In Lord Emslie's judgment...

his first newspaper interview for 17 years. He talks frankly about why

he retired, and gives his views on the Guildford Four case. He tells why

he disagrees with Lord McCluskey about asking the victims of crime what

sentence should be passed and fires a broadside at Government proposals

for law reform in Scotland.

By BRUCE McKAIN, Law Correspondent

THE law is no respecter of persons, even a newly retired Lord

President and Lord Justice General, as Lord Emslie found out the other

week when he was breathalysed by police after an accident which damaged

his car but fortunately left him unscathed.

The breath test was negative, but it crossed his mind that if he had

stayed on as head of the Scottish judiciary, which he could have done

for another six years, he would have been sitting safely in court

instead of being out for a drive.

He had decided, however, for a number of reasons that the time had

come to bow out gracefully after 17 years in the hotseat in the way that

Judges in Scotland do, without fuss, fanfare, gold watch or embarrassing

speeches.

''I thought it was only reasonable to give my wife a chance to lead

what other people would call a normal life. I also had the curious

notion that I would like to retire before I reached 70. I felt it was

perhaps a good example to set.

''Some Judges can go on without having suffered any impairment of

function -- Lord Cameron is a particularly fine example -- but it

doesn't apply to everybody and I don't think it's a bad thing that a

Judge who has given long service should go before there's any trace of

going downhill. I hope in my case I went before I reached that stage.''

He always felt that the senior Judge should set the tone for the rest

of the Bench. ''I think it is very important that the lead comes from

the top. An example is set of the way a Judge ought to behave in court

and the discipline of the profession is really dictated very much by the

example the President sets. It is important that you have the confidence

of the Judges. They must know that you can do their job as well as they

can.''

The Scottish Judges are frequently criticised for being too

conservative in using their position to influence the development of the

law and it was once said of Lord Emslie that he was no Lord Denning, a

comment he does not necessarily regard as a reproach.

''I think a Lord President can influence the law, although not perhaps

in Denning's way, and I think Denning had very much more to change in

England than we had in Scotland.

''You become conscious of areas where you think the law has taken a

wrong turning and one of the ambitions of a good Lord Justice General is

to look for opportunities to put the law back on the rails from which it

seems to have escaped perhaps 40 years before. Contempt of court is one

example, because I thought the law had got totally out of hand.''

Another frequent complaint in Scotland is that because we lack any

coherent sentencing policy the punishment meted in a particular case

depends far too much on the whim of the individual Judge.

''Judges meet every morning, informally, and Judges talk among

themselves,'' Lord Emslie points out. We do discuss sentences or a range

of sentences which seem to be appropriate and the Lord Justice Clerk

sets an example when he deals with cases in the High Court. The appeal

court can also influence the attitude of the Judges.

''But no two cases are ever alike. It's easy enough to say: 'Well for

this particular crime one man got five years and the next man got nine

years.' But if you look at the circumstances you can usually justify the

differences. We don't do what the English do and have guidelines. I

think these tend to fetter the discretion of Judges and I don't approve

of them at all.''

The rationale behind sentencing has been highlighted recently by Lord

McCluskey's attempt to ask the victim of a vicious sexual assault her

opinion about the appropriate sentence for her attacker, not an idea of

which Lord Emslie approves.

''Sentences shouldn't reflect the desire for vengeance which you often

find in public opinion, but you've always got to be conscious of the

things that are worrying the public. If you have particular crimes which

seem to be on the increase you have to take account of that if the

social consequences are serious.

''I think that explains why we took a strong line with sentences in

drug trafficking and why we still take a strong line in sexual offences,

because they cause enormous distress to the victims and the public is

obviously out for blood. We are not there to produce the blood the

public wants but we do what we can to try to deter insofar as sentences

can deter.''

Was Lord McCluskey not trying to make the point that we don't pay

enough attention to the victims of crime?

''I don't think that's true at all. I think every Judge is very

conscious of the consequences to the victim. But there's no point in

asking the victim (about sentence). Some victims might want to let the

chap off completely because they have a forgiving nature. Others might

want every ounce of blood they can get. I don't think you can do that.

All you can do is to take very careful note of the consequences to the

victim and in deciding on the appropriate sentence you never shut your

eyes to that.

''Even a simple housebreaking can have a colossal effect on the people

concerned. Their house has been invaded, their privacy has gone, very

often there's the most awful mess left by the less professional

housebreakers and things are never quite the same again.''

There has been much discussion about whether the Guildford Four case

could have happened in Scotland where we require confessions to be

supported by other evidence. Lord Emslie takes the view that in Scotland

the balance between the rights of the accused and the interests of the

State in detecting and prosecuting crime is about right.

''I don't think you want to load the law in favour of the criminal any

further. Nor do I think it is a good idea to take away some of the

protections which are there, because you see perfectly well from

examples in England recently what happens when police are over

enthusiastic and embellish statements to make them even better.

''Of course, I am not suggesting for a minute that police always

fabricate evidence but it does happen and I think our system is able to

cope with that, more or less. But if evidence goes before a jury it is

entirely up to the jury to decide whether to believe the competing

accounts of what happened.''

''If the Crown's case starts with a clear confession which has all the

ring of truth about it, you've got to find some other touchstone with

which to test the truth of that. You probably don't need very much and

the law never demanded very much more than that.''

So could Guildford have happened in Scotland? ''I don't think there

would have been a prosecution in Scotland. It's not a question of

whether they would have been convicted. There was not a grain of

evidence except the confessions.''

One of the most burdensome parts of a Lord Justice General's job is

presiding over appeals, an area in which there has been an explosion of

business. It has been suggested that it is a waste of time and resources

for senior Judges to spend hours listening, for example, to a case of

cycling without lights in Elgin. Lord Emslie doesn't agree.

''As long as we can afford to do it I would like to keep it. I don't

think the public would continue to accept summary justice in the sheriff

court if they didn't have an absolute right to challenge conviction in

the High Court.

''It does impose a huge burden on us and so many of the cases are

really worthless and you get case after case, hopeless appeals, all of

which take time all of which have got to be read. I used to reckon it

took two full days' work over the weekend to read appeal papers before

the court sat.

''But I think it's worth it. You sometimes find even when legal aid

has been refused and solicitors have withdrawn that some terrible thing

has happened which really puts a question mark over the handling of the

case in the court below.''

Our appeal system has been criticised by commentators such as Ludovic

Kennedy for its limitations and inability to prevent miscarriages of

justice. Lord Emslie says: ''I don't think it's ever possible to devise

a human system which would eliminate all possiblity of a miscarriage of

justice. There is no doubt that they do happen. There are bound to be

cases where there is a very strong feeling that something has gone

wrong.

''But I think it is better that the jury should continue to be the

judges of fact. They have heard the evidence and even if you read the

notes of evidence and say, 'Well, I can't really understand why the jury

have accepted this,' the law says that they are the judges of fact and

the Judge's opinion of whether or not a witness ought to have been

believed really can't carry much weight.''

As far as civil business in the supreme court is concerned, Scolag,

the magazine of the Scottish Legal Action Group, called for reforms in

the Court of Session, commenting that ''there is much needing to be done

as the disappointing Emslie era comes to an end.''

The man responsible for the Emslie era replies: ''I think we have

achieved a most remarkable efficiency in the disposal of business in

spite of the increasing demands of criminal trials.

''If you can get a case to proof within six months of the time when

parties have settled their pleadings that's just about the optimum. We

once got it down to four months before crime began to explode and I was

inundated with complaints from solicitors that there wasn't enough time

to get their cases properly prepared.

''The principal clerk and I both took the view that running a court

was like running a business. You had to make it work in a cost-effective

way.''

There are strains on the system, particularly with Lord Cullen away

for a year or more at Piper Alpha, but Lord Emslie does not think the

appointment of more Judges is the answer.

''I've always felt that Scotland could only really sustain a Supreme

Court Bench of 25. You are not going to find enough Judges of the right

quality if you go beyond that number. At the moment we have 24 and one

is full time at the Law Commission. I would be very reluctant to see the

number of full-time Judges increased, particularly if we can, by making

the Judges work harder, get through business as well as we do. I am not

in the least bit ashamed of what has happened. In fact I think we have

achieved a tremendous amount.

''When I took over from Lord Clyde, the Court of Session and the High

Court were two separate, watertight, self-contained institutions and the

administrative heads of these two courts didn't speak to each other.

They quarrelled about the use of Judges and eventually they trotted

along to me.

''I decided this was just nonsense and it seemed to me that what we

wanted was a unified administration in a pyramid with somebody managing

the system at the top. There was no management whatsoever, there was no

staff training, there was no proper organisation of the business of the

court at all.

''I managed to persuade the Government very early on to create a new

post of Principal Clerk of Session and Justiciary and we also decided

that all the clerks ought to be able to do both Court of Session and

justiciary (criminal) work.

''I wish I could say I foresaw the explosion of crime but it was done

really for reasons of improving quality. If we hadn't done that we would

never have been able to cope with the explosion of crime at all.

''If I am remembered for anything I would like to be remembered for

having really taken the organisation of the courts by the scruff of the

neck.''

Lord Emslie is confident that our legal system has a healthy future,

but is singularly unimpressed by the recent reforms put forward by the

Government in its white paper, particularly the proposal to allow

solicitors to appear in the supreme courts. He says it would diminish

the quality of justice the public is entitled to expect.

''I have very strong views on this and I expressed them in a very

forthright way to the Secretary of State. But I have a suspicion that

the consultation process was a bit of a charade and we are being dragged

along on the coat-tails of the English.

''I have never yet in all my experience seen a case conducted to a

standard acceptable in the supreme court by a solicitor. They don't have

the technique, they don't think a case through properly before they

begin and in the Inner House (appeals in the Court of Session) if you

get a sheriff court appeal it will be a miracle if the pleadings allow

you to do what you think ought to have been the right thing to do.''

Solicitors will, of course, point out that by no means all of the

advocates currently practising at the Bar are out of the top drawer.

''That's perfectly true,'' concedes Lord Emslie. ''On the other hand,

with any luck, they don't get involved in too many things that matter.

''It's interesting that solicitors who come to the Bar, and a lot of

them have in the past two or three years, have stated that the standards

expected of them are infinitely higher than standards in the sheriff

court. An advocate is subjected to a much more rigorous public

examination than he ever gets in the sheriff court. The full-time

professional is what is required for the kind of work which is done in

the Court of Session and it ought to be the same in the High Court.''

Lord Emslie agrees that one of the major problems facing the system is

that many people simply cannot afford to use it. ''The only way that can

be done, it seems to me, is to provide adequate funding for it.

''I would like to see legal aid on a very much wider scale so that

no-one can complain he hasn't got an opportunity of access to the

courts. That's what government ought to be doing, improving access to

the courts, instead of tinkering with a system which I think works as

efficiently as most systems can work.''