‘Closed’: the secret file on Scotland’s last man to be hanged

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By Kenneth Roy

So, I want to get my hands on the transcript of Scotland’s last capital murder trial, the one I wrote about here last week, which led to the execution of Harry Burnett. I suggested that Burnett should have been acquitted on the grounds of his insanity, for which there was strong evidence.

Why bother re-examining this case? Burnett has been dead a long time. He was hanged in Aberdeen Prison on 15 August 1963 after the Secretary of State for Scotland, Michael Noble, turned down appeals for clemency from both Burnett’s family and the family of the victim.

By Kenneth Roy

So, I want to get my hands on the transcript of Scotland’s last capital murder trial, the one I wrote about here last week, which led to the execution of Harry Burnett. I suggested that Burnett should have been acquitted on the grounds of his insanity, for which there was strong evidence.

Why bother re-examining this case? Burnett has been dead a long time. He was hanged in Aberdeen Prison on 15 August 1963 after the Secretary of State for Scotland, Michael Noble, turned down appeals for clemency from both Burnett’s family and the family of the victim. But we are approaching the 50th anniversary of this landmark trial. If there was a miscarriage of justice, next year would be the time belatedly to acknowledge it.

There are two specific reasons for wanting to see the transcript. Since my original piece, a journalist who investigated the case has been in touch with new information about the conduct of the prosecution. He spoke many years ago to the psychiatric expert witness who testified to the state of Harry Burnett’s mind, and listened to this man’s description of how he (the psychiatrist) was treated in the witness box. I would like to read the exchanges between the solicitor-general (Grieve) and the witness.

Then there is the question of why a jury – a jury which was not unanimously convinced of Burnett’s guilt –found it possible to return a verdict after 25 minutes knowing that a man’s life was at stake. Why this indecent haste to convict, particularly when the jury room was split? For possible clues I would like to read the charge to the jury by the late Lord Wheatley, a judge who was in general unsympathetic to the evidence of psychiatrists.

I went to the National Archives of Scotland, the place where, so to speak, the bodies are buried. I imagined it would be a straightforward enough request. The trial of Harry Burnett was held in public (of course) and the transcript of the proceedings should therefore be a document in the public domain, readily available on request. Not at all. I was astonished to be told that the file was closed for 75 years. It will therefore not be opened until 15 August 2038, by which date I expect to be editing the celestial edition of the Scottish Review.

The response to my inquiry was so unsatisfactory that I pushed it. I was then told that the High Court authorities ‘might’ release the file if I got in touch with them direct. But if I hadn’t pushed it I would be none the wiser about this possible alternative (which, since I’m out of the country at the moment, I haven’t yet been able to pursue). But why should I have had to push it at all? A man was killed by the state. The state has an important duty to make the reasons for this decision transparent and accessible. Yet the state is so keen to suppress public interest that it closes the file on this historic case and keeps it closed for three quarters of a century. It should be opened at once, not as some occasional special dispensation by the High Court authorities but as a public entitlement.

Now, here is a little story which exposes the illogicality of this disgraceful situation. A year before Harry Burnett’s trial and execution, there was a scandal in Scotland about the abuse of young men in the recently opened Perth detention centre, where offenders were sent for what the zealots on the right-wing of the Conservative Party described with lip-smacking satisfaction as a ‘short sharp shock’. So sharp was the shock that several inmates preferred to cut their wrists rather than submit to the neo-fascist excesses of the physical ‘training’ which was their daily punishment.

The secretary of state for Scotland – Jack Maclay it was then – ordered an inquiry. Unlike the trial of Harry Burnett, this inquiry was held in private and its report was never published. All we were told afterwards was that, as a result of the inquiry, the regime was being relaxed; official undertakings were given that inmates would no longer be ill-treated. There were, however, no criminal prosecutions of the staff responsible, who might themselves have benefited from a short sharp shock, and no public apologies were ever offered to the victims or their families.

When I approached the National Archives of Scotland with a request for this report, I expected to be told that it was closed. On the contrary, this file is now open. I can see it any time.

There is a lack of consistency here, to put it mildly. On the one hand, the public are denied access to a document of considerable public interest, the transcript of a public event, extensively reported at the time, the conduct and outcome of which may not reflect well on Scottish criminal justice. On the other hand, we are able to see the record of proceedings of an inquiry into a matter of lesser public interest, indeed pretty well forgotten except by people like me, which the press were forbidden from attending and reporting.

An incidental thought as we await the emasculation of press freedom by Leveson. Such was the deference of the media as recently as 1962-63, no one in the Scottish press thought it objectionable that Maclay’s inquiry into the shameful goings-on in Perth detention centre should be held in secret or that the inquiry report should not be made public. Likewise, no one in the Scottish press questioned the verdict in the Burnett case or supported the campaign for clemency. The press meekly went along with the cover-up in one case and the 25-minute verdict in the other. Inconceivable now. But inconceivable for how much longer?

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