The 2018 Sir Gerald Gordon Seminar on Criminal Law

On 7 June 2018, the Sir Gerald Gordon seminar on criminal law took place at the University of Glasgow, supported by the Clark Foundation for Legal Education and the Faculty of Advocates, and attended by Sir Gerald himself. The seminar is now a regular annual event – it was first held in 2009 – but this year was a little different for two reasons. First, we decided to mark the tenth anniversary of the event with a public lecture from Lady Scott, a Senator of the College of Justice. Secondly, the event served as the launch of the first JUSTICE Scotland Working Party Report, on Legal Assistance in the Police Station. An account of the origins and history of the Sir Gerald Gordon seminar can be found here. At this year’s seminar, papers were presented by six speakers on a wide variety of topics. Professor Antony Duff (University of Stirling) kicked off proceedings by defending Sir Gerald Gordon’s view that the territory of criminal law can be marked out without reference to punishment as a central defining feature. Elise Maes (University of Oxford) then put forward a normative framework for offender agency in sentencing and looked at some of the ways in which this presently happens within the criminal justice system. Dr Chloë Kennedy (University of Edinburgh) gave an account of deception offences in the 18th and 19th century, focussing in particular on instances of forged banknotes, before Dr Micheál Ó Floinn (University of Glasgow) discussed whether cryptocurrencies such as bitcoin can be ‘stolen’, given the criminal law’s reluctance to extend the law of theft to information. Professor Liz Campbell (University of Durham) reflected on the question of whether prosecution matters when trying corporate actors, critically examining the use of deferred prosecution agreements. Finally, Dr Kevin Crosby (University of Newcastle) wrapped up proceedings with an account of the twentieth-century jury of matrons, which we now know was a jury of women who were tasked with determining whether women who had been sentenced to death were pregnant (and therefore should have their sentence commuted).

The seminar was then followed by Lady Scott’s public lecture, which also served as the launch of the JUSTICE Scotland Working Party Report. The Working Party was chaired by Lord Eassie, formerly both a Senator of the College of Justice and Chair of the Scottish Law Commission, and he introduced the report and chaired the public lecture. The Working Party comprised expert practitioners from the legal profession, academia and the police, and was supported by Lloyds Banking Group and Pinsent Masons LLP. Its report makes a series of recommendations that seek to ensure that all suspects have the best opportunity to exercise their right to legal assistance and that the legal assistance which they are given is of proper quality and scope.

Lady Scott then spoke on the topic of “Reflections on judicial development of the criminal law – a history of retreat and resistance”, focusing in particular on the approach of the courts to police interrogation and statements made by accused persons in the police station. Her lecture was a fascinating account of how the courts retreated from the approach set out in Chalmers v HM Advocate 1954 JC 66, which grounded admissibility in the principles of voluntariness and the privilege against self-incrimination, and how the protections that have stemmed from Cadder v HM Advocate [2010] UKSC 43, the case that grounded a suspect’s right to legal assistance when being questioned by the police, have not turned out to be as extensive as they might have been. The text of the lecture will be made available in the next few days on the University of Glasgow Sir Gerald Gordon Seminar and Law Reform and Public Policy web pages.

As a final reflection, any account of the day would not be complete without a few words about Sir Gerald himself. Sir Gerald Gordon CBE QC LLD is one of the most influential figures in Scottish criminal law and procedure. He was Professor of Scots Law at Edinburgh University from 1972 until 1976 and his work The Criminal Law of Scotland was one of the first volumes to be published in the prestigious Scottish Universities Law Institute (SULI) series in 1967. It is now in its fourth edition and is regarded as the leading source on Scots criminal law by the courts (where it is frequently cited) and academics alike. Sir Gerald was a sheriff from 1976 to 1999 and a temporary High Court Judge until 2004. He was a member of the Scottish Criminal Cases Review Commission from its inception in 1999 until 2009. He was knighted in 1999, having previously been made a CBE, and was elected an Honorary Fellow of the Royal Society of Edinburgh in 2002. He continues to edit Renton and Brown’s Criminal Procedure according to the Law of Scotland and the Scottish Criminal Case Reports. We were delighted that he joined us at the seminar. He is an inspiration for all of us who work in the field of criminal law.

Next year’s seminar will take place on Tuesday 11 June 2019. Details will be available on the Sir Gerald Gordon seminar website in early 2019.

~ Professor Fiona Leverick (Professor of Criminal Law and Criminal Justice, School of Law)

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