Lord Rodger of Earlsferry

A scholar to his fingertips, Rodger was nevertheless a great believer in simple language. He maintained that the law could win the confidence of the people only if it was clearly explained, pragmatic, sensible and conveyed in words that ordinary people could grasp. Behind a diffident, even remote exterior, he was a very human judge, with a mischievous sense of humour, endowed with a genuine interest in those who appeared in his courts, rather than seeing them simply as cases to be dealt with.

He believed passionately in public service. With one of the finest legal minds of his time, he could have continued to command handsome fees as a QC, but chose to serve successive governments as junior counsel to the Department of Trade, Advocate Depute, Solicitor General for Scotland, and Lord Advocate, the senior prosecuting authority in Scotland. After being promoted to the Bench in 1995, he became Lord Justice General and Lord President of the Court of Session, the head of the judiciary in Scotland.

He was appointed a Law Lord in 2001, and then, on the creation of the UK Supreme Court in 2009, he became a Justice on that court, bringing his knowledge of European law to bear on cases which were occasionally highly political.

One of them involved challenging the Home Secretary, who had refused asylum to two gay men from Cameroon and Iran, on the grounds that, if they were sent home, they could avoid persecution by concealing their sexuality. In upholding their claim against expulsion, he argued, in down-to-earth language, that gay asylum seekers should have the right to behave in the same manner as straight men who “play rugby, drink beer and talk about girls with their mates”.

Alan Ferguson Rodger was born in 1944. He was brought up in Glasgow, the eldest son of Thomas Rodger, professor of psychological medicine at Glasgow University, and Jean Margaret Smith Chalmers. Educated at Kelvinside Academy, he displayed early signs of the work ethic which was to be the defining characteristic of his career. He once spent the summer holidays learning Russian because, as he told a fellow pupil, “he had nothing else to do”. He avoided accusations of being a swot, because of his innate interst in and curiosity about other people. “He was always asking questions,” recalled a contemporary. “If he didn’t know the answer, he would research it.”

He went on to read law at Glasgow University, where he was the last undergraduate to obtain a double first in Scots and civil law. He then went on to Oxford to do a DPhil on Roman law. His tutor there was Professor David Daube, Regius Professor of Civil Law, whose brilliant tutorials gave him a grasp not just of the principles of Roman law but also of its history.

Recalling that expertise, his fellow Supreme Court judge, Lord Hope of Craighead, said that Rodger’s references to Gaius, Justinian and other jurists were memorable He once based an entire short judgment on a five-word proposition from Ulpian. The Crown’s argument, which was contrary to what Ulpian had declared, was, he said, untenable. On another, where his judgment ran to only three sentences, he formulated the proposition in his own words: “Argentoratum locutum, iudicium finitum” — Strasbourg has spoken, the case is closed.”

From 1970 he remained at Oxford as Dyke Junior Fellow at Balliol, and then as a fellow and tutor of New College. Most of his colleagues assumed that he would pursue an academic career there. However, in 1972, he resigned his fellowship to join the Faculty of Advocates in Edinburgh. In 1976 he became Clerk of Faculty, and took Silk in 1985.

His subsequent progression, as a law officer up to and including the office of Lord Advocate, taught him much about the processes of government and of law making. In that role, he was able to sit in the House of Lords and become closely involved in the framing of legislation — something that, following recent reforms, is no longer possible.

During his time as Lord Advocate, Scottish law adopted the English precedent of challenging sentences which were judged to be over-lenient. This later resulted, to his mortification, in having one of his own judgments overturned on the grounds that the sentence he had passed on a violent offender was not tough enough.

In 1995 he left the government on his appointment as a Senator of the Colllege of Justice, a move that caused some controversy since, as Lord Advocate, he was in effect promoting himself to the Bench. But no one doubted his aptitude. Within a year he had become Lord President of the Court of Session and Lord Justice General of Scotland, the highest offices in the land. It was during this time that he presided over the incorporation of the European Convention on Human Rights into domestic law, while tackling reviews of the law in areas such as diminished responsibility and coercion.

He was insistent on the need for judges to write clear judgments. A short sentence was always better than a long one, he argued, “for the simple reason that you can hide in long sentences”.

Rodger had a restless, inquiring mind, and never took anything for granted. He was particularly interested in medicine — both psychiatric, thanks to his father, and practical, because his sister was a doctor — and he once amazed expert witnesses with his detailed knowledge of the dimensions of illness, which later informed one of his more brilliant judgments.

A moderniser, he introduced changes to the Scottish legal sytem aimed at ensuring that courts were as open as possible; he encouraged the introduction of television cameras, and making judgments more accessible.

Then, in 2001, he was appointed a Lord of Appeal in Ordinary (law lord) and moved to London. Among the key decisions he was involved in as a member of the Judicial Committee of the Privy Council were several concerning the disclosure of evidence in criminal cases. He had long encouraged the principle that all relevant evidence held by the Crown should be made available to the defendant’s counsel.

This became a live issue when, in October 2009, he and nine other law lords became Justices of the newly created Supreme Court. Among the cases referred to that court from Scotland was the conviction of Nat Fraser for the murder of his wife Arlene. Fraser had appealed, but his appeal in Scotland was turned down, and he took his case to the Supreme Court, on the grounds that key evidence had been withheld from the defence.

It was the last case on which Lord Rodger sat, and, though unable, through illness, to write his own judgment, he discussed in detail the conclusions of his fellow judge, Lord Hope, and agreed with it. He went on to explain in forthright language why he believed that the court had no alternative but to decide the case itself, and to determine that the conviction should be set aside.

That judgment, and the equally notorious Cadder case, which decided that Scottish law was at fault in not recognising the European requirement for solicitors to be present when an accused is being questioned by police, infuriated the SNP government of Salmond.

A modest, conscientious and strongly moral character, Lord Rodger was, nevertheless, possessed of a marked sense of humour, a liking for mischievous comment, and above all a keen interest in the lives and careers of the young, with whom he took enormous trouble.

Rodger listed writing among his hobbies, which also included walking the Scottish hills. His publications included Owners and Neighbours in Roman Law (assistant editor, 1972); Gloag and Henderson’s Introduction to the Law of Scotland (joint editor, 1995); Mapping the Law (2006) and The Courts, the Church and the Constitution (2008).

He was elected a Fellow of the British Academy in 1991 and a Fellow of the Royal Society of Edinburgh in 1992. From 2008 he was High Steward of the University of Oxford.

He died following a short illness occasioned by a brain tumour. He was unmarried.

Lord Rodger of Earlsferry, a Justice of the Supreme Court of the United Kingdom, was born on September 18, 1944. He died on June 26, 2011, aged 66