Our legal heritage includes a method of resolving disputes that is as visceral as it is archaic. The idea of settling a case with violence rather than evidence dates back centuries. The last time such a request was formally made in Scotland occurred in the 1980s. This specific instance involved a robbery trial in Edinburgh and brought ancient laws into a modern courtroom.
In December 1984, masked men robbed an Edinburgh post office at gunpoint. They used a shotgun to force terrified female staff to hand over money before escaping. Two brothers, John and Paul Burnside, were subsequently charged with the robbery and firearms offenses. Paul was eventually found guilty and sentenced to ten years in prison, while the case against John resulted in a verdict of not proven.
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Despite the conviction, the defense team made a startling motion weeks before the trial was scheduled to start. Mr. Robbie Burnett informed the court that his client had requested a trial by combat rather than a jury trial. This legal maneuver was technically an appeal to a right that had not been used in centuries. Newspapers reported that the last recorded challenge of this nature in Scotland was in 1603, though some historians place the date as early as 1597.
It is worth considering how this medieval concept survived in a modern legal system. The request raised immediate questions about procedure and the existence of such laws in the twentieth century. While the request was ultimately withdrawn, it highlighted a strange gap in the statute books. The legal system is built on precedent and defined rules, yet it still contains the ghost of a rule that allows two men to settle a dispute with wooden staffs.
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Trial by combat had been abolished in England by the Appeal of Murder etc. Act of 1819. This legislation followed a famous case involving Ashford v Thornton. However, the extent of this abolition was unclear. The 1972 case of McKendrick v Sinclair went to the House of Lords. In that case, Lord Reid stated that just because a law had fallen into disuse did not mean it was no longer part of Scots law.
If the request for combat had proceeded, significant procedural hurdles would have appeared. In England, the King’s Champion was traditionally expected to fight the accused. The Scottish legal authorities were consulted to find a champion for Scotland. The result was confirmation that Scotland has never had such a champion, except perhaps in the very dim and distant past. In the absence of a champion, the belief was that the Lord Advocate would have filled this role.
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This would have meant that Lord Cameron of Lochbroom, the Lord Advocate, would have been required to step up to do battle. He would have had to don protective armor, grasp a leather shield, and prepare to face one of the brothers, both participants at