This piece was first published in SR in 2014
A substantial doubt has always existed about the conviction of the last man to be hanged in Scotland, 21-year-old Harry Burnett. Documents in the possession of the Scottish Review
increase that doubt. It is now clear that a vital witness was not called.
Here, briefly, is the background. Thomas and Margaret Guyan were married in 1957. Five years later, Margaret met a new admirer – Burnett – and went to live with him in Aberdeen. Emotionally immature, obsessively jealous, Burnett took to locking Margaret in the house. On one of the rare occasions she was allowed out alone, she met her estranged husband, a merchant seaman, and agreed to go back to him.
'Margaret, Margaret, you are not going to leave me,' cried Burnett when she announced her intentions. Later that day, he burst into the house of Margaret's grandmother and when Guyan opened the door Burnett shouted, 'I've got you now,' and shot him. He then reloaded the gun.
To stop him shooting others in the house, Margaret said she would go with him wherever he wanted to go. He stole a car from a nearby garage and drove off at high speed towards Peterhead with Margaret in the passenger seat. Burnett asked her to marry him. She agreed. When they were stopped by the police, 'he did not look right in the head,' according to Margaret. 'His eyes were staring out of his head.'
The Crown gave a one-dimensional view of the case with its 'sordid background of a sailor's wife being unfaithful to her husband when he was at sea,' and of 'the lover with whom she consorted being unable to bear seeing his mistress's favours being given elsewhere'. But the case was more complex and more troubling. There was no doubt that Burnett killed Guyan. But what was his state of mind at the time? A special defence of insanity was lodged.
Burnett's mother testified that her son had tried to commit suicide some years earlier when his then girlfriend deserted him, and that her brother and father were both in mental hospitals. It was left to Ian Lowit, a consultant psychiatrist who had first treated Burnett after his attempted suicide, to provide expert evidence in support of this devastating family history.
Lowit believed that Burnett fell into the category of a psychopathic personality as defined in recent mental health legislation and that he should be detained for compulsory treatment in a secure hospital. But Lowit was unfamiliar with the adversarial nature of a High Court trial. 'I was completely torn to bits by the prosecution,' he said. 'I wasn't at all prepared in the onslought I was subjected to. I felt they were trying to ridicule and minimise my evidence.'
In an interview with the BBC many years later, Bob Middleton, a senior local councillor who attended the trial, recalled having been disturbed by the attitude in court to Lowit's evidence. Middleton said the body language of court officials suggested they were pooh-poohing the psychiatric testimony. It seems the trial judge, Lord Wheatley, did nothing to discourage this behaviour. Wheatley's low opinion of psychiatrists was frankly expressed in his subsequent autobiography.
The jury returned after only 25 minutes, convicting Burnett of capital murder by 13 votes to two. Wheatley promptly donned the black cap for what would turn out to be the last time in Scotland, pronouncing the death sentence 'for doom', and Burnett entered the condemned cell in Craiginches Prison to await execution.
In the immediate aftermath of the trial there was a flurry of official activity. The secretary of state for Scotland, Michael Noble, called for the court papers and Wheatley prepared his own report on the case. He said he doubted if all the facts about Burnett had been presented to the court. Most unusually, the family of the condemned man and the family of his victim both appealed for clemency. But any hope of a reprieve was quashed by the disgraceful intervention of the Lord Advocate, Avonside, who urged Noble to stand firm for a political reason: he argued that a reprieve would play into the hands of the abolitionists.
On 15 August 1963, Harry Burnett was hanged. The event generated so little public interest that not all the Scottish newspapers troubled themselves to report it. Burnett was buried in the grounds of Craiginches Prison – and there his body has rested for more than half a century.
But the case itself will not rest. It now emerges that the psychiatric testimony of Ian Lowit – which, had it been accepted, might well have saved Harry Burnett's life – could have been corroborated by a more senior doctor.
We have obtained copies of psychiatric reports by Dr Andrew M Wyllie, physician superintendent of the Royal Mental Hospital, Aberdeen, who examined Burnett on two occasions after his arrest for the murder of Thomas Guyan. The first meeting took place in Aberdeen police headquarters on 1 June 1963, at the request of the Procurator Fiscal. It lasted an hour. Nine days later, Wyllie had a further hour-long meeting with Burnett, this time in Craiginches Prison before the trial.
Both reports came to the same conclusion. After the first, Wyllie wrote: 'The history of psychopathic behaviour might have to be taken into account in assessing his degree of responsibility'. After the second: 'From my examinations of Burnett, I am of the opinion that he is a psychopathic personality'. Lowit, who was then working in the Royal Aberdeen Hospital for Sick Children, compiled a separate report based on a meeting with Burnett in prison in early June. Lowit concluded that Burnett 'may be regarded as not fully responsible for his behaviour'.
Remarkably, however, only Lowit testified at Burnett's trial. And when he did testify, he was thrown to the prosecution's dogs.
Andrew Wyllie had been physician superintendent of the Aberdeen mental hospital for 20 years; he had been a major in the Royal Army Medical Corps, specialising in mental disease; he had lectured on the subject; he had written books about it. He was a physician of far greater experience and authority than Lowit. It is no insult to the other man to say that Wyllie's testimony would have counted for more and would have been harder for the Crown to attack.
Yet he was not among the witnesses. Why? We may never know. The defence papers are not available and most of the central figures in the case are dead. But the absence of so vital a witness does nothing to dispel the long unease about the conduct of this trial.
A few weeks ago, the journalist John Forsyth, who investigated the Burnett case for the BBC and continues to take an interest in it, asked the Scottish Prison Service if they had finally resolved the question of what to do with Burnett's remains now that Craiginches Prison has closed. He received this reply: 'At present, Mr Burnett's remains are still within the grounds of HMP Aberdeen and a final decision is still to be reached as to where he will be laid to rest'.
Fifty-one years have passed since the last man was hanged in Scotland. How much longer do they need?
Kenneth Roy died in 2018