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Book reviews

16 June 14

Reviews of Road Traffic Law in Scotland (Wheatley); Lord Mansfield: Justice in the Age of Reason (Poser)

by David J Dickson (review editor), Robert Shiels

Wheatley's Road Traffic Law in Scotland

5th edition

Andrew Brown QC

PUBLISHER: BLOOMSBURY PROFESSIONAL

ISBN: 9781780430126

PRICE: £85

This book has become the standard text in Scotland on road traffic law. The current author continues to build on the solid foundations laid by Wheatley.

The book covers all aspects of road traffic law from operators’ licences to all criminal offences related to vehicles and driving. For practitioners, the book is an easy reference, in particular the penalties available for each of the offences. The author takes account of recent case law as well as offences brought into force by the Road Safety Act 2006, in particular s 3ZB and the issue of causation in causing death while driving unlicensed, disqualified or uninsured. He gives consideration to the recent decision of the Supreme Court in R v Hughes [2013] UKSC 56, and questions whether Rai v HM Advocate would now be prosecuted.

Mr Brown also comments on s 2B, the newly created offence of causing death by careless or inconsiderate driving, which he observes as controversial and suggests it may be viewed as "Orwellian". This book remains an essential text for all those advising drivers facing prosecution or advising licence holders.

David J Dickson, solicitor advocate

Lord Mansfield: Justice in the Age of Reason

Norman S Poser

PUBLISHER: McGILL-QUEEN’S UNIVERSITY PRESS

ISBN: 9780773541832

PRICE: £27.99

Perhaps there is scope for a study of the ethnic Scots who travelled to England and qualified as lawyers there, and stayed to develop their careers, assuming such an over-arching work is not yet available. Of course, some qualified as lawyers in Scotland first before making a move – our man James Boswell was one of the earlier adventurers – but there are many others who dived straight into the bigger pool.

Not least of those who went south were Thomas Erskine, later Lord Erskine, who became the Lord Chancellor; John Campbell, later Lord Campbell of St Andrews, the Lord Chief Justice of England; as well as Robert Reid, later Earl Loreburn, and also Lord Haldane of Cloan, both Lord Chancellor at some point in the 20th century. England’s gain may well have been Scotland’s loss.

This nothing less than magnificent biography of Lord Mansfield (1705–1793) has an impressive cover, reproducing in colour a painting by J S Congleton. Professor Norman Poser explores with enthusiasm the busy life of one of the most famous 18th century judges. There is little real understanding now as to why William Murray, as he then was, left Scotland and remained in England. At the age of 13 he left his parents to go to school in London and “never returned to Scotland or saw his parents again” (p 20, but at p 161 there is in that regard reference to an absence of “persuasive evidence”).

While some Scots assisted William Murray initially, generally in London he made his own way for most of the time. That was not necessarily an easy progression: dislike of the Scottish nation had become “almost a mania amongst the English, including the elite as well as the general populace” (p 44). Further, he owned no land in an age when that mattered, and he was regarded as “a fortune hunter” (p 45). Still, Murray had studied Scots law privately and was instructed for Scottish appeals to the House of Lords (pp 43 and 46-47). He had a head start of sorts.

Lord Mansfield had wanted to be Solicitor General for England, but his ethnicity as a Scot is identified by Professor Poser as the first of the obstacles to clear in achieving that: “it was unprecedented for a Scot to achieve high office in England” (p 81). It may not have been a very high hurdle, and he served as a law officer for well over a decade (pp 92 and 99) and then as Lord Chief Justice for an unprecedented 32 years, retiring in 1788. His legal decisions started English law on the path to abolishing slavery and the slave trade, as well as modernising commercial law in ways that helped establish Britain as the world's leading industrial and trading nation. His consistent support for the authority of the King and Parliament assisted in keeping a tight control over the then colonies, not least the American states. His decisions are still read and, we are told, have been cited 330 times in the United States Supreme Court (pp 398-399).

The judicial decisions of Lord Mansfield are set in their historical and social context. Further, the author delves into Lord Mansfield's circle of friends, which included poets, artists, actors, clergymen, noblemen and women, and politicians such as the Duke of Newcastle, William Pitt the Elder, John Wilkes, James Boswell, David Hume, Sir Joshua Reynolds, and David Garrick. For the court lawyer as legal historian reading this book, the chapters on the state of the English courts and the need for reform, and what was done by Lord Mansfield, are excellent (pp 193-219). Thereafter, the author shows real breadth of reading and research with sustained descriptions of the other legal concepts arising from the judicial activity of Lord Mansfield.

The three themes in Lord Mansfield’s life were Jacobitism (that may be, of course, actual or such as was perceived by others); his conservatism personally that contrasted with his judicial boldness; and his unswerving support for commerce (p 6): in particular, “his support for freedom of commerce and finance [was] a central tenet of his judicial philosophy” (p 61). While it might now be thought desirable to emphasise Lord Mansfield’s place in the historic Scottish diaspora, and thereby claim some sort of affiliation, the reality is that he chose not to stay in Scotland and flourished in England, and he was accepted there for what he could do professionally in law and in politics. The essential truth may be that all his life Lord Mansfield had “an extraordinary ability to cultivate people who could further his career” (p 28). He did not, however, live and work in a vacuum, and his success reveals certain virtues at work within the English legal profession.

Lord Mansfield’s pre-eminence as a judge was due to the long-term influence of his decisions and the morality that he brought to the law (p 218). His decisions continue to influence the legal systems in Britain, and also America and Canada, and he “influenced American law from the very beginning of the republic” (p 397). The truth of these assertions lies in the fact that such a highly detailed biography, even at this late stage, has been written. Professor Poser has modestly (pp ix-x) placed his work in the context of the earlier literature on Lord Mansfield, but it will be a long time before anything better than this biography is made available to the public.

Dr Robert Shiels, solicitor advocate

 

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