence prior to trial. In particular, I wish to analyse in some detail the level of confusion which has arisen as a result of the recent cases and to argue briefly that a more principled approach might have avoided much of this.¹ I have argued elsewhere that “theorising” the Scots law of criminal evidence would be helpful² and, in my view, the current debate over disclosure provides yet another...

  23. 16 Crown Counsel: From Sir Archibald Alison to Lord Brand
    (pp. 286-304)
    Robert S Shiels

    The position of Crown counsel is pivotal in the system of public prosecution in Scotland.¹ By whatever means the authority of Crown counsel is manifest in practice, individually or collectively they constitute the controlling mind of the system of public prosecution. In the recent past the office was described succinctly by Lord Brand as “a prosecuting counsel who has been commissioned by the Lord Advocate”, whose tasks included prosecuting cases regularly in the High Court of Justiciary and, in the Crown Office, marking papers sent in by procurators fiscal for prosecution or otherwise.² Lord Brand went on to say that...

  24. 17 The Codification of Criminal Procedure
    (pp. 305-325)
    J R Spencer

    Much has been written in recent years about attempts to codify, for different parts of the United Kingdom, substantive criminal law – not least, Eric Clive’s contribution to this volume.¹ Considerably less has been written about attempts to codify criminal procedure. But here too there is a story to tell. And it is a story which, in a book to honour the leading Scottish writer on all aspects of criminal justice, it seems particularly appropriate to tell, because it is one in which, at least for the present, Scotland has taken the lead. While the main rules of English criminal...

  25. 18 The Summary Jurisdiction to Punish for Contempt of Court in Scotland
    (pp. 326-340)
    Sheriff T Welsh QC

    The subject of this chapter is the summary jurisdiction of the court to punish for contempt of court in Scotland. I will not discuss civil contempts, nor shall I address contempt as it may arise in the form of the prejudicial pre-trial publication of material which is subsequently held to interfere with the proper administration of justice within the court and is accordingly held to be contemptuous and deserving of sanction. I shall rather confine my remarks to that species of contempt known as contempt in the face of, or in the presence of, the court. This is the species...

  26. 19 Sir Gerald Gordon: A Bibliography
    (pp. 341-347)
  27. Index
    (pp. 348-356)