Alastair McPherson Johnston

Portrait by Alan Sutherland see website http://asutherland.net/portraits.html

http://www.heraldscotland.com/news/11983711.The_Judge_who_courts_co...

The Judge who courts controversy

28 Feb 1990

By BRUCE McKAIN, Law Correspondent

LORD Dunpark, Scotland's longest- serving Judge, is no stranger to controversy in his 18 years on the Bench. He is a man who has frequently gone his own way, often to the fury of his critics, and sometimes, one suspects, the annoyance of his fellow Judges.

He has perhaps been seen at his best in civil cases where his humanechambers with children trying to discover which parent they wanted to stay with. One little girl asked him to come home to tea and a little boy asked if Lord Dunpark would like to go fishing with him. But over the years controversy has followed him in the criminal courts where his critics feel his humanity has often betrayed him into passing sentences which are far too lenient. Sometimes his sentences seem to have been a triumph of hope over experience.

In 1979 he admitted that sentences of three years and 18 months he was passing on three shotgun robbers were far too lenient for a crime of this kind. He said he realised he would be criticised by people who thought the sentences were ridiculously light and admitted that sentences of eight to 10 years could not be described as excessive. He hoped the accused would realise while in detention that crime did not pay.

In 1985 he took the very unusual course of deferring sentence on two youths convicted of killing a university bursar as Old Firm fans battled on a train. The following year he infuriated women's groups when he jailed a soldier for two years for rape, saying that although rape was a serious offence, this was at the lower end of the scale. Last year he admonished a man who sexually assaulted a naive and sexually inexperienced woman. He told the accused: I am one of those Judges who is hard on male sexual offenders as my record will show, providing there are no special circumstances as in this case. He said he was not going to be the one to disrupt the accused's career and family life.

Lord Dunpark's retort would no doubt be that in many of these cases the risks he took in sentencing were justified and the accused took advantage of the chance he gave them and stayed out of further trouble. Nor can it be said that leniency has always been his trademark. In 1972 he jailed Matt Lygate for 24 years for two armed robberies and also decided that for two inmates who committed murder in a bloody escape from Carstairs that life should mean exactly what it said.

His independent frame of mind has also led him into trouble with fellow Judges. In 1988 two sisters jailed for heroin trafficking were freed by the appeal court after a deliberate misdirection by Lord Dunkirk. He chose to tell the jury that a majority of at least eight was needed for a verdict, whether guilty, not guilty or not proven. He said he regarded it as not a unique misconception that such a direction had to be given only in relation to a conviction, but the appeal court said the misconception was Lord Dunpark's. In another case concerning whether judicial review cases could be held in the sheriff court, he was in a minority of one in the appeal court but was upheld by the House of Lords.

Given that history, Lord Dunpark is unlikely to be dismayed by this outlook has brought him praise for the sensitive way he has handled custody cases. He once told a conference in Edinburgh of his informal chats inlatest outburst of criticism. What it may do, however, is lead to a renewal of the call for a right of appeal by the Crown against over-lenient sentences.

This has recently been introduced in England, but there is no corresponding provision in Scotland.

Lord Dunpark will be 75 in December, the compulsory retiring age for

Judges. Presumably for his most virulent critics, the date can't come soon enough.