Douglas Skelton
19Sep

The Third Verdict

Posted by: douglasskelton3 Categories: blog entry True Crime
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Controversy has dogged Scotland’s Not Proven verdict for decades. Douglas Skelton looks at the history of the ‘Bastard Verdict’

HERE’S a wee legal riddle: When can a man be cleared of murder without a verdict of Not Guilty?

Answer: When the charge is Not Proven.

If you are scratching your head and furrowing your brow, then you clearly are not acquainted with Scotland’s unique three verdict system. Don’t feel too badly – many legal minds find it a puzzle, too.

Sir Walter Scott called it the ‘Caledonian medium quid’.

Thankfully, he let those with no classical education off the hook with the more tabloid-friendly label ‘that bastard verdict.’

It is true that the third verdict does seem mired in the no man’s land between guilt and innocence, even if it does let the accused off Scot Free, as it were. 

William Roughead, that doughty old commentator on all things Scots Law, maintained its message was, ‘Not Guilty, but don’t do it again.’

Judge Gerald Sparrow, author and barrister, compared the systems on both sides of Hadrian’s Wall thus, ‘I have often thought that the distinction typifies the different spirit of Scottish and English law: the Scottish being more logical, the English more sporting….’

And there, as they say, is the rub. 

For a Not Proven verdict is logical in a curiously illogical way. As Lord Justice General Clyde said in 1964, ‘It gives a jury, who have some lingering doubts as to the guilt of an accused and who are certainly on the evidence not prepared to say that he is innocent, the chance to find the charge against him not proven.’

However, if the jury has any lingering doubts, are they not duty-bound to acquit? Yes, but in Scotland, where someone can go down on a simple majority of 8-7 (it being a job for 15 good men and women true) the third verdict is seen as a further safeguard against miscarriages of justice.

And Scotland has in the past been notoriously unwilling to recognise mis-steps in law.

That comes as little solace to the families of murder victims, who watch a person they have been told has robbed them of their loved one walk free, not because the jury thought him innocent but because they could not reach the firm conclusion that he was guilty.

The three verdict system came into being almost by accident.

In days of yore, verdicts under Scots Law were ‘convickt and ‘cleansit’.  

When Oliver Cromwell’s armies emerged victorious against the Royalists (the Civil War also having raged north of the border) he brought judges up from down south and they insisted that ‘Guilty’ and ‘Not Guilty’ verdicts be imposed.

When the Restoration came, courts began to use the terms ‘Proven’ and ‘Not Proven’, guilt or innocence being an irrelevance in law. It’s what can be proven that matters.

But, in 1728, an argument between Scottish noblemen resulted, as their disagreements often did, in harsh words and drawn swords. The Earl of Strathmore found himself on the wrong end of Carnegie of Findhaven’s blade when he inadvertently stepped in its way to protect a friend. Carnegie’s lawyer, Robert Dundas, argued that as his client had been charged with premeditated murder and that the killing was at worst manslaughter (culpable homicide in Scotland these days) it followed that the jury should clear him. The 15 men knew that Carnegie had, in fact, killed the luckless Earl but as he didn’t mean it, they declared him Not Guilty of the charge.

Although a trial two years earlier had also resulted in an identical disposal, it is this case most commonly cited as the one which brought us the three verdict system.

There has been much dissatisfaction with Not Proven ever since. 

Scott made his famous observation following the trial in 1827 of Mary Elder, married name Smith, charged with poisoning maidservant Margaret Warden, who had the misfortune of falling pregnant to the son of the house. To avoid scandal, Smith tried to induce an abortion with various potions and when they did not work turned to arsenic. At least, that’s the position the authorities took but the jury was unconvinced, thanks to the defence raising the possibility that the maid took the poison herself. On the accused, Sir Walter Scott declared later, “If that woman was my wife I should take good care to be my own cook.’ Even one of her lawyers, Henry Cockburn, said that she was a ‘vindictive masculine witch.’

Perhaps the most notable case saw another Smith woman in the dock, the redoubtable and by all accounts beautiful Madeleine, who may, or may not, have laced the cocoa of former lover Pierre L’Angelier with something nastier than a marshmallow past its sell-by date. The trial in 1857 was a cause celebre, as I’m sure the hapless Mr L’Angelier would have called it had he not been the corpse, but the formidable Miss Smith was freed because the jury simply could not bring themselves to fully believe that a lovely young thing from a good family would poison anyone, let alone a fiery foreigner. However, the 15 men clearly could rule out the possibility that she did NOT actually slip the arsenic in the chocolate, so the bastard verdict proved a handy compromise.

(You can find a short account of the case elsewhere on this site).

The notorious case was prefigured by the trial of Christina Gilmour in 1844. Another young woman from a decent family, she also benefited when accused of poisoning her husband and the jury felt it was possible the unhappy man could have killed himself. On the other hand, it was also possible that she had slipped him a lethal mickey or two.

Neither Madeleine nor Christina went on to murder again. Unfortunately the same cannot be said of John Donald Merrett. In 1926 his mother somehow managed to end up with a bullet in her head. She subsequently died of meningitis but Merrett was charged with her murder and forging cheques. He was found Not Proven on the former but went down for a year for the latter.

On his release he squandered his inheritance, changed his name to Ronald Chesney and continued his fraudulent ways. In 1954 he drowned his wife in her bath in order to claim an £8000 trust fund and murdered her mother when she caught him in the act. An international manhunt ended when his body was found in a forest near Cologne with, ironically, a self-inflicted bullet wound to the head.

Not Proven is back in the dock again. Its prosecutors say it is a nonsensical, illogical hybrid that brings closure to neither accused nor victim. Its defenders insist it is a traditional part of Scots Law which must remain and if anything should go, a few of them argue, it’s the Not Guilty option.

Lord McCluskey, one of the wisest heads and safest pair of hands in Scottish justice during recent years, put it this way in 1994, ‘Where the evidence consists of some reliable evidence and the corroboration consists of unreliable evidence…..it is perfectly legitimate for the jury to bring in a not proven verdict.’

It was His Lordship’s opinion that Scots Law would be the poorer if it lost the third verdict.

The jury is still out.

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5Jul

Birth of the Boys in Blue

Posted by: douglasskelton3 Categories: blog entry
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I began my writing career with journalism and then non-fiction, specialising in true crime and Scottish criminal history. What follows is a short piece about the birth of the Glasgow force I wrote a few years ago to coincide with the publicatuion of my final work of non-fiction, Glasgow’s Black Heart, which chronicled the history of my home city’s underworld from 1800.

The book is now out of print and the rights have reverted to me – so if any publishers fancy doing a reprint, get in touch!

The first members of the Glasgow Police Force met here, in what was then the Session House, in 1800

A few years ago there was a minor fall-out when the Met suggested that it was the longest established force in the country, for Glasgow had one almost 30 years before the ‘Peelers’ were born.

There had been attempts at creating such a force before, notably in 1778 and 1788, but these had foundered. The citizenry recognised the need for a crime-busting body of men but were just not happy with the idea of having to pay for it. The old watchman system had proved insufficient to the growing crime problem. These watchmen, known as ‘Charlies’, were invariably elderly men whose job it was to patrol the streets after dark and raise the alarm in the event of anything untoward occurring. Fond of a tot of rum or two and often found asleep in their guardhouse, they were the butt of many a joke played by the young dandies of the day. On one momentous occasion, in February 1793, members of the notorious Hellfire Club lived up to their name when they set fire to the Session House.

By 1800 Parliament had agreed that a new force be established, at public expense, to police the city streets. Although under the control of the local authority, the tax-payers of the city were to have a say in its running, even to the election of the Master of Police.

On 15 November, 1800, the new City of Glasgow Police Force gathered in the rebuilt Session House. Under the Master of Police, city merchant John Stenhouse, there were two sergeants, six officers and 68 watchmen. The only uniform the latter received was a greatcoat with a number in white on the back, their only weapon a four-foot long stave. The sergeants and the officers, however, were presented with tall hats and a blue coat, vest and breeches.

The boys in blue had been born.

Dr John Aitken, one of the first police commissioners appointed to oversee the new force, said after the first gathering, ‘Our first impression was that the force was so large and overwhelming that it would drive iniquity out of the city as though by a hurricane.’

That hurricane, though, proved to be little more than a puff of air for it would be many years before it would be a force to be reckoned with.

The new force of watchmen was still required to patrol the night-dark streets of the town and call out the hour. In addition, they were also expected to update the inhabitants on the weather. They still had to sweep the streets of all the dung that had gathered during the day. There are police officers today who say they are doing the same thing.

At first they patrolled in large squads but very soon a system of beat patrols was devised and each watchman was given a lantern and candles to light his way. The men, still elderly, tried to use these candles as little as possible so that they could be sold in order to supplement their 10 shilling weekly wage. They were also issued with a rattle which was used to alert other watchmen and the uniformed officers also on patrol. This rattle, very like the kind of thing later used by football fans, was the first method of communication issued to the fledgling force. Later, the whistle, the police box, the radio and the mobile phone would replace it. But in the narrow warren of streets of early 19th century Glasgow, a rattle croaking in the still of the night was all that was needed to have colleagues running – whether it was toward or away from the flashpoint depended on their character and devotion to duty. It may also be the source of the phrase ‘rattled nerves.’

Even though the watchmen still spent too much of their time dozing in the various guardboxes sited on each beat, they did have an effect on Glasgow’s night people. The Session House proved to be somewhat cramped as a police station and so the headquarters moved across the Trongate to the north-west corner of Bell Street and Candleriggs, very near to where the Glasgow Police Museum is now. There, one storey up, the force had a large room and two ‘walled presses or closets’ for prisoners. They also had a large room on the ground floor with a further seven cells. ‘We now thought that there was no danger to us,’ said Dr Aitken, ‘and that we had provided prison accommodation to serve us for a generation.’

Within two years they had to move again, to a former joiners yard in South Albion Street.

After three years as Master of Police, John Stenhouse resigned and publican Walter Graham took his place. His lofty manner, both in attitude and in bearing for he stood at over six foot, soon brought him the nickname ‘the General’. It was his nature that saw him removed from his post two years later when he refused to go out on night patrol. His successor was the equally as tall James Mitchell, a former officer of the Lanarkshire Militia and a stickler for discipline. Although he worked hard to hone his men into a tight unit, they still had a long way to go before they would be little more than the nightwatchmen of old. The police force was not an investigative body in those early days, probing offences being the realm of the Sheriffs, procurators and their officers. However, that did not prevent magistrates at the police court intoning dolefully to those before them, ‘The eye of Almighty God and the Glasgow police will be on you, so be careful of your future conduct.’

The City of Glasgow Force vanished in 1975 into the behemoth that was Strathclyde Police which itself became part of the even larger Police Scotland.  

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