Report of trial judge to Secretary of State for Scotland.
For more than a century it had been established that the exercise of the Royal Prerogative to reprieve someone sentenced to death was effectively a political decision to be taken by the Home Secretary in England and Wales and by the Secretary of State for Scotland north of the border.
While the political decision maker was likely to receive many unsolicited pleas and petitions the trial judge was required to submit a report on the trial itself along with any additional observations.
It is fair to say that some of Lord Wheatley’s contemporaries were mildly surprised to discover from his autobiography that he was by inclination an abolitionist.
In his three page report to Secretary of State for Scotland, Michael Noble, Lord Wheatley rehearses the issues that had to be addressed during the trial, including consideration of the special defences.
“The defence did not contest the evidence adduced by the Crown to prove that the murder was committed by Burnett, and the Crown’s case was proved abundantly. The only issue was the state of Burnett’s mind at the time.”
Lord Wheatley supports the verdict of the jury “which, in my opinion, they were perfectly entitled to reach on the evidence.”
The greater interest lies in the third and final page of his report. If Lord Wheatley is not throwing the door to reprieve wide open, especially in his concluding paragraph he appears to opening it an inch. It would be for others to push hard.
TO THE RIGHT HONOURABLE THE SECRETARY OF STATE FOR SCOTLAND
The Right Honourable LORD WHEATLEY
regarding the case of
HENRY JOHN BURNETT, who was convicted of Capital
Murder and sentenced to Death in the High Court
of Justiciary at Aberdeen on 25th July, 1963.
… “I might add only this. If the jury had sustained the plea of diminished responsibility, thereby reducing the offence from capital murder to culpable homicide, I would have sentenced Burnett to imprisonment for the remainder of his natural life.
My reason for doing so would have been this. Without knowing the workings of the jury’s mind I would have assumed that they had accepted, at least in part, the evidence of the doctors. If that evidence is well founded Burnett is likely to suffer from paroxysmal outburst in the course of which he may indulge in violence, thereby constituting a danger both to society and himself.
A determinate sentence of imprisonment would have meant his release from prison irrespective of his then mental condition. Imprisonment for life would have enabled the authorities to keep his case under review, and the decision to release him could be made in the light of his current mental condition and the consideration of the safety of his lieges.
I would only add this in conclusion that 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 in the witness-box I would not be prepared to say. Burnett’s family background is not a happy one. It is doubtful whether all the facts were before the Court, and if this is regarded as an important element in the considerations which have to be taken into account, further enquiries might be made.”