Tag Archives: Scots Law

Is there still a thing we can call Scots law?

There is certainly plenty of law taking place in Scotland. The Scottish Parliament has not held back on legislation since it opened for business in 1999. Our legal academics can trace the roots of a distinct conceptualisation of Scots law back through the centuries to the Low Countries and ancient Rome. Our politicians are still occasionally to be heard insisting our jurisdiction and its institutions are unique and regarded with envy round the globe.

The reason I pose the open question, however, is based on the recent run of decisions of the UK Supreme Court that have overturned three out of the last five decisions of the Inner House of the Court of Session, the tip of the conceptualisation pyramid in Scotland.

According to the Scottish Judiciary website: ‘The Inner House deals mostly with appeals…The Inner House is divided into the First and Second Divisions, [each of six judges], which have equal authority and are chaired by the Lord President and Lord Justice Clerk respectively’.

The Inner House contains our wisest judicial heads who serve as stewards of our law as it meets new challenges of fact and circumstance that turn up in the lower courts in Scotland. And it tidies up fumbles further down the pyramid. In the longer view, since the inauguration of the UK Supreme Court in 2009, it turns out the Inner House has had its decisions upheld more often than not – approximately in a 3:2 ratio.

A glance over the entire spreadsheet of UKSC business since it took over from the judicial committee of the House of Lords suggests at first glance that that’s as good a rate of UKSC endorsement as their colleagues from the English, Welsh and Northern Ireland courts. Possibly better.

There are two important qualifications to note. First, Scottish civil cases have a direct route to the UKSC that is not enjoyed by prospective appellants in the other jurisdictions. They must seek leave to appeal from their own courts and an assessment is made at that stage of what the issues are and whether there is a significant new legal point to be argued. If they are refused leave to appeal they can appeal that decision to the UKSC. Some do and many of those are refused again. The UK Supreme Court does not appear to be actively seeking work.

The UKSC statistics show that 43 of its 207 cases – 20% – in the three years from 2011/12 to 2013/14 came from Scotland.

In a two-part blog on the UKSC website in May 2013 advocate Aidan O’Neill explained the convoluted constitutional route that created this direct access from the 1689 Claim of Right through to the UKSC via the 1707 Treaty of Union and the House of Lords.
The Inner House success scorecard should therefore be viewed in the context that several Scottish appeals against its decisions would never have reached the Supreme Court at all if they had come from England and Wales.

Aidan O’Neill cited an observation from Lord Reed in a 2013 case of Upritchard v Scottish Ministers that ‘the appeal did not on examination raise any arguable point of law of general public importance’ and hearing it ‘was not an appropriate use of the time of this court’. The sentiment has been repeated in several cases since.

The second qualification, however, is that among the successful appeals against Inner House decisions are several that have stretched the UKSC judges to the limit to find diplomatic words to convey their incredulity at the decisions reached in Edinburgh.

In the interface between the criminal appeal process, previously assumed to end in Edinburgh, and the European Convention of Human Rights, justiciable at the UK Supreme Court, the cases of Cadder in 2010 and Fraser in 2012 induced apoplexy in first minister Salmond and justice secretary MacAskill, when the High Court of Appeal was overturned by the judges in London.

In the Cadder case, concerning the right of an accused person to legal advice before being interviewed by police, a decision by a seven-judge Scottish bench was overturned in brutal terms by seven judges of the Supreme Court. It was asserted in public by certain politicians and in private within Parliament House that this was an outrageous interference in Scottish criminal justice by representatives of an alien jurisdiction. For alien, read English, even though the law they were applying was European and would have reached the same decision even if the UK Supreme Court had been taken out of the loop.

It was a humiliating moment. The Scottish Government introduced emergency legislation at Holyrood. Solicitors threatened to boycott the ad hoc scheme dreamed up by the government and the Scottish Legal Aid board to plug the gaps in coverage of overnight arrests. In the end it does not seem that Cadder brought down the structure of Scottish criminal law.

But was there anything in the argument that maybe the Scots judges were more in touch with the Scottish public and the Scottish way was distinctive and worth arguing for? Or is the Scottish bench essentially conservative and resistant to the idea that sometimes they do do it better elsewhere?  Neither argument has been pursued for the benefit of the Scottish public.

The names of Cadder and Fraser in the footnotes of criminal law have been joined by similar broadsides in the family law cases of Principal Reporter v K and even NJDB v JEG in 2012. The latter is formally listed as an appeal dismissed and the Inner House endorsed but the terms in which the administration of Scottish family law was ripped to pieces led Lord Gill to set up a task force under Lord Brailsford in pursuit of the ‘culture change’ recommended by the Supreme Court.

Of the most recent five judgements in Scottish cases handed down by the UKSC since last December, three have overturned Inner House decisions.

The fourth, Moohan and another v The Lord Advocate, concerned an application by prisoners to be allowed to vote in last year’s indpendence referendum. The Inner House decision was that a referendum was not covered by the electoral law on which there has been a succession of European decisions declaring the blanket ban on prisoners voting in a general election non-compliant with the ECHR. Interestingly there were two dissenting opinions within the five-judge bench. This may yet turn out to be unfinished business.

The fifth was the Sustainable Shetland v Scottish Ministers appeal against Scottish Ministers’ decision to allow the construction of a wind farm in Shetland. It was one of those cases that relied on the unimpeded 1689 route. It didn’t delay the judges long.
Of the three appeals upheld against the Inner House, McGraddie v McGraddie at first sight concerned a dispute between a father and a son about property transactions. The first instance judge found in favour of the father and made his determination accordingly.

The Inner House upheld an appeal by the son. The Supreme Court took a very dim view not only that it had interfered with the decision of the lower court but had substituted its own view of the credibilty of the witnesses whom it had not heard.

It was a comprehensive criticism that ‘the Inner House had no proper basis for concluding that the Lord Ordinary had gone plainly wrong, let alone that on a re-consideration of the whole evidence that an opposite conclusion should be reached’. Ouch.

The sequence appears to have been similar in the case of Greater Glasgow Health Board v Doogan and another. Two midwives sought to excuse themselves from any involvement with patients who are having a termination of pregnancy. They had argued that grounds of conscience which excused them from ‘participating’ in a termination should be extended to wider ward support of women admitted for termination.

Again a judge at first instance rejected their case but the Inner House intervened and allowed their appeal. And again the UK Supreme Court gave their legal justification very short shrift.

Finally, perhaps the most curious case of all – concerning Jackson v Murray and another. In a tragic incident in January 2004 a 13-year-old schoolgirl, Lesley Jackson, stepped out from behind her school bus on the Banff-Fraserburgh Road and was severely injured when struck by a car on the opposite carriageway. It was after school on a dark January afternoon.

After an extraordinary passing of time she was awarded some damages in the Court of Session by Lord Tyre who nevertheless determined that she was 90% responsible for the incident. The financial award was reduced accordingly. There’s law on contributory negligence even for 13-year-olds.

That attribution of contributory negligence to Lesley Jackson was appealed to the ‘extra division’ of the Inner House. Three judges, Lord Clarke, Lord Drummond Young and Lord Wheatley explained that it was a difficult matter to interfere with a decision made by a judge in an area that allowed considerable discretion. Nevertheless, they did and reduced that attribution of contributory negligence to 70%.

Their decision was appealed to the UK Supreme Court which in turn explained last month that it was a difficult matter to interfere with a decision of a judge in an area that allowed considerable discretion etc. Nevertheless, in his leading judgement, Lord Reed overcame his reluctance and with the support of Lady Hale and Lord Carnwath further reduced the liability to 50%.

Lord Reed said: ‘I cannot discern in the reasoning of the Extra Division any satisfactory explanation that the major share of the responsibility should be attributed to the pursuer…’. Eleven years later it appears to be the end of the road.

Lord Reed is one of the two Scottish members of the Supreme Court. The other is Lord Hodge who dissented with an opinion that accepted that the 70% finding of contributory negligence was indeed high but he didn’t think that it was correct for the Supreme Court to interfere.

Whatever the jurisprudential rights and wrongs of these decisions, or the sympathies that go to anyone mired in litigation for years and the financial and emotional stress that are part of the experience, it is difficult to detect any distinctive Scottishness or Scots lawishness at stake in these manifest disagreements between the courts in London and Edinburgh. Is the Inner House protecting or even developing Scots lawishness under its stewardship?

I return to my opening question. Is there still such a thing as Scots law? Is it distinctive? If it is, how is it distinctive? Is it better? If it is, how is it better? Is it in tune with the perceptions of modern civic Scotland? The arguments are not being made one way or the other. We really are entitled to know what the significance is of this sequence of reversals.

Right now, I have an open mind though I rather think if I have to ask then I probably know the answer.

A judgment will be delivered at the UK Supreme Court on Wednesday March 11th in the case of Montgomery v North Lanarkshire Health Board. The court has been asked to consider an appeal against and Inner House decision and its application over several decades of the Scots courts approach to medical negligence claims. It’s significance will be far wider than the direct interest of the parties.

Sweet intoxication of prejudice confirmed

I nearly drank some Buckfast once.

In the name of journalism I decided ten years or so ago I should find out for myself what it was about the brown-bottled concoction that had become shorthand among police, politicians and stand up comedians for street drunkenness and violence.

By reputation it provided the quickest route to daily oblivion for many Scots who didn’t want to take too long about it.

I got as far as taking a swig but couldn’t actually make myself swallow it. My gag reflex wasn’t that enthusiastic about what in the old days was called new journalism.

Nevertheless I remained curious how and why ‘Buckie’ had become individually identified as being particularly responsible for so much harm while remaining legal.

Along with everyone else I had heard the much cited Strathclyde Police statistic that it had been mentioned in more than 5,000 crime reports over a period of three years.

Wow, that was a lot. Or was it?

And what precisely did ‘mentioned’ mean?

Still in the name of journalism I submitted some FOI questions to Strathclyde Police last February that I hoped would elicit some explanation and context.

First, the context. The FOI answers clarified that in the three year period in question, 2007 – 2010, the force had recorded 955,708 crimes and offences.

“The term ‘Buckfast’ was found to appear in the free text summary field of 5,973 of these crimes and offences.”

Just over half of one per cent.

The FOI officer very helpfully explained the reference to ‘free text summary field’: “Crime reports contain a free text summary field which can be searched electronically. The field is short, with a maximum of 254 characters in length permitted. The summary field is necessarily a brief description of events and is searchable. This field was interrogated for the following terms ‘BUCKFAST’, ‘Buckfast’ and ‘buckfast’.”

I asked if the free text summary fields [just over a tweet and a half worth of text] had been searched for any other alcohol brands or generic terms.

“Other terms were also searched. Each was searched using UPPER CASE, Proper Case and lower case variants. These included ‘Alcohol’ (69,773 hits out of 955,708), ‘Vodka’ (2,339), ‘Whisky’ (820), ‘Beer’ (3,394), ‘Lager’ (6,023), ‘Cider’ (4,124), ‘Merrydown’ (141) and ‘Tennents’ (1,615).”

So lager actually came out ahead of Buckfast. I haven’t heard any calls for it to be subjected to additional controls or special (no pun intended) police attention being paid to those who sell it.

Of course, I note that the vast majority of the reports that mention alcohol do not specify any particular brand or generic product so there is no way of knowing whether the distribution of each of the above would be replicated across all 69,733 mentions. Or, thanks to confirmation bias, whether the notorious ones are disproportionately more likely to be specified. Their share of the 69,733 mentions might actually be less. That is, might police have been more likely to mention Buckfast because of its reputation?

I note also in passing my surprise that relatively few of the reports mentioned alcohol at all given the conventional wisdom that so much of crime in Scotland is alcohol related. 69,733 mentions is less than 7% of the total.

Given the above information, I was not taken by surprise yesterday when it was announced that Police Scotland had settled out of court the court of session case brought against it by Buckfast’s distributors, J Chandler & Co.

The Police apologised to Buckfast for the actions of an individual officer who tried to stop a retailer from stocking the tonic wine.

They also apologised for any “distress or inconvenience” caused to the shopkeeper and promised not to target Buckfast in this way again.

In a written undertaking, Assistant Chief Constable Wayne Mawson said the police “will not request licensed retailers, situated anywhere in Scotland, to cease stocking for sale Buckfast Tonic Wine”.

It will have been an expensive stand off for both sides and despite the decorous language by both parties the settlement is an embarrassment to Police Scotland.

It was a bit of a  misjudgment in the first instance by whichever officer it was who thought it was a good idea to search for Buckfast. It was a far bigger error by, presumably, more senior officers to ignore not only the results the search threw up but also the utterly flawed methodology of the search in the first place. The statistic should have been binned, not published.

I am more concerned by the willingness of so many commentators and politicians up to ministerial level to accept the wobbly statistic and repeat it. And even top it by advocating a new concept of product specific policing policy based on it.

It was as if a product that is believed on the streets to offer the quickest route to oblivion is the problem to be addressed rather than the desire for such speedy oblivion of so many of our citizens.

I know there are few experiences quite as intoxicating as a prejudice confirmed but I am concerned that so much of current Scottish political discourse is driven by beliefs in search of evidence.

My toast is for more curiosity, more scepticism and less desperation always to find someone to blame.

Lord Carloway takes on the criminal trial

Lord Carloway, Lord Justice Clerk, is no stranger to controversy as the author of the proposal to abolish the longstanding Scottish requirement for corroboration of evidence by  more than one independent source of evidence in a criminal prosecution.

Now he is setting his sights on the criminal trial itself and the associated rules of evidence that he suggests have trapped procedures in a structure that made sense in the 19th century and before but is no longer the guarantee of ‘best evidence’ in the 21st century.

It is a theme touched on before Christmas in a speech by Lord Judge who retired last summer as Lord Chief Justice in England and Wales in the context of slashing the number of children who are called to give evidence in court. But Lord Carloway has been thinking in far more radical terms.

I’m not sticking my neck out too far to predict that his latest intervention will cause no less apoplexy within the profession.

Speaking to me last week Lord Carloway said we need some “clear skies thinking” that will  make best use of technology in recording matters of fact and give more consideration to witnesses in offering their testimony at a time that is convenient to them rather than the diaries of paid lawyers and judges.

This idea that everybody comes together at the once place at the one time for a trial of the evidence is essentially borne out of the conditions that existed in the 19th century and before. There was no means then of accurately recording what people had said at the time of an incident. 

Equally there were no means of copying other than manually or recording the state of a “thing” – a production.  You had to have a system where the judge and the jury had to see and hear the witnesses personally. It was the only way it could be done. The ‘best evidence’ was to have the thing or the document or the witness ‘live’ in court in front of the judge and jury.

What I’m saying is that the system of justice should be putting in place systems for the gathering evidence that take advantage of modern technology. An eye witness could record what they saw  as soon as possible after an incident on a smart phone or similar. That is likely to be a more accurate account – reliable or not -  of what they they think they saw than a statement written down by a police officer which inevitably loses nuances and expression and which they may have to speak to a year or more after the event.

We should seldom require people to attend court when they could be giving their evidence at any time. Especially in relatively minor cases – though it would apply across the board – we could have a situation in which a witness can give evidence on video – even on a mobile phone at a time convenient to him or her and that would be accepted by the court as their evidence.

I’m not saying the current structure of the criminal trial isn’t by and large doing what it ought to do. I have faith in its general effectiveness but like all systems it has to change with the times. We could do better in the way we treat victims, witnesses and juries. Judges and lawyers are paid for their part in the process and have control over their diary. I think we need to give more consideration to the way the process affects the lives of the members of the public who are drawn in by chance and accident. Why doesn’t our system allow them to give their evidence when it is convenient to them and not when the legal professionals have fixed some dates in their diary that suits them?”

Lord Carloway suggests giving more consideration to the convenience of the witnesses may address some of the disruptions to prolong cases at inconvenience to all parties and at expense to court budgets: “Adjournments and postponements were not common features in the Victorian age but times have changed. Now trial diets are continued 3, 4 or 5 times when a witness or even the accused fails to turn up. Waiting time, which is fundamentally wasted time, is inherent and endemic in the current system and impedes rather than ensures justice in many cases.”

Lord Judge gave a speech at the end of last year saying that it is unsatisfactory that tens of thousands of children are called to give evidence and cross examined, sometimes for days, in court. Is that the best way of establishing the facts of their evidence? We are some years ahead in Scotland in that regard with the Children and Vulnerable Witnesses Act and the Victims and Witnesses Bill currently in Holyrood that allow for video-recording of  taking and testing of evidence ‘live’ but not necessarily at the same time as the rest of the trial. The video can be played to the trial.

The point I am making is that why should that not become the norm for all witnesses unless there is a strong reason for it to be done in court.”

Lord Carloway anticipates the predictable European Convention of Human Rights objection protecting the right to a fair trial. What, for example, about cross examination?

There is a right to examine witnesses. Article 6 of the ECHR sets out a right that has to be protected that an accused person – or indeed the prosecutor – has the right to examine a witness if that testimony is key or decisive. The fact that the right exists to challenge or test evidence does no specify that it should be done in a court room or carry with it the necessity that it is done at the same time as everything else.” 

News of Lord Carloway’s latest thinking caught Brian McConnachie QC rather by surprise. His first response was not enthusiastic.

Video recorded evidence has been available for child witnesses for some time. But children are the exceptions. I don’t think they represent a principle that has been demonstrated to be so successful it can be applied to all witnesses.

I am all in favour of using whatever technology we have to make life easier for people who find themselves cited as a witness but that is a long way from taking apart the criminal trial as we know it. Technology may be able to offer useful improvements but anything more far reaching than that should be sent to the Scottish Law Commission for detailed consideration.”

The reservations were echoed by Derek Ogg QC: “In my experience both as a prosecutor or defence lawyer live examination and cross examination in front of a jury and in the presence of the accused is best evidence. We now have systems of videolink for children and vulnerable witnesses but it is second best. That’s why the defence rarely object to it. We don’t want juries to watch evidence in the same way they’d watch reality TV.

The only law I’ve found infallible is the law of unintended consequences. We really need a royal Commission or similar to look at the whole of the criminal trial to make sure we don’t throw the baby – justice – out with the bath water.”


Henry John Burnett was hanged at one minute past eight at Craiginches prison this morning.

 The Aberdeen Evening Express reported that “a crowd of around 200 men and women stood in silence in the watery sunshine outside the prison. The only demonstrator was ice-cream salesman, Mr John Gibson (29), who wore placards saying ‘Abolish Legal Murder’ and ‘Vengeance is Mine Sayeth the Lord’.

He paraded along the pavement near the prison gates where five policemen stood guard.

The only hint of trouble came at 8.15am when seven warders came out of the prison. There was a minor outburst of booing and a cry of ‘You murderers’.

Five minutes later a senior police official told the waiting crowd: ‘It’s all over. There will be no notice posted on the gates. You can all go home now.’”

A formal statement was issued later from the scottish Home and Health Department:

The sentence of death for capital murder passed on Henry John Burnett at the High Court in Aberdeen on July 25, 1963, was executed this morning at H.M.Prison Aberdeen.


331/63. Henry John Burnett, Capital Murder. Death

Extracts from Special Watch Occurance Book.

5.8.1963 Visit from mother and Sister in Law.  Conversation mostly of trying to get him to appeal, still refused, said he would think it over.  Also talked of family and petition.

5.8.1963 Prisoner  very cheerful indeed.  During the course of the evening he said that none of the officers that were with him on the watch would go with him to the gallows.  If they did they would have a riot on their hands.  He said he wouldn’t like his friends going with him.

A. McGillivray Officer

A. Pirie Officer

5.8.1963 Prisoner spoke of visit from mother, annoyed at her being kept waiting while he was interviewed by Doctors. “If he knew who they were he would have refused to see them.”  Also spoke about his Appeal period being up tomorrow Tuesday.  He read a while and played dominoes.  He was still cheerful but did not talk much while playing

E Bissett Officer

A Duncan Officer


331/63. Henry John Burnett, Capital Murder. Death

Extracts from Special Watch Occurance Book.

4.8.1963 Visit from two sisters, Mrs M Smith and Miss Sheena Burnett.  Sister Mary asked him to appeal for his mother’s sake, replied he wouldn’t, she asked again who cleaned the fingerprints off the gun, he said he didn’t know. Conversation went on to family and how they were all bearing up. Sister Mary again asked him to Appeal, he still refused, and said there would be no more visits after Sunday (next).

4.8.1963 Prisoner very depressed.  Played cards and listened to Radio. He appeared to cheer up as time went on.  It appears that his reason for not appealing is that, it would be 14 days longer to wait for the sentence to be carried out.

A. McGillivray Officer

A. Pirie Officer

4.8.1963 Prisoner spoke about his sister wishing him to Appeal.  Also Sister in Law, getting a visit from her next Sunday.  He said (he wondered if he would crack up on the last day).  The he changed the subject and spoke of the money and good times he had had at sea on Drifters.  Also spoke about being up on the Faroes in them.  He seemed to be cheerful in recalling these times.

E Bissett Officer

A Duncan Officer


331/63. Henry John Burnett, Capital Murder. Death

Extracts from Special Watch Occurance Book.

3.8.1963       Visit from Sister and Brother in Law. Conversation was of family matters and how his brother in law was doing at sea.  Went on to say why he did not Appeal, said he just didn’t want to Appeal, but would rather wait for the results of his petition.

I asked him for his reasons for not appealing, he said, “This way there is only one in trouble, it’s the better way.”

A McGillivray           Officer

A Pirie                      Officer

3.8.1963     Prisoner listened to wireless and spoke of the different recording stars.   He was quite cheerful and played dominos till 1.30am. He then asked to write a letter to Mrs Guyan.  When he finished writing he said, I will not take any more visits from anyone after next Friday.

Also spoke about his appeal period being finished on Tuesday and about working in a Quarry for a period and the times he had with some of the chaps he worked with.

E Bissett                Officer

J Duncan               Officer


331/63. Henry John Burnett, Capital Murder. Death

Extracts from Special Watch Occurance Book.

1.8.1963 Visit from Father and Sister, talked about Margaret (Mrs Guyan). It appears she had wrote a letter to his mother saying that she had no heart called his sisters whores.  Had an argument with his sister, he broke down, went upstairs and had a good cry.  After a considerable amount of reasoning with him he came back to visit.  I allowed him to smoke, it settled him a good bit.  Visit carried on quite normal and conversation changed to his appeal and the petition, seems to think he has more chance with the petition if he does not appeal.  Remarked that if he got a reprieve he would do his time the correct way and authorities would never know he was in jail.

A. McGillivary Officer

A. Pirie Officer


331/63. Henry John Burnett, Capital Murder. Death

Extracts from Special Watch Occurance Book.

31.7.1963 During the course of the afternoon the prisoner said, there were two doors on the oak panel wall that led straight into the hanging cell.  As this was acute observation on the part of the prisoner and I had not noticed any door or anything wrong with the oak panel wall, I privately checked with P.O. Fraser and found this true.  I was surprised at the prisoner’s powers of observation and alertness.

F S Parker Officer

C Riddoch Officer

Please note that precautions have been taken to prevent any breakthrough in execution cell by Burnett.

Joseph Maison C.O. i/c

[A handwritten note is inserted in the margin beside his typewritten comment by Jospeph Maison:

In the event this concealed door will not be used.”]

31/7/1963 Prisoner seemed quite normal and cheerful, remarked about the concealed door, said he would take a mad turn one of these days and see what was behind it. He also remarked about killing Guyan, said he felt just the same as if he had shot a bird.  We then went on to talk about his visit tomorrow from his sister, he asked if I knew her. Told him I didn’t.

Played cards and talked of his work previous to being charged and where he met Mrs Guyan and of a party held at her house.

A. McGillivary Officer

A. Pirie Officer


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.




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.”