The City of Glasgow Bank closed on 5 October 1878 with losses of over £6 million, a record of "falsified accounts, securities entered at fictitious values, bad debts taken as good assets, and the gold which ought to have been held on statutory authority against note issue ... deliberately squandered to the extent of over £300,000" (Shiels, p 28).  As Dr Shiels comments, "these sums were fabulous in their day" (ibid).

The directors of the Bank had all been arrested by 29 October, with only one granted bail, because the charges against them included aggravated theft (for which the death penalty was possible).  The trial was concluded and guilty verdicts were returned on 31 January 1879 on various charges of falsehood, fraud and wilful imposition; falsification of balance sheets to conceal and misrepresent the true state of the bank's affairs; and using and uttering false balance sheets with intent to defraud, whereby shareholders and members of the public were imposed upon and defrauded.  All the directors were found not guilty on charges of theft and embezzlement, however.

The guilty directors served prison sentences of between 8 and 18 months, which were regarded at the time as "ridiculously light", although most of them were also in jail for the three months between arrest and the conclusion of the trial.
 

The unanimous (although Lords Hope and Clarke clearly had doubts before reading Lord Mance's leading judgment) decision is based on grounds different from Lord Glennie's, however: fundamentally an approach to the interpretation of the controverted contract based upon how the reasonable person would have understood the agreement at its creation in 1997 against the background of the factual matrix of the time, rather than the "deletion" of words which read awkwardly in the light of changed legal and factual circumstances.  Although in the light of this approach it was not necessary to discuss the extent of Scots law's recognition of a doctrine of "equitable adjustment" of contracts in the light of changed circumstances, Lord Hope does say that outside frustration of contract, there is no such doctrine in the law; it may be, however, that in frustration cases the law's response is not limited to applying unjustified enrichment rules.

The decision will no doubt be much discussed on other blogs, and I do not go into further detail here as a result.  I am grateful however to be allowed to reproduce the comments made to me by my Scottish Law Commission colleague Charles Garland, who happens to be working on trust law as well as being a member of my contract law team.  This is what Charles says:

"On a fairly quick read this strikes me as a rather disappointing decision (well, a disappointing series of decisions as there is little by way of continuous thread through the three court pronouncements).  The SC justices have taken a purely interpretative approach but some of them seem to have swithered rather heavily as to what the result should be.  What we’re left with is a difference of opinion over the fundamental question of how the reasonable person would have interpreted the covenant when it was signed.  The IH said (at [12] (with emphasis added):

The relevant reasonable person addressing what the parties meant on entering the 1997 Deed would not have known that in 2002 a European Regulation would come into force which would require negative goodwill to be brought into account as a positive figure in the drawing up of the respondent's consolidated income statement (or consolidated profit and loss account). He would, however, have known (as was accepted on behalf of the respondent) that it was possible that the accounting rules which had to be applied in drawing up such a statement or account might change.

And Lord Hope seems to have reached the opposite view (at [34]) (again with emphasis added):

[…] I have been persuaded by Lord Mance’s judgment that these words must be read in the light of what a reasonable person would have taken them to mean, having regard to what was known in 1997 when the idea of introducing negative goodwill into the profit and loss account was unthinkable. Read in that context, the words do not have the weight that the Dean’s argument would give to them. That would be to give them a meaning which no reasonable person would have dreamed of at that time. The words used are capable of meaning realised profit or loss before taxation, and of excluding elements which would not have been contemplated as having anything to do with the computation of profit or loss when the Deed was executed. On that reading I am left in no doubt that the argument for Lloyds Bank, which accords with the landscape at the time when the words were written, must prevail over that for the Foundation.

This hugely divergent pair of results [Charles continues] seems to me to cast some doubt on the utility of the “reasonable person” test in cases such as this.  It’s not an example of poor drafting or of parties not applying their minds properly to their agreement.  It’s much more a situation of unexpected circumstances arriving somewhat out of the blue.  Drafters surely cannot be expected to provide a scheme which will work even if the world is turned upside down and inside out.  That would be an unreasonable demand.  Some form of equitable adjustment, or some judicial discretion, would seem to be appropriate (though that idea was considered and rejected).  Just as a speculation: what if the Foundation had in fact been successful and had gained a lottery-scale windfall?  As a charity, it could have decided to seek assistance from the court by way of cy-près, rather like the situation in RS Macdonald Charitable Trust [2008] CSOH 116 (where Lord Drummond Young said, in setting out the basic facts: “The result is that the Trustees now control very substantial assets; it is averred that these are greatly in excess of what the Truster could have contemplated when he set up the Trust in 1978.”).  That way of dealing with the unexpected seems to me to make much more sense."

What this makes me wonder (as Professor rather than as Commissioner MacQueen) is whether if trust law can provide for change of circumstances in this way, why not the law of contract?  The starting point should be, of course, that contracting parties (as distinct from the parties to a trust) are free to change their contract by agreement; but suppose, as in the Lloyds case, they cannot agree?  Would it not be better than long and expensively contested litigation through three tiers of the court system to have some sort of contractual equivalent to the courts' cy-près jurisdiction in trusts?  This need not necessarily be the same as the PECL, DCFR and proposed CESL schemes to which reference was made in the Inner House (although of these the DCFR seems best to me because it does not impose any duty on parties to negotiate before resorting to the courts for a decision).  But something along those lines would bring us rather more into line with other jurisdictions in the European Union (if that remains any sort of material consideration after Mr Cameron's speech on the same day as the Supreme Court judgment).

Lord Hope's possible opening of the door to using approaches other than unjustified enrichment in response to the frustration of contract, at least to the extent of a tiny chink (see [43] -"Adaptability has a part to play in any civilised system of law") is to be welcomed (see MacQueen & Thomson, Contract Law in Scotland (3rd edn, 2012) paras 4.85, 4.88 with further references), but how it may be developed is left opaque.  Some more work for the comparative lawyers amongst us, perhaps?

More details in the Scottish Government news release of 21 June 2012 here.

Comment and reaction here -

http://lockerbiecase.blogspot.co.uk/

http://www.bbc.co.uk/news/uk-scotland-south-scotland-12191604

http://www.bbc.co.uk/news/uk-scotland-south-scotland-14707355 

http://www.heraldscotland.com/news/home-news/whats-next-a-new-push-for-justice-for-megrahi.1337525927

http://www.bbc.co.uk/news/uk-scotland-18149202

"The exceptional contribution of Professor W M Gloag will be remembered again when the 13th edition of Gloag and Henderson is published. But how many know that Gloag was a keen and accomplished golfer? The late Alan Rodger’s finely crafted entry in the Oxford Dictionary of National Biography (A F Rodger, ‘Gloag, William Murray (1865-1934)’ ODNB, 2004, online edn 2007 [http:www.oxforddnb.com/view/article/37461, accessed 21 Feb 2012] ) does not neglect the jurist’s golf.

The ODNB piece tells of a hole in one by Gloag in 1907. As Aberdeen Secretary of the Glasgow/Aberdeen University Senate Golf Match Society, this writer can add that the hole in one was achieved by Gloag in his first appearance for the Glasgow team two years after his appointment as Regius Professor of Law. The minute of the match, played at Glasgow Gailes on 23rd February 1907, records that “Prof Gloag in his match with Prof Thomson holed the             in one”. The blank left by my predecessor Aberdeen Secretary was not filled in and we will never know at which of the Gailes short holes Gloag holed out!

Gloag played in the Senate Match fourteen times – seven being away matches at Royal Aberdeen (Balgownie) – between 1907 and 1929. Given that over the years of the Great War the match was suspended, this represented pretty regular appearance. Alan Rodger, in his ODNB entry, noted that “Gloag had a deformity of the right arm”; this is indeed apparent in some of the team photographs which are part of the Senate Match archive. The disability seems not to have affected Gloag’s golf because his record against Aberdeen is very good. On the few occasions that he lost it was almost always by a small margin; one exception was his last match at Balgownie in 1929 when Aberdeen’s Professor Blackadder triumphed by 9 holes – 5 and 4 in modern scoring.

Finally, it may be noted that Gloag’s hole in one in the 11th Senate Match has not  been repeated but hope springs eternal with the 103rd encounter to be played at the Glasgow Golf Club in June 2012."

The dust jacket carries characteristic portraits of the author, standing outside the portico-ed exterior of (your correspondent thinks) the former Justiciary buildings in Glasgow, within which he began to make his name as an advocate in the late 1950s.  When your correspondent was an Edinburgh law student back in the mid-1970s, he made an outing to the Glasgow sheriff court (then in the County Buildings in Wilson Street) to see in action the by now formidable judge whose scintillating prose and wit had incomparably brightened up the study of criminal law and procedure, notably in the great case of Heron v Diack and Newlands 1973 SLT (Sh Ct) 27 (the coffins and the corpse that would not sink in the waters of the Firth of Clyde).  Our lecturer had also regaled his class with tales of Irvine Smith’s judicious put-downs of the bar and Glasgow’s criminal classes (one of which is retold here at pp 166-167), so it was clear that a train journey would likely be worth the slight drain on the student wallet.  The experience did not disappoint: in the chaotic conditions seething behind the classical facade of the court building, Sheriff Smith was indeed presiding over a cramped court-room in which the almost equally famous Len Murray was appearing on behalf of the accused.  The interaction of these two quick wits (and friends) was something both to hear and behold, if now impossible to recapture in detail or in words.  Even the accused seemed almost to enjoy the show.

Neither does the dip into this book disappoint.  The most vivid chapters are those about life on the bench in Glasgow sheriff court, where Irvine sat from 1963 to 1983, and the five capital murder trials in which he acted for the accused before beginning his time as a judge.  It is not all crime: there is a chapter on the (unreported) civil claim that arose from the Ibrox Disaster of 1971, and part of another on the controversial verbal injury case, Steele v The Scottish Daily Record and Sunday Mail Ltd, reported at 1970 SLT 53.  Scarcely less interesting, although for quite different reasons, are the chapters on Irvine’s early life as the late and only child of a working class family from Falkirk, but one with many aunts and a formidable maternal grandmother through whom the boy’s horizons were extended to both the Gorbals and rural Ayrshire.  There were to be further sharp contrasts when he went on, first to Glasgow University, and then to the Faculty of Advocates in Edinburgh. 

All of this is described in rich detail which is, however, never overdone or rendered in the “tall tales from the courts” fashion which mars too many lawyers’ autobiographical efforts.  What we get is reflective both on the self of the author and the times and places in which he has lived.  Along the way we gain insight into what shaped the inimitable Irvine: the sonorous and eloquent voice, the lover of Burns, food and wine, and what combined these qualities to make one of Scotland’s greatest after-dinner speakers.  There is plenty of observation about the characters he has met along the way: the fishing, sailing and cormorant-eating Free Church minister from St Kilda; Barney Noon, Glasgow conman, alcoholic and poet; and “Lui”, the Italian prisoner-of-war who became a labourer paid only in kind on a farm near Falkirk and never went back to Italy, are only three of the colourful figures to each of whom the book devotes a number of pages.

Another facet of Irvine’s contribution has been his engagement with the study of the history of Scots law.  He has been a prominent member of the Stair Society (ultimately its Vice-President and first honorary member) and a contributor to the Society’s publications, especially on criminal law and procedure.  A whole chapter is devoted to his engagement with the Society, from which we learn more about the work done for it by Hector McKechnie and Campbell Paton in the 1950s than about the modest author’s own significant efforts (for which see vols 20, 27 and 28).  We read as well about unpublished projects on Nicolson’s Practicks and the Justiciary records, as well as (too little) about his famous class on Scottish legal history at Glasgow University, taught at 5 pm on Mondays and Thursdays from 1957 to 1983.  One of your correspondent’s disappointments as the present Literary Director of the Society was his failure to persuade Irvine to publish in a Miscellany volume his 1998 Stair Society Lecture, “The Trial of Captain Thomas Green for Piracy in 1705”, with its analysis of a key event in the run-up to the 1707 Union.  On the other hand, a memory which even the day after the event was a little indistinct at the edges was Irvine’s impromptu speech at a well-oiled Stair Society lunch early in the 1980s, held in the slightly improbable venue of the then newly-opened restaurant in the crypt of St Giles Cathedral: John Knox would have approved of neither event nor speech.

A book full of joy and vigour ends perhaps slightly sadly with Irvine’s account of his life since leaving Glasgow sheriff court in 1983, with words and phrases such as “mistake”, “disillusionment” and “social and geographical isolation” peppering his prose despite his continuing activity as sheriff at Greenock and residence in the aptly named island of Bute in the Firth of Clyde, where he still lives.  It is good to see his wife Diana disagreeing with him at p 288, and certainly there is much globe-trotting activity in pursuit of his avocation as after-dinner speaker at Burns Night and St Andrew’s Day events.  One quotation from p 265 will perhaps give the flavour: “For me, the opportunity of being able to say I had sung solo ‘Oh gin I were a Baron’s heir’ and Stevenson’s words, ‘Sing me a song of a lad that is gone’, to the tune of ‘Over the sea to Skye’, on the main deck of a Chinese junk, on a Sunday evening going round the harbour of Singapore was too great to be resisted.”  It is good that the temptation to spend some time writing this surely classic memoir has also been too great to be resisted.  Read and enjoy.   

The UK Supreme Court's own press release reads as follows:

The appointment of Lord Reed and Lord Justice Carnwath CVO as new Justices of the Supreme Court has today been welcomed by Lord Phillips, President of the Court.

Lord Phillips said:

“The independent selection commission were faced with a very strong field of candidates who applied following open advertisement of the vacancies.  Lord Reed brings depth of experience in Scots law and practice, as well as insights into the work of the European Court of Human Rights.  Lord Justice Carnwath’s range of experience as a senior judge is complemented by his Chairmanship of the Law Commission, his work reforming the tribunals system and his service as the first Senior President of Tribunals.  As I near the end of my time as President of this court, it is encouraging to be welcoming colleagues of such high calibre and I am only sorry I will not have longer to work alongside them.”

The two appointments follow the death of Lord Rodger in June 2011 and the forthcoming retirement of Lord Brown in April 2012.

The appointments were made by Her Majesty The Queen at the advice of the Prime Minister and Lord Chancellor, following the recommendation of an independent selection commission. The commission consulted across each of the Supreme Court’s three UK jurisdictions before making their recommendations.

Lord Reed said:

“I am honoured by my appointment as a member of a court which has a world-wide reputation and influence, and whose decisions affect all parts of the United Kingdom. I am conscious of the responsibility which that entails.”

Lord Justice Carnwath said:

“It is a great honour to be selected for the Supreme Court. I see it also as recognition of the central importance in the justice system of the tribunals judiciary, whom I have been privileged to lead as Senior President for the last seven years.”

The 10 Downing Street announcement includes biographies of the two appointees.

Meantime in The Times newspaper of the same date the redoubtable Lord McCluskey fires off a few rounds in the direction of the Supreme Court, the cause of his ire being what he sees as the Court's supine attitude to the rulings of the European Court of Human Rights in Scots law matters, contrasting with the more robust defence of English law when it is in the dock at Strasbourg.  Lord Reed may consider himself duly warned. 

Tony Weir had been a Fellow of Trinity since 1962.  At the time of his death he was an Emeritus Reader in Law.  He was probably best-known to law students through his Casebook on Tort, first published in 1967 and subsequently in nine further editions, the last appearing in 2004.  This was rather more than a collection of extracts from leading decisions and became famous for its mordantly witty comments on the situations with which the law had to deal and on the ways in which the judges saw fit to carry out their task and justify their decisions.  As one of your correspondent’s colleagues remarked in recent days, Tony Weir showed that the study of tort law could be fun; but he had serious points to make as well.  One of the epics which your correspondent will long remember is an Edinburgh debate in the David Hume Institute about the “compensation culture”, where, under the urbane chairmanship of Lord Mackay of Clashfern, Tony went head-to-head with Frank Maguire of Thompsons.  Wit and scepticism on one side collided in verbal violence with passion and belief on the other, and the chair only just about kept the peace; yet dinner afterwards was a marvellous occasion where each combatant accepted the other’s virtues while maintaining his own position, despite provocations from mischievous others present.  The death of the two protagonists within months of each other is irony indeed.

Tony was the acknowledged master of the case note in academic journals (above all, the Cambridge Law Journal): terse offerings of sharp legal insight along with the ever-present dry humour which in combination none could rival.  An example can be found at (2002) 6 Edinburgh Law Review 244, but many others are cited in Nick McBride’s provisional bibliography below.  By all accounts coming out of Cambridge in recent days, he was a wonderful teacher and a devoted supervisor of his students, for whom his pastoral care was also profound.  The one occasion on which your correspondent heard a Weir lecture was both deeply instructive and extremely entertaining.  It inaugurated a series on environmental law in Edinburgh and was an assessment of the then recent House of Lords decision, Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264.  The lecturer’s assault on the idea that liability for water pollution should be strict left an audience of largely green persuasion first unbelieving at what they were hearing, then deeply shocked, and finally, and rather guiltily, highly amused even if still un-persuaded.  But at least a brilliant performance had made them think again about their assumptions.  Sadly the lecture was never published, so far as your correspondent is aware; but something of its flavour can be picked up from two case notes in the Cambridge Law Journal at the time of the Cambridge Water case [see (1993) vol 52, 17; (1994) vol 53, 216].

In the world of academic legal research, however, Tony Weir’s international and considerable fame was as a comparative lawyer.  There were perhaps not quite so many articles as case notes, but a number of the former remain well-known decades after their first publication, as for example the classic four-parter in the Tulane Law Review, “Delict and Torts: A Study in Parallel”, co-authored with Pierre Catala and published between 1962 and 1965.  Sir Basil Markesinis, no mean comparatist himself, describes this mighty paper as “one of the most stimulating pieces on foreign law and comparative methodology ever to be written.”  Perhaps, however, Tony’s greatest contribution to comparative law, at least so far as the Anglophone world is concerned, is his translation of Zweigert and Kötz’s Einführung in die Rechtsvergleichung (Introduction to Comparative Law), which has had a remarkable impact from the time of its first appearance in 1977.  Zweigert and Kötz themselves paid Tony this handsome compliment: “Indeed, one American professor of law who is fluent as a native in both German and English went so far as to say that the translation was better than the original, rare though that is, and acceptable, he was kind enough to add, though the original in this case was.”   In a possibly unconsciously Scottish reference, another comparative law great, John Fleming, described Weir’s work on Zweigert and Kötz as making him the Boswell of the German comparatists.  Your correspondent uses the book to this day, even if the use cannot always be readily footnoted.  And Zweigert and Kötz is not the only such essential translation: the conversion of Franz Wieacker’s legal history classic, Privatrechtsgeschichte der Neuzeit, into A History of Private Law in Europe (OUP, 1995) is another boon to those whose lack of German would otherwise disable them altogether from true trans-national scholarship in European legal history.  There were other such unselfish contributions, from the French as well as the German language; it is difficult to think of anyone else who did more to link different linguistic scholarly traditions in Europe.

Yet Tony Weir remained a Euro-sceptic who rejected any idea that the rise of the European Union entailed the development of a European private law.  Perhaps the most interesting instance of this from an Edinburgh perspective was "Divergent Legal Systems in a Single Member State" [1998] Zeitschrift für Europaisches Privatrecht 564-585, an Anglo-Scottish comparison the purpose of which was set out in an early passage: "At a time when there are proposals to unify the private law of the different multilingual components of the European Union ... it may be useful to consider how very different, after nearly three centuries of political unification in an unquestionably single market, the laws of Scotland and England continue to be."  Not all Scots would have accepted this as a lesson, at least for Scotland; but no-one could have denied the learning and insight with which it was delivered.   A prophecy was fulfilled: “The tercentenary of the Treaty of Union falls on May 1, 2007, though I don’t expect it to be noticed in England or celebrated North of the Border.”  And there is perhaps a personal note as well: “I speak as a Scot long resident in England, treading a narrow path between the pride of the convert and the guilt of the traitor.”  This reader suspects that in his approach to law Tony Weir, like Lord Mansfield, was anything but a traitor to the Scottish tradition.  It is significant how much of his scholarly output from the beginning appeared in the pages of one or other of the Tulane law journals, engine-houses of the mixed legal tradition; and latterly he made more than one contribution to the Edinburgh Law Review.

One winter’s evening on Edinburgh’s Castle Esplanade, your correspondent pointed out to Tony across the Grassmarket valley the floodlit Renaissance palace in which he (your correspondent) had had the good fortune to receive his schooling, and wondered (innocently, of course) why Mr Weir’s first alma mater was invisible in the darkness over Merchiston to the south-west.  Had we looked to the north and Comely Bank that evening, of course, we might have picked out the other Edinburgh school where Tony was Head Boy, leader of the orchestra and jazz band, and, so we are informed, non-playing captain of the Fourth or Fifth XV.  From the same family source, we learn that “with the exception of Tulane and Trinity, the only other institution which captured his interest as a young man was the Cameronians.  He so much enjoyed National Service with them, here and in Germany, serving as a subaltern that his mother had to disabuse him quite firmly of a plan he had to stay in the Army.  Aside from what with retrospect seems improbable success as a distance runner, the Army also gave him his only opportunity ever to practise the law.  Defending a misbehaved Jock was not quite the sort of controversy with which he would be associated in later life but I believe he secured an acquittal.”

Tony Weir’s most beautiful article, in your correspondent’s opinion, is “Friendships in the Law” published in the 1992 volume of Vernon Palmer’s Tulane European and Civil Law Forum.  In it Tony discusses five friendships, or “relationships to which – to use a lawyer’s expression – lawyers were parties”.  They include some of the great names of the law – Domat, Holmes, Savigny – but most gained their fame outside, or beyond, their profession – Montaigne, La Boétie, Boswell, Jakob Grimm – while some of the other lawyers mentioned had friends – Pascal, Dr Johnson, Harold Laski - whose links with law came through their friendships and intellectual interests rather than from professional or academic commitment.  Yet all the relationships he considered “were good and rich”.  Your correspondent had only intermittent contact with Tony Weir, and that over a relatively short period of some fifteen to twenty years – but “good and rich” was how it seemed throughout.  The tragic sudden-ness of Tony’s death underlines the personal sorrow that he, along with many others, now feels so intensely. 

Bibliography compiled by Nick McBride  

Books
An Introduction to Tort Law (Clarendon Law Series), 1st ed (2002), 2nd ed (2006)
A Casebook on Tort (Sweet & Maxwell), 1st ed (1967), 2nd ed (1970), 3rd ed (1974), 4th ed (1979), 5th ed (1983), 6th ed (1988), 7th ed (1992), 8th ed (1996), 9th ed (2000), 10th ed (2004)
Economic Torts (Clarendon Press, 1997)

Articles
'Tort and Insurance on the Highway', in M Andenas et al (eds), Liber Amicorum Guido Alpa: Private Law Beyond the National Systems (BIICL 2007)

‘Tort’ in Barnard, O’Sullivan and Virgo (eds), What About Law? (Hart Publishing, 2007)

‘Two great legislators’ (2006) 21 Tulane European and Civil Law Forum 35
‘Recent developments in causation in the English law of torts’ in Fauvarque-Cosson, Picard and Voinneson (eds), De Tous Horizons: Mélanges Blanc-Jouvan (Société de législation comparée, 2005)
‘Personality rights and the media: national report for England’ in Beater and Habermeier (eds), Verletzungen von Persönlichkeit durch die Media (Tubingen, 2005)
‘Difficulties in transposing Directives’ [2004] Zeitschrift fur Europaisches Privatrecht 595
‘All or nothing?’ (2003-4) 78 Tulane Law Review 511
‘European Directives protective of the individual consumer’ [2002] Economia e diretto del terziario 443
‘Human rights and damages’ (2001) 40 Washburn Law Journal 413
‘English tort law seen from abroad’ in Rider (ed), Law at the Centre: The Institute of Advanced Legal Studies at Fifty (Kluwer, 1999)
‘The law of tort: are legal systems converging?’ in Report of the 1995 Colloquium of the International Association of Legal Science (Buenos Aires, 1999)
‘The staggering march of negligence’ in Cane and Stapleton (eds), The Law of Obligations: Essays in Honour of John Fleming (OUP, 1998)
‘Non-performance of a contractual obligation and its consequences in English law’ in Vacca (ed), Il contratto inadempiuto (Giappichelli Editore, 1998)
‘Divergent legal systems in a single Member State’ [1998] Zeitschrift fur Europaisches Privatrecht 564
‘Recovery in tort for economic loss’ (1997) 94 British Insurance Law Association Journal 14
 ‘Taking for granted – the ramifications of nemo dat’ (1996) 49 Current Legal Problems 325
‘International tendencies in the law of liability’ [1996] Aktuelle Juristiche Praxis 444
‘Die Sprachen des europaischen Rechts. Eine skeptische Betrachtung’ [1995] Zeitschrift fur Europaisches Privatrecht 368
‘Aspects du procès anglais’ in (1995) 39 Archives de philosophie de droit 191
‘Legal services in England’ in Franelle (ed), La Responsabilité des Prestataires de Services (Société de législation comparée, 1994)
‘Errare humanum est’ in Birks (ed), The Frontiers of Liability, Volume 2 (OUP, 1994)
‘Democratic values in the English law of tort’ (1992) 1 Calcutta Law Times 1
‘La notion de dommage en responsabilité civile’ in Legrand (ed), Common Law d’un Siecle L’autre (Editions Yvon Blais, 1992)
‘Contracts in Rome and England’ (1992) 66 Tulane Law Review 1615
‘Friendships in the law’ (1992) 6-7 Tulane Civil Law Forum 61
‘Droits des contrats’ and ‘Responsabilité délictuelle’ in Jolowicz (ed), Droit Anglais, 2nd ed (Précis Dalloz, 1992)
‘Passing of ownership under contract of sale’ in Vendita e Transferimento della Proprieta nella Prospettivo Storico-Comparatisca (Proceedings of a Congress Pisa-Viareggio-Lucca, 1991)
‘Loss of a chance – compensable in tort? The common law’ in Guillod (ed), Développements récents du droit de la responsabilité civile (Centre d’études juridiques européennes Genève, 1991)

‘Governmental liability’ [1989] Public Law 40
‘Products liability and exemption clauses’ in In Memoriam Jean Limpens (Kluwer, 1987)
‘A strike against the law?’ (1986) 46 Maryland Law Review 133
‘Shields and swords’ (1983) 7 Trent Law Journal 1
‘Product liability – some comparative remarks’ in Posch & Schilcher (eds), Rechtsentwicklung in der Produkthaftung (Osterreichische Akademie fur Fuhrungskrafte, 1981)
‘La justice contractuelle’ [1981] Revue Internationale de Droit Contemporain 7
‘French and German judges – creativity in tort’ [1979] Tulane Lawyer 13
‘Compensation for personal injury and death: recent proposals for reform’ in Cambridge-Tilburg Law Lectures, First Series (Kluwer, 1978)
‘Complex liabilities’ in Tunc (ed), International Encyclopedia of Comparative Law, Vol XI – Tort Law, Chapter 12 (1976)
‘The common law systems’ in David (ed), International Encyclopedia of Comparative Law, Vol II – The Legal Systems of the World: Their Comparison and Unification, Chapter 2.III (1974)
‘Abstraction in the law of torts – economic loss’ [1974] City of London Law Review 15
(with Pierre Catala) ‘Delict and torts: a study in parallel’ (1962-3) 37 Tulane Law Review 573 (Part I); (1963-4) 38 Tulane Law Review 221 (Part II); (1963-4) 38 Tulane Law Review 663 (Part III); (1964-5) 39 Tulane Law Review 701 (Part IV)
‘Classification, concurrence and prescription of obligations’ (1962) 36 Tulane Law Review 556
‘Compensability of unforeseeable damage resulting directly from negligent acts’ (1962) Tulane Law Review 556

Casenotes
‘Making it more likely vs making it happen’ (2002) 61 Cambridge Law Journal 519
‘The unwanted child’ (2002) 6 Edinburgh Law Review 244
‘The maddening effect of consecutive torts’ (2001) 60 Cambridge Law Journal 237
‘The unwanted child’ (2000) 59 Cambridge Law Journal 238
‘Down hill - all the way?’ (1999) 58 Cambridge Law Journal 4
‘Suicide in custody’ (1998) 57 Cambridge Law Journal 241
‘Clamping’ (1996) 55 Cambridge Law Journal 423
‘Swag for the injured burglar’ (1996) 55 Cambridge Law Journal 182
‘A damnosa hereditas?’ (1995) 111 Law Quarterly Review 357
‘Rylands v Fletcher reconsidered’ (1994) 53 Cambridge Law Journal 216
‘The case of the careless referee’ (1993) 52 Cambridge Law Journal 376
‘The polluter must pay - regardless’ (1993) 52 Cambridge Law Journal 17
‘Physician - kill thyself!’ (1991) 50 Cambridge Law Journal 397
‘Fixing the foundations’ (1991) 50 Cambridge Law Journal 24
‘Statutory auditor not liable to purchaser of shares’ (1990) 49 Cambridge Law Journal 212
‘Rebuilding defective building law’ (1989) 48 Cambridge Law Journal 12
‘P pays X for the physical damage due to D’s negligence’ [1989] Lloyd’s Maritime and Commercial Law Quarterly 1
‘Liability for knowingly facilitating mass breaches of copyright’ (1988) 47 Cambridge Law Journal 348
‘The answer to Anns?’ (1985) 44 Cambridge Law Journal 26
‘The developer and the clerk’ (1982) 2 Oxford Journal of Legal Studies 440
‘Wrongful life - nipped in the bud’ (1982) 41 Cambridge Law Journal 225
‘The wages of the dead’ (1981) 40 Cambridge Law Journal 20
‘The Pearson Commission Report’ (1978) 37 Cambridge Law Journal 222
‘Suit by first contractor for damage to second contractor’s goods’ (1977) 36 Cambridge Law Journal 24
‘Contract – the buyer’s right to reject defective goods’ (1976) 35 Cambridge Law Journal 33
‘Doing good by mistake - restitution and remedies’ (1973) 32 Cambridge Law Journal 23
‘Local authority vs critical ratepayer - a suit in defamation’ (1972) 30 Cambridge Law Journal 238
‘Nec tamen consumebatur... – frustration and limitation clauses’ (1970) 28 Cambridge Law Journal 189
‘Police power to seize suspicious goods’ (1968) 26 Cambridge Law Journal 193
‘Title to sue in negligence for property damage’ (1968) 26 Cambridge Law Journal 18
‘Discrimination in private law’ (1966) 24 Cambridge Law Journal 165
‘Tort, contract and bailment’ (1965) 23 Cambridge Law Journal 186
‘Chaos or cosmos? Rookes, Stratford and the economic torts’ (1964) 22 Cambridge Law Journal 225
‘Negligence – duty of care – foreseeability’ (1964) 22 Cambridge Law Journal 23
‘Liability for syntax’ (1963) 21 Cambridge Law Journal 216

Book reviews
Carty, An Analysis of the Economic Torts (2002) 118 Law Quarterly Review 164
Ahrens et al (eds), Festschrift fur Erwin Deutsch (2001) 60 Cambridge Law Journal 214
Stein, Roman Law in European History (2000) 20 Legal Studies 142
Bell, Boyron and Whittaker, Principles of French Law (1999) 115 Law Quarterly Review 143
Rose (ed), Failure of Contracts [1999] Lloyd’s Maritime and Commercial Law Quarterly 16
Hoeflich, Roman and Civil Law and the Development of Anglo-American Jurisprudence in the Nineteenth Century (1999) 3 Edinburgh Law Review 398
Spier (ed), The Limits of Liability: Keeping the Floodgates Shut, and The Limits of Expanding Liability: Eight Fundamental Cases in a Comparative Perspective; and Koziol (ed), Unification of Tort Law: Wrongfulness (1999) 58 Cambridge Law Journal 643
Cane, Anatomy of Tort Law; and Atiyah, The Damages Lottery (1998) 57 Cambridge Law Journal 204
Odams, Comparative Studies in Construction Law: The Sweet Lectures (1997) 46 International & Comparative Law Quarterly 735
Youngs, Sourcebook on German Law (1995) 54 Cambridge Law Journal 451
Nolte, Beleidigungsschutz in der Freiheitlichen Demokratie (1994) 43 International & Comparative Law Quarterly 482
Von Hippel, Rechtspolitik (1994) 43 International & Comparative Law Quarterly 480
Whitman, The Legacy of Roman Law in the German Romantic Era (1993) 82 Journal of Roman Studies 268
Mullany and Handford, Tort Liability for Psychiatric Damage: The Law of “Nervous Shock” (1993) 52 Cambridge Law Journal 520
Oldham (ed), The Mansfied Manuscripts (1993) 52 Cambridge Law Journal 319
Oda, Japanese Law [1993] New Law Journal 1103
Palmer, Bailment, 2nd ed [1993] Lloyd’s Maritime and Commercial Law Quarterly 275
Weinrib (ed), Tort Law; and Alexander (ed), Contract Law (1992) 51 Cambridge Law Journal 388
Stapleton and Cane (eds), Essays for Patrick Atiyah (1992) 51 Cambridge Law Journal 375
Frey and Morris (eds), Liability and Responsibility (1991) 50 Cambridge Law Journal 553
Cane, Tort Law and Economic Interests (1991) 50 Cambridge Law Journal 551
Zimmermann, The Law of Obligations (1991) 50 Cambridge Law Journal 165
Finn (ed), Essays on Torts (1990) 49 Cambridge Law Journal 356
Frier, A Casebook on the Roman Law of Delict (1990) 49 Cambridge Law Journal 157
Harris and Tallon (eds), Contract Law Today [1990] Lloyd’s Maritime and Commercial Law Quarterly 556
Fleming, The Law of Torts, 7th ed (1989) 48 Cambridge Law Journal 152
Birks (ed), New Perspectives in the Roman Law of Property: Essays for Barry Nicholas (1989) 48 Cambridge Law Journal 510
Treitel, Remedies for Breach of Contract (1989) 48 Cambridge Law Journal 152
Furmston (ed), The Law of Tort [1987] Lloyd’s Maritime and Commercial Law Quarterly 236
Malone, Essays on Torts (1987) 8 Journal of Legal History 383
Schmiedlin, Frustration of Contract (1988) 37 International and Comparative Law Quarterly 452
Faculty of Law of the University of Heidelburg, Richterliche Rechtsfortbildung (1988) 37 International and Comparative Law Quarterly 227
Huffmann, Goverment Liability and Disaster Mitigation (1988) 37 International and Comparative Law Quarterly 221
Collins, The Law of Contract (1986) 45 Cambridge Law Journal 503
Hart and Honoré, Causation in the Law, 2nd ed (1985) 44 Cambridge Law Journal 477
Stein and Lewis (eds), Studies in Justinian’s Institutes in Memory of JAC Thomas (1984) 43 Cambridge Law Journal 392
Honoré, The Quest for Security; and Von Hippel, Der Schutz des Schwaecheren (1984) 43 Cambridge Law Journal 377
Feuerstein and Parry (eds), Multum Non Multa: Festchrift fur Kurt Lipstein (1984) 43 Cambridge Law Journal 177
Cheifetz, Apportionment of Fault in Tort Law (1982) 14 Ottawa Law Review 234
Atiyah, The Rise and Fall of Freedom of Contract [1982] Revue Internationale de Droit Contemporain 265
Stair, The Institutions of the Law of Scotland (1982) 41 Cambridge Law Journal 183
Deutch, Unfair Contracts (1978) 37 Cambridge Law Journal 344
Waddams, Products Liability (1976) 35 Cambridge Law Journal 178
Carter-Ruck, Libel and Slander; and Rubinstein (ed), Wicked, Wicked Libels (1973) 32 Cambridge Law Journal 150
Schlesinger (ed), Formation of Contracts (1969) 27 Cambridge Law Journal 122
Aspects du Droit de L’Energie Atomique (1965-66) 41 British Yearbook of International Law 482
Salmond, Torts, 14th ed (1966) 24 Cambridge Law Journal 141
Coote, Exception Clauses (1965) 23 Cambridge Law Journal 301
Walker, The Scottish Legal System (1964) 22 Cambridge Law Journal 305
Smith, Short Commentary on the Law of Scotland (1963) 24 Louisiana Law Review 149

Translations
Bucher, England and the Continent: Distinguishing the Pecularities of English Common Law of Contract (Dike Books, 2009)
Halpérin, The French Civil Code (UCL, 2006)
Zweigert and Kötz, An Introduction to Comparative Law, 3rd ed (OUP, 1998)
Koetz and Flessner, European Contract Law, Vol I (Clarendon Press, 1998)
Wieacker and Zimmermann, A History of Private Law in Europe, with Particular Reference to Germany (Clarendon Press, 1996)
Grossfeld, The Strengths and Weaknesses of Comparative Law (OUP, 1990)
Serick, Lipstein, and Riesenfeld, Securities in Movables in German Law: An Outline (Kluwer, 1990)
Horn, Kötz and Leser, German Private and Commercial Law (OUP, 1981)
Justinian, Digest, Chs XIV, XV (U Penn Press, 1986)

The service, conducted by the Very Rev Gilleasbuig Macmillan, Minister of St Giles, took a strongly traditional Christian approach, with the choir and organ of St Giles in fine form, the congregation rendering Psalm 100 and two hymns ("O God, our help in ages past"; and "For all the saints", the latter Alan's favourite, as we were told at the funeral), and two scriptural readings by Lord Cullen of Whitekirk (Proverbs 4: 1-9 ["Listen, my sons, to a father's instruction, consider attentively how to gain understanding"]) and Lord Mackay of Clashfern (Epistle to the Romans 8: 31-39 ["If God is on our side, who is against us?"]).

The eulogies came from Colin Mackay, TV and radio broadcaster, and friend of Alan from earliest schooldays as well as at Glasgow University, and Sir David Edward, friend and colleague from the time Alan entered the Faculty of Advocates in 1972.  Both drew not only on their personal recollections but also on what is obviously a rich resource in Alan's letters to his family.  From Colin we learned of the links between Alan's father and "King John" MacCormick, leading Scottish nationalist and of course father of another sadly departed friend in the law.  We were also entertained by an image of Kelvinside Academy pupils in 1953 being made by one of their teachers to scratch out the second "I" of "Elizabeth II" on their Coronation commemoration pencil-cases.  Who knows what effect this had on Alan's views about Scottish nationalism?  At any rate, later on as a student on Gilmorehill, as well as honing debating skills at the University Union, he formed with others the Glasgow University Royalist League (GURL) which invited membership from a host of obscure European royals - with what success we were not told. 

In a fine and thoughtful speech which we may hope to see in print as the Royal Society of Edinburgh memoir of its subject, David Edward rightly emphasised Alan's interest in the practical solutions to problems as one of the keys to understanding his motivations in life, and also his lack of interest in the generalisations he saw as coming from legal philosophy and sociology.  On this problem-solving basis David explained Alan's decision to leave academic life in Oxford and go to the Scottish Bar in 1972: he had solved a big problem in Roman law and did not see fulfilment in exploring new, lesser problems from the Roman law chair that might otherwise have been his.  Your correspondent wondered a bit about this, since Alan went on solving Roman law problems all his life long.  The fact of the matter is that the chairs of Roman law that might have interested Alan (Oxford, Glasgow, Cambridge, Edinburgh, Aberdeen, UCL) were in 1972 all occupied by men who are (with one exception - Tony Thomas, who died early, in 1981) still alive today, albeit each for some time retired (i.e. Honore, Gordon, Stein, Watson, MacCormack); so the prospects for advancement in the subject forty years ago were not obviously good, no matter how able the candidate.  Also, Alan's great mentor David Daube (who in general should perhaps have been more mentioned in the tributes) had left Oxford in 1970 for California, while in 1972 Alan's father was taken seriously ill back home in Glasgow.  The last may also have been a factor for one so close to his family in choosing the Scottish over the English Bar. 

David Edward's moving account of a long friendship aptly closed with William Johnson Cory's translation of Callimachus of Cyrene's poem on learning of the death of his friend Heraclitus:

They told me, Heraclitus, they told me you were dead,
They brought me bitter news to hear and bitter tears to shed.
I wept as I remembered how often you and I
Had tired the sun with talking and sent him down the sky.

And now that thou art lying, my dear old Carian guest,
A handful of grey ashes, long, long ago at rest,
Still are thy pleasant voices, thy nightingales, awake;
For Death, he taketh all away, but them he cannot take.

The shorter speeches at the dinner were five in number, including a short introductory and highly entertaining reminiscence from Alan's younger brother Ian.  He told three revealing stories: one about the law student advising the local minister on the source of the law against dogs performing natural functions in the street; another about the New College don advising an "insufferable" visitor that the best way to get to Heathrow from Oxford was by taxi; and the third about the law officer successfully ordering queue-jumping military personnel to get to the back of the line in a motorway service-station.  The last recalled for your correspondent an earlier vignette in Colin Mackay's tribute, with the schoolboy Alan proclaiming, arms akimbo, "That's not fair!", and carrying his point.

The four post-dinner sketches were provided by John Galloway, a colleague in Alan's time at New College and a friend ever since.  Perhaps his most revealing vignette was Alan visiting a Cornish museum and correcting its presentation of Britain's imperial history, which he saw as matter for pride rather than shame.  Lord Brown of Eaton-under-Heywood spoke as a judicial colleague from 2004 in, first, the House of Lords and then the Supreme Court; it seems that their Lordships pass notes to each other commenting on what passes before them during counsels' arguments, not always kindly.  Lord Mackay of Drumadoon told of his time as an assistant at Allan McDougall & Co when Alan was a Bar apprentice there, and also as flatmates in those early days; and then of his much later spell as Solicitor General for Scotland when Alan was Lord Advocate, emphasising his strengths as the leader of the Crown Office and the Lord Advocate's Department.  George Moore QC had been a junior classmate at Glasgow who had been encouraged by Alan to pursue Honours in Roman law; a perfect imitation of Alan saying "You MUST do it! You must do it!"  It also appeared that the co-founder of the GURL (above) had also been a member of the Liberal Club at Glasgow University. 

David Edward and Lord Brown both quoted from Alan's remarkable judgment in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 in which he and David Hope led a unanimous Supreme Court in holding that homosexual asylum seekers should be granted refugee status if going home would result in them being forced to conceal their sexuality.  The passage by which your correspondent was most affected is at para 77:

"At the most basic level, if a male applicant were to live discreetly, he would in practice have to avoid any open expression of affection for another man which went beyond what would be acceptable behaviour on the part of a straight man. He would have to be cautious about the friendships he formed, the circle of friends in which he moved, the places where he socialised. He would have constantly to restrain himself in an area of life where powerful emotions and physical attraction are involved and a straight man could be spontaneous, impulsive even. Not only would he not be able to indulge openly in the mild flirtations which are an enjoyable part of heterosexual life, but he would have to think twice before revealing that he was attracted to another man. Similarly, the small tokens and gestures of affection which are taken for granted between men and women could well be dangerous. In short, his potential for finding happiness in some sexual relationship would be profoundly affected. It is objectionable to assume that any gay man can be supposed to find even these restrictions on his life and happiness reasonably tolerable."

For all Alan's impatience with political correctness and "trendy sociology", also noted more than once during the tributes, he was a humane and socially liberal observer of the world in which he lived.  As the huge attendance at service and dinner showed, his human qualities as well as his intellect and scholarship attracted a very wide range of people into his circle.  David Edward's invocation of Johnson Cory's lines as well as the Ciceronian strapline for the service well expressed what was felt by everybody present.

The Court's press release reads as follows (references in square brackets are to paragraphs in the judgment; the Rothwell case is Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 29, the decision that pleural plaques did not constitute an actionable harm which the 2009 Act seeks to reverse):

JUDGMENT
The Supreme Court dismisses the appeal and allows the cross-appeal by the third to tenth respondents. The leading judgments were given by Lord Hope and Lord Reed, with whom the other justices agreed.

REASONS FOR THE JUDGMENT
The Court holds that the appellants are entitled to bring these proceedings under the Convention as the effect of the 2009 Act is that they would be victims for the purposes of article 34 and that the amount of money the appellants would be required to pay is a possession for the purposes of Article 1 Protocol 1 of the ECHR [28], [112-114]. Therefore in order for the 2009 Act to comply with Article 1 Protocol 1, it must be shown that the Act is pursuing a legitimate aim and is reasonably proportionate to the aim pursued.  In issues involving questions of social policy, which this is, the Court should respect the judgment of the elected body as to what is in the public interest unless that judgement is manifestly without reasonable foundation [31] – [32]. It cannot be said that the judgement of the Scottish Parliament was without reasonable foundation [33], [125]. Therefore the Court accepts that the Act pursues a legitimate aim [41], [125]. It also considers that the means chosen are reasonably proportionate to the aim sought to be realised [41], [134]. The balance is correctly struck, first because the claims will only succeed if the asbestos exposure was caused by the employer’s negligence [37]. Second, the appellants’ obligation to indemnify inevitably entailed a risk that unforeseen circumstances would increase the burden of liability [38]. And third, because the Act can be seen as preserving the status quo prior to Rothwell [129]. It follows that the 2009 Act was not outside the legislative competence of the Scottish Parliament.

Nor can it be said that the 2009 Act was a result of an unreasonable, irrational and arbitrary exercise of the legislative authority [42]. The Court finds that in principle Acts of the Scottish Parliament are subject to judicial review but not on the grounds of irrationality, unreasonableness or arbitrariness.  The guiding principle is to be found in the rule of law. This is the ultimate controlling factor, and the courts must insist that it is respected by legislation that the Parliament enacts. But it would be wrong for the judges to substitute their views as to what is rational or reasonable for the considered judgment of the democratically elected legislature [47], [51] – [52], [148] and [153].

As to whether the third to tenth respondents are entitled to be parties, the test of “standing”, rather than the private law rule that title and interest has to be shown, is a more appropriate approach in judicial review proceedings [62], [171]. The third to tenth respondents have standing as they are “directly affected” by the appellants’ challenge to the 2009 Act [63] – [64] and [175].

Megrahi had been filmed a couple of weeks before attending a pro-Gaddafi rally in Tripoli, apparently in a wheelchair, and it was also reported that he remained in regular contact with East Renfrewshire Council social workers (one of the conditions of his release).

The concatenation of events led to voices being raised, not only about a possible recall to prison in Scotland, but also, in the USA and especially on Fox News and the like, of capturing Megrahi and putting him on trial in America.  Presumably that might be less difficult in present conditions in Libya than finding and killing Osama bin Laden in Pakistan was earlier this year.

Scots Law News does wonder what legality might have to say about a US trial for Megrahi, given that he has already been convicted of the crime in question and neither the Scottish or the UK governments have for a moment suggested that the conviction has been over-turned.  Presumably the co-operation of the Crown Office would be needed as well to enable US prosecutors to get hold of the material evidence that would be needed for a trial with any pretensions to being one under the rule of law.

Finally there is the interesting question of whether in the ruins of the Gaddafi regime there will be found any further evidence about the plan to bring down Pan-Am 108.  The Crown Office has indicated that it continues to investigate the possible involvement of others beyond Megrahi.  Scots Law News rather suspects that the Gaddafi regime did not prioritise archiving its records, if indeed it kept very many, so that mystery is likely to remain - unfortunately meaning lots of room for speculation and more debate.  Some of it may be reduced, however, if the Scottish Government's planned Bill to enable publication of the Scottish Criminal Cases Review Commission report raising questions about the Megrahi conviction succeeds in passing the Scottish Parliament.

"CROWN OFFICE STATEMENT:  HM ADVOCATE V TOMMY SHERIDAN

FOR PUBLICATION OR BROADCAST

In light of emerging developments regarding the News of the World the Crown has requested Strathclyde Police to enquire into the evidence given by certain witnesses in the trial of Tommy Sheridan.

Strathclyde Police have been asked to make a preliminary assessment and to report to the Area Procurator Fiscal at Glasgow for consideration of any further action."

The Crown Office issued a further statement on 8 July:

ALLEGED TELEPHONE HACKING IN SCOTLAND

In light of further emerging developments regarding the News of the World the Crown has asked Strathclyde Police to consider and assess specific claims of phone hacking and breaches of data protection in Scotland.

Strathclyde Police will review available information and will liaise with the Metropolitan Police in relation to any Scottish dimension to their current investigations and will thereafter report their findings to the Area Procurator Fiscal at Glasgow.
 

All this may in due course raise an interesting legal question about the effect on the validity of a conviction, if any of the prosecution evidence in the case is found to have been perjured.

Alan Rodger was the greatest Scots lawyer of his generation as well as a highly distinguished scholar with an academic publications record that any full-time professor would have been proud of. And he was a highly stimulating and entertaining social companion.  He would have mocked the cliche, but he has been taken from us while still at the height of his remarkable powers.

The bare facts of Alan's glitteringly varied career can be simply told.  He was born and educated in Glasgow (Kelvinside Academy, Glasgow University) before moving to take a DPhil in Roman Law at Oxford under the supervision of Professor David Daube (previously of Aberdeen).  Daube became the most significant intellectual influence on Alan's thinking about and approach to law in general.  The DPhil thesis, published in 1972 as Owners and Neighbours in Roman Law, led first to a Junior Research Fellowship at Balliol and then to a Fellowship at New College, Oxford from 1970, during which time he began to publish on Scots as well as Roman law.  One of his articles then was cited in argument in a Scottish court but dismissed by the judge as written by one who had no right of appearance before him (Mercantile Credit v Townsley 1971 SLT (Sh Ct) 37 at 39).  Perhaps in answer, in 1974 Alan was called to the Scottish Bar, becoming as soon as 1976 Clerk of Faculty (a position he held for three years).  He was appointed QC and an Advocate Depute in 1985, and then became successively Solicitor General for Scotland in 1989 and Lord Advocate in 1992 under the then Conservative Government.  Amidst all this his academic achievements led to his election as a Fellow of the British Academy in 1991 and as a Fellow of the Royal Society of Edinburgh in 1992.  He ascended the Scottish bench in 1995 and in 1996 succeeded Lord Hope of Craighead as Lord President and Lord Justice General.  In 2001 he joined Lord Hope as one of the two Scottish judges in the House of Lords; and when that court was transformed into the UK Supreme Court in October 2009 the two became the first Scottish Justices in that institution.  Although he never lost touch with the Scottish university law schools (for example, he was an Honorary Professor at Glasgow, and received honorary degrees from Edinburgh and Aberdeen as well as Glasgow again), he loved Oxford, becoming for example the university's High Steward in 2008 and Visitor of Balliol (in succession to the late Lord Bingham) in late 2010 as well as helping out with the teaching of Roman law in the university after the death of the Regius Professor of Civil Law, Peter Birks, in 2004.

As a judge Alan was in the forefront in what has turned out to be the greatest challenge ever to face the courts, not only in Scotland but also in the United Kingdom as a whole: the impact of the Human Rights Act 1998 coupled with, in this jurisdiction, the Scotland Act of the same year.  While some of his analyses and conclusions may be challenged by others on legal and (for Alan, irrelevantly) political grounds, there can be no doubt of the rigour and vigour which he with others brought to what turned out to be an enormous and far-reaching task.  The Cadder case was perhaps his last major contribution in this area, and a very typical one for those looking for an example of his judicial style.  But the contribution was not limited to this field, however central it seems.  There were path-breaking judgments in pure criminal law, as in the Galbraith case on diminished responsibility.  And in private law he ranged widely, perhaps especially when he was Lord President; but even in the House of Lords and the Supreme Court there were powerful, possibly decisive speeches and judgments: for example on the right of retention in the Inveresk case in 2009, where he explained clearly the notion that the right was subject in some circumstances to the equitable control of the court; the servitude of parking case in 2007 (with its entertaining discussions of parking problems in ancient Rome and contemporary tenemental Scottish cities); and the effect on the buyer's right of rejection of faulty goods of acceptance of the seller's offer of cure in another 2007 case.

Alan eschewed any form of "Scottish legal nationalism", indeed could be fiercely critical of some of its manifestations.  Some of that can be seen in his Wilson Lecture of 1995, later published as the very first article in the Edinburgh Law Review: "Thinking about Scots law", vol 1 (1996) pp 3-24; but at various points in his judicial career he did not hesitate to develop a distinctive Scots law where he found it to be justified by authority, principle and legal policy: notably the law of unjustified enrichment (Shilliday v Smith 1998 SC 725), but also the entitlement of a contracting party to claim specific implement in circumstances in which in England the House of Lords had held specific performance not to be available.  His judgments were peppered with references to Roman law, on the use of which as a source for modern Scots law he had characteristically specific and strong views, but without ever making them a programme for any sort of Civilian renaissance in Scotland.  He also drew on comparative law and the later European ius commune (see for example his opinion in the Piper Alpha case when Lord President), but was utterly against any development of a modern European private law, at least in any sort of codal form.

Others are better placed than this writer to assess Alan's contribution to Roman law studies; but his standing in that worldwide field of scholarship is very high indeed, and has been for a long time.  He wrote about current issues in Scots law, too; but from the 1980s on he began to work on the relatively neglected field of "modern" Scottish legal history, i.e. from the nineteenth century on.  He pioneered in what is now the thriving study of the greatest of all Scottish cases, Donoghue v Stevenson (1932), characteristically focusing on the figure of the pursuer: who was she and what happened to her outside her famous case?  Perhaps his greatest achievement in this area is his book on the Disruption and its legal causes and consequences, The Courts, the Church and the Constitution (2008), in which he explores not only the extensive case law but also the religious dogmas and the individual personalities embroiled in the affair, all in loving and ultimately compelling detail.  Of course there are lessons in it all for law now; but that was secondary to the inherent interest of the subject.  For Alan, following David Daube, that interest was in the end quite sufficient justification for the study.  From Daube too he learned to start with words and work his way to conclusions (or, at least, more general observations) from the bottom up.  That approach is apparent in all his written work, whether as a judge or as a scholar.  It also explains another strand in his publications, writings on the language used by judges, in Britain and elsewhere, and also by legislators.

Any suggestion that all this means that Alan was above all the detached judge and scholar wholly absorbed by his work would be completely wide of the mark, however.  He was a highly entertaining companion who loved discussion, debate, wining and dining, and gossip.  His friendships were strong and deeply felt: witness his memoirs of such as David Daube, Peter Birks, Edinburgh solicitor advocate David Williamson and the Scottish judge, Lord Davidson (see 2004 SLT (News) 55 and 2009 SLT (News) 157).  He was much in demand as an after-dinner speaker (for some of the reasons why see his "Humour and law", 2009 SLT (News) 202).  He was delighted if you brought him something that interested him; while his mock-querulous tone if he thought he had caught you out in absurdity or irrationality was always pitched just so as to induce a smile (unless, perhaps, you were counsel appearing before him).  Brilliant, argumentative, serious, funny and above all engaged:  Alan Rodger will be deeply missed but we should all be thankful that we knew him and that so much of him is still there for us to cherish as well as to admire.  A final thought is that were he here he would most probably want to engage in the speculation as to who will be his successor in the Supreme Court.

Other obituaries and tributes

Scotsman, Daily Telegraph, Guardian, Herald, Judiciary of Scotland, UK Supreme Court, Crown Office and Procurator Fiscal Service, Scotsman obituary, UKSC blog (Aidan O'Neill QC), President and Deputy President of the UK Supreme Court, The Times 1 July 2011 (not freely available online), Roman Law Resources (links to video of Supreme Court tribute ceremony).

It is of course a distinguished group but, Scots Law News feels bound to add, not one in the first flush of youth, and also one entirely masculine.  Others will feel worried by an excessive quotient of Edinburgh Law School associations, but that is something on which your editor cannot possibly comment.  What difference any of this will make to their advice is anyone's guess.

The names of the experts are awaited with interest.

Ms Muir, from Ayr, apparently pleaded guilty at Ayr Sheriff Court in April 2011 to a contravention of section 107(1)(e) of the Copyright, Designs and Patents Act 1988, admitting to having distributed £54,000 worth of copyrighted music files by making them available to others via a 'peer-to-peer' file sharing application.  Her arrest and charge followed an initial investigation by BPI (British Recorded Music Industry) and IFPI (International Federation for the Phonographic Industry).  Police officers subsequently obtained a search warrant for her home in Ayr and seized evidence including computer equipment.

Unfortunately, in commenting on the conviction, District Procurator Fiscal for Ayr, Mirian Watson, succumbed to the music industry's favoured but legally unsound analogy in cases of this kind when she said that "Illegally flouting copyright laws is tantamount to theft and not only deprives legitimate companies and artists of earnings, but also undermines the music industry as a whole."  

The major insight was provided by a report from UK Cabinet Secretary Sir Gus O’Donnell published on 7 February, who at the Prime Minister’s order had conducted an inquiry into the previous Government’s negotiations with Libya between 2004 and 2009.  Better relations with Libya had been sought to promote British commercial interests in the country, in particular those of BP.  By 2008 it was clear that the release of Megrahi was a sine qua non for the Libyans, and from then on the UK Government did all it could to facilitate an appeal by Libya to the Scottish Government under either the UK-Libya Prisoner Transfer Agreement or the compassionate release legislation.  But there was no evidence that the UK Government had put pressure on the Scottish Government to agree to any release.  O’Donnell’s inquiry had however investigated only UK government papers and not the records of the Scottish Government. 

There was also a release of Scottish Government papers which led to a small row in some parts of the media as to whether or not the Scottish Government had attempted to strike a bargain with the UK Government in which Megrahi would be released in return for some legislative measures for Scotland.  Whether or not there was such an attempt, Megrahi was released and there were no known concessions to the Scottish Government from Whitehall or Westminster then or afterwards.  Scots Law News suspects that there were some interesting intra-governmental conversations but doubts very much whether the Scottish Government would have thrown away anything it regarded as a bargaining card.

Interesting if less significant light came from a Wikileak release of a US diplomatic cable showing that more than a year before Megrahi’s release, in 2008, the UK was briefing the US on various ways in which the release might take place under either the PTA or the compassionate release legislation.  Again therefore it was clear that the release when it came did not hit the US Government as a bolt from the blue.

None of this changes the Scots Law News view, expressed just after the release, that doing so was indeed a political decision, but not for the reasons claimed by the political opponents of the Scottish Government.  Scottish Labour’s attempts to pin moral blame for the decision entirely on their SNP opponents look clumsy and naive indeed given what was, even at the time, the perfectly obvious interest of their London big brothers in having UK-Libya relations improved by Megrahi’s return to his homeland.

Meantime on 25 January the Scottish Parliament Public Petitions Committee more or less gave up on its attempt to get the Scottish Government to hold an inquiry into all aspects of the Lockerbie case but sent more questions, to the Scottish Criminal Cases Review Commission, the Lord Advocate and the Cabinet Secretary for Justice, producing an interesting set of replies shortly afterwards.  The SCCRC indicated its view that it could reopen a case in which, like Megrahi’s, an appeal had been abandoned; the Lord Advocate confirmed that the Crown Office has never held the view that Megrahi acted alone and that investigations of the bombing and other possible perpetrators were still open; and the Cabinet Secretary for Justice pointed out that the remit of the Carloway inquiry into criminal procedure and evidence following the Cadder case includes a review of the Criminal Procedure (Legal Assistance, Detention and Appeals) Act 2010 (which has been seen by some as severely restricting the power of the SCCRC to refer cases to the High Court of Justiciary). 

As all this was going on, the people of Northern Africa began to rise against their governments, and Tunisia and Egypt found themselves suddenly moving into a new era which, they perhaps fondly hoped, would be a bit more democratic than the previous ones.  Nearby Libya proved not to be immune to the popular tide; but the government of Colonel Gaddafi emerged as altogether more resistant to such change than its Tunisian and Egyptian counterparts, even after NATO and UN intervention in effect on the side of the rebels.  There were some defections from Gaddafi’s side, however; notably his Justice Minister, Mustafa Abdel Jalil (who claimed to have evidence that implicated Gaddafi as having ordered the Lockerbie bombing), and the Foreign Minister, Moussa Koussa.  The latter was interviewed by Dumfries & Galloway police and Crown Office officials on 4 April in connection with the Lockerbie case (see here), but no further information emerged in public, at least, and Koussa went on his way, having been granted access to funds he held in Europe that had been frozen as part of the sanctions against the Gaddafi regime.

As for Megrahi himself, he remains obdurately alive, although reports vary between saying that he is all but at death’s door or is likely to live for many years yet.  There are also claims that he is due to move into a new house being built for him in Tripoli.  How his interests might be affected if Gaddafi is overthrown is unclear; this interesting BBC report includes the information that Megrahi’s tribe, the Magariha, is at odds with the Qadhadfa tribe from which Gadaffi comes, at least within the Libyan armed forces.  Perhaps a Scottish safe haven may yet come to have its attractions.

If we are honest, our principal aim in setting up the page is to store material that we might use when, as over the last month, your correspondents are too busy with other things to do much if any blawging.  So if you look at the page now, you'll find that we are tracking such matters as Mr Megrahi, human rights and their manifold implications for the Scottish legal system and curious cases in the Court of Session, as well as some beavers running amok on Tayside and the future of Stornoway black pudding.  We hope to blog on all these shortly.

We would welcome thoughts on the Facebook page and how it might interact most effectively with the blawg and the Twitter feed.

The best account of what transpired in court is to be found on James Doleman's Sheridan Trial blog.  It appears that Mr Sheridan's 40-minute plea in mitigation (full text here) was a much better performance than his five-hour closing speech to the jury back in December.  There is an intriguing reference to the jury's majority verdict being the "narrowest" possible, i.e. 8-6 as there were only 14 jurors; but no confirmation of that from elsewhere.  (Nor, may it be noted, any sign of action against the juror who posted her support for Mr Sheridan's innocence on Facebook.)

The sentence is a little longer than Scots Law News had anticipated, but much shorter than the five years widely predicted in the media.  It means that, provided he behaves in prison, Mr Sheridan should be back in circulation around the middle of 2012.  In the meantime, an appeal against his conviction has been confirmed.  With stories about News of the World phone hacking gaining momentum and former editor Andy Coulson having to resign as the Prime Minister's Director of Communications as a result, so the prospects brightened of a further civil action against the newspaper by Mr Sheridan as a possible victim of their intrusive practices.

The BBC is very proud of the fact that its reporter Raymond Buchanan became the first journalist to tweet live from a Scottish courtroom, Lord Bracadale having granted permission for this to happen; but makes no reference to the James Doleman blog, rightly praised in the Scottish Review as the only serious attempt to report what was actually going on in the Sheridan trial as it happened.

UPDATE

The BBC reports a statement by Gail Sheridan that she will not be standing as a Solidarity candidate in the forthcoming Scottish Parliamentary election.  The Herald speculates that Tommy Sheridan will spend only a year in prison and will thereafter spend six months in an electronic tag on home curfew.

Our final post of 2010 anticipated continuing interest from activities around Mr Tommy Sheridan, and as noted further below, we have not been disappointed.  But the best of all the new year stories was that of Nurse Poltis and the Red Cross, reported here and here by the BBC.  Scots Law News wonders if this wasn't a missed opportunity to educate the children of Glasgow and around in a positive way about the vital significance of the famous symbol, and doubts whether its meaning in the fields of war would in any way be diluted by its use in a pantomime, even one in Glasgow.  The relevant law is in section 6 of the Geneva Conventions Act 1957.

The most striking of the many stories about Mr Sheridan bore out another of our valedictory comments on 2010, namely the increasing ubiquity of the social network site Facebook wherever it perhaps ought not to be.  This time it was the post of one of the Sheridan trial jurors on Mr Sheridan's Facebook page, declaring her (and her husband's) support for our hero's innocence, and her disgust at her fellow jurors (the majority, obviously) who thought otherwise.  Details here per The Daily Record and here per The Herald.  It seems clear that the juror's conduct is a criminal offence under section 8 of the Contempt of Court Act 1981 since it broke the confidentiality of the jury's proceedings. (Note also section 9 on the use of recording devices in court, BTW).  The matter may fall to be dealt with by Lord Bracadale at the same time as he declares Mr Sheridan's sentence on 26 January.

Next in the interest list was the news that Mrs Sheridan will be a candidate in the forthcoming Scottish Parliamentary election, standing of course for the Solidarity Party founded by her husband after his acrimonious departure from the Scottish Socialist Party.  This appeared to upset that other well-dressed socialist, George Galloway, who is also standing in the same election for the Respect Party; he fears a fatal split in the vote for the militant left.  He may be right - if we can put it that way.

There was also talk of further civil actions: by Mr Sheridan against the News of the World for infringement of privacy, and by Mrs Sheridan against the police for the manner in which their interrogation of her was carried out (in particular the removal of her rosary).  The actio iniuriarum, the place of which has been so much debated in recent years (see Whitty and Zimmermann (eds), Rights of Personality in Scots Law, Dundee University Press 2009; Elspeth Reid, Personality, Confidentiality and Privacy in Scots Law (SULI, W Green 2010), may yet get itself into court.  But the threats to sue have beennot much more than that so far, nor is it clear in which court they might be made good.  Could Mr Sheridan take a leaf from J K Rowling's book on successful litigation and head south?

Personality rights, and their limits, were also to the fore in our final new year's tale, the Scottish Government's consultation on whether the law of defamation should be extended to offer protection to the reputation of the dead against false stories about them published posthumously.  The paper has a nice snappy title: "Death of a Good Name".  The consultation, published on 11 January 2011, can be read here; answers to be in by 4 April if you want to have a say. 

Looking through our posts for 2010, we are most struck by the advances of social media into what might once have been thought no-fly zones.  The Scottish judiciary now have their own website, and the Stair Society - not to mention Stair himself - are on Facebook.  The Scottish blawgosphere is flourishing, as a glance at our sidebar will confirm.  So far as we know, however, while solicitors, advocates and of course Scots Law News have their own Twitter accounts, no Scottish judge has yet dared to tweet, whether on or off the bench.  But jurors may well be doing so (see Jennie Law on this here), and the Scottish Law Commission has just pointed out, as part of an argument that an accused's previous convictions should be before the court from the outset of a trial, that jurors are searching for such information on the Internet as a case proceeds, with concomitant risks that the information they get is wrong, incomplete or misleading (Discussion Paper No 145 on Similar Fact Evidence and the Moorov Doctrine, paras 7.74-7.79).  In England the Lord Chief Justice issued on 20 December an interim practice guideline on the use of mobile communication devices by anyone in court, noting that photography and sound recording are generally not allowed, but saying that nevertheless "the use of an unobtrusive, hand held, virtually silent piece of modern equipment for the purposes of simultaneous reporting of proceedings to the outside world as they unfold in court is generally unlikely to interfere with the proper administration of justice".  We already have our own example illustrating this in Scotland with James Doleman's blogging coverage from the courtroom of The Sheridan Trial: for his comments on the experience see especially here.

This time last year Scots Law News ventured into the realms of prophecy, and reviewed in the light of what actually happened, we think we did not too badly.  True, we failed to predict the eventual outcome of the UK General Election while Captain Calamity and Sergeant Eros disappointed us with their failure to do anything noteworthy in 2010.  But otherwise we feel emboldened to look again into our crystal ball. 

We confidently expect to remain interested in the health and well-being of Mr Megrahi, and we will also keep tabs on the Naked Rambler while not expecting much from him before the build-up to next Christmas.  We will replace the Captain and the Sergeant with Mr Sheridan, news of whom may be expected also to fill the gap left by the enforced absence from the public stage of Mr Gough.  A Scotland Bill is before the Westminster Parliament and may be on the statute book by the time a new Scottish Parliament is elected in May.  We suspect that there will still be a minority Scottish Government after that election but beyond that our crystal ball goes a little grey.  In the meantime we can expect at least an Inner House ruling or two on the legislative competence of the Scottish Parliament (pleural plaques and, maybe, cigarette sales); perhaps even offerings on the same subject-matter from the Supreme Court.

But perhaps the biggest thing likely to happen is the transformation of the basics of criminal law evidence and procedure, or at least the beginning of a transformation set in motion some years ago by the World's End trial outcome and accelerated by the Supreme Court decision in Cadder.  After the World's End case the Scottish Law Commission was asked to consider Crown appeals, the rule against double jeopardy and similar fact evidence.  Reports on the first two topics led to sections 73-76 of the Criminal Justice and Licensing (Scotland) Act 2010 and the Double Jeopardy (Scotland) Bill now before the Scottish Parliament, while as noted above a Discussion Paper on Similar Fact Evidence was published just before Christmas 2010 and proposes inter alia that there be disclosure of an accused's previous convictions where relevant to the case against that person.  Cadder has already led to change in the law relating to the legal representation of a suspect in police custody - see the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 - while the Carloway review will surely lead in due course to the disappearance of the requirement of corroboration.  All these changes, actual and potential, will surely mean a fundamentally different system of criminal justice in Scotland by the end of 2012 if not 2011.  And finally, reverting to our previous thoughts on social media in court, what price reconsideration of the ban on live camera coverage in court, whether for broadcasting on TV or streaming on the Internet?

(1) Despite a "deadline" of 10 December, no response so far from the Scottish Government to the Scottish Parliament Public Petitions Committee on the legal authority for the statement that the Government has no power or authority to hold an inquiry into the Megrahi conviction.

(2) But an announcement was made on 9 December by the Scottish Criminal Cases Review Commission that not all the parties whose material submitted directly or indirectly had led the Commission to refer the Megrahi conviction back to the Court of Criminal Appeal as a possible miscarriage of justice had consented to its disclosure.  This meant that, in terms of the SCCRC (Permitted Disclosure of Information) Order 2009 (which came into force on 1 February 2010), none of the information could be disclosed.  The Herald's story back in June 2010 was thus confirmed.

(3) The "whistleblowing" disclosures of the Wikileaks website about US international diplomatic activity reached the Megrahi affair on 8 December.  These confirmed what already seemed pretty obvious to those who have followed this business over the last few years, viz that the continued detention of Megrahi seriously threatened UK government and commercial interests in Libya, especially if he were to die in prison.  They also seemed to show that Libyan blandishments to the Scottish Government had been rejected.  Lallands Peat Worrier helpfully pulls the material together.  Interesting to note comments in the pre-release material that life expectancy of three months was not "codified" in Scottish compassionate release law and that Megrahi's life expectancy could be anything up to five years.

(4) The 22nd anniversary of the fall of PanAm 108 to the earth around Lockerbie on 21 December 1988 was marked by the publication of the report on the Megrahi release by four members of the US Senate Foreign Relations Committee.  This concludes - unsurprisingly, in view of the previous publicity from the Senators - that the Scottish Government succumbed to strong political and commercial pressure from UK interests for Megrahi's release and that the prognosis of Megrahi's life expectancy was not medically justified.  The Scottish Government naturally rejected these conclusions.  The report does not appear on the Foreign Relations Committee website.  It appears to be the work of the four Senators alone, and not to carry the imprimatur of the Committee.

We seem little further forward, and increasingly unlikely to get anywhere beyond where we were in late August and early September 2009, immediately after the Justice Secretary ordered the release of Mr Megrahi.  Perhaps 2011 will none the less surprise your correspondent.

The jury verdict (a majority one) came at the end of a trial which had begun on 4 October.  Although the trial was to a considerable extent a reprise of the evidence led in the great 2006 defamation case, there was new stuff, above all perhaps a video made secretly by Mr Sheridan's one-time best man, in which allegedly the accused admitted the truth of the allegations about his visits to the now notorious Manchester swingers club known as Cupids. 

Mr Sheridan's tactical approach to his case also bore similarities to 2006, especially dismissal of his advocates a few days into the trial and his thereafter taking on the burden of his own defence.  Where perhaps difference was crucial, however, was his five-hour closing speech to the jury.  In 2006 his speech of just 90 minutes, contrasting with the six hours from counsel for the News of the World, was thought to have been an important, perhaps decisive, factor in that famous victory.

The Crown's approach in prosecution raised doubts in some minds: the gradual paring down of the allegations of perjury from eighteen to six (five of which were eventually upheld by the jury); and, fairly late on, the complete dropping of charges against Gail Sheridan as "no longer in the public interest".  But the Glasgow jury, or a majority of them, was convinced beyond reasonable doubt, as an Edinburgh jury was not on the civil balance of probabilities, that Mr Sheridan had lied in his response to the allegations published by the News of the World in 2003: for example, in denying a visit to Cupids; admissions of that visit made to the Scottish Socialist Party executive committee and, separately, to two SSP members; and an extra-marital sexual relationship. 

It can be taken that the jury majority also did not believe that this was all part of a war between Mr Sheridan and the Murdoch press in which the sacrifice of truth was justified or justifiable.  There were some entertaining insights into the ways of the red-top press, however: notably Bob Bird (Scottish editor of the News of the World) stripping to his underpants to get to see the video confession.  The care and attention lavished on the decision to buy and publicise the video by the then chief editor of the News of the World (Andrew Coulson) must also have renewed confidence back in 10 Downing Street that the Prime Minister's decision earlier this year to appoint the same Mr Coulson as his Director of Communications was indeed a masterstroke.

Over festive season discussions of the case, what Scots Law News has heard most often questioned is why Tommy Sheridan should be "singled out" for prosecution for perjury, which, it is suggested, must be going on in the courts every day.  And why anyway should we care about whether or not a politician is lying about his sex-life, which has nothing to do with his politics?  Your correspondent thinks however that the justifications for the pursuit of the case are simple. 

First, it was Mr Sheridan who put the truth of allegations about his sex-life at issue in the claim of defamation, presumably because he thought that unchallenged these allegations would damage him politically (for insight about that possible damage see former SSP member Alan McCombes' note in the Sunday Herald for 26 December, apparently not available online).

More important, the difference between Mr Sheridan and ordinary cases of witnesses lying, mis-remembering or forgetting (especially in cases to which they are not a party) is that, as the pursuer in a civil case of defamation, Mr Sheridan was lying to lay the whole foundation of an action based upon the claim that his opponents, and all those who gave evidence for them, were the liars - and liars, moreover, who were lying in a conspiracy to bring him down politicaly. 

In essence, therefore, Tommy Sheridan wasn't just lying in his own self-interest; nor was he even just accusing (a very large number of) other people of cooking up and telling lies (bad enough though that surely is).  He was abusing the legal system and attacking the foundations upon which the structure of the law is built. 

What compounds the offence is that at the time in question Mr Sheridan was a Member of the Scottish Parliament, helping enact the laws by which the rest of us are governed.  He is not the only politician ever to have been convicted of this kind of thing, and prosecutions have not been confined to socialists opposed to the Murdoch press: compare the stories of such Tory fibbers as Lord Archer (another "defamed" in the News of the World) and Jonathan ("sword of truth") Aitken, who instead fell before the left-ish forces of The Guardian and Granada TV.   One might also mention in this context that great socialist and red-top newspaper baron Robert Maxwell, probably saved from prison only by his falling off his yacht and drowning, and whose many years' use of the law to prevent publication of the truth about him gave him such posthumous distinction as may be provided by section 12(4) of the Human Rights Act 1998.

So now we await the judge's decision on Mr Sheridan's sentence, to be declared on 26 January and not likely to be less than imprisonment for a substantial period.  We also await confirmation on whether Mr Sheridan will appeal, possibly on the ground of the judge's refusal to admit certain witnesses for the defence.  Meanwhile the News of the World has stated that it will continue its appeal in the great defamation case (pending which Mr Sheridan's award of damages remains unpaid), and claim expenses if its appeal is successful.  This story is far from over. 

The case is brought by Jennifer Sharp who seeks to reclaim charges amounting to £750.  The Board's ground of refusal is based on a cost-benefit analysis: the expenses of the action far outweigh the amount which she is claiming.  There was insufficient evidence that the case would affect large numbers of other people.  Following the decision last summer noted previously here, the bank charges cases are having to be brought under ordinary rather than small claims procedure, where the individual's liability for the expenses of the action is heavily restricted.

Ms Sharp is being advised by Mike Dailly of the Govan Law Centre, who says that he is considering a Court of Session review of the Board's decision.  The Board has however indicated that its decision may be reconsidered if evidence of the potential impact of the case is forthcoming.  Some differences of view about what has been going on are apparent from the respective organisations' websites.

Earlier, in October 2010, the UK Government had indicated (see further here) that, after considering the responses to a call for evidence on the matter, it would not be pressing for reform of the Unfair Contract Terms Directive in order effectively to reverse the Supreme Court bank charges decision, OFT v Abbey National [2010] 1 AC 696 (in which the court held that in its present form the Directive could not be used to review the fairness of the charges).

When snow deposits itself in great quantities on the roofs of buildings (and indeed atop hedges and walls, as your correspondent has seen in Edinburgh over the last two weeks), and then slides off on to unfortunate passing pedestrians on the pavements outside, have such persons a claim against the owner of the buildings (or the hedges or the walls) in respect of any injury suffered thereby?  The question seemed live to those within the Scottish Law Commission last week when a great wadge of snow crashed to the pavement opposite from the roof of the National Library's Causewayside building; and there was too the unfortunate case reported by the BBC of the Berwickshire schoolgirl severely injured by snow and ice falling on her from the roof of a farm building on 3 December.

The Occupiers Liability (Scotland) Act 1960 makes occupiers liable only to those who enter their property, not to those on the streets outside.  There is common law on that latter situation, however, and the debate, not fully resolved by the First Division in McDyer v Celtic Football Club 2000 SC 379, is whether liability is fault-based or, under the Scots law version of the Roman actio de positis vel suspensis, strict.  The latter remains possible largely because the law is so stated in Bankton's Institute, at Book I, chapter 4, paras 31-32, where he says:

31. The second improper delinquency is, when any thing is thrown over or poured out, from windows of houses, into the streets, highways, or other common passage, whereby damage is done to those that pass by, the master of the family is liable to repair it, as if it had been done by himself, because he ought to have prevented such damage: indeed, by the civil law double damage was due to the person aggrieved, but that cannot take place with us, the private party having no more than redress of damage, in the case of real delinquencies, except where it is otherwise specially provided by statute. 32. A THIRD is, where there is any thing hung up or placed above common passages, which may, by the fall, do damage to persons passing by; the person that did it, or suffers it to be done, is liable to a definite penalty by the civil law; and no doubt by our law, upon a regular complaint, he will be compelled to take it down; but no penalty can be due with us without an express statute, which we have not in this case: however, if it is not removed, when the party concerned is required by lawful authority, at the instance of persons in the neighbourhood, he may afterwards be punished.

Bankton doesn't quite have snowfalls in mind when he is talking about things thrown over or poured out or hung up or suspended, obviously.  Scots Law News suspects that the Romans didn't think too much about snow either; but nonetheless, as the court emphasises in McDyer, the Roman law received in Scotland is adapted to Scottish circumstances, and, whatever Bankton's weather experiences may have been in the balmy age of enlightenment, in this country now snow is a pretty regular occurrence. 

Even if any liability is fault-based, then McDyer shows that the circumstances may often give rise to an application of the doctrine of res ipsa loquitur.  In McDyer the pursuer, who was inside Celtic's stadium, was injured by a piece of wood falling from its roof that should not have been there, so that was a relatively easy case for the res ipsa loquitur doctrine.  But what if snow, or an icicle, had fallen on him instead?  What could the owner of the roof have done about it?  The National Library took the precaution of roping off the pavement outside its building, but will such a thing always be possible for a private householder?  Might you then be exposing the passer-by to the risk of injury on the roadway?

With regard to the other problem of uncleared pavements, the Scottish Government guidance helpfully says there is no law against clearing paths and pavements outside your house, and that if you do it carefully you shouldn't be liable for any passer-by's injury suffered as a result of your efforts.  Having slithered his way to work for a fortnight through the otherwise well-heeled streets of the Grange district in Edinburgh, your correspondent is much more interested in the liability if people fail to clear a path or pavement outside their properties.  He had always understood there to be some sort of legal duty to do this, but can find nothing to this effect on either the Scottish Government or the Edinburgh City Council websites.  Nor is there anything relevant in the Civic Government (Scotland) Act 1982.  There is such a duty in the law of other countries (although not, we believe, in Antarctica), and the time may have come to impose it here if it is not already the law. 

The Bill's explanatory memorandum summarised it thus:

4. The Bill is concerned with providing persons with a choice at the end of life. It is about ensuring that persons who meet the Bill’s eligibility conditions and who find their lives ntolerable can have the dignified death they desire.
5. The Bill details those persons eligible to apply and specifies the criteria to be met.
6. The Bill includes detailed requirements designed to ensure that vulnerable people are not coerced into seeking an assisted death.
7. The Bill enables eligible persons to receive assistance to bring about the end of their life.  The Bill provides a detailed process with systematic checks and safeguards applying to both those assisting the person and the person making the request. If these processes are followed then the person will be able to receive an assisted death and those who have assisted will not have committed a criminal offence or a delict.  

The Special Committee which had been set up to consider the Bill recommended in a report that the Bill be not proceeded with; and the Parliament duly so decided after a debate, by a majority of 85 to 16 with two abstentions.

Margo MacDonald has indicated that if re-elected at the Scottish Parliamentary elections in May 2011 she will bring another version of the Bill back before the Scottish Parliament.

The most significant parts of the Bill are probably those dealing with the tax powers over and above those which the Scottish Government has mysteriously lost since 2007 through not keeping up payments to HMRC (see here for the mystery, which ensures that whichever government is next elected in Scotland will have no tax-raising power until 2013-2014).  These parts of the new Bill (clauses 24-31) seem likely to hog media attention as it progresses through Westminster.

For Scots Law News, the greatest interest lies in the loss of devolved control over corporate insolvency matters (clause 12), and in the absence of any provision to make charities law a reserved matter (contrary to Calman recommendations which still seem slightly puzzling to this observer).

One is also relieved to note that the Scottish Parliament is to lose its power to legislate in relation to Antarctica (clause 14).  One imagines that they talk of little else at Holyrood, especially when the snow begins to fall.  For some entertaining suggestions as how the Scottish Parliament should use its hitherto unsuspected competence in these matters in the few days left to it to do so, see Absolvitor here.  Lallands Peat Worrier claims to have uncovered the truth behind the provision: Bill Aitken MSP had a plan to mark his swansong in the Parliament with a Bill for the benefit of the Antarctica penguins but now Whitehall has headed him off.

Sheriff Robert McCreadie found that not only was the Rambler's brief naked departure from Perth prison on 29 October (noted here) a breach of the peace, but also his refusal to dress for his trial was contempt.

For those who have not spotted it already, our headline comes courtesy of Lord Byron - see here for more.

RBS v Wilson was a case about how the creditor in a standard security might eject the defaulting debtor from the property over which the debt was secured.  The relevant legislation stated that the debtor's default had to be preceded by "formal requisition"; the creditor bank argued that a certificate of default lodged in court under section 24(2) of the Conveyancing and Feudal Reform (Scotland) Act 1970 met this requirement.  This was practice established over the last forty years, even although section 19(1) of the 1970 Act said that the creditor intending to exercise the power to eject "shall serve a notice calling-up the security in conformity with Form A of Schedule 6 of this Act" (with which the certificate of default under section 24(2) did not comply).  Practice allowing the certificate of default procedure to be enough was based upon the writings of the late Jack Halliday, sometime Professor of Conveyancing at Glasgow University and "architect" (although not draftsman) of the 1970 Act.  Halliday had written that the creditor in our situation "may" serve a calling up notice, which was an "additional" remedy (see para 47 of the Supreme Court judgment, per Lord Rodger).  But, said Lord Rodger (as a Glasgow graduate), "in the end even a word from Professor Halliday would have to yield to the words of Parliament" (para 49).  "Shall" here was an imperative word; and properly understood, Professor Halliday had not said anything different.  Only a calling-up notice would do before the debtors could be ejected; this was an important piece of debtor protection.  Lord Hope (an Edinburgh graduate) is more dismissive of Professor Halliday's reading (see para 68) and says, "The answer to the problem is to be found in the words of the statute, to which all too frequently insufficient attention appears to have been given" (para 72).

Scots Law News recalls wise words from the Wilson Lecture given by Professor Eric Clive as the Scottish Parliament began its life as a legislature in 1999:

“‘Shall’ is an imprecise word with several shades of meaning. When it states a result brought about by the Act itself, it is better replaced by ‘is’. …. The New Zealand Law Commission has recommended the use of the present tense and indicative mood whenever possible, and the replacement of ’shall’ by ‘must’ where a duty or prohibition is intended. … I would like to see the routine use of the word ’shall’ banned from Acts of the Scottish Parliament.” (Edinburgh Law Review vol 3 (1999) at p 143)

Professor Clive attacked the famous opening provision of the Scotland Act 1998 – “There shall be a Scottish Parliament.”  “But what,” asks Professor Clive, “does ’shall’ mean in that sentence?”  RBS v Wilson, where in the end everything turned on whether "shall" meant "may" or "must", confirms the Clive line, I fear.  See here for further comment from Brian Heaney on the UKSC blog.

A week earlier, on 17 November 2010, the Supreme Court also surprised some with its decision in Multi-Link Leisure Developments Ltd v North Lanarkshire Council [2010] UKSC 47, which was about the interpretation of a lease between the parties, in particular the method of valuation to be deployed in fixing the sale price when the tenant (Multi-Link) exercised an option to buy the land in question from the Council.  The conflicting interpretations made a difference of near enough £5 million.  The surprise lies in each of the contrasting approaches of Lords Hope and Rodger to what seems to have been a bungled piece of self-contradictory drafting. 

Lord Hope solves the problem of ambiguity (which he says is a pre-requisite for going beyond the document in the search for meaning, so going against a categoric but un-cited statement to the opposite effect by the First Division in Luminar Lava v Mama Group [2010] CSIH 1, para 38) by setting aside some of the wording used as making no commercial sense (but not disclosing the basis on which he is able to reach that conclusion).  This although he criticises the court below for taking inadequate account of all the words in the contract.

Lord Rodger imposes no requirement of ambiguity but says that in such cases of bungled drafting one should start with the words one can understand to see if they help with the ones you can't - a new approach to this difficult subject.  It leads him to decide that the parties' agreed meaning for a particular section cannot be accepted.  Then he finds that words which were not in the contract at all can be used to decide what the commercial sense of the document must have been.

All very interesting.  At least their Lordships reach the same conclusion (the Council wins), and also uphold the Extra Division's conclusion to the same effect ([2009] CSIH 96), while being critical of its reasoning.  Their fellow Supreme Court Justices divide 2-1 as to which of the alternative approaches they prefer, Lord Rodger winning out here.  Since Lord Glennie in the Outer House reached a different conclusion as to the correct result ([2009] CSOH 114), the case viewed as a whole provides a fascinating example of judges offering at least four distinct approaches to the solution of an admittedly knotty problem.  Advisers meantime must wonder what the law is. 

It is however noteworthy that Lord Glennie handed down his Multi-Link opinion on 31 July 2009 and the case then sped through to its final decision in the Supreme Court less than 18 months later.  Compare RBS v Wilson, which began with proceedings in Edinburgh Sheriff Court in April 1998. 

First, the United Kingdom made no attempt to intervene in the preceding Salduz case in 2008, despite its (one would have thought) fairly obvious implications for the Scottish legal system.  Were relevant eyes not on this particular ball at the time?

Second, when should a United Kingdom court regard itself as bound to follow a decision of the European Court of Human Rights?  The answer seems to be that at any rate an unanimous decision of the Court's Grand Chamber (such as Salduz) should be followed; perhaps then the decision of a split Chamber is not binding.  And certainly there is precedent, cited at para 45 of Lord Hope's judgment, that decisions of Sections of the Court which are based on misunderstandings or lack full consideration of law in the United Kingdom need not be applied.  But in any event the Court itself had consistently applied Salduz and a number of ECHR member states which had not previously afforded a right to legal representation at police interviews of suspects were now changing their laws in the light of this jurisprudence.  This suggested that the decision was not one upon which the Court could be persuaded to go back.

Third, both Lords Hope and Rodger go into the history of the rule in Scotland denying suspects in police custody the right to legal representation.  Introduced in its current form by statute in 1980, the legislation followed recommendations in the Report of the Thomson Committee on Criminal Procedure in Scotland (1975).  The Report said how -

"... criminals can render the investigation of their crimes difficult or even impossible merely by standing on their rights.  [The solution] must recognise the realities of the situation, and take account of those police practices which are accepted as fair by the public including criminals although they may be technically illegal or at least of doubtful legality.  (para 2.03) ...  We recommend that a solicitor should not be permitted to intervene in police investigations before charge.  The purpose of the interrogation is to obtain from the suspect such information as he may possess regarding the offence, and this purpose might be defeated by the participation of his solicitor."

Thus, given that the basis of Salduz was primarily a concern to protect the suspect against self-incrimination, the Scottish rule, being explicitly based upon the proposition that the accused must be given every chance to incriminate himself, could not possibly stand, whatever the other safeguards (such as corroboration) that might exist in the system.

Fourth, prospective over-ruling.  As is well-known, the courts in the United Kingdom declare the law as it has always been, not change it.  In effect, their decisions have retrospective effect.  The fear in Cadder was that the decision of the Supreme Court would have the effect of invalidating every conviction achieved through the use of evidence from police interviews of suspects without a lawyer present on the suspect's behalf.  Further, while the Scotland Act 1998 gives the courts power to remove or limit any retrospective effect of a decision that an Act of the Scottish Parliament is beyond legislative competence, there is no such power with regard to the acts of Scottish Ministers and the Lord Advocate.  Lord Hope therefore thinks that a possible inherent power in a court to limit the retrospective effects of its decision cannot apply (paras 58-59).  Instead, with Lord Rodger, he finds a solution in a principle articulated by Murphy CJ in the Irish Supreme Court in A v The Governor of Arbour Hill Prison [2006] IESC 45: retrospectivity does not apply to cases decided under the previous understanding of the law that are now "closed".  The new understanding applies only to cases that have not yet gone to trial, cases where the trial is still in progress, and appeals have been brought timeously but not yet concluded.

Discussing this point both Lords Hope and Rodger refer to the power of the Scottish Criminal Cases Review Commission (SCCRC) to refer closed cases back to the Court of Criminal Appeal on the grounds of a possible miscarriage of justice.  The Justices say that it will be for the Commission to decide whether it is in the public interest to refer cases which involved the use of evidence obtained from police interviews of a suspect at which the latter had no legal representation, and for the Appeal Court to decide what to do if such a reference is made (paras 62, 103).  This explains section 7 of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (passed by the Scottish Parliament in a single day (27 October)).  It states two new rules as follows:

In determining whether or not it is in the interests of justice that a reference should be made, the Commission must have regard to the need for finality and certainty in the determination of criminal proceedings.

Where the Commission has referred a case to the High Court ... the High Court may ... reject the reference if the Court considers that it is not in the interests of justice that any appeal arising from the reference should proceed.

The apparent breadth of these provisions will, one hopes, be tempered by judicial realisation that such general words must be read in the context of the Act as a whole, i.e. as restricting any attempts to use Cadder in relation to closed cases before the SCCRC.  We shall see.

Finally, the Supreme Court decision has cemented that court's unpopularity with the Scottish judiciary, at least so far as its jurisdiction in devolution issues and criminal law matters is concerned.  It was not perhaps a coincidence that on 24 September 2010 the Advocate General for Scotland (Lord Wallace of Tankerness, QC) launched a short "informal" consultation on the Supreme Court's jurisdiction over the decisions of the Lord Advocate (closing date 22 October).  An Expert Group chaired by Sir David Edward is now deliberating on the matter.  The outcome of the consultation and the deliberations of the Expert Group is not known at the time of writing, but one might have thought that the Scotland Bill provided a convenient vehicle for implementing any change to the present law that may be thought needful.

Not mentioned on the Judiciary website, however, is Lord Stewart's contribution to legal history, as editor of two of the four volumes of the Faculty of Advocates Minute Book published by the Stair Society (vols 46 and 53 in the Society's series).  Both volumes, which together cover the momentous period 1751-1798, are distinguished by the editor's well-researched and elegantly written introductions.  They appeared in 1999 and 2008 respectively (the latter being co-edited with Dr David Parratt). 

Lord Stewart also contributed two articles to the Stair Society's fourth Miscellany volume (vol 49 in the Society's series, published in 2002).  The first provides the essential introduction to the Session Papers, a key source in particular for eighteenth-century Scots law, and the second illustrates the use to which the source may be put under the title "Sir Walter Scott and the tenants of Invernenty".

Moving away from legal history to the joys of medical negligence, Lord Stewart's article "‘Damages for the Birth of a Child" (1995) 40 JLSS 298 was influential in the famous decision of the House of Lords, MacFarlane v Tayside Health Board 2000 SC (HL) 1.

It is clear that in Lord Stewart we have yet another Scottish scholar judge, and Scots Law News looks forward to a distinguished tenure on the bench, while also hoping that there may yet be further contributions on legal history from his able pen (or word processor). 

Lallands Peat Worrier, to whom we must refer readers for all details, presents the story in Burnsian mode, recalling Tam O'Shanter's misadventures with Cutty Sark at Alloway Kirk on Hallowe'en.  Scots Law News was rather reminded of the metaphysical poet Andrew Marvell addressing his coy mistress, whence our headline.  For those who don't know Marvell, the next line of his chat-up poem - and indeed the whole poem - can be consulted here.  Clearly starting from a sound proposition, his metaphysics led him to a mistaken conclusion.  Perhaps he had never visited Dundee?

A brief (and of course naked) appearance from custody in Perth Sheriff Court on Monday 1 November, charged with breach of the peace, led to his being remanded in custody once more.

The pantomime season approaches. 

The UK Supreme Court press release reads as follows:

BACKGROUND

The question in this appeal is whether a person who has been detained by the police in Scotland on suspicion of having committed an offence has the right of access to a lawyer prior to being interviewed.

Sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995 allow a police constable to detain a person whom he has reasonable grounds for suspecting has committed or is committing an offence punishable by imprisonment. Detention may last for up to six hours. During detention, the police may put questions to the detainee, although the detainee is under no obligation to answer them and is to be informed at the outset of the detention that he is under no such obligation. The detainee is entitled to have a solicitor informed of his detention. However, in terms of the statute, the detainee has no right of access to a solicitor. The question is whether that is a breach of the right to a fair trial, recognised in Article 6(1) and 6(3)(c) of the European Convention of Human Rights (“the ECHR”).

The Appellant was detained by the police on suspicion of serious assault and cautioned, in line with the statute, that he did not have to answer any question, beyond giving his name, address, date and place of birth and nationality. He was told that he was entitled to have a solicitor informed of his detention but he did not exercise that right. He was interviewed without a lawyer being present.

During interview, the Appellant made a number of admissions. At trial the Crown led evidence of the police interview with the Appellant and relied on the admissions. The Appellant was convicted. In Salduz v Turkey (2008) 49 EHRR 421 the Grand Chamber of the European Court of Human Rights unanimously held that there had been a violation of Articles 6(1) and 6(3)(c) ECHR because Salduz had not had the benefit of legal advice when he was in police custody. In Her Majesty’s Advocate v McLean [2009] HCJAC 97, the High Court of Justiciary (sitting with seven judges) held that, notwithstanding the decision in Salduz, it was not a violation of Articles 6(1) & 6(3)(c) ECHR for the Crown to rely at trial on admissions made by a detainee while being interviewed without having had access to a solicitor. This was because the guarantees otherwise available in the Scottish legal system (and, in particular, the requirement that there be corroborated evidence in order to convict) were sufficient to provide for a fair trial. In the present case, relying on the decision in McLean, the appeal court refused the Appellant leave to appeal against his conviction. In effect, therefore, the present case is an appeal against the decision in McLean.

JUDGMENT
The Supreme Court unanimously grants leave to appeal and then goes on to allow the appeal. The ECHR requires that a person who has been detained by the police has the right to have access to a lawyer prior to being interviewed, unless in the particular circumstances of the case there are compelling reasons to restrict that right. The Supreme Court remits the case to the High Court of Justiciary for further procedure. Lord Hope (Deputy President) delivers the leading judgment, with which Lord Mance agrees. Lord Rodger delivers a separate judgment, agreeing with Lord Hope but adding observations of his own. Lord Walker, Lord Brown, Lord Kerr and Sir John Dyson SCJ agree with the reasons given by both Lord Hope and Lord Rodger.

REASONS FOR THE JUDGMENT
The High Court of Justiciary’s decision in McLean was entirely in line with previous domestic authority: [29] That authority cannot, however, survive in light of the European Court of Human Rights’ decision in Salduz and in subsequent cases. Properly interpreted, Salduz requires a detainee to have had access to a lawyer from the time of the first interview unless there are compelling reasons, in light of the particular circumstances of the case, to restrict that right: [35], [36], [38] & [70]. The exception applies only if there are particular circumstances in the individual case and does not allow a systematic departure from the rule such as that set up by the 1995 Act: [41]. The rule in Salduz is based on the right not to incriminate oneself: [33] & [67].

This court should follow Salduz. Indeed, it has no real option but to do so: [93]. Previous cases have established that the court should follow any ‘clear and consistent jurisprudence of the Strasbourg court’: [45]. Salduz is a decision of the Grand Chamber, now firmly established in the European Court of Human Rights’ case law: [48]. The majority of those member states which prior to Salduz did not afford a right to legal representation at interview (Belgium, France, the Netherlands and Ireland) are reforming their laws to bring them into line with the Convention’s requirements: [49]. The guarantees otherwise offered by the Scottish legal system (in particular corroboration) are commendable but are beside the point. They do not address the European Court’s concern, which is with self-incrimination: [50], [66] & [92]. The system of detention under section 14 and 15 of the 1995 Act was expressly designed to deny an individual, reasonably suspected of committing a crime, a right to obtain legal advice when questioned in the hope that, without legal advice, the individual would be more likely to incriminate himself during questioning: [91]. That view of where the balance is to be struck between the public interest and the rights of the accused is irreconcilable with Convention rights: [51]. There is not the remotest chance that the European Court would hold that, because of the other protections that Scots law provides for accused persons, the Scottish system could omit the safeguard of allowing legal advice prior to interview: [93].

The Lord Advocate could not rely upon section 57(3) of the Scotland Act 1998 to prevent her act of leading the evidence of the interview from being unlawful. Section 57(3) would apply where, because of another provision of legislation, the Lord Advocate could not have acted any differently or where she acted to give effect to another provision which could not be read in a way which complies with Convention rights. Neither applied here because of the drafting of section 14(7) of the 1995 Act: [54] & [55].

This decision does not permit closed cases to be re-opened. Although a judicial decision has retrospective effect, it does not affect cases which have been finally determined (namely, where an accused was convicted and did not appeal within the relevant time limits, or did appeal and the appeal has been finally disposed of). The decision will, however, affect cases which have not yet gone to trial, where the trial is still in progress or where an appeal has been brought in time and is not yet concluded. The Scottish Criminal Cases Review Commission, if it is asked to do so, will have to determine whether it is in the public interest for cases which have already been finally determined to be referred to the High Court, which will in turn have to decide how to deal with such cases, if a reference is made: [60] – [62]; [99] – [103].

Cabinet Secretary for Justice Kenny MacAskill issued the following statement following the publication of the Supreme Court's judgment:

"I note today's decision by the Supreme Court. It is a decision we did not seek but it is one to which we must respond.

"The decision overturns decades of criminal procedure in Scotland, a proud, distinctive, justice system, developed over centuries, and predicated on fairness with many rigorous protections for accused persons. It is rightly admired by other jurisdictions. This issue is about legal advice at one step in the investigatory process.

"Today's judgement in the Supreme Court has gone against the unanimous decision last October by seven Scottish High Court judges at the Scottish Appeal Court that determined that an aspect of Scottish criminal procedure does not comply with the European Convention on Human Rights.

"We are concerned that the current devolution arrangements have created an anomaly that seems to put Scottish law at a disadvantage in comparison to elsewhere in the EU. I want to see steps taken to address this anomaly. But we cannot ignore the Supreme Court's decision.

"And while it necessitates changes to Scotland's justice system, these are changes that have been anticipated and planned for. For over a year, the Scottish Government, Crown Office, Scottish Legal Aid Board (SLAB), ACPOS and the Scottish Court Service have been preparing contingency plans to deal with all possible eventualities arising from this case. The Lord Advocate - in anticipation of an adverse judgement - issued interim guidance earlier this year.

"With Parliament's support we will be making swift legislative changes to protect the victims of crime and safeguard communities. The main changes will mean introducing a right of access to legal advice before being questioned, extending the period during which a person may be detained under section 14 of the Criminal Procedure (Scotland) Act 1995, powers to adjust legal aid eligibility rules and measures to ensure certainty and finality in concluded cases.

"We will be introducing this emergency legislation to Parliament on Tuesday - and with the support of the other political parties we can complete the parliamentary scrutiny and debate process during the course of Wednesday. We anticipate the Bill receiving Royal Assent by Friday.

"In addition to these necessary legislative changes, I am today announcing that Lord Carloway, a senior High Court judge, will lead a review of Scottish criminal law and practice in the aftermath of the Cadder decision. I have asked Lord Carloway to make swift progress with his review and report to me within months - certainly in time to allow legislation to be considered for the 2011-12 Parliamentary session.

"Our distinctive justice system is one which protects accused persons. However human rights also extend to victims and to all of the people of Scotland, and the Scottish Government and justice partners will continue to fight to ensure that the rights of the victims and indeed wider society remain at the forefront of the Scottish justice system."

The Lord Advocate also issued a statement, as follows:

“The Supreme Court’s judgment in Cadder v HMA is a significant ruling for Scots law. 

“Until today, the Scottish legislation regarding access to a solicitor prior to and during police detention was held to be compliant with the European Convention on Human Rights.  Indeed Scotland’s highest criminal Court of Appeal looked at this very issue in the case of McLean less than a year ago.  In that case seven judges held unanimously at that time that Scots law and practice was compatible with the Convention requirements.

“Prosecutors work within the law made by Parliament and as interpreted and stated by the courts. Today’s ruling in Cadder changes understanding of the law as set out in McLean, and so we will immediately adapt our working practices to this new legal landscape.

“I note that the Court has stated that its decision does not apply to cases that have been finally determined. This very significantly limits the number of cases potentially affected by this judgment.

“In preparation for the possibility of this change, we have been working with the police and the Scottish Government to minimise the risk to live cases. We have of course taken precautionary measures: in early 2009 I issued guidance to prosecutors, instructing them only to use admissions made by suspects who had not had legal advice before interview in a police station where this was considered essential for the Crown case. Earlier this year, following the hearing before the Supreme Court, I issued Guidelines to the police requiring them to provide access to a solicitor prior to and during interview. 

“Unlike any other jurisdiction in Europe, Scots law requires two sources of evidence to support each essential fact in a prosecution. This rule of ‘corroboration’ presents a further challenge to prosecution in Scotland, which does not apply in this wholesale manner in other jurisdictions.

“The balance of rights for accused in Scotland will now need to be carefully considered. It must be ensured that the Convention rights of victims to have ‘effective criminal sanctions in place’ are maintained where their human rights are flouted by the criminal actions of another.

“In light of this, I welcome the announcement by the Cabinet Secretary for Justice of Lord Carloway’s review of the laws of criminal procedure and evidence in Scotland following the Supreme Court’s decision. I consider such a review important to ensure, as the Supreme Court itself recognises at paragraph 97 of its opinion ‘that any revised scheme is properly balanced and makes for a workable criminal justice system’.

“The Crown Office and Procurator Fiscal Service will continue to work with the police and with the Scottish Government to protect the integrity of pending prosecutions.”

The petition called on the Scottish Parliament "to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988."

The Scottish Parliament's Public Petitions Committee discussed the petition on 9 November 2010, and agreed to write to the Scottish Government asking what legal authority supported the statement that holding any inquiry into the case was beyond its power and authority, and in particular the inability of any inquiry to compel witnesses.  The petitioners, who gave oral evidence to the Committee, argued that there was no legislation restricting the Scottish Government's holding an inquiry, and that legislation existed under which witnesses could indeed be compelled to come before the inquiry.  The Scottish Government was aked to reply by 10 December 2010.

While the Bill still has to pass the procedures required under the Scotland Act 1998 before it becomes law, its failure to do so seems most unlikely to this observer, although the possibility of challenge in the courts remains.

There remain questions, however, about whether Tesco, or even Waitrose (currently planning expansion in Scotland), are really interested in buying into the provison of legal advice to consumers in Scotland.  No sign yet of bids from the supermarkets or, even worse, the unchastened banks. 

Much more plausible are the rumours reaching the ears of Scots Law News that smaller Scottish firms are planning networks and link-ups, possibly even more, with which to respond to the new business environment in which they now find themselves. 

That seems a more rational response, and one much more likely to succeed, than battles to the death in the last ditch of an "independent" legal profession.  In the end it is what you can do for your clients that determines your business future.

See here and here for previous stages of the debate.

Ms Angiolini's career as the first woman and solicitor to be, first, Solicitor General for Scotland and then Lord Advocate, has been tracked here, here and here in Scots Law News.  It is one of the most remarkable careers in modern Scots law - and it doesn't seem likely that it is over yet.  A career prosecutor who reached the very top of that particular tree and who has only just turned 50 will surely have further plans.

We can also enjoyably speculate about who her successor will be.  Will any change in the political colour of the next Scottish administration have an impact on the appointment, or will there be a promotion from within the Crown Office?  It will be recalled that Ms Angiolini was appointed to high office under the pre-2007 Lab-Lib Dem coalition but continued on in office as Lord Advocate when the SNP took power - a departure from past convention.  Our money is on an internal promotion, but we are notorious for our inability to foresee the future.

Most significant is Lord Bracadale's recognition of the Scotland Act 1998 as a "constitutional statute", the interpretation of which is to be generous and purposive, bearing in mind the constitutional values which the statute was meant to embody.  "The court," says Lord Bracadale, "should endeavour to find in the Scotland Act a constitutional settlement which is coherent, stable and workable" (para 3).  In construing the scope of reservations of matters from the devolved competence of the Scottish Parliament, "it seems to me to follow from the approach of listing individual reserved matters that each of them should be given a narrow reading; otherwise the specific nature of the approach would not have been necessary" (para 18).  In order to determine whether or not sections 1 and 9 of the Tobacco & Primary Medical Services (Scotland) Act 2010 (summarised in the opening paragraph above) fell foul of the reservation of "the sale and supply of goods to consumers" in Schedule 5 section C7(a) of the Scotland Act, it was legitimate to examine the travaux preparatoire of the 2010 Act, including reports to and papers issued by the Scottish Ministers prior to the introduction of the Bill, explanatory notes to the Bill, the policy memorandum that accompanied the Bill and statements by Ministers during the relevant proceedings in the Scottish Parliament.  "That review of the background materials, the surrounding documents and the parliamentary debates," Lord Bracadale concluded, "points very strongly towards identifying the purpose of sections 1 and 9 of the 2010 Act as being to reduce smoking of tobacco among children and young persons and thereby improve public health in the long term. That purpose would not relate to a reserved matter" (para 48).  He went on to reject a further argument that the provisions in question were beyond legislative competence as modifying a rule of Scots criminal law as it applied to reserved matters or as special to a reserved matter, there being no rule of Scots criminal law being "modified" by the 2010 Act. 

Finally, Lord Bracadale turned to an argument that the 2010 Act modified Article VI of the 1707 Acts of Union and was thus contrary to Schedule 1 para 4(2) of the Scotland Act, which prohibits such modification of Article VI so far as it relates to freedom of trade.   Article VI reads:

"That all parts of the United Kingdom forever from and after the Union shall have the same allowances, encouragements and drawbacks and be under the same prohibitions, restrictions and regulations of trade and lyable to the same customs and duties on import and export and that the allowances, encouragements and drawbacks, prohibitions, restrictions and regulations of trade and the customs and duties on import and export settled in England when the Union commences shall from and after the Union take place through the whole United Kingdom."

Following Lord Hope's approach in Lord Gray's Motion 2000 SC (HL) 46, Lord Bracadale sought to place Article VI in its historical context, for which he relied on T C Smout's History of the Scottish People 1560-1830 , T M Devine's The Scottish Nation, the Records of the Scottish Parliament website, and Adam Smith's Wealth of Nations.  His conclusion is that Article VI was about establishing freedom of trade in the common market created by the 1707 Union.  But the 2010 Act did not go against the existence of a common market in the United Kingdom:

"The prohibition on modification of article VI contained in para 1 of schedule 4 to the Scotland Act is in any event restricted to modification of article VI so far as it relates to freedom of trade. The review of the historical context of the Acts of Union, the ordinary meaning of the phrase "freedom of trade" and what was said by the Secretary of State in the parliamentary debates on the Scotland Act, all taken together, lead me to conclude that the prohibition on modification of article VI of the Acts of Union contained in para 1 of schedule 4 to the Scotland Act is restricted to interference with the common market created by the Union. Understood in this way, the prohibitions and restrictions introduced by sections 1 and 9 of the 2010 Act do not interfere with the common market created by article VI of the Acts of Union. I did not find consideration of the Directive 2001/37/EC to be of assistance. In any event, the removal of barriers contemplated by it leaves open the possibility of member states introducing, under certain conditions, such requirements as they consider necessary in order to guarantee the protection of the health of individuals" (para 80).

The representatives met Scottish Government officials on 16 September and also the Labour Party spokesperson Richard Baker MSP.  The officials' initial claim that their meeting had been "amicable" and a "helpful exchange" seemed to be contradicted later when the lead US Senator, Robert Menendez, was reported as saying that the initial prognosis that Megrahi had three months to live was made, not by a cancer specialist, but by the prison GP.  There were also claims of evidence that Megrahi had started chemotherapy in July 2009 (i.e. pre-release) that was not merely palliative but designed to prolong his life, thus exposing as a "lie" the Scottish Government position that his illness had become untreatable.  The representative reportedly said that "they (the officials) contradicted themselves repeatedly and made illogical statements/conclusions that were almost laughable if the circumstances weren't so serious." 

The Scottish Government response was pointed:

"The senator's staffer has got both these issues entirely wrong, and the senate committee is misinformed.

As has been stated many times, and was said several times at the meeting between Scottish Government officials and the staffer earlier this month, the advice to the justice secretary came from Dr Andrew Fraser, director of health and care of the Scottish Prison Service, and the prognosis was his.

It was Dr Fraser's responsibility to prepare the medical report for Mr MacAskill, and Dr Fraser who concluded that his clinical assessment was that a three-month prognosis was a reasonable estimate, drawing on the work of a range of specialists and other Scottish health service professionals involved in Megrahi's care from when he was first diagnosed with cancer in 2008."

The lists appear to have been originated in mid to late August this year, so were already a month or so out-of-date by the time of their publication.  Scots Law News suspects that outright abolition is not on the cards for either body, but that both may be expected to do at least as much with less in future.

Your correspondent noted also the presence on the list of bodies under review of the Advisory Panel on Public Sector Information (APPSI), on which he has been Scottish Representative since 2005.  He is beginning to wonder if his membership of public bodies and aspirations to public service are good ideas, at least for the bodies concerned: so far, the Intellectual Property Advisory Committee and the Scottish Records Advisory Council are the ones to have bitten the dust.

The site is clearly informed by at least two things: the need for transparency in the age of freedom of information, and a desire to correct, as far as possible, public misperceptions of the judiciary and in particular the rationales and policies which underlie sentencing in criminal cases.

Scots Law News shares a general sense that this website is a Good Thing and a mark of progress in relations between the Scottish legal system and the rest of the world outside.  The test will be how well and regularly the site is maintained.  As the Scottish Courts website now illustrates all too well, a good start is good only for a very short time, and you have to move with your audience as it grows both more demanding and more sophisticated in the art of the possible.  But resources, ever more significant in the era of public austerity now upon us, will decide all in the end.

Your correspondent met Lord Bingham only twice but will always remember the first time in particular.  It was a dinner in a plush Westminster venue in the late 1990s at which the gathering, having fed and wined, was to discuss the future of the European Union.  Lord Bingham said little; but your correspondent foolishly allowed himself to be provoked into angry speech by the anti-European tone of many of the rather too self-satisfied and Anglo-centric other contributors around the table. 

That rant having had no discernible effect on the mood of the meeting, a post-prandial and despondent stroll in the direction of the St James' underground was interrupted by the sound of running feet behind; and there was Lord Bingham, empathetic and conversational while  properly avoiding anything European or difficult about the experience we had just shared.  We did however share the Tube to somewhere in west London, where his Lordship left me to continue my progress to a hotel by Heathrow from which I was due to depart for Edinburgh in the early morning.  A human moment for which your correspondent remains grateful; and one that to judge from obituaries here, here, and here was typical of the man.

Mr McCormack had been sacked for gross misconduct as assistant manager of the football club after a mere two months in post.  His claim was for wrongful dismissal.  One of the major aspects of the alleged misconduct was Mr McCormack's swearing and in particular his regular use of the F-word in public and in the relative privacy of the dressing-room.  Narrating the evidence, Lord Woolman finds himself forced to use the word also, no less than six times.  There were also a number of other incidents in which Mr McCormack's speech and conduct showed himself not inclined to tone it down a bit when in the presence of a member of the opposite gender (the club physiotherapist was female).

Nonetheless Lord Woolman comes to the conclusion that Mr McCormack was indeed wrongfully dismissed and puts the case out By Order for assessment of the damages to be awarded.  There is however no elaboration on the meaning and significance of the F-word and its derivatives such as we find in the English passing off and cybersquatting case French Connection Ltd v Sutton [2000] ETMR 341 (the case also responsible for your correspondent's only use of the F-word in print: see Contemporary Intellectual Property: Law and Policy chapter 17).

But the result was nonetheless interesting, as Sheriff Kevin Drummond chose only to admonish Mr Scott and gave Mr Blaikie an absolute discharge - letting them both "off the hook", as The Scotsman put it in the fullest account of proceedings seen by Scots Law News.  mr Scott was admonished only because he had a previous conviction for poaching in 2001.

The report makes clear that there is a background of local contention.  The Environment Agency, it will be recalled, is in general a body with authority only in England but has powers over the fisheries in the River Esk system because that river flows through both England and Scotland.  The Liddle Water is part of the Esk system but actually defines the Anglo-Scottish border at the point where the two men were fishing.  It appears that in the past the Environment Agency had not made a practice of demanding licences for fishing on the Scottish side of the line but had begun to change its practice in about 2005.  This has been the subject of protest, and in effect the case of Messrs Scott and Blaikie was to test and highlight the position - in which it certainly succeeded.

Sheriff Drummond seems to have pointed the way to a compromise which might take the heat out of the situation, the Environment Agency's power to waive its licensing fees where they had adverse economic impacts in a rural area.  The hint seems to have been taken: on 21 September the BBC reported that the Environment Agency was "currently exploring the possibility of issuing a general licence with the fisheries' interests on the Scottish part of the Esk."

The case follows on from earlier decisions, one of which is noted here in Scots Law News.  But Sheriff Jamieson's decision is not based upon a view that lawburrows can only be taken out against threats of physical violence.  He concludes, following the opinion he had already expressed in footnote 73 of chapter 5 in his learned work on Summary Applications and Suspensions, that Stair, applying a liberal interpretive approach to the Lawburrows Act 1581, was to the opposite effect, and that Erskine's contrary view was based only on the fact that there was no direct authority or practice on the point.  Stair's position, also supported by Professor Walker in his Civil Remedies (1974), gains further weight from the much wider modern understanding of "assault" as going beyond the merely physical invasion of another person.  Sheriff Jamieson rejects an argument that when the opinions of two institutional writers conflict the court is bound by neither, preferring an approach of taking the view more consistent with modern understandings of social need.  While previous case law on lawburrows did not go so far, neither did it reject or even consider the possibility.

Sheriff Jamieson dismisses Mr Duff's action, however, on the basis that his pleadings referred only to possibly defamatory statements made by police officers some time in the past, with no grounds shown for apprehension that such statements would recur in the future.  He also upheld arguments about the limited nature of the Chief Constable's vicarious liability for the actions of his officers, and rejected human rights arguments that Mr Duff's actions should at least go to proof. 

Sheriff Jamieson's long and interesting note has not yet appeared on the Scottish Courts website.  It is to be hoped that it will soon do so.

The source of conflict seems to be the responsibility of the Environment Agency (a body that generally has no jurisdiction in Scotland) for the River Esk, which flows mainly but not entirely to the north of the Scotland-England border, and emerges into the Solway Firth on the Cumbrian side of the border.  The Agency interprets this as entitling it to regulate fishings on the entire river system and to require licences for those who would fish the waters for salmon or sea trout.

This is however disputed by those fishing the river in Scotland, and now the position is to be tested in Jedburgh Sheriff Court, where two men from Newcastleton are to be prosecuted for unlicensed rod-fishing on the Liddle Water (a tributary of the Esk).  Their defence will be to challenge the legitimacy of the Agency's regulations.  The case begins before Sheriff Kevin Drummond on 10 September.  We will be watching eagerly for further news.

The rivers on the border might be described as a p-Esk-y problem for Anglo-Scottish legal relations, since they have been causing issues over where Scotland ends and England begins (or vice versa) for centuries.  See this writer's learned article in (1991) 22 Law Librarian 85-93 for thirteenth-century fishing disputes on the Tweed, and the following cases, conveniently summarised by the late great Professor W A Wilson in his Introductory Essays on Scots Law (2nd edn, 1984), p.35:  Duke of Roxburgh v Earls of Home and Tankerville (1768) Mor 14272; 2 Paton 358 (Tweed fishings);  Coutts v Blake (1775) Mor 7375 (island in the Tweed); Annandale and Eskdale DC v North West Water Authority 1978 SC 187 (the fluctuating Eden and the Solway Firth).

The text of the leaflet has been helpfully made available on the Internet by our blogging colleague, the Lallands Peat Worrier.  From a historical point of view, there can be no doubt that the Bible has played a role in the shaping of Western law in general, in particular canon law, and that from there it has gone on to be influential in the development of other legal systems, including Scots law.  The pamphlet is right to say that the "institutional writers [were] informed by Roman and biblical law for civil law and by biblical law for criminal law".  Who can forget Lord Cooper's famous characterisation of Scots law as expounded by Stair? - "an original amalgam of Roman Law, Feudal Law  and native customary law, systematised by resort to the law of nature and the Bible, and illuminated by many flashes of ideal metaphysic."

Yet there are some puzzles about the pamphlet.  It gives a long list of scriptural citations to illustrate themes of relevance to justice in 21st-century Scotland (exhaustively and critically analysed, incidentally, by the Lallands Peat Worrier), but there is a heavy preponderance of Old Testament over New.  Nor is there any mention of surely the most famous of all modern judicial references to the Bible (of which your correspondent was reminded by reading Elspeth Reid's account of the case in the recently published Scots Law Tales), the church-going Lord Atkin's deployment of the Parable of the Good Samaritan (Luke 10:29-37 and, note, New Testament) as a prelude to his definition of the duty of care in negligence in Donoghue v Stevenson.

Perhaps, however, this omission is because Lord Atkin was careful to avoid a literal reading of the command to love his neighbour in determining the legal test he sought to formulate.  He could well see the difficulties which even such a seemingly attractive proposition might make if transformed into a legal rule.  And surely this is the right approach: to see in the Bible a potential sources of principles for the governance of human relations which has undoubtedly had (and probably continues to have, directly or indirectly) considerable influence in our society, but one that goes alongside many others, probably increasingly so in our multi-cultural and sceptical world, and must be treated with circumspection, critical thought and awareness that much of its content is informed by the ideas and values of times completely different from our own.