A weeping juror, a teenager and a prayer for the dying

A telephone call 35 years ago began a trail of events which left an

indelible mark on one of Scotland's top lawyers. In an extract from his

forthcoming book he relives the death of a teenager - despite appeals

and petitions.

THE voice at the other end of the telephone said: ''My name is Alf

Miller. You don't know me. I need your help. My son has just been

charged with capital murder.'' He did need my help.

It was a lovely August afternoon in 1960. I had been working in my

room at the office and I had not wanted to be disturbed. Quickly I

realised that I had no right feel irritated, this man's need was more

important than any job I might have on my desk.

Within the half hour Alf Miller and his wife were sitting opposite me

and the story began to unfold. Their 19-year-old son Tony had been

charged that afternoon along with 16-year-old boy James Denovan with a

murder which had taken place in Queen's Park Recreation Ground in

Glasgow some months before.

Denovan had been on remand in connection with another case when in an

interview about something totally different he had broken down and

blurted out the story of how he and Tony Miller had been carrying out a

series of attacks on homosexuals in Queen's Park Recreation Ground and

one of them had died.

Denovan had acted as the lure. Once the victim had been distracted by

Denovan, Miller came from behind to assault and rob him. All of their

victims were homosexuals and so they never reported their experience to

the police.

In those days certain types of murder were still capital crimes and

involved the death penalty in the event of conviction. One such type was

murder in the course of furtherance of theft. In this case it was

alleged that the assault from which their victim died was carried out

during their robbery of him.

If Tony Miller was convicted he would hang. James Denovan would not

hang because he was too young.

''But they can't hang Tony, can they?'' asked his mother who had

hardly taken any part in the discussion so far.

His mother thought that no-one under 21 could be sentenced to death

and I had the task of telling her that 18 and not 21 was the minimum age

for hanging.

I interviewed Anthony Joseph Miller at Craigie Street Police Office. A

slim rather sallow youth with hair that was drilled into place with oil,

he did not say very much at that stage.

The following day he appeared in Glasgow Sheriff Court along with

James Douglas Denovan and they were both charged with murder.

The allegation was that on April 6, 1960, in Queen's Park Recreation

Ground they had assaulted John Cremin, struck him on the head with a

piece of wood or other similar instrument, knocked him down, robbed him

of a bank book, a watch, a knife and #67 of money and did murder him.

There were various other lesser charges of assaults and robberies.

To defend Tony Miller I instructed two junior counsel, Irvine Smith

and Alasdair Macdonald. I had instructed them the year before in what

was my first capital murder trial so we were used to working with each

other.

The victim of the murder, John Cremin, was a man in his fifties, a

homosexual, and a thief.

During the weeks that followed as we were investigating and preparing

for the trial I consciously built up a kind of emotional barrier between

Miller and myself.

The previous year when I had my first capital murder I was frightened

for my own sake -- frightened of how I would react if my client were to

hang; frightened of the emotional effect that it would all have on me.

This time I wanted to ensure as far as I could that I would be

unaffected. I did not realise that I would fail so miserably.

An oddity about the case was that when Cremin's body was found it was

first thought that death had been from natural causes. He had been

wearing a cap that night and this had tended to hide any injury. It was

only when a post mortem was carried out and a massive subdural

haemorrhage was found that it was realised that this was no natural

death. Only a severe blow on the head could have caused such a

haemorrhage.

The two doctors who carried out the post mortem were two of the

country's most experienced and most respected pathologists, James

Rentoul and Walter Pollock Weir. They had no doubt that a hefty blow

from a flat surface object, such as a piece of wood, caused the fatal

injury.

The evidence implicating Miller and Denovan in the murder charge came

from several sources. The pair had been in the habit of frequenting the

Cathkin Cafe in Victoria Road in Glasgow's south side. A number of their

friends had told the police how Miller and Denovan had often boasted in

the cafe of what they had done to Cremin.

Some of them even spoke of one ghoulish moment when the two accused

pointed out the very spot in the Recreation Ground where Cremin had been

assaulted and had 'flaked' in their words. Denovan had suggested that

they observe two minutes' silence for him.

Miller and Denovan had also been seen in possession of Cremin's bank

book and they had also been seen with new bank notes.

The evidence against them then was overwhelming.

The trial began in Glasgow High Court on Monday, November 14, 1960.

The presiding judge was Lord Wheatley who would subsequently be

appointed to the post of Lord Justice Clerk, the second highest judicial

office in the country.

By the second day of the trial the issue had become confined to only

the capital charge because both Miller and Denovan tendered pleas of

guilty to all the other charges.

Indeed the issue had become even more narrow -- which of the two of

them had struck John Cremin on that fateful night?

This was crucial because in terms of the Homicide Act of 1957 only the

one whose hands had dealt the fatal blow could be hanged (an effort to

ensure that there could be no repeat of the scandal of the case of Craig

and Bentley).

Tony Miller did not give evidence on his own behalf. James Denovan,

however, did give evidence and claimed that the length of wood which was

the murder weapon had been wielded by Tony Miller.

By the Wednesday morning the evidence was over. That afternoon I sat

at the bar of the court throughout the 70 minutes or so of Lord

Wheatley's charge to the jury. It was superb. It would later be

described by Lord Justice General Clyde as ''a model of clarity'' and it

was to become the model on which many Scottish judges and sheriffs were

to base future charges to juries for years to come.

Lord Wheatley told the jury that the consequence of their verdict was

not their affair and he warned them that they must be unaffected by the

consideration that a verdict of guilty of capital murder would involve

the death penalty.

If they were to find that the murder was committed by Miller and it

was committed in the course of furtherance of theft then he said they

''must steel themselves to it''.

When the jury retired at two minutes past three that afternoon, I

reckoned that not even the forensic brilliance of Irvine Smith was going

to be enough to save the life of Tony Miller.

My counsel and I went to the gown room to await the jury's return.

Nowhere does the time pass more slowly than the room where you wait for

a jury's verdict. That was especially so in the days of capital charges.

An eternity had passed since the jury went out, or so it felt. When

the jingle of the bell summoned us back to court, I glanced at my watch.

It was three thirty-five. The jury had only been out for just over half

an hour.

They were already in place and not one of them would meet our

occasional inquisitive glance. I think that in those moments we all knew

what the verdict was going to be.

Miller and Denovan had already been brought up from the cells to their

places in the dock sitting ashed-faced between escorting police

officers.

Donald Stevenson, the senior depute clerk of justiciary, was the clerk

of the court.

''Ladies and gentlemen,'' he asked in a flat emotionless voice, ''who

speaks for you?''

The foreman rose. Donald Stevenson first took from him the formal

verdicts on the charges to which the accused had pled guilty the day

before and then, coming to the third charge on the indictment, which was

the charge of capital murder, he asked quietly: ''What is your verdict

on charge three as regards the accused Miller?''

This was the moment I had dreaded since the thirtieth of August when I

was first instructed in the case.

''Guilty of capital murder.'' The foreman's voice was surprisingly

strong. I sensed that it had taken a special effort for him. The verdict

was unanimous.

Another juror, a man in the back row, was weeping quietly.

''What is your verdict on charge three as regards the accused

Denovan?''

''Guilty of non-capital murder.''

None of us at the bar of the court spoke. I could not.

Donald Stevenson sat down to write out the verdicts in longhand in the

minute book of the court. It took him four minutes to do that. Nothing

could be heard but the quiet weeping of the juror and the movement of

the clerk's plain nibbed pen over the parchment page.

Lord Wheatley then spoke for the first time since the jury had come

back with their verdict: ''Anthony Joseph Miller, in respect of the

verdict of capital murder just received for which the law imposes but

one sentence, the sentence of the court is that you be taken from this

place to the prison of Barlinnie, Glasgow, therein to be detained until

the seventh day of December next and upon that day within the said

prison of Barlinnie, Glasgow, between the hours of eight o'clock and 10

o'clock forenoon you will suffer death by hanging which is pronounced

for doom.''

At the mention of that last phrase he touched his wig with the black

tricorn.

The sentence on Denovan was that he be detained during Her Majesty's

pleasure.

There was something unreal about this. At the age of 27 and with only

three years' experience as a qualified lawyer I had heard a sentence of

death upon this client, a boy of 19.

There then began the fight to save Tony Miller's life.

In Scotland the Appeal Court effectively cannot look at any matter of

fact. A jury's view of the facts of a case is final. What the Appeal

Court can look at is any question of law such as any alleged

misdirection. What we were interested in therefore was whether there had

been any mistake in law or any misdirection of the jury by the presiding

judge.

This meant a minute study of what Lord Wheatley had said in his charge

to the jury. It had been a very careful and painstaking charge but we we

found a number of possible grounds for appeal.

The first was that Lord Wheatley had erred in law when he directed the

jury that they could not consider culpable homicide as a possible

verdict in the case.

Most judges would have given a jury the option of bringing in a

verdict of culpable homicide had they wanted. That would have been one

way for the jury to avoid returning a capital verdict which juries did

not like to bring in.

But Lord Wheatley was never a judge for soft options. As a matter of

law he thought there was no room for culpable homicide so he took away

that option from the jury.

The question which we were taking to the Appeal Court was whether he

was right in doing so.

Another ground of our appeal involved the evidence given by Denovan.

Denovan said that he had no idea that Miller was going to strike such

a severe blow. He did not mind being party to an assault but he did not

want any unnecessary violence. Miller according to him had struck the

fatal blow.

Lord Wheatley told the jury that if they were to disbelieve Denovan in

this then there was not enough evidence to convict Miller of capital

murder. The jury had convicted Denovan, so they must have disbelieved

him at least in part.

Thus, ran our argument, because they had disbelieved Denovan in this,

there had not been enough evidence to convict Miller of capital murder.

Our final ground was, if you like, the blanket cover that the verdict

was contrary to the evidence.

I lodged the appeal on November 25, some nine days after Tony Miller

had been sentenced to death.

In the meantime Tony's father had begun the task of collecting

signatures on a petition to the Secretary of State, asking him to

recommend the exercise of the royal prerogative.

On November 30, the High Court fixed December 7 as the date for

hearing the appeal and postponed the date of execution.

My counsel worked extremely hard in preparing the appeal. Lord

Wheatley's charge was dissected; hours of preparation were put in and

every legal precedent of any relevance was canvassed.

We were not optimistic about our chances in the Appeal Court. It was a

hard line court and only a tiny proportion of criminal appeals ever had

any success. It was the last resort in Scotland and, unlike England,

there was and is no appeal to the House of Lords in criminal matters.

The profession was becoming so disillusioned by the Appeal Court and

its approach to appeals generally that there was much open unrest.

The petition for reprieve was another matter. It had to succeed. There

was every reason to think that it would.

Tony Miller was only nineteen. He had never previously offended. He

came from a good home. No member of his family had ever been in any

bother and the killing was obviously not premeditated.

There was another factor. Many saw a parallel between Miller and

Denovan on the one hand, and the English case of Craig and Bentley on

the other. Craig had been sent to detention while Bentley had hanged.

In the light of all those factors, I could not see Tony Miller being

allowed to hang.

I went up to Barlinnie regularly each week to keep him posted.

I found those to be strange meetings. He seemed to be becoming more

distant or perhaps more resigned. Sometimes I felt as though he was not

very interested in whether the appeal succeeded or not, or even whether

the petition was successful or not.

His attitude was that if it were the will of God then he would be

reprieved. If it were not God's will then it would not happen.

I found this an extraordinary attitude in one so young. In those weeks

following his conviction Tony Miller was acquiring a maturity far beyond

his years.

Our appeal was heard as scheduled on December 7. The judges were the

Lord Justice General Lord Clyde, along with Lords Carmont and Guthrie.

Within minutes of the appeal beginning it became apparent that my worst

fears were going to be realised.

Had we been able to nominate the trio of judges that we would not want

to hear a criminal appeal then we would have picked the three that

presided.

Lord Clyde was not a popular judge. He was very right wing in his

ideas. He was a very difficult judge to appear before in a criminal

appeal.

Lord Carmont had written his name indelibly on the copper plate of the

history of Glasgow by handing out condign punishment to razor slashers

when that particular evil had been reaching epidemic proportions in this

city. But he had not made much else of a contribution to our law and, in

all conscience and in all charity, he was neither the best lawyer nor

the best judge on the bench.

It was rather disheartening to realise that at least two out of the

three judges were not likely to display much sympathy.

Some of the comments which came from the bench during the hearing of

the appeal astonished me. I well remember the Lord Justice General

saying of Miller to Irvine Smith: ''He did not even have the courage to

go into the witness box.''

Until the tail end of the last century it was not possible for an

accused person to give evidence on his own behalf. It only became

competent in 1896. Since then it has always been a recognised and

respected right of an accused person not to give evidence.

To hear Scotland's most senior judge make that comment was something

which those of us who heard it regarded as at least surprising.

The appeal was dismissed in the course of the morning as being

''completely devoid of substance'', a description which I and many

others felt to be thoroughly unwarranted. The grounds were not the

strongest but they were argued with consummate skill.

This was a capital case. A boy's life was at stake but we were made to

feel that it was impertinence to bring that case into the Appeal Court.

We were left with a thoroughly unpleasant taste in our mouths.

A new date for the hanging was fixed -- December 22 -- some fifteen

days ahead. There was no other appeal court to which we might go and all

that was left was our petition to the Secretary of State asking him to

recommend the royal prerogative.

The movement to obtain signatures was stepped up. Alf Miller set up

tables in the city centre to collect signatures. Forms were sent to

factories and large employers of labour throughout Glasgow and the West

of Scotland. Railway stations were manned with canvassers and MPs were

lobbied.

Support was received from people such as Lord Packenham, Baroness

Wootton, Bessie Braddock, Barbara Castle, and Alice Cullen who was then

the MP for Gorbals. Thousands were now signing that petition and

messages of sympathy and offers of help were coming from all over the

country.

When I eventually sent that petition through to the Secretary of

State, John S. Maclay, it had some 30,000 signatures to it.

On Monday, December 19, there was still no word from the Secretary of

State. The press announced that he had postponed a short holiday and

they speculated that the probable reason for the postponement was so

that he could consider our petition for reprieve.

That afternoon, some time after four o'clock, I was advised by my

receptionist that there was a gentleman there from the Scottish Office

who wanted to see me.

I showed him to my room immediately.

He was carrying an envelope which was addressed to me. He proffered

it, telling me that it was from the Secretary of State. I took it and

realised that I was now holding in my hand the official response to our

petition to the Secretary of State.

I remember slitting open that envelope very carefully and taking out

the letter. Both the messenger from the Scottish Office and I were still

standing just inside the door of my room. I went round to my desk and

sat down.

I unfolded the letter nervously. It read:

Sir,

I am directed by the Secretary of State to inform you that after

careful consideration of the case of Anthony Joseph Miller he regrets

that he is unable to find sufficient grounds to justify him in advising

Her Majesty to interfere with the due course of law.

I am, Sir,

Your obedient servant

It was signed by an official at the Scottish Office.

''Christ, I don't believe it.'' I stared at the letter. There was a

mistake. Something had gone wrong.

I looked up at the messenger in utter horror. He had known what the

letter contained. He looked at me for a moment or two and then his eyes

drifted to the floor embarrassed by it all.

My eyes went back to the letter reading and re-reading still wondering

what had gone wrong.

''If you will forgive me, sir.'' It was the messenger from the

Scottish Office and I realised that he was anxious to go. He must have

felt intrusive.

I said goodbye and showed him out of the office. I went downstairs to

my senior partner Willie McRae's room, knocked and went in. I sat down

still dazed by it all. I tossed the letter over to him. He read it

several times.

''Willie,'' I asked, ''What the hell do I do now?''

''Pray'' he said.

I could not believe what was happening. They were actually going to

hang the boy. Here we were in the latter part of the 20th century in a

civilised community which was going to hang a nineteen-year-old boy.

I went in my car to his parents' home. They were not in and I think I

was relieved to realise that. I would have found a meeting with them

very difficult.

Alf Miller came to see me the following morning. He had learnt of the

decision the previous afternoon while at the prison visiting his son. It

would be difficult to say which of us was the more stunned. I remember

thinking how vast was the change in that man in the three or four months

that had passed since our first meeting. He had become old beyond his

years and he looked bent and haggard.

I think that I felt more sympathy for that man that morning that I had

ever felt for anyone. What could we do now apart from praying? All that

I could think of was a direct approach to Her Majesty and accordingly

Tony's father and I sent separate telegrams to Buckingham Palace that

morning.

We now had less than 48 hours. There was nothing more we could do but

wait.

No reply was received from Buckingham Palace on the Tuesday. That

night I telephoned Alice Cullen. She promised that she would do what she

could the following day, Wednesday. However we were running out of time.

He was due to hang on Thursday morning.

Wednesday came. It was a very long day but it came and went with no

word. I had stayed in my office hoping for news, hoping that each time

the telephone rang there would be word of intervention by Her Majesty.

The telephone did ring -- many times -- but not one of the phone calls

was the one I had hoped for.

That night the enormity of the horror of it all came home to me in a

way that it had not done before. The following morning they were going

to hang that boy. Of course, he was no angel and of course he had taken

a life. But at the same time by what right did our society think they

could take his?

An enormous feeling of anger and revulsion grew up inside me.

Until the Miller case I had probably been in favour of capital

punishment.

But I realised that this case had made me a bitter abolitionist. The

barbarity and the futility of it all were inconsistent with our claims

to be a civilised society.

Not only were they going to destroy a life that should be saved, a

life that did not belong to them, but in addition a punishment far

greater than any other that man could ever possibly devise was being

handed out to two innocent individuals -- the parents of the condemned

boy.

At 8.02 on the morning of Thursday, December 22, 1960, Tony Miller was

hanged. It would be the last hanging in Barlinnie prison.