Judge with a heart and a hard incisive mind

THE Scotsman's newest and most distinguished columnist, Lord McCluskey, Baron of Churchhill, is sitting in his spacious Edinburgh drawing room talking about his first encounter with drugs. The contents of the room - comfortable yet restrained, traditional but authoritative - could have come from the props department of central casting in a big box marked "eminent judge's sitting room". The sofas are leather, the furniture polished mahogany and the drinks table agreeably well stocked.

It was March 1973 and John Herbert McCluskey, who would become solicitor-general for Scotland the following year, had already made a name for himself as one of the brightest brains at the bar when he was asked to represent Paul McCartney. The former Beatle had been charged with a number of offences, including growing cannabis on his Machrihanish farm. The trial was to take place in Campbeltown.

"Paul McCartney arrived in a private BAC 1-11," McCluskey recalls, "and was met by three Rolls Royces and a Jaguar. We all squeezed into the Jaguar; the Rolls Royces being a decoy for the press." McCluskey managed to get all but one of the charges dropped on technical grounds and the pop star pleaded guilty to growing cannabis. To the amusement of the court, the QC argued that his client had a genuine interest in horticulture and a fine of 30 was imposed.

"At the end of the hearing, Len Murray (McCartney's solicitor) leaned over to me and said, 'Ask for time to pay,'" recalls McCluskey. "So I did, and the place erupted. It was the coup de thtre to the day." Amid the media scrum on the steps outside, Linda McCartney grabbed the QC's bowler hat, much to the chagrin of McCluskey's colleagues in Parliament Square who thought the spontaneous gesture a publicity stunt. "There are pictures somewhere," he says. "I expect they've fallen down the back of the bookshelf."

The story illustrates a number of attributes of the man who, when he retired in 2000, was Scotland's longest-serving judge. A bowler-hatted member of the bar, he has been more open-minded on controversial subjects, such as decriminalising cannabis, than many of his peers. He is not averse to a little bit of mischief-making but is never star-struck. He has spent 16 years in the rarefied atmosphere of the Scottish bench but has not inhaled. In retirement - such as it is - he remains in touch with public opinion. He eschews the fairways of Muirfield for the terraces at Parkhead.

Lord McCluskey's career is a bit like the Himalayas - a series of continuous peaks. In 1986, he presented the prestigious Reith Lectures and has chaired bodies as diverse as The Scottish Association of Mental Health, Age Concern and The John Smith Memorial Trust, for which he remains a passionate and peripatetic trustee. He is off to Kyrgyzstan next month on its behalf.

None of this is immediately apparent when I arrive to interview him. What is apparent is his forensically analytical approach to questions. The first thing he does is pick me up on a sloppily-worded question about bail for sex offenders. "It's bail for people accused of crimes involving some sexual element," he says, his meticulousness dovetailing with the time-honoured legal device of putting your adversary on the back foot at the first opportunity.

He is guarded and measured, slightly crusty and quite blunt about his distaste for aspects of the media and their superficial, irresponsible ways. "That ghastly man John Humphrys," he says at one point, referring to the Radio 4 Today presenter. With journalistic arrogance, I make a mental note to try to win him round.

The great thing about an audience with McCluskey is that it is akin to attending a personal tutorial with one of the great legal minds of the age. His arguments have breadth, depth and a compelling logic. "The general rule is, and always has been, that there is a presumption in favour of liberty," he says on the issue of bail. "That rule has been reinforced by the European Convention of Human Rights. If a person appears before the court accused of a sex crime and the court is informed that he has a record of sex crimes, then the court will refuse bail. The present brouhaha about the Rory Blackhall case - tragic though it was - is largely misguided.

"There is almost no system I can think of where Simon Harris would not have got bail. He had no previous convictions. When people talk about not granting bail, they are talking about a system of preventative detention. We had such a system in this country and it was abolished in the 1940s. To go back to that would be a very big step."

He points out that, were such a system to be put in place again, under the 140-day rule all these cases would have to be brought to court a good deal more quickly than is currently happening which would place a great strain on the justice system.

More controversially he is in favour of the state providing heroin for addicts. "The most recent statistics show that about 360 people died in Scotland last year from drug abuse," he says. "That is a massive failure of the current way of doing things. Yet we prescribe more of the same. If you want a simple measure of the failure of the present drugs policy, count the number of deaths year by year. It has gone from zero in the 1970s to one a day.

"If people are addicted to heroin, give them heroin. I'm not suggesting you sell it at newsagents, but if you were to offer it to addicts in a medically controlled setting, there would be no criminal market. We've created a huge market for criminals to operate in. I think the drug element in all criminal behaviour is massively greater than what we are led to believe. It's a huge problem. In other countries, drug addiction is treated as a health problem. Here it is treated as a legal problem."

Eminence and distinction are to be expected in a senior judge. More surprising, perhaps, are McCluskey's empathy and compassion. In 1999, sentencing 16-year-old Nicola Chatham to life imprisonment for the murder of a neighbour, his emotions got the better of him and he wept in court. The sentence was later overturned on appeal.

"She was a child who got caught up in this thing," he says. "She should never have been convicted. It was a total disaster and, as a judge, you see far too much of that. What really saddens me is the appalling waste of human life. People are born in these terrible places and don't have any chance at all. You see bright young people destroyed by their association with others."

It strikes me that a sense of empathy and an ability to shed the odd tear are useful attributes in a judge. McCluskey, who celebrates his golden wedding anniversary next year, has three children and nine grandchildren. "I can see what you're saying but my experience both as counsel and judge is that if you become emotionally involved in a case, you tend to do it badly," he says. "You don't see what the case is about. Judges need to have objectivity."

He can, however, see beyond the criminal. He presided in the Paul Ferris case, in which Ferris, whose life is the subject of a new film starring Robert Carlyle ("Let's hope they get a very handsome actor to play the judge"), was accused of the murder of the son of legendary crime boss Arthur Thompson. "Thompson was a talented, tall, good-looking man with real personality," he says. "If he had had the advantage of going to Edinburgh Academy and then to Oxford, he would have been an outstanding chap."

Unlike many of his contemporaries on the bench, McCluskey did not have these opportunities himself. The son of a Glaswegian solicitor and the grandson of the president of the Scottish Miners Union, he was educated at Holy Cross Academy in Edinburgh during the Second World War. After studying law at Edinburgh University, he had to scrape together the finances to train at the bar. "It wasn't a great education," he says of his school days. That he was a van Dunlop scholar and won the Muirhead Prize at university is a testament to his outstanding ability.

"The thing that strikes me now, looking back on my career as an advocate and a judge, is the way you have to continue learning from day to day. It never ceases to educate you. Whether you are on the bench or at the bar, you continue to learn." A Labour politician manqu - he stood unsuccessfully for several Scottish seats and worked on the original Scotland Bill in the 1970s with his tennis partner and friend, the late John Smith - he is a champion of devolution but has some reservations. "I was always worried about the possibility of creating a hyperactive legislature," he says. "There is a slight element of that in any subordinate legislature. They tend to justify their existence by passing laws. The other job of the Parliament, however, is to scrutinise the Executive."

How well is that being done by the current Scottish Parliament? "It's perhaps not well enough done," he says. "So much of the time is spent legislating. It ought to work but it's not working as well as it should. I think, oddly enough, you have to pay members of parliament more. If you pay peanuts, you get monkeys."

He is, however, quietly proud of a system of justice in which he has never come under political pressure. His integrity is not open to question. I realise that my mission is doomed to failure; McCluskey is not a man who can be won over. And that is something for which we all have cause to be thankful.