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Book reviews

1 May 01

Reviews of Criminal Law of Scotland; Reparation

by Christopher Gane, Douglas Brodie

Criminal Law of Scotland

Sir Gerald Gordon’s Criminal Law was one of the first books to be published under the auspices of the Scottish Universities Law Institute and it has proved to be one of the most respected works in that series.  But how influential has it been in shaping or influencing the development of Scots criminal law over the years? Certainly when we compare it with its English counterpart – Smith and Hogan’s Criminal Law – it would have to be said that it did not have the immediate impact upon the judicial approach to the criminal that that work undoubtedly did have. Within a relatively short space of time Smith and Hogan transformed the landscape of English criminal law, particularly in relation to the general approach to the mental element in crime. The resolutely subjectivist thesis pursued by Smith and Hogan, and the arguments surrounding it, have dominated English criminal law for the last quarter of a century.

That Gordon’s views did not have the same impact on Scottish judicial thought is not a reflection on Gordon, but on the approach to the criminal law which manifested itself over much of the 30-odd years since its publication. It can fairly be said that throughout a substantial part of that period the approach to the criminal law was unsystematic, there was a lack of concern for or appreciation of basic principles of criminal responsibility, and many important developments appear to have been driven by pragmatic policy concerns. Gordon was often ignored, or referred to only to be rejected.  (It is interesting to contrast the attitude of foreign judges in this respect, Gordon being cited with approval on more than one occasion in other jurisdictions.)

It must also be said that the first edition of Gordon came at a time when for nearly two hundred years there had been no significant tradition of criminal law scholarship in Scotland. For the first half of the 20th century there was no modern, systematic exposition of the criminal law in Scotland. (I doubt if the various editions of Macdonald could satisfy either of these criteria.) Contrast this with the position in England where Smith and Hogan were able to build upon the foundations laid by Glanville Williams in his General Part.

In both of the above respects, things have changed. There is a growing concern in the courts for principled development of the criminal law. One might not always agree with the conclusions, or the methodology, but there is no doubt that attempts have been made to address some of the “big questions” of criminal law. It can fairly be said that at least in part that change in judicial culture is due to the fact that an increasing number of our judges and prosecutors have been  “brought up” on Gordon.

The foundation provided by Gordon has also enabled a second level of writing on the criminal law to develop. Relieved of much of the burden of basic research, others have been able to produce criminal law texts more suited to the needs of students at an early stage in their study of the criminal law. Relieved of the need to concentrate on exposition, others have begun to develop more theoretical analyses of our criminal law.

The third edition of Gordon is, therefore, an important event. The editor and the publisher have decided to publish the third edition in two volumes. The first, dealing with “General Principles” and covering the material in Chapters 1 – 13 in the first two editions, is the subject of this review. The second, dealing with substantive offences, is planned for publication later in 2001.  

In preparing the third edition the editor has adopted a fairly limited – and limiting – approach. The temptation to depart from the original text in significant measure has been resisted and editing has been (to use the editor’s own words) “sparse, in order that the collateral purpose of preserving the bulk of this highly respected and familiar work might be realised.” Indeed, Chapter 2 on “The Concept of Responsibility” remains virtually unchanged, on the ground that the aims of that chapter had already been achieved in the earlier editions, and significant updating to include new material was not justified in terms of the work as a whole. The editor notes that this decision may disappoint some readers. In my view the chapter could usefully have been expanded to deal with some of the very significant work that has taken place in this area, especially since, as Sir Gerald’s own introduction to the chapter indicates, it does not represent what might have been a personal philosophy of responsibility.  

The editor’s self-limiting approach is disappointing in other respects, not because it has meant that the process of updating and revision is unsatisfactory, but because it is so well done. It is thorough – painstakingly so, and covers not only the developments in the law of Scotland, but relevant material from other jurisdictions and substantial references to secondary literature. But where the editor has allowed himself, or been required by developments, to take the opportunity to develop his views, there are important ideas to be found and explored. The discussion of recklessness in Scots law, for example, is particularly useful for its detailed analysis of how that term is used by Scottish judges, revealing that in some instances references to recklessness do not appear to be a reference to a state of mind at all. The discussion of intoxication is likewise a helpful exposition of the issue of principle which remain to be addressed in the light of both Brennan and Ross.

For the most part the editor achieves a very successful blend of the old and the new,  but at times there are some tensions between the wish to retain the earlier text and the need to take account of the newer law. This is evident, for example, in the treatment of art and part, and in particular the impact of cases such as Melvin v H.M. Advocate 1984 SCCR 113 and Brown v H.M. Advocate 1993 SCCR 382, on the earlier unreported cases which provided the foundation for the discussion of art and part liability for killing in a brawl.  (Paras. 5.48 et seq.) There has been a major shift away from the position adopted in the earlier cases, and, except by way of background, it is not clear why it was felt necessary to retain the account of these earlier cases.  Similarly, the lengthy discussion of the “declaratory power” is probably unnecessary in view of the human rights provisions of the Scotland Act 1998 and article 7 of the European Convention on Human Rights.  

These, however, are exceptions. There is no doubt that the third edition achieves the high standards set by Sir Gerald in the first two editions and Michael Christie deserves our thanks and congratulations. The book comes with the high production standards (and unfortunately also the price) which we have come to associate with the Institute’s publications.

Christopher Gane

Reparation

There have been a number of valuable additions to the literature on the law of delict in recent years. One thinks in particular of Thomson, Delictual Liability, Stewart, Delict and the relevant parts of Vol 15 of the Stair Memorial Encyclopaedia. What has not emerged so far is a work that might be seen as the successor to the, by now distinctly dated, second edition of Walker on Delict. Bill Stewart’s Reparation seeks to fill that gap.

The author, both accomplished practitioner and academic, is well qualified for the task. As a result it is perhaps not surprising that the book avoids neat classification as either a practitioner’s work or academic excursus. The practitioner will find helpful discussion of the rules on recoupment of benefits and the common members rule. The academic background leads to the citing of numerous articles, thereby facilitating further research. The subject matter is vast – and growing. One of the difficulties of writing in this area is the rapid rate of change. As a result one occasionally looks for more in terms of coverage. However, it is only realistic to expect so much. For instance, Reparation includes treatment of the European Convention but does not indulge in speculation as to what the impact on, for instance, the law of negligence might be. Given the huge amount of uncertainty as to potential developments this is probably wise.

There are, of course, numerous helpful English texts in this area. A valuable dimension of Reparation is its extensive use of Scottish authorities. The downside to this is that discussion is not as succinct as it might be. Nearly four pages on the approach to duty of care set out in Donoghue v Stevenson seems excessive. Junior Books is also indulged to a similar extent. The latter indulgence is particularly striking in that one might say that it is not a delictual case at all. Again discussion of Scottish cases sometimes seems to occur at the expense of more significant English ones. Thus the treatment of novus actus includes discussion of the less than well known case of Gray v North British Railway (1890) 18 R 76 but not say Philco Radio v Spurling (1949) 2 All ER 882.

Whether one becomes an admirer of this book will, to a large extent, depend on what the reader is searching for. I suspect that the author is a little undecided as to whether his aim is to provoke or whether it is to provide dry authoritative guidance. I personally think he is at his best when discharging the former aim.

Douglas Brodie