Lord Wheatley
Kenneth Roy asks some pointed questions about the background of the prosecution, trial and execution of John Henry Burnett in 1963. I can assist here and there. I made a radio documentary on the last execution in the mid 1990s. You may guess by the vagueness that I haven’t quite been able to lay hands on my programme file. I have found my tape of the programme, superbly narrated by Kevin Drummond QC, now Sheriff Drummond in Selkirk.
Listening back now I am rather proud of what we were able to capture. First, we tracked down and interviewed several of the participants including Henry Halcrow, CID chief superintendent in 1963; Robert Henderson QC, barely a month at the bar at the time and whose first ever case was as junior to advocate depute, Bertie Grieve, in a capital murder trial; former Aberdeen city bailie, Bob Middleton, who not only took up the ‘bailie’s privilege’ of sitting on the bench alongside trial judge, Lord Wheatley, but later discovered it was part of the bailie’s job to organise the execution itself.
Finally we found psychiatrist,Ian Lowit who was asked to provide expert evidence for the defence and who, 30 years on, was visibly affected when he relived how he was ‘destroyed’ in the witness box. The trial was justice as a blunt instrument rather than the kind of precision tool we are led by TV dramas to expect. More of that later.
Perhaps most interesting was the content of the John Henry Burnett file that Kenneth Roy correctly says is officially closed for 75 years. We managed to negotiate access to it and view the extraordinary letters written by Burnett himself as well as the submissions and reports that winged their way to Michael Noble, secretary of state for Scotland, who had the authority to allow or withhold reprieve. Our conclusion was that, bizarrely, it was Burnett himself who made reprieve unlikely.
First, the trial. It was only 50 years ago but it seems like another world entirely. Robert Henderson recalled: ‘In those days when the High Court went out on circuit the event was accompanied by considerable panoply. The Gordon Highlanders put on a guard of honour outside the court, complete with fixed bayonets. Union Street was closed while the judge went out and inspected the guard of honour before starting the trial. There was a vast crowd of onlookers. The court was packed for the three days of the trial with a queue outside waiting to take the place of anyone who left. It made you feel you were taking part in something historic, as a capital trial undoubtedly was’.
As a new advocate, wet behind the ears, Henderson says there was an awful inevitability about the whole trial. ‘It felt like the trial itself was the beginning of a funeral. One of my jobs was to show photographs of the deceased to the jury. I remember looking at the jury and thinking they looked as if they were in a state of shock, not just shock at the photographs – they were horrendous – but a state of shock knowing that they were taking part in a process that was undoubtedly and inevitably leading to the gallows’.
The defence had lodged a special plea of ‘insanity at the time of the offence’. It was the only hope they had of avoiding the death penalty. The law had been reformed in 1957 limiting capital punishment to a few methods of murder. The use of a firearm was on the list. There was no doubt that Burnett had stolen his brother’s 12-bore shotgun and discharged it at close range at Thomas Guyan, husband of the woman, Margaret Guyan, who was torn between them.
In his early teens Burnett had attempted to commit suicide at the end of a previous relationship. He was seen in casualty by relatively recently qualified child psychiatrist, Ian Lowit, who had advised him to admit himself to Kingseat hospital as a voluntary patient. He never did.
The defence asked Lowit to prepare a new report for the trial even though he had had no further involvement with Burnett. Lowit reported that Burnett had not planned his action or planned his escape. The murder appeared to be a completely impulsive action even though he was aware of what he was doing. For example, he had made a four-mile trip to get hold of the gun. Ian Lowit told us: ‘A new mental health act had had just come into effect and under the act psychopathic personality was identified as a condition that permitted compulsory detention in a safe place in a hospital for measures of compulsory treatment. I felt a man like Mr Burnett very much fell into that category’.
But Lowit was a child psychiatrist and had never given expert evidence in court before. He had never been in any court before. ‘It was a devastating experience. The defence counsel did not prepare me at all for what would happen. I was completely torn to bits by the prosecution. I wasn’t at all prepared for the onslaught I was subjected to. I was completely inexperienced in such matters… I thought I would be examined on medical psychiatric evidence in medical psychiatric terms, not in adversarial terms. I feel they were trying to ridicule and minimise my evidence.’
Thirty years later Ian Lowit clearly felt he had badly let down Henry Burnett. From his view on the bench alongside Lord Wheatley, Bob Middleton recalled: ‘I was struck by the attitude of court officials towards defence evidence – pooh poohing the evidence, especially the psychiatric evidence. The judge himself, Lord Wheatley, did interpose himself into the cross examination from time to time a bit more than I thought was necessary’.
The trial petered to a halt after only three days. Lord Wheatley told the 10 men and five women of the jury that they had a difficult charge to perform but they should not shrink from it. ‘Neither the consequences that would flow from a finding of guilt of that charge on the one hand or a brutal slaying of a human being on the other, nor qualms of conscience that may be present in your minds must affect your judgement or your decision.’
The manager of the Douglas Hotel had reserved 13 rooms for the jurors and staff in anticipation that deliberations would be protracted. They were back in 25 minutes with a verdict of guilty by a majority of 13-2.
Robert Henderson recalled: ‘Mr Grieve and I left the court. We were pretty upset about the whole thing. When we joined the queue at the railway station ticket office we discovered we were next to the man who had been foreman of the jury. I think he had been the headmaster of a school in Montrose. In those days you were allowed to speak to jurors though it wasn’t often done. We were offering platitudes to him about how difficult it must have been and so on and he said, “No, not at all. The choice was whether this man was mad or bad. I see boys like this every day who are just bad. Quite a few of the women on the jury didn’t want to see a conviction recorded. I just told them we had to do our duty. So we did our duty”.’
Lord Wheatley pronounced the death sentence ‘for doom’ and Burnett was taken to Craiginches prison. Lord Wheatley’s place in the footnotes will note not only that he sentenced the last man to be executed in Scotland but the last two.
What the closed file reveals is an intensity of activity over the next two weeks in which Burnett effectively sealed his own fate. The Scottish secretary, Michael Noble, called for the whole trial papers on the day the sentence was pronounced.
Lord Wheatley separately prepared his own report on the trial which he sent to the Scottish Office. He wrote: ‘As Burnett did not give evidence I was not able to form any definite impression of him. He had one or two outbursts in court while his mother was giving evidence but whether this was due to some mental defect or just a natural upset at his mother’s distress when in the witness box I would not be prepared to say. Burnett’s family background is not a happy one. It is doubtful if all the facts were before the court and if this is regarded as an important element in the considerations that have to be taken into account further inquiries might be made’.
In his newly-refurbished condemned cell in Craiginches Burnett had a succession of visitors. He did not know it but the prison officers who accompanied him 24 hours a day were required to record in the special watch occurrence book any significant conversations he had with them or which they overhead. On the 7th of August three psychiatrists were sent to examine Burnett, not this time to determine whether he was sane at the time of the murder but whether he was now sane enough to hang.
They were opening the door to reprieve: ‘We confirm that Burnett is of psychopathic personality. The psychopathic personality may reasonably be considered to be of such a degree as to mitigate his responsibility for the crime he committed’.
If the psychiatrists were trying to open the door to reprieve, Henry Burnett was reluctant to walk though. The Craiginches occurrence book notes his comments when the psychiatrists left – that they were dafter than him. ‘I knew exactly what I was doing. I thought no more of shooting Guyan than I would of shooting a bird.’
Margaret Guyan visited him and he wrote to her afterwards. ‘I will never forget the way we started off together and the times that followed. Well, my darling, you asked why I did not kill you up in Skene Terrace. Well, it was because I loved you. I could easily have done it if I’d wanted to. But what they were saying in court was a heap of rubbish about me being insane – even at the time.’
Burnett later asked her to destroy the letters which she said she did. But the prison had taken copies and they are all in the file. It was all material that would go to Michael Noble as he considered whether he should reprieve Burnett and commute the sentence to life imprisonment.
Burnett’s own contribution clearly weighed heavily with the lord advocate, Lord Avonside, when he wrote to Noble arguing against reprieve: ‘I consider it to be extremely dangerous in the proper administration of justice if a proper punishment is to be reviewed because of a majority verdict. I consider any slack use of the power to reprieve is merely giving way to the theory of abolition. Easy reprieves undermine the whole force and dignity of the administration of law by the courts as the attitude of this particular murderer illustrates’.
In Aberdeen a petition was organised calling for reprieve. The first signature on it was Jeanie Guyan, the mother of the murdered man. She told reporters, ‘I can find it in my heart to forgive Henry Burnett. It’s his mother I’m sorry for. I’ll sign the petition. I don’t think Henry Burnett should hang’.
Burnett instructed his solicitors not to appeal against sentence. They asked for the instruction in writing. The occurrence book records Burnett’s belief that he stood more chance of a reprieve on the basis of the petition than an appeal.
To the last the occurrence book records his belief that he would be reprieved.
John Forsyth has worked for BBC Radio and TV in London and ran his own independent production company in Scotland for 10 years, supplying programmes to BBC Radio 2, 3 4, 5 Live, Radio Scotland and the World Service. He’s a former political editor of Scotland on Sunday and is now a freelance journalist and editorial consultant.
