A new look at the case of the last man hanged in Scotland


By Kenneth Roy
Lord Tebbit is among the Tory backwoodsmen calling for the restoration of the death penalty following this week’s cold-blooded murders of two young policewomen in Manchester. His lordship is aware of the possibility of irretrievable miscarriages of justice, but feels that juries would take extra care if a man’s life was at stake.

This was also the view of a Scottish judge, the late Lord Wheatley, who more than once sent a prisoner to his doom. The word ‘doom’ was actually included in the form of words on such occasions (as in ‘pronounced for doom’). Wheatley wrote in his autobiography that ‘juries were averse to returning a verdict which would carry with it a sentence of death’ and again: ‘My personal experience of such cases was that…juries looked sympathetically at any alternative verdict which was left open to them on the facts’.

No doubt Lord Tebbit would be encouraged by these impressions of a senior Scottish judge. They would also help to support the pro-hanging case in any referendum on the issue. ‘It would be dangerous for democracy to ignore the strong opinions of the public or pretend that these views did not exist’, said the leader of the House of Commons, Sir George Young, earlier this week. Even before the revulsion caused by the Manchester outrage, a majority of the British people were in favour of bringing back hanging for all categories of murder and a much larger majority for its more limited restoration. Presumably these majorities are now more decisive than ever.

With capital punishment back on the agenda, there is all the more reason to put the Tebbit/Wheatley theory about juries to a practical test. Let’s briefly re-examine, for the purposes of illustration, the case of the last man to be hanged in Scotland – Henry John Burnett, executed in Aberdeen Prison on 15 August 1963 on the newest gallows in Britain.

Burnett denied murdering Thomas Guyan, a merchant seaman, by shooting him in the head in a house in Aberdeen. That Burnett killed Guyan was not in dispute. But what was his state of mind at the time? His lawyers lodged a special defence of insanity and would have been justified in doing so with some optimism.

Thomas and Margaret Guyan were married in 1957. Five years later Margaret met a new admirer – Burnett – and went to live with him. Emotionally immature and obsessively jealous, Burnett kept Margaret locked in the house. On one of the rare occasions she was allowed out alone she met her estranged husband and agreed to go back to him. She returned to the house she shared with Burnett to collect her son, taking a friend for moral support. When she announced her intentions, Burnett shouted: ‘Margaret, Margaret, you are not going to leave me’ and drew a knife to her throat. The friend, who was waiting outside, banged repeatedly on the front door until Burnett finally opened it and ran off.

Margaret hastened to her grandmother’s house where Guyan was waiting for her. She described to the jury at the High Court in Aberdeen what happened next. She said she was sitting with her husband, her grandmother and her son when they heard a commotion outside.

My husband got up and opened the door and Harry Burnett was standing there with a gun [he had stolen it from his brother’s house]. My husband asked who he was and Harry Burnett said, ‘I’ve got you now’. The gun went off and my husband fell. Then he reloaded the gun and threatened to shoot everybody else. I told him I would go with him if he did not shoot everybody else.

He took her to a nearby garage where he threatened a stranger with the gun, stole his car 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 in his right mind…his eyes were staring out of his head’.

In his address to the jury, the solicitor-general (Grieve) spoke of the ‘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 there was more to the case than the prosecution’s one-dimensional take on it. The court heard that Burnett had tried to commit suicide some years before he met Margaret, and that there was a family history of serious mental illness. When psychiatrists examined him they found that he was incapable of rationality or of assessing the consequences of his actions; they concluded that Harry Burnett was insane.

Was the Aberdeen jury ‘averse to the death penalty’? We shall never know. Did the Aberdeen jury take extra care? Aware of the inevitable consequences of a conviction, it returned a majority verdict of guilty after all of 25 minutes: not much sign there of a jury looking ‘sympathetically at any alternative verdict which was left open to them’, although in this case an alternative verdict was staring the jury in the face. The quality of its brief deliberation is unimaginable; there was certainly no need for a tea break.

A familiar figure on the bench gave three weeks’ notice of Burnett’s execution. His name? Lord Wheatley. Unusually, the family of the condemned man and the family of his victim both appealed for clemency. Clemency there was none from the Tory secretary of state for Scotland, and Burnett went to his death at the age of 21. His execution was rated of so little public interest that not all the Scottish newspapers bothered to report it. Had he been spared, he would have been 70 this year.

Strangely, given the historical significance of the trial, Wheatley had nothing to say about it in his autobiography. But he made no secret of his general disdain for the evidence of psychiatrists – alienists as he preferred to call them – whose ‘sympathetic approach often bordered on the absurd’. It is possible that, in his charge to the jury, he was unable to conceal his feelings about a branch of medical science for which he had little respect. Whatever the explanation, a split jury came to its decision in less than half an hour.

I mention the Burnett case because it was the last of its kind in Scotland. But it was not unique in its deeply unsatisfactory outcome; recently I had a close look at an earlier post-war capital murder trial (in Glasgow, this one) which resulted in a dodgy conviction by a jury which, considering the poor state of the Crown evidence, seemed to take its duties remarkably lightly; there was no reprieve in that case either.

If there is to be a debate about hanging, and I devoutly hope there isn’t, the notion that juries can be relied upon to exercise exceptional diligence is shamefully disingenuous. If the hangers are looking for reassurance that miscarriages of justice will not occur, they had best look elsewhere.

Courtesy of Kenneth Roy – read Kenneth Roy in the Scottish Review