Country's longest serving judge continues to speak out at end of his career The nippy sweetie who was definitely no Noddy

John McCluskey has that same self-confidence and over the years has expressed frank opinions about the state of our law, sentencing policy, human rights, the sacking of judges, and the place of victims in the criminal justice system.

To take one example, he told the Association of Directors of Social Work: ''The Crime and Punishment (Scotland) Act 1997 was, I believe, without doubt, the worst piece of criminal justice legislation in my professional lifetime.''

So where does the self-confidence come from and just what gives him the right to sound off on such a wide range of weighty matters? Some have used the word maverick to describe him but it is not a description with which he agrees.

''I've been exactly 44 years in practice,'' (as a lawyer) he responds. ''I've been there. I've done it. I've got the tee-shirt so to speak. You get a kind of instinct about how it goes. What I call confidence I suppose other people would call arrogance.

''I also spent perhaps longer in the Crown Office for one reason and another than anyone else since the war. I was seven years an Advocate-depute and five years Solicitor General.

''You take an oath when you become a judge to exercise your own judgment. That's a pretty heavy responsibility and you shouldn't just go along for the ride. You shouldn't become a 'Noddy'. You shouldn't just be sitting there saying, 'Whatever you say I'll sign up to that'.''

As counsel know to their cost, Lord McCluskey can be a nippy sweetie on the Bench. Typically, he makes no apology for that.

''What annoys me most of all is the waste of time, particularly my time. I use a phrase that I picked up from Lord Mackay of Clashfern. I say to counsel who appear before me, 'You're not here to give me glimpses of the obvious'.

''I can get annoyed with that. I can get annoyed with bad preparation. You must remember that part of my experience consists in having gone into court myself badly prepared when I was a junior counsel.

''A judge for whom I have the greatest admiration - Jack Hunter - said in no uncertain terms that this case was not properly prepared and I was the one who didn't properly prepare it.

''I learned more from being told off than I would have done by being patted on the head and told that I'd done a good job, particularly as I hadn't. I regard myself as being helpful to counsel whom I tell off.''

Lord McCluskey was one of the judges who lined up against former Scottish Secretary Michael Forsyth as the last Conservative Government announced a series of criminal justice reforms that caused apoplexy amongst the Bench. McCluskey hit out at the ''sham'' consultation process and what he saw as a lack of valid research to back up the assumption behind some of the reforms.

''I think it is a mistake to approach the problems of crime on the basis of a false analysis,'' he says. ''And if part of the analysis is that if we send people to prison for long periods that will deter others, it's very important to know whether that's true or not.

''A lot of work has been done round the world about the relationship between punishment and recidivism or indeed influences upon others.

''Now you and I would probably be deterred from committing a quite minor crime by all the sanctions that would follow, whether imposed by the court or by your being sacked from your job or being ostracised in society.

''But if you go to the kind of case that I have seen, where three young men rape a girl then urinate all over her, that conduct is so outrageous and so bizarre that I shouldn't make judgments about it on the basis of my own standards.

''I can condemn it in terms of my own standards or anybody else's standards but I can't see how those people would be deterred by the fact that, six months earlier in a different court, a judge imposed a heavy sentence for a crime of rape accompanied by odd circumstances.

''I don't know of any good evidence that real criminals are deterred from fighting in the streets or from rape or from drug dealing by the punishments meted out by the courts. I think one of the main purposes of imposing severe sentences is to express society's sense of outrage at what's happened. That applies to the rape case; it applies to people who deal in drugs in such a way that they are imperilling the health and minds of others.

''There are a number of crimes that are so outrageous that you express the sense of outrage in the only way you know, which is by putting them in prison. I just don't think it does deter.''

The first murder case that John McCluskey prosecuted involved a teenager who went into a pub lavatory in Aberdeen and, for no apparent reason, stabbed someone.

His first words to his friends afterwards were: ''I'll hang for this.''

''As a matter of fact capital punishment had just been abolished, so he wasn't going to hang for it,'' recalls Lord McCluskey. ''But he thought he was going to hang for it and it didn't make the slightest difference.

''They've already got the death penalty for consuming drugs. Look at the statistics. You'll find that about 250 people have died from taking drugs illegally in Scotland in the last 12 months.

''If people are not deterred from engaging in that kind of conduct by the fact it's likely to lead to their death, why suppose that a sentence of three or five or six years upon some stranger in a different place at a different time in different circumstances is going to deter them? I don't think the criminal mind works that way.''

The McCluskey mind will certainly still be working away after retirement. He has a February deadline for the next edition of his book on criminal appeals and is producing a report on human rights for the International Bar Association.

He has been approached by CNN to work as an analyst on the Lockerbie trial but is reluctant to spend a lot of time in Holland when he has seven grandchildren to occupy his time in Scotland.

He will also reappear from time to time to help out on the Bench, thus officially becoming a mothball, as retired judges are irreverently termed.

A mothball maybe but never a Noddy.