THE END OF THE ROPE IN SCOTLAND. DAY 2 July 24 1963

Press coverage of his capital murder trial would have been the least of John Henry Burnett’s concerns as he emerged into the dock for the second day of his trial.

However, it is interesting that the Aberdeen Press and Journal on Wednesday July 24 ran the previous day’s proceedings only as the second lead on the front page, with more extensive reporting on page 5.

John Henry Burnett

John Henry Burnett

The P&J chose preferred to lead on the latest revelations from the Steven Ward trial in London with an appearance in the witness box, among  others, of Mandy Rice Davies. The long running prosecution in London, ostensibly on charges that Ward lived on immoral earnings, was turning out to be the story of the decade as it revealed the connections between call girls, film stars, cabinet ministers and Russian spies.

On Day 2 the jury of ten men and five women heard from one further witness for the prosecution:

Detective Inspector Robert Bell.

DI Bell spoke to charging Burnett and his reply. To the first charge of murdering Thomas Guyan Burnett replied, “I gave him both barrels. He must be dead.” He made know reply to the second and third charges.

The witnesses for the defence were:

Mrs Matilda Burnett (52), Henry Burnett’s mother.

Henry John Burnett (62), Henry Burnett’s father.

Dr Ian Lowit (42), consultant psychiatrist at the Royal Aberdeen Sick Children’s Hospital.

Dr John Gaylor (59), lecturer in neurology at Glasgow University and consultant neurologist at the Western Region Hospital Board.

As she began her evidence in chief, lead by Dr R R Taylor QC, Mrs Matilda Burnett became distressed. In the dock her son tried to get up, but was restrained by police officers, and shouted “Take her oot, tak her oot.” He too began to cry. His mother called across to him, “It’s ok, my loon. It’s ok.”

Mrs Burnett told the court that Henry was the fourth in a family of seven. He had a relatively normal childhood until, she said, he had been injured in a road traffic accident when he was 12.

Afterwards he was difficult and prone to bouts of aggression in the home and elsewhere. He played truant from school. He sometimes threatened other members of the family without any real cause. This happened if someone asked him to go a message for them.

Mrs Burnett described how he would take his sisters by throat and on one occasion had threatened one of his sisters with a sheath knife when she refused to give him money. Police had been called on that occasion and Henry had been put on a year’s probation.

Her husband worked away from home on hydro electric construction schemes but had been brought back to Edinburgh on that occasion.

Mrs Burnett also stated that Henry had been examined at the Aberdeen University department of psychological medicine at that time and had subsequently attended out patients.

On another occasion, she explained, her husband had had to put up £10 caution for Henry’s good behaviour after another incident involving two of his sisters though she could not recall the details.

In 1961 Henry had attempted to commit suicide when his girlfriend had ended their relationship. He had taken an overdose of tablets and had been taken to the casualty department at Aberdeen’s Woolmanhill hospital. “He was not like other members of the family,” said Mrs Burnett. “If anything didn’t suit him he lost the head altogether. On these occasions he turned dead white and his eyes were just staring. … To a certain extent I was frightened of him.”

Mr Henry John Burnett gave evidence that his son had been in “a good few jobs” since he left school at 15 but the average duration of each was only 4 or 5 months.

Asked how his son behave at home Mr Burnett said he wasn’t too bad but “used to take awfu’ turns. He went kinda mad. He wasn’t responsible for what he would do. You didn’t know what to expect next.”

Mr Burnett said that Henry was all right until he had his accident at the age of 12. However, in cross examination by Mr Grieve QC, Mr Burnett acknowledged that the injury had been to Henry’s legs and not his head.

Dr Ian Lowit, consultant psychiatrist, gave evidence that he had been instructed by the defence to examine Henry John Burnett at Craiginches prison on June 3 1963.

He believed he was so instructed because he had previously seen Burnett two years earlier when he was brought into the casualty department of Woolmanhill hospital as an apparent attempted suicide.

Dr Lowit said, “My diagnosis then was that he was a psychopath. I would have considered him certifiable and would have certified him but he agreed to go to hospital as a voluntary patient.”

At that time Burnett went to Kingseat hospital but had discharged himself against medical advice after only a few days.

Dr Lowit also gave evidence of EEG testing – tracing Burnett’s brain activity – and believed it showed a definite abnormality. Dr Lowit also referred to what he believed were corresponding congenital abnormalities to the left side of his body.

Taking these together with Burnett’s family history Dr Lowit stated that he believed  was manifesting indications of psychopathy, an organic mental disorder recognised under the new Mental Health Act. He said at the time of the acts he had carried out Burnett would not have been capable of assessing their consequences.

Dr Lowit was cross examined by Mr Grieve and occasionally by the trial judge, Lord Wheatley.

He agreed with Mr Grieve that the derivation of the term psychopathy was “soul sick” but disagreed that that was a typical description of every member of the criminal class. “Some criminals are psychopathic personalities,” said Dr Lowit, but some are not.”

The final witness of the day was Dr John Gaylor. In his evidence he agreed that the EEG trace had indicated a brain “irritability” at a certain location. He suggested it was most likely to have been congenital – “an atrophy or wastage of part of the brain. … It is not a progressive atrophy. I think it would have been static from the word go. It could have been caused by measles, for example, in the mother during pregnancy.”

Dr Gaylor’s evidence concluded the brief defence case. The court rose for lunch in anticipation of closing submissions in the afternoon.

Mr Grieve’s closing submission for the prosecution referred to the three charges as “the three act drama of May 31st. The drama,” he said, “was played against the sordid background of a sailor’s wife who was unfaithful to her husband when he was away at sea and the lover who could not bear to see his mistress’s favour being given to anybody but himself.”

Mr Grieve recounted the evidence of fact that had been heard in connection with each of the three charges: the assault on Margaret Guyan at Skene terrace; the shooting of Thomas Guyan at Jackson Terrace; and the stealing of a car and threatening the owner at Mutch’s Garage.

He said it was never suggested by any of the witnesses at the scene that Burnett was wholly or partially insane.

Mr Grieve told the jury, “The onus is on me to satisfy you that the charges against Burnett have been proved beyond reasonable doubt as it is for the defence to satisfy you, if they can, that the special defence of insanity has been proved.

If you do not find it proved that Burnett was insane at the time, the second line of defence is that he was not wholly responsible for his actions – that his responsibility was diminished. … If you find that his responsibility was diminished at the time , the effect of that, so far as the charge of capital murder is concerned, would be to reduce that charge to culpable homicide.

If you are satisfied that Henry Burnett murdered Thomas Guyan you must bring in a verdict of guilty and you must steel yourself to do that. The effect of that verdict has nothing to do with you. You must not be influenced by the serious consequences it has for the accused.”

In his closing submission Dr R R Taylor QC said, “If you find the accused did assault, shooting and taking of the car,then I ask you to find the accused was insane at the time of these acts, and therefore to bring in a verdict of not guilty on the ground of insanity.

The consequence of that is not that the accused is set free. The consequence is that he could be detained during her majesty’s pleasure and that, in effect, means that he will be kept in a criminal lunatic asylum so long as doctors consider that it is unsafe for him to be at large.”

Dr Grieve’s alternative submission was that if the jury was not prepared to find Burnett was insane at the time of the acts, at least they must find he was partially insane and suffering from a state of diminished responsibility. The effect of that verdict was to reduce the crime from capital murder, which carried the death penalty, to culpable homicide for which the court could impose a long sentence of imprisonment.

The trial judge, Lord Wheatley, told the jury “It would be wrong to make your deliberations at a very late stage of the afternoon or evening.”

He would make his charge to the jury in the morning.

Commentary

In an interview for the radio programme, The Last Execution, in 1996 Ian Lowit explained he was relatively recently qualified as a consultant in child psychiatry 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 after the event Ian Lowit clearly felt he had badly let down Henry Burnett.

This entry was posted in Historical Cases, Uncategorized on by .

About John Forsyth

John Forsyth is a freelance journalist and editorial consultant. He 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. John is a former political editor of Scotland on Sunday and head of press office for Oxfam and most recently was editor of The Scotsman law and legal affairs section.

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