Judge who walks softly but carries big stick

IN the seven years that he has served as Lord Justice-Clerk of

Scotland, it would be a complete distortion of reality to describe

Donald Ross as a controversial figure.

A tough sentencer certainly, too tough in the opinion of some defence

counsel, but essentially a man who pursues the commonsense,

middle-of-the-road approach one might expect of the son of a Dundee

solicitor who lists his hobby as gardening.

On the Bench he presents something of a contrast to Lord Wheatley, his

immediate predecessor, who was all fire and brimstone but by and large a

purveyor of gentle sentences. Lord Ross walks softly but tends to carry

a big stick.

He has spent his whole working life in the law and his career details

are the perfect illustration of the inexorable rise to the top of a man

of great ability -- Dux of Dundee High School, law degree with

distinction from Edinburgh University, Vice-Dean then Dean of the

Faculty of Advocates, Judge in 1977, Lord Justice-Clerk in 1985.

Yet, despite the orthodoxy of his pronouncements from the Bench, twice

within the past year Lord Ross has forsaken the traditional reticence of

the Scottish judiciary to express publicly forthright views on highly

contentious subjects -- hanging and the fabrication of evidence by

police.

In the light of recent miscarriages of justice in England (and their

cause) these subjects are very much intertwined, which makes the

opinions of the Lord Justice-Clerk even more controversial than they

would otherwise be. On the one hand he favours the reintroduction of

hanging, on the other he casts doubt on the reliability of police

evidence.

To be fair, he did make the point to the Herald that in some murder

cases there is no room for doubt.

His personal view, expressed both on Scottish Television and expanded

on in yesterday's Herald that hanging should be brought back for certain

types of murder -- the killing of policemen and prison officers, for

acts of terrorism and possibly for multiple killings -- will come as no

surprise to those who know him.

When the Faculty of Advocates conducted a poll some years ago a

sizeable majority of members was against the restoration of the death

penalty. Lord Ross is understood to be one of the minority who voted in

favour.

He fully recognises that his view is not generally shared by other

Judges and that there is little chance of capital punishment being

restored in the wake of a series of notorious miscarriages of justices

in England so why has he spoken out? His television appearance was the

tailpiece to a series of features about the recent surge in violent

crime in Scotland. Lord Ross expressed his concern at the burden this

was placing on the courts and talked about the significant contributing

factor of drink and drugs on the crime rate.

He was asked by interviewer Bernard Ponsonby about the possible effect

of the restoration of the death penalty and expressed his personal

belief that the ultimate punishment would have a deterrent effect.

Apart from the fact that he was giving an honest answer to a

straightforward question there may be other reasons why Lord Ross

decided to make his views public.

As he rightly pointed out the question of hanging is a matter of

legitimate public concern and as a daily observer of the dreadful

effects of violent crime Lord Ross is in a better position than most to

comment on it.

Scotland Today also gave him an ideal platform to emphasise current

judicial concern at the strains being placed on the system of justice by

a massive increase in the workload of the courts without a corresponding

increase in the appointment of new Judges.

Although at just 65 Lord Ross could stay on the Bench for another

decade, he has now been a Judge for 15 years and could retire on full

pension. There have been rumours that retirement is on his mind and the

theory goes that he is taking his chance to speak out before he goes.

None of these theories satisfactorily explains his call last year for

the police to ''put their house in order'' to discourage perjury and

tampering with evidence. He called for drastic action in England,

saying: ''For innocent persons to be convicted is an appalling

indictment of any criminal justice system.''

He went on: ''It would be naive to suppose that false evidence is

never given by police officers in Scotland. Although to date we have not

had cases like the Guildford Four or the Birmingham Six, we certainly

have had cases where there must be a strong suspicion that police have

given false evidence.''

He called for the video taping of police interviews with suspects and

urged the setting up of an independent body to investigate alleged

miscarriages of justice.

The speech was greeted with some alarm by senior Scottish policeman

who sought an audience with him, but the thinking behind the comments

has never been made clear. Was he again speaking on a purely personal

level or was he firing a warning shot on behalf of fellow Judges uneasy

about the reluctance of some juries to convict on police evidence?

Judges are often accused of being out of touch with public opinion, but

Lord Ross's views on hanging would probably find great public support.

The irony is that is he is out of step with most of his colleagues in

the legal profession.