Professor of Criminal Law

Board of Studies Convenor


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Biography

Professor Gerry Maher QC was appointed Professor of Criminal Law in 2000. He studied law at Glasgow University until 1974 and obtained a B.Litt. at Oxford University in 1976. His first academic post was in the Department of Scots Law at Edinburgh University from 1976 to 1979. He was then lecturer and later senior lecturer in the Department of Jurisprudence at Glasgow University from 1980 to 1992. From 1992 to 2000 he held a chair as Professor of Law at Strathclyde, where he taught criminal law, commercial law, legal process, evidence, and international private law. Professor Maher was admitted to the Faculty of Advocates in 1987 and was a practising Advocate from 1989 to 1992. He was appointed Queen's Counsel in 2003. He was a full-time Commissioner at the Scottish Law Commission from 2000 to September 2008. He was the lead Commissioner on many important law reform projects, including those on diligence, age of criminal responsibility, insanity and diminished responsibility, and rape and other sexual offences. His main research interests are criminal law and criminal process, international private law, legal process, and debt and diligence.

Websites

Professor Gerry Maher's Homepage at Edinburgh Law School

Biography

Professor Gerry Maher QC was appointed Professor of Criminal Law in 2000. He studied law at Glasgow University until 1974 and obtained a B.Litt. at Oxford University in 1976. His first academic post was in the Department of Scots Law at Edinburgh University from 1976 to 1979. He was then lecturer and later senior lecturer in the Department of Jurisprudence at Glasgow University from 1980 to 1992. From 1992 to 2000 he held a chair as Professor of Law at Strathclyde, where he taught criminal law, commercial law, legal process, evidence, and international private law. Professor Maher was admitted to the Faculty of Advocates in 1987 and was a practising Advocate from 1989 to 1992. He was appointed Queen's Counsel in 2003. He was a full-time Commissioner at the Scottish Law Commission from 2000 to September 2008. He was the lead Commissioner on many important law reform projects, including those on diligence, age of criminal responsibility, insanity and diminished responsibility, and rape and other sexual offences. His main research interests are criminal law and criminal process, international private law, legal process, and debt and diligence.

Websites

Professor Gerry Maher's Homepage at Edinburgh Law School

Courses Taught

Criminal Law B: Doctrine and Theory (Honours) (Course Organiser)

International Private Law (Ordinary) (Course Organiser)

Books and Reports

G Maher, Barry J. Rodger, Civil Jurisdiction in the Scottish Courts, (W Green, 2010)

G Maher, D. J. Cusine, The Law and Practice of Diligence, (Butterworths, 1990)

G Maher, International Private Law: Cases and Statutes, (W. Green, 1985)

G Maher, Freedom of Speech: Basis and Limits, (Franz Steiner, 1985)

S McLean, G Maher, Medicine, Morals and the Law, (Gower Publishing, 1983)

Articles

G Maher, 'Enforcing European Judgments in Scotland ', (2015), Scots Law Times, Vol 2015, pp 121-124
Abstract: The Brussels I Regulation on jurisdiction and enforcement of judgments has been replaced by a so-called 'recast' version which came into force in January 2015. The Recast Regulation has made significant changes to the procedures used for the enforcement of judgments from other EU states. This paper examines the effect which the new instrument will have on enforcing European judgments in Scotland.

Ilona Cairns, Liz Campbell, James Chalmers, Sarah Christie, Andrew Cornford, Sharon Cowan, Antony Duff, Peter Duff, Sarah Elliston, Lindsay Farmer, Pamela Ferguson, Chloe Kennedy, Fiona Leverick, Claire McDiarmid, G Maher, Sandra Marshall, Donald Nicolson, Joanne Ramsay, Elizabeth Shaw, Andrew Tickell, Shanti Williamson, 'A Troubling Lack of Clarity in Scots Law Regarding Assisted Suicide ', (2015), Herald (Glasgow)

G Maher, 'The New Mental Disorder Defences: Some Comments', (2013), Scots Law Times, pp 1-4

G Maher, 'Principles and politics in law reform: Sexual offences in Scots law', (2013), Juridical Review, pp 563-596

G Maher, 'Rape and other things: Sexual offences and people with mental disorder', (2010), Edinburgh Law Review, Vol 14, pp 129-133

G Maher, 'Family Law Proceedings and Intra UK Jurisdiction ', (2008), Juridical Review, pp 315-17

G Maher, 'Nullity of Marriage in the Sheriff Court: A Problem of Jurisdiction', (2007), Scots Law Times, pp 237-39

G Maher, 'Parental Responsibility Proceedings: Intra UK Jurisdiction and the European Regulation', (2007), Scots Law Times, pp 117-21

G Maher, 'Reforming Domicile: One Step Forward (But Looking Back)', (2006), Scots Law Times, pp 149-54

G Maher, 'Age and Criminal Responsibility ', (2005), Ohio State Journal of Criminal Law, Vol 2, pp 493-512

G Maher, 'Diligence on the Dependence: Reform Needed', (2004), Scots Law Times, pp 167-74

G Maher, 'Sir Thomas Smith, stare decisis and Sheriffs ', (2004), Scots Law Times, pp 85-89

G Maher, 'Beneficial Interest in Immovable Property as a Ground of Jurisdiction ', (2003), Scots Law Times, pp 57-62

G Maher, Barry Rodger, 'Jurisdiction in Insolvency Proceedings ', (2003), Journal of the Law Society of Scotland, Vol 48, pp 26-30

G Maher, 'Unilateral Obligations and International Private Law ', (2002), Juridical Review, pp 317-34
Abstract: The concept of unilateral obligations has received very little attention in Scottish international private law. In this paper, Professor Maher considers how existing authorities and principles in relation to jurisdiction and applicable law might apply to unilateral obligations. He argues that although in Scots internal law unilateral obligations are classified as a distinct and separate part of the law of obligations, for the purposes of international private law they will often be characterised in terms of some other legal concept.

G Maher, 'Judicial Knowledge and Statute Law ', (2001), Law Quarterly Review, Vol 117, pp 71-80

G Maher, Barry J. Rodger, 'Provisional and Protective Remedies: The British Experience of the Brussels Convention', (1999), International and Comparative Law Quarterly, Vol 48, pp 302-39

G Maher, 'Crown Appeals against Sentence in Scotland ', (1998), Criminal Law Review, pp 854-63

G Maher, 'Jurisdiction and Void Contracts ', (1998), Juridical Review, Vol 1998, pp 131-33

G Maher, 'Provisional and protective measures in respect of foreign proceedings ', (1998), Scots Law Times, pp 225-227

G Maher, 'Unjustified Enrichment and Choice of Law: Baring Brothers & Co Ltd v. Cunninghame District Council (May 24, 1996, Outer House (Lord Penrose), noted at 1996 G. W. D. 24-1405', (1997), Juridical Review, pp 190-91

G Maher, 'Without Privilege ', (1997), Journal of the Law Society of Scotland, Vol 42, pp 91-96

G Maher, 'Diligence on the Dependence: Principles for Reform', (1996), Juridical Review, pp 188-205

G Maher, 'Diligence on the dependence: Principles for reform', (1996), Juridical Review, Vol 1996, pp 188-205

G Maher, 'Foreign Currency Judgments: The Scottish Experience', (1995), International and Comparative Law Quarterly, Vol 44, pp 72-89

G Maher, 'Implementation of Hague Conventions in Domestic Law: The United Kingdom Approach', (1995), Civil Justice Quarterly, Vol 14, pp 21-41

G Maher, 'Foreign currency judgments: The Scottish experience', (1995), International and Comparative Law Quarterly, Vol 44, pp 72-89

G Maher, 'Arrestment of earnings of merchant seamen - a postscript ', (1994), Scots Law Times, Vol 1994, pp 228

G Maher, 'Diligence and the recovery of aliment ', (1994), Greens Family Law Bulletin, Vol 1994, pp 2-3

G Maher, 'Consent to wrongful child abduction under the Hague Convention ', (1993), Scots Law Times (News), pp 281-283

G Maher, 'Statutory interpretation and Scottish Law Commission reports ', (1992), Scots Law Times, pp 277-283

G Maher, 'Professional privilege, without prejudice letters and statutory inroads on the common law ', (1990), Journal of the Law Society of Scotland, Vol 35, pp 108-112; 138-142

G Maher, 'Poinding excess value - a comment ', (1990), Scots Law Times, Vol 1990, pp 17-21

G Maher, 'Arrestment of earnings of merchant seamen ', (1989), Scots Law Times, Vol 1989, pp 340-341

G Maher, 'Enforcing EEC Convention judgments in Scotland ', (1989), Journal of the Law Society of Scotland, Vol 34, pp 130-133

B M Frier, G Maher, 'Diabetes and hypoglycaemia: Medico-legal aspects of criminal responsibility', (1988), Diabetic Medicine, Vol 5, pp 521-526

G Maher, 'Precedent, the sheriff court and colleges of justice ', (1988), Scots Law Times, Vol 1988, pp 209-211

G Maher, 'Summary decree in the Court of Session ', (1987), Scots Law Times, Vol 1987, pp 93-96; 101-104

G Maher, 'The rights and wrongs of vesting ', (1986), Journal of the Law Society of Scotland, Vol 31, pp 396-397

G Maher, 'Natural justice in the criminal courts ', (1986), Journal of the Law Society of Scotland, Vol 31, pp 409-410

G Maher, J Pearson, B M Frier, 'Diabetes mellitus and criminal responsibility ', (1984), Medicine, Science and the Law, Vol 24, pp 95-101

G Maher, C J Docherty, 'Corroboration and compensation orders ', (1984), Scots Law Times, Vol 1984, pp 125-128

G Maher, C J Docherty, 'Criminal compensation and social security frauds ', (1984), SCOLAG Legal Journal, pp 100-101

G Maher, 'Concurrent criminal and civil jurisdiction ', (1984), Journal of the Law Society of Scotland, Vol 29, pp 492-494

G Maher, 'Jury verdicts and the presumption of innocence ', (1983), Legal Studies, Vol 3, pp 146-156

G Maher, 'Automatism and diabetes ', (1983), Law Quarterly Review, Vol 99, pp 511-513

G Maher, 'The enforcement of judgments in Scots law ', (1983), Civil Justice Quarterly, Vol 2, pp 244-256

G Maher, 'Reasonable doubt and the jury ', (1983), Scots Law Times, Vol 1983, pp 97-100

G Maher, 'Statutory interpretation and overruling in the House of Lords ', (1981), Statute Law Review, Vol 2, pp 85-93

G Maher, 'Custom and Constitutions ', (1981), Oxford Journal of Legal Studies, Vol 1, pp 167-76

G Maher, 'Scots law and the 1966 Practice Statement ', (1981), Scots Law Times, pp 181-185

G. Maher, 'Ordinary Language and Judicial Discretion ', (1981), Rechtstheorie, Vol 12, pp 1-8

G Maher, 'Warrant sales. The jurisdiction of the sheriff ', (1980), Journal of the Law Society of Scotland, Vol 25, pp 385-391

G Maher, 'Consumer protection and the implied terms of the Sale of Goods Act ', (1979), SCOLAG Legal Journal, pp 152-157

G Maher, K D Ewing, 'Arrestment of wages and unfair dismissal ', (1979), Scots Law Times, Vol 1979, pp 185-187

G Maher, 'Analytical philosophy and Austin's philosophy of law ', (1978), ARSP Archiv für Rechts und Sozialphilosophie, Vol 64, pp 401-416

G Maher, 'Cessante ratione cessat ipsa lex ', (1978), Scots Law Times, Vol 1978, pp 161-165

G Maher, 'The enforcement of morals continued ', (1978), Scots Law Times, Vol 1978, pp 281-283

G Maher, 'Blasphemy in Scots law ', (1977), Scots Law Times, Vol 1977, pp 257-261

G Maher, 'The Identity of the Scottish Legal System ', (1977), Juridical Review, pp 21-37

Chapters

G Maher, 'The Many Conceptions of a Legal System ' in Neil Walker (ed.) MacCormick's Scotland (Edinburgh University Press 2012)

G Maher, ''The Most Heinous of all Crimes' Reflections on the Structure of Homicide in Scots Law' in James Chalmers, Fiona Leverick (ed.) Essays in Criminal Law in Honour of Sir Gerald Gordon (Edinburgh University Press 2010) 218-40
Abstract: This chapter discusses homicide offences and the factors driving the increased interest and activity on the law of homicide. It considers the main issues in the debates over the structure of homicide and offers some brief comments on possible solutions, especially from the perspective of Scots law. It argues that clarity is needed as to what should fall within the scope of culpable homicide. Another major issue concerns the desirable scope of the offence of murder; in other words, how to draw the line between murder and culpable homicide. An appropriate way of considering these issues is to look at the views of Sir Gerald Gordon.

G Maher, 'Future Trends in Computer-generated Pornography Ethical Principle and Legal Regulation of Bespoke Pornography' in Elspeth Attwooll, Annette Brockmöller (ed.) Applied Ethics at the Turn of the Millennium (Franz Steiner, Stuttgart 2001) 56-62

G Maher, 'Enforcement of Judgments ' in C. G. B. Nicholson, Alastair L. Stewart (ed.) Sheriff Court Practice (W Green 1998) ch 29

G Maher, 'Statutory Interpretation The Wilsonian Analysis' in Scots Law into the 21st Century (W. Green / Sweet & Maxwell 1996)

G Maher, 'Dialogue and the Criminal Process ' in Elspeth Attwooll, David Goldberg (ed.) Criminal Justice (Franz Steiner 1995) 43-62

G Maher, 'Reforming the Criminal Process A Scottish Perspective' in Michael McConville, Lee Bridges (ed.) Criminal Justice in Crisis (Edward Elgar 1994) 59-68

G Maher, 'Hypoglycaemia and Criminal Responsibility ' in Brian M. Frier, B. Miles Fisher (ed.) Hypoglycaemia and Diabetes (Edward Arnold 1993) 380-86

G Maher, 'Recognition and enforcement of non-Scottish judgments ' in Stair Memorial Encyclopaedia of the Laws of Scotland (Butterworths 1992) 151-254

G Maher, 'Maintenance ' in Stair Memorial Encyclopaedia of the Laws of Scotland (Butterworths 1992) 254-263

G Maher, 'Criminal process as dialogue A 'right' to counsel?' in Alternativen zur Strafjustiz und die Garantie individueller Rechte der Betroffenen (Verlag Godesberg 1989) 101-114

G Maher, 'Legal education 2011 and beyond' in J P Grant, P Jagtenberg, K J Nijkerk (ed.) Legal Education 2000 (Gower Publishing 1989) 287-295

G Maher, 'Compensation orders in the Scottish criminal courts ' in M Adler, A Millar (ed.) Socio-Legal Research in the Scottish Courts ( 1988) 34-42

G Maher, 'The verdict of the jury ' in Mark Findlay, Peter Duff (ed.) The Jury Under Attack (Butterworths 1988) 40-55

G Maher, Sir Thomas Smith QC, 'Judicial precedent ' in Stair Memorial Encyclopaedia of the Laws of Scotland (Butterworths/Law Society of Scotland 1987) 92-175

G Maher, 'Legal method (Sources (General and Historical))' in Stair Memorical Encyclopaedia (Butterworths/Law Society of Scotland 1987) 269-272

G Maher, 'Natural justice as fairness ' in Neil MacCormick, Peter Birks (ed.) The Legal Mind. Essays for Tony Honore (Oxford University Press 1986) 103-120

G Maher, 'Freedom of speech as a problem in legal and social philosophy ' in G Maher (ed.) Freedom of Speech (Franz Steiner, Stuttgart 1986) 7-14

G Maher, 'Human Rights and the criminal process ' in Tom Campbell (ed.) Human Rights from Rhetoric to Reality (Blackwell 1986) 197-222

G Maher, 'Balancing rights and interests in the criminal process ' in A Duff, N Simmonds (ed.) Philisophy and Criminal Law (Franz Steiner 1984) 99-108

G Maher, 'Sane but abnormal: the criminal courts and the non-insane mentally abnormal offender ' in S McLean (ed.) Legal Issues in Medicine (Gower Publishing 1981) 191-207

G Maher, 'Analytical jurisprudence and revolution ' in Proceedings of the Xth World Congress of Philosophy of Law and Social Philosophy ( 1981) 343-350

Working Papers

G Maher, 'Guarding the Gate: Some Problems in Expert Evidence in Scots Law' 2015
Abstract: Until recently Scots law had not explicitly developed a test on the reliability of expert evidence as a precondition for its admissibility. The court of appeal in HM Advocate v. Young (2014), building upon earlier decisions in Liehne (2011) and Hainey (2013), has now set out criteria for determining whether expert evidence is based on a science or other organised discipline in order for the evidence to be admissible. This paper considers the approach of Scots law before and after Young and provides a critical examination of the court's approach in that case. It argues that the judgment fails to deal with many relevant issues, such as those canvassed in the US Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc (1983) and by the Law Commission for England and Wales in its recent report on expert evidence.

G Maher, 'Politics and Principles in Law Reform: Sexual Offences in Scots Law' 2013
Abstract: In 2007 the Scottish Law Commission completed a project for the reform of Scots law on rape and other sexual offences.The bulk, but by no means all, of the Commission's recommendations were enacted in the Sexual Offences (Scotland) Act 2009, which came into force in November 2010. Although this paper will have much to say on the new law on sexual offences, its main focus is on the process of law reform which led to this change. In particular, the paper will address two general themes about law reform, in the sense of the systematic method of law reform adopted by bodies like Law Commissions. The first is that most good law reform exercise must identify the underlying principles which inform and structure the ultimate recommendations. The second relates to the 'politics' of law reform. For this purpose 'politics' has two contrasting meanings. One is the external political context to the project itself; what political factors (if any) were involved in the project being initiated, in moulding the proposals for reform, in deciding whether or not to implement the recommendations, and determining the final form which the law would take in statute. In the case of the sexual offences project, politics in this sense was involved at all these stages, and it is impossible to understand how we now have the law in the form it is without being aware of these political factors. Many law reformers are wary of these political influences. Law Commissions spend considerable time and hard work in carrying any project through to completion. Yet, often enough, the strength and purity of their proposals for reform are often watered down in the political process of the passage of an implementing bill in the Scottish or UK Parliament. Worse still, the Government, whether in Holyrood or Westminster, might decide against legislative implementation of the recommendations of an entire project, often but not always, because it anticipates a hostile political reaction to any implementing bill.There is another sense of the politics of law reform, not party or governmental politics, but the internal politics of a law reform project. What factors decide whether a law reform body should deal with a particular topic, and what should be the scope of that project? And crucially for this sense of politics, what is the ultimate aim of a law reform project? There are two extreme views on this point. One is that a project should set out the very best recommendations for reform that can be identified. The substantive merit of the recommendation is what matters. Implementation is desirable, but is not the most important criterion of law reform. At the other end of the spectrum is the view that can be encapsulated by adapting Henry Thring's famous remark that 'bills are made to pass as razors are made to sell': as razors are made to sell, law reform projects are made to be implemented. This range of views is not meant to describe the psychological make-up of individual Commissioners. Rather, it represents a possible tension within any particular project. Part of the politics of law reform lies in how this tension is resolved.