Graeme Burnet - His Bloody Project

‘It is for this reason that I ask you to return a verdict of not guilty in this case. There is an onerous responsibility on your shoulders. But you must act in accordance with the law and not be swayed by any reasonable and human feelings of revulsion towards these dreadful acts. At the time of the commission of these crimes Roderick Macrae was suffering from an absolute alienation of reason and, for this reason, he must be acquitted.’

It was, wrote Mr Philby, ‘a bravura performance, delivered with great aplomb. No one present could doubt that the prisoner had received the ablest and most rigorous defence and that the finest spirit of justice is thriving beyond the boundaries of Scotland’s metropolitan hubs.’ As he resumed his seat, Mr Sinclair dabbed his brow with a handkerchief and received a clap on the shoulder from his assistant. From across the aisle, Mr Gifford offered a low bow of his head intended to convey his professional appreciation.

The Lord Justice-Clerk allowed a few moments of hubbub, before he brought the court to order. He commenced to charge the jury at three o’clock and spoke for some two hours. ‘His summation,’ wrote Mr Philby, ‘was a model of even-handedness and a credit to the Scotch legal system.’ After the customary introductory remarks and praising counsel for the manner in which they had conducted the case, he explained to the jury that ‘in order to return a verdict of guilty, in regard to any of the three charges contained in this indictment, there are four things of which you must be satisfied upon the evidence. In the first place, that the deceased died by the blows and injuries described; in the second place, that these blows were wilfully administered for the purpose of destroying life; third, that it was the prisoner in the dock who so administered these blows; and, if you are satisfied on these points, in the fourth place, that the prisoner was in possession of his reason at the time when he committed these acts. If the evidence is defective in any one of these particulars, the prisoner is entitled to an acquittal; but if, on the other hand, you are satisfied of these four things, there remains nothing for you but the stern and painful duty of conviction.’

There was, of course, little dispute over the first three points, but as was his duty in law, the Lord Justice-Clerk proceeded to recount over the next hour or so, the evidence first of the medical witnesses, then of those villagers who had seen or spoken to the accused in the aftermath of the crimes.

He then turned to the Special Defence of Insanity. ‘The test you must apply,’ he said, ‘is that a person may be found to be insane, if at the time of the act, or acts, he was labouring under such a defect of reason or from a disease of the mind, that he did not know the nature and quality of the acts he was committing, or that he did not know what he was doing was wrong. It is not for you, or for I, gentlemen, to question the validity or not of these guidelines. These are the rules in law and this is the assessment which you must make in this case.’¶¶¶

¶¶¶ This is a summary of the M’Naghten Rules, which had been the accepted test of insanity for criminal cases in both English and Scottish courts since 1843.

‘We have heard in the course of this trial from a number of witnesses who have known the prisoner for his whole life, and their accounts of his character are entitled to form part of your consideration. In particular, we heard evidence from Mrs Carmina Murchison and her husband, Kenneth Murchison. Both of these witnesses are to be commended for the clear and sober accounts of the most distressing aspects of this case. And both of these witnesses testified to the prisoner’s habit of appearing to converse with himself in an unusual manner. We do not, however, know the contents of these conversations, and while this behaviour can rightly be seen as eccentric, it is not adequate, in itself, to regard the prisoner as deprived of his reason. On the other hand, you may regard this behaviour as a fragment — though no more than that — in a larger picture which might, in totality, add up to a picture of insanity. We have also heard the testimony of the victims’ relative, Mr Aeneas Mackenzie, who was forthright in his view that the prisoner was not of sound mind. However, you are entitled to ask yourselves whether his evidence might be tainted by the understandable feelings of anger he clearly felt towards the prisoner. You must also consider the intemperate manner in which his evidence was given, and pay heed to the fact that Mr Mackenzie is in no way qualified to pass judgement on the sanity or otherwise of the prisoner. As such, Mr Mackenzie’s statements should be treated with caution. However, as with the evidence of the other residents of Culduie, it is for you to decide what, if any, importance should be placed on his testimony.’

The Lord Justice-Clerk then moved on to consider the evidence of the prisoner behaving in an unpredictable or eccentric manner. He summarised the incidents that took place during the deerstalking party and with Flora Mackenzie on the day of the Gathering. He was dismissive of both. The first, he said, ‘cannot be regarded as more than an act of silliness on the part of an immature young man, aged a mere fifteen years at this time.’ In the second, he continued, ‘the dual roles of youthful attachment and the effects of alcohol — to which the prisoner was unaccustomed — should not be overlooked.’ It was a matter for the jury to evaluate the importance of these incidents, but the judge cautioned against giving them undue weight in their deliberations.

He then turned to the evidence of the two expert witnesses. ‘Both sides in this case,’ he began, ‘have called witnesses who are experts in their field, either through study or through experience, and both these witnesses have passed judgement on the critical matter of the sanity or otherwise of the prisoner. You are obliged to give full weight to the opinions of both of these witnesses, but you are not required to agree with them. If you choose to disregard the evidence of one or either of these witnesses, you should do so only after the fullest consideration and with good reason.

‘Dr Hector Munro, called by the Crown, is a medical doctor of long experience both in general practice and at Inverness gaol, where by his own reckoning he has examined many hundreds of prisoners. Dr Munro conversed at length with the prisoner and found him to be “one of the most intelligent and articulate prisoners” he had examined. He enumerated various indicators of insanity and stated that he found none of these present in the prisoner. In view of his experience in dealing with the criminal population and his demonstrable knowledge of diseases of the mind, Dr Munro’s opinion deserves to be treated with proper consideration.’

The Lord Justice-Clerk then turned to the evidence of Mr Thomson, ‘a man of the highest standing in the field of Criminal Psychology. It was also the opinion of Mr Thomson that the prisoner was not insane and was cognisant of the wrongful nature of the actions which he committed. Now, while this opinion must, like that of his colleague Dr Munro, be afforded the fullest weight in your deliberations, it is my duty to evaluate his reasons for reaching this conclusion. This is of particular consequence because Mr Thomson’s opinion rests on a distinct interpretation of the facts of the case, an interpretation distinct from that put forward by the Crown. Mr Thomson contended that the prisoner went to the Mackenzie household not with the goal of murdering Lachlan Mackenzie, but with the intention of harming his daughter, Flora, for whom, we have heard, the prisoner had a strong attachment. Mr Thomson’s supported this view with reference to the obscene injuries inflicted on Miss Mackenzie’s person, injuries which, in his view, would not have been inflicted had Miss Mackenzie merely been an incidental victim in this crime. Moreover, what convinced Mr Thomson that the prisoner was not labouring under what we have heard called “moral insanity” was evidenced by the fact that in various statements the prisoner asserted that his motive had been to kill Lachlan Mackenzie. This disingenuous stance, Mr Thomson insisted, illustrated that the prisoner knew what he had done was wrong and can thus not be regarded as morally insane.