Up for early parole: the killer in the case that shocked Scotland Kenneth Roy

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By Kenneth Roy

It was described at the time as ‘the case that shocked Scotland’. Barely five years later it is remembered dimly if at all. But there are good reasons in the early weeks of 2013 to recall the torture and death of Brandon Muir, aged 23 months, and they are reasons that should concern all of us.

The story of his short life was a dystopian nightmare. Born on 2 April 2006, Brandon was brought up in a squalid flat in Dundee by his heroin-addicted mother, Heather Boyd, who worked as a prostitute to finance her drug habit. She was 23 years old, unable to read or write, and possessed limited parenting skills.

The child’s natural father played no part in his upbringing, but in February 2008 Boyd acquired a new live-in partner, 23-year-old Robert Cunningham, another heroin user. Cunningham was well known to police and social workers for abusing his previous partner, who in the course of a year made nine separate complaints about his violence.

This pattern of behaviour started to repeat itself as soon as Cunningham went to live with Heather Boyd. She contacted her social worker alleging that he had assaulted her. But she was afraid of the consequences if she reported him to the police. Nothing was done.

When health and social workers visited the flat, they discovered that Brandon was sleeping on a bare mattress with no sheets, that he was wet and needed changing, that he moved with an abnormal gait, that there was an unnatural turn in his left foot, and that one of his legs was shorter than the other. They noted dried blood in his left nostril. They also noted a scab on one of his eyes which Boyd insisted had been caused accidentally, although it looked as if it might have been a cigarette burn.

The last visit from social work took place on 12 March. Three days later Cunningham was left in the house to look after Brandon while Boyd went to her place of work, Dundee’s red-light district, hoping to raise enough money to buy heroin. She brought back two bags of the stuff. While she was out, Cunningham viciously attacked the child, delivering what the prosecution called ‘a massive blow’ to his abdomen, rupturing his intestine, crushing it against his spine, and breaking his ribs. Cunningham’s version of events was that he had lightly smacked him for climbing on to a window ledge.

One witness who visited the flat that evening testified that Brandon was ‘beside the toilet, leaning against the wall’ and that ‘he didn’t look well, he looked really unwell’. Yet Cunningham did not seek help. On the contrary, he and Boyd took him to a late-night party, where most of the adults were smoking cannabis or drinking. Brandon Muir was extremely ill – clearly and visibly so – but still neither his mother nor her partner – nor, for that matter, anyone else at the party – called the emergency services.

By the time Boyd and Cunningham returned to their flat, Brandon’s eyes were rolling. Around 4am, Boyd noticed that her son had stopped breathing. He was finally taken to Ninewells Hospital, where he was pronounced dead at 5.06am on 16 March 2008. Brandon was killed within 18 days of Cunningham’s arrival in the flat: a timescale which made formal intervention by the authorities extremely difficult, but did not excuse earlier defects and oversights in their handling of the case.

Boyd was charged with culpable homicide for neglecting to seek medical help, Cunningham with murder. A letter he wrote from prison while awaiting trial gave an insight into his personality. He complained that he was locked in his cell 23 hours a day, that there was ‘nothing to do in this place’ and that he craved alcohol, but that he had been allowed to paint his cell in contravention of prison regulations and was able to watch a variety of Sky TV channels. He was venomous about Boyd, but expressed no remorse for causing the death of her child.

‘The case that shocked Scotland’ was evidently not quite shocking enough to merit the attention of a senator of the College of Justice. When it came for trial to the High Court it was heard by John Morris QC. He decided that Boyd had no case to answer and formally acquitted her before the jury had an opportunity to consider the evidence. The jury went on to acquit Cunningham of murder, finding him guilty of the lesser charge of culpable homicide.

Morris sentenced him to 10 years’ imprisonment: a scandalously lenient outcome considering the gravity of the crime and the extreme suffering inflicted. It was only one year less than the sentence imposed last week on another Dundee offender, a businessman convicted of a fraud on the Customs – a serious fraud but a crime which involved no violence.

After almost five years in prison, it is time to ask what is to happen to Robert Cunningham.

Prisoners serving less than four years are released unconditionally when they have served half their sentence; the Parole Board has no say in these cases. The board does, however, have a decisive influence in the release of long-term prisoners such as Cunningham. He is entitled to be considered for parole at the end of March, the half-way point in his 10-year stretch (which includes his time on remand). If parole was to be refused on his first application he would be entitled to re-apply annually until he had served two-thirds of his sentence, when he would be released on licence. Theoretically, then, Cunningham could stay in prison for six years eight months, until the end of November 2014.

Parole is not a reward for good behaviour. The Parole Board has an obligation to consider such issues as the prisoner’s criminal record (Cunningham had previous form), his family background, and his response to any counselling he has received in prison. Nor is parole granted to most prisoners on a first application. Last year, of the 678 eligible, only 219 were released. All the more surprising, then, that the Scottish Review is receiving unconfirmed reports that, towards the end of last year, preparations were being made for Robert Cunningham’s liberation.

If the Parole Board has indeed decided to free Cunningham after he has served the absolute minimum and not a day longer, the public will never know why a criminal justice system which places so low a value on a child’s life has dealt so lightly with his killer. Brandon Muir would have been seven on 2 April this year – two days after his killer’s potential release into the community.

Courtesy of Kenneth Roy and the Scottish Review