Lord Wheatley’s charge to the jury was timed at just short of two hours.
He summarised the evidence that had been presented and focused on the central role in the events of Margaret Guyan “who might be described as a femme fatale.”
“In plain English, she appeared to be a somewhat fickle and immoral young woman but her morals are not at issue in this case … what you must decide is her honesty, reliability and accuracy as a witness. It is for you to decide whether you accept her as a credible witness.”
Lord Wheatley said there was ample evidence, if the jury accepted it, of the assault on Mrs Guyan described in charge 1.
With respect to charge 2, the murder charge, he stated that if the jury accepted the evidence of Mrs Guyan, Mrs Henderson and Miss Cattenach there could be little doubt that the murder had been established and that Henry John Burnett was the perpetrator.
He advised the jury that it is not for the Crown to prove motive although if the Crown could do so it was often an added and sometimes compelling factor in the case. “You may think it has been established almost beyond peradventure that jealousy was the motive – that the accused was jealous of the husband he had never before seen and to whom his mistress was returning.”
Lord Wheatley reminded the jury that if they thought the Crown had not proved its case in any one of its charges then that was the end of that charge.
If the jury thought the Crown had proved its case in regard to the three charges they must then consider the special defence of insanity.
“In doing so you must have regard to the evidence as a whole and not just the medical evidence.”
Lord Wheatley directed the jury on the verdicts open to them. They could find Burnett guilty as libelled; they could sustain the special defence that he was insane at the time of the acts; or they could uphold the secondary defence of diminished responsibility, the effect of which would be to reduce the capital murder charge to culpable homicide.
The jury retired but returned with their verdict in barely 25 minutes with unanimous guilty verdicts on charges 1 and 3 and guilty by a majority on the capital murder charge 2.
Burnett’s sister, Mary, sitting between her father and brother Francis began to weep.
Lord Wheatley pronounced the death sentence in the set words of the time:
“John Henry Burnett, in respect of the verdict of murder just received the sentence of the court is that you be taken from this place to the prison of Craiginches, therein to be detained until the 15th day of August, and upon that day within the said prison of Craiginches between the hours of eight and ten o’clock forenoon you suffer death by hanging; which is pronounced for doom.”
When he had finished, Mary stood in the public gallery and shouted, “Oh, no. They cannae dae that to him. It’s her should be in here, no him.”
Police and court officials ushered the family from the court room while Henry Burnett was taken down to holding cells and then driven to the newly refurbished condemned block at Craiginches prison, the only person ever to occupy it.
Afterwards Henry Burnett’s family told reporters both that their lawyers would be preparing an appeal and also that they would be raising a petition asking for clemency.
Among the first to sign were members of the Guyan family.
Mrs Jeannie Guyan, Thomas’s mother, said, “I can find it in my heart to forgive Henry Burnett. It’s his mother I feel sorry for. I know what she must be going through. I sent my son John along to see the Burnetts today. I am backing the petition. I don’t think Henry Burnett should hang.”
John Guyan who had only come to know the Burnetts during the trial said, “I went to see them today. They are getting up a petition and we are going along with it. I don’t think Burnett should hang. There is obviously something wrong with him.
Commentary: Lord Wheatley.
In his 1987 autobiography, One man’s Judgment, Lord Wheatley acknowledges that he delivered the last two death sentences in Scotland – John Henry Burnett and Anthony Joseph Miller. Miller was 19 when he was hanged at Barlinnie prison on 22 December 1960 for his part in what would now be called the homophobic robbery and murder of John Cremin at Queens Park Recreation Ground in April that year.
Lord Wheatley does not in fact name either the victims or the men he sentenced to death or offer any specific insight into either trial.
He does state in general terms that delivering a death sentence was “the most disagreeable task which a judge was called upon to perform” and offers a practical tip from the bench: “As he pronounced the words ‘which is pronounced for doom’, the judge held the three cornered black cap over his head. He had to do so because the cap would not with certainty balance on top of his wig, and the risk of it falling off at that dire moment could not be taken.”
Lord Wheatley continued: “I have always been an abolitionist, a fact which did not make my task easier, and I was glad to see capital punishment abolished. But a judge has to administer the law as it is, not as he would personally like it to be. The alternative would be judicial anarchy.”
Commentary: The Jury.
Robert Henderson recalled in The Last Execution radio programme: “The manager of the Douglas hotel had reserved 13 rooms for the jurors and staff in anticipation that deliberations would be protracted. They were back in 25 minutes with a verdict of guilty by a majority of 13 – 2.”
Mr Grieve and I left the court. We were pretty upset about the whole thing. When we joined the queue at the railway station ticket office we discovered we were next to the man who had been foreman of the jury. I think he had been the headmaster of a school in Montrose.
In those days you were allowed to speak to jurors though it wasn’t often done. We were offering platitudes to him about how difficult it must have been and so on and he said, ‘No, not at all. The choice was whether this man was mad or bad. I see boys like this every day who are just bad. Quite a few of the women on the jury didn’t want to see a conviction recorded. I just told them we had to do our duty. So we did our duty.’”