Lord Rodger of Earlsferry

LORD Rodger of Earlsferry, who has died aged 66, was one of the leading Scottish lawyers of his generation, serving as Lord Advocate and Lord President in Edinburgh, as well as a Lord of Appeal in Ordinary in London. From 2009 until his death, he was one of two Scottish Justices of the Supreme Court of the United Kingdom.

Alan Ferguson Rodger was born in Glasgow, the eldest son of Professor Thomas Ferguson Rodger, Professor of Psychological Medicine at Glasgow University, and Jean Margaret Smith Chalmers. He was educated at Kelvinside Academy, where contemporaries remember him displaying the work ethic that was to be a hallmark of his whole life. Alan Rodger once spent a summer teaching himself Russian because, as he explained to a fellow pupil, he had “nothing else to do”.

Leaving Kelvinside after his fifth year, he graduated MA, LLB from Glasgow University (the last undergraduate to obtain a double first in Scots and Civil Law) before moving to Oxford to do a DPhil on “a limited point of Roman law”. His tutor was Professor David Daube, Regius Professor of Civil Law, a “brilliant man” with whom tutorials “could only be likened to hand-to-hand combat”.

He was then Dyke Junior Research Fellow at Balliol and thereafter a fellow and tutor of New College (1970-72). He seemed set for an academic career, but to the surprise of his colleagues he resigned his fellowship in 1972 and joined the Faculty of Advocates two years later. In 1976 he became Clerk of Faculty, and took silk in 1985. He was, subsequently, standing junior counsel to the Department of Trade (1979), a member of the Mental Welfare Commission for Scotland (1981-84), Advocate Depute (1985), Home Advocate Depute (1985-88) and Solicitor General for Scotland (1989-92).

Promoted to Lord Advocate in 1992, Lord Rodger joined the Privy Council and was made a life peer as Baron Rodger of Earlsferry. As Scotland’s chief legal officer, he presided over a number of important changes, including the introduction of the right of the prosecution to appeal against sentences it considered too soft. Lord Rodger also had to defend the Scottish prosecution system against persistent claims of Government underfunding. “Doubtless in an ideal world we would all like more resources”, he wrote in The Herald in 1993. With that in mind, the Crown Office under his watch conducted a wide-ranging review of the criminal justice system, its chief aim being to cut costs.

Lord Rodger left the Government in 1995 on his appointment as a Senator of the College of Justice. This was not without controversy, for in effect the Lord Advocate had nominated himself to the Bench. Although no-one questioned his credentials, Lord Rodger’s promotion raised questions about the judicial appointments system. The then Shadow Scottish Secretary George Robertson warned that the appointment could be said to look like “jobs for the boys”.

Within a year of his promotion to the Bench, he became Lord President of the Court of Session and Lord Justice General of Scotland. Paying tribute to his predecessor Lord Hope of Craighead, Lord Rodger said the “need for a strong court, independent of pressure from all sides, is constant and is as great today as at any time in the past”.

As Lord Justice General, Lord Rodger believed it important to write clear and understandable judgments, utilising short sentences “for the simple reason that you can hide in long sentences”.

He spent a lot of time drafting and revising, most notably on the Piper Alpha case and Drury v Her Majesty’s Advocate (SCCR 583) in 2001, which related to the definition of murder in Scotland.

Upon the retirement of Lord Clyde, he was appointed a Lord of Appeal in Ordinary on September 9, 2001. Later he said: “As you would imagine, it was not front page news.”

Lord Rodger later confessed he would prefer to have remained in Edinburgh for perhaps two years longer, largely to complete procedural changes then under way. A moderniser, he was particularly proud of having made judgments of the Court of Session available on the Scottish Courts website.

“It was a bit like starting a new school,” he said of the move south, although happily, rather than being shunned, he was invited “out to play”. The Judicial Committee of the Privy Council’s decisions in Holland v HMA and Sinclair v HMA changed the whole landscape of disclosure in criminal cases and led ultimately to Lord Coulsfield’s review of the practice of disclosure. Rodger heard these appeals, and had been encouraging – since the 1980s – the principle of “disclosure” among procurators-fiscal, under which all relevant evidence held by the Crown (even if it was of benefit to the defendant’s case) was made available to the accused’s counsel.

In October 2009 he and nine other Lords of Appeal in Ordinary became Justices of the Supreme Court upon that body’s inauguration. As a Justice Rodger presided over HJ and HT v Home Secretary (UKSC 31) just last year, which related to homosexuality in asylum claims. On the role of the Supreme Court vis-a-vis Scottish criminal law appeals, Rodger considered it “ useful to have a forum where there are members of the court who do not all share the same preconceptions”.

Lord Rodger valued Scots Law and its civilian tradition but felt it should be outward looking, taking account of developments in other jurisdictions, rather than introverted. Held in high regard as an international jurist, Lord Rodger was believed to be the only British law officer to have taken part in proceedings before the International Court of Justice, the European Court of Justice, the European Court of Human Rights, and the European Commission of Human Rights.

Colin MacKay, a lifelong friend, remembered him as “modest, conscientious, and possessed of a strong moral sense”. “Throughout his life he was fascinated by other people and ‘what if’ questions; his mind was constantly inquiring and acquiring fresh knowledge, even on holiday.” Furthermore, Rodger had “a great sense of the ridiculous”.

Of modest stature, he enjoyed walking, often with the family dogs. To strangers he could seem, as one might expect of a judge, austere, but this masked a friendly and generous disposition.

Lord Rodger modestly listed “writing” among his hobbies, and indeed his articles and publications – mainly on Roman and Scots law – included Owners and Neighbours in Roman Law (assistant editor, 1972), Gloag and Henderson’s Introduction to the Law of Scotland (joint editor, 10th edition, 1995), Mapping the Law (2006) and The Courts, the Church and the Constitution (2008), a study of the Kirk Disruption of 1843.

Lord Rodger died following a short illness. He never married, and is survived by a brother and sister.