Witches of Scotland - EPISODE 24 - ANDREW TICKELL -MISCARRIAGES OF JUSTICE

00:00:00.200 Hi, I'm Clare Mitchell, QC. Welcome to the Witches of Scotland podcast.

00:00:05.220 I'm a lawyer who specialises in miscarriage of justice cases,

00:00:08.740 and we're bringing you this podcast because we want to tell you about the women who were accused,

00:00:13.800 prosecuted, convicted, and ultimately executed as witches in Scotland.

00:00:18.780 I'm Zoe Vendetotsi, and I'm a writer who's always had an interest in the witches,

00:00:23.060 and I feel that this dark mark against Scotland needs a reckoning.

00:00:26.500 The campaign Witches of Scotland wants three things.

00:00:29.600 Firstly, a pardon for all those convicted of witchcraft.

00:00:33.240 Secondly, an apology for all those who were accused as witches.

00:00:37.420 And finally, a national monument in recognition of all those who were affected by this terrible miscarriage of justice.

00:00:44.440 Over the forthcoming weeks, we'll be talking to a whole host of experts about the history and the modern day connections to the witches of Scotland.

00:00:54.460 Hello and welcome to the Witches of Scotland podcast.

00:00:57.380 We're now on episode 24. We're going to start off today by talking about the impact that the

00:01:02.380 campaign is having across Europe. We've already had contact with a campaigner in Germany who's

00:01:08.700 been working for a long time on rehabilitating the witches of Germany, but we were contacted 0.93

00:01:14.660 by somebody who has been influenced by what we're doing and started their own movement.

00:01:18.780 Claire, could you talk about that a little bit?

00:01:20.360 Yes, we've been contacted by a Catalan magazine called Sapiens, and they have decided, having seen our campaign, to set up their own campaign to see whether or not they can have a national memorial for the women killed as witches in Catalonia.

00:01:41.300 Now, they have asked us if this weekend we can record Zoe.

00:01:46.160 I'll have to put our lippy on because they've asked us if we can record for them a message to explain the Witches of Scotland campaign,

00:01:53.520 what we're doing so far and what progress we've made.

00:01:57.760 And they're going to send out their listeners there.

00:02:01.060 And they too, I think, are having an event on International Women's Day kicking off their campaign.

00:02:06.040 so it's absolutely brilliant to see that some other country has taken up this idea where they

00:02:12.720 haven't got a national monument either and doing this so i'm really looking forward to seeing how

00:02:18.200 that goes and it does mean so we have somewhere to go abroad when the lockdown finishes could you

00:02:23.820 imagine it'll be so nice to once again travel i can't wait if only there was such a thing as

00:02:29.000 traveling by broomstick we could have got out a few ages ago but no anyway in the world of reality

00:02:34.980 we've we've also had people getting in touch with us on our social media sending us photographs and

00:02:40.800 other little snippets of information because sometimes when we're talking on the podcast we

00:02:44.620 think um out loud which is maybe not the most sensible thing to do what does that mean i wonder

00:02:49.960 what that thing is and one thing that i'd mentioned a while ago was this issue in scotland about the

00:02:55.300 witches or people that had been convicted of being a witch being strangled and then burned their

00:03:01.380 bodies being burned and i'd sort of mused about what what was the strangling you know how did

00:03:06.760 they do that it's such an intimate method of executing somebody and we had a listener who

00:03:11.840 got in touch with some evidence that she'd found in her research about describing it as being

00:03:17.340 garroted so to me garroted is is using uh like a length of rope or um leather or something like

00:03:25.660 that to put around somebody's neck and tighten until they're strangled so rather than the bare

00:03:29.700 hands on the neck it was a grot which i suppose is slightly less intimate but still really up close

00:03:34.860 and personal i mean you'd have to be you can be behind them i suppose doing that but it's just

00:03:39.620 just adds just another layer of absolute horror to the situation that the way of killing them

00:03:45.020 was so literally kind of hands-on really really terrible so anyway that was one of our listeners

00:03:51.240 melanie who has also sent us lots of fantastic photographs of memorials that she's found as

00:03:58.700 she's been traveling across the country in the past not now I'm not dobbing her in for breaking

00:04:03.120 the rules so that was really nice and it's always really nice when people get in touch with us

00:04:07.680 on Facebook and on Twitter and through Instagram so please do keep that up because it's really

00:04:13.840 good to know how much support there is across Scotland and indeed across the world for the

00:04:18.920 campaign. This week we remember women and men killed as witches. As this week has a legal slant

00:04:32.060 I thought I would research the strange phenomena of being found half guilty. In Scotland we have

00:04:38.780 three verdicts which is highly unusual already most countries only have two but we have three

00:04:44.720 verdicts presently guilty, not guilty, and not proven. I had never, until I started researching

00:04:51.380 people that had been convicted as witches, come across a verdict of half guilty. So that was

00:04:57.900 completely new to me. And I wondered what it was. Well, it seems that it's been accepted that a

00:05:04.660 person has committed some sort of a crime, but in deciding that they've committed some sort of a

00:05:10.360 crime or deciding that they may have committed the crime but they weren't sure of it they would

00:05:16.260 find them half guilty and finding them half guilty meant that they didn't have to impose the draconian

00:05:21.820 penalty which was in place if you were found a witch i.e being executed so this seems like a bit

00:05:29.380 of a fudge really of guilt or innocence which allowed people to be dealt with or sentenced in

00:05:35.960 a way which wasn't as a witch and executed. I think I found strange when I looked at this was

00:05:41.360 all but one of the people that were found half guilty were women and they were all found half

00:05:48.340 guilty in 1597. Now we'll come to talk about at least some of them and why they were found guilty

00:05:55.540 all together at the same time but even when I looked at elsewhere in Scotland it's clear that

00:06:01.120 it wasn't just one court that people were finding half guilty but a couple of places across Scotland

00:06:06.820 but they all seemed to happen in 1597 so I don't know what was going on there that's strange it's

00:06:12.840 strange that that was just one year and isn't it isn't it it's also strange that it ever existed

00:06:17.700 as a as a decision it's really bizarre I think it must have been local courts just veering off the

00:06:24.660 normal rules of justice and making it up as they go along I mean and just saying you know you're

00:06:30.560 we know you were wrong but not wrong enough so we want we want to get you into trouble but not

00:06:37.300 enough trouble to kill you yes we have to be seen to be doing something uh-huh that's it that's 0.85

00:06:43.160 exactly it we have to do something with you we can't let you off with this and as we see 0.99

00:06:47.280 the something could be just being an associate of you're an associate of a person that's a witch

00:06:54.120 And therefore, that's enough by implication for us. But it just seems strange. The majority of the people found half guilty were found half guilty in Aberdeen, and we're just going to speak about that. But the other one was found guilty in Ayr. So it's strange that two different jurisdictions in the same year decided to come up with this idea of half guilty.

00:07:14.200 it's a strange one that and i think one of the things that you'd said to me before is that this

00:07:19.580 might be a good idea for us to discuss now why we want a pardon and an apology just to clarify that

00:07:24.840 interestingly enough we will see come to see how these people's lives were affected when they were

00:07:29.900 found half guilty so if we ask for a pardon a pardon apologizes to those who have been convicted

00:07:36.920 of something yeah but it doesn't take into consideration all the people whose lives were

00:07:42.800 ruined by a witchcraft accusation or who were killed as a matter of torture so an apology can

00:07:49.380 be given a blanket apology is what i would like to be given to everyone so it's acknowledged

00:07:53.460 that this was a terrible wrong what happened to everyone um because we can't get pardons for

00:07:58.960 people who weren't convicted so the the pardon would cover only those who are convicted so the

00:08:04.640 apology would mean that everybody that had been accused regardless of the outcome would be getting

00:08:09.380 an apology and I think some people struggle a wee bit with the notion of that because it was

00:08:14.080 such a long time ago that obviously none of those people are in existence now but I think it's more

00:08:19.140 about just saying you know we can show that we are sorry for our ancestors doing that and it's

00:08:26.020 not an appropriate way to behave it's not a kind or moral way to behave ever and I think that's a

00:08:32.020 really important thing for us as a contemporary society. Absolutely I mean when the the laws in

00:08:37.720 relation to the passing of the act pardoning people that were convicted of homosexual offences

00:08:43.940 it was made explicitly clear that it was not only for those who were still alive but also for the

00:08:50.740 memory of those that had died so I think as I've said before and we've talked about the Black Lives

00:08:56.420 Matter campaign it's important to record history properly and people are saying well are you

00:09:02.400 interfering with history by pardoning people and I don't think so I think you're just putting

00:09:06.620 things right no this is the most peculiar thing about this is that some some people and it's only

00:09:13.100 been a small amount of people but some people have said you know you're attempting or you know

00:09:17.320 not just with us but with the issue of like removing statues that were involved in slavery

00:09:22.520 for example saying that that's that's an attempt to rewrite history it's not in any way to an

00:09:28.120 attempt to rewrite history it's a way to understand history properly and understand the truth of what

00:09:33.640 happened and say well that was then it was a wrong and the society we live in now we don't have to

00:09:39.880 carry that with us you know we can say well that was wrong and when we would never that would never

00:09:44.560 be repeated that's not rewriting history that's understanding history and it's understanding who

00:09:49.780 we are now it's not saying you know that we are the same as we were then because people evolve

00:09:54.520 obviously i think it's really interesting and also talking about truth in history i read something

00:09:59.960 really interesting on twitter this week as well and was talking to a historian this week who'd

00:10:04.280 sort of reinforced this for me that it's very very important that we listen to experts who know

00:10:09.300 about the history of witchcraft in particular and get the facts right you know there's there's no

00:10:15.580 point in people keeping like myths going that have got no no backing there's no truth in it

00:10:21.500 because it doesn't help us to understand who we are as people particularly which is what i'm really

00:10:26.580 interested in so we need to really kind of say well I have this idea in my head but actually

00:10:31.220 maybe it's an urban myth like is it true is it is it just something that's just become kind of

00:10:36.280 folklore in a made-up way or is it something that genuinely happened and I think a really

00:10:41.360 good example of that is understanding how the witches were the convicted witches were executed

00:10:47.500 in Scotland and about things like you know what torture was used and we'll have an expert on in

00:10:52.860 the next couple of weeks he's going to be talking to us about that and talking about what really

00:10:56.840 happened so then that'll be really useful but um yeah it's just my my old days of sixth year

00:11:02.340 studies history just I just remember my lovely old teacher Mr Casey saying you know you have to

00:11:08.240 have the facts you have to have the facts otherwise it's not history we're just making it up

00:11:13.260 that sounds like sound advice although in higher history certainly when I was doing my exam I

00:11:19.340 definitely was making some of it up because well sometimes you know when you're 16 that's that's

00:11:25.080 understandable but as adults Claire it has to be the truth I do try not to make up history now

00:11:31.840 that's not one of my hobbies you know Zoe when we talked about Heal and Harrow when we talked

00:11:38.140 about duality there's a duality in the story of women killed as witches and men killed as witches

00:11:43.800 which is that it is fascinating but terrible at the same time and there's also a duality in that

00:11:51.500 there is the actual history of what happened and the folklore around what happened you're absolutely

00:11:58.660 right it is absolutely important to to know and to separate out the two but it's also interesting

00:12:04.880 to know the folklore and to see sure and to see what you're saying is that we have to ensure that

00:12:13.380 we know the line where the line is between the two so that we can properly appreciate what history

00:12:18.340 is and what stories are yeah i mean don't get me wrong i'm a writer you know i i deal in made up

00:12:24.280 stuff you know that's i love it you know and i think that that there's a lot that could be taught

00:12:28.700 to us as humans by folklore and by myths and by fairy tales and so on i think that has an enormously

00:12:35.940 important part in who we are as humans but i think when we're talking about historical accuracy we

00:12:41.580 have to be careful to make sure that it is backed up, which is why we always really seek to have

00:12:45.820 people that are experts who have done the work, you know, who have really done the work and come

00:12:50.420 on and educate us about it. I think it's really important that we understand it because, as we've

00:12:55.040 said from the beginning, we weren't really taught about it in school. So I think it's important that

00:12:58.480 we do know the facts of it. Absolutely. 100%. Speaking about facts, going on from what you

00:13:04.840 were saying before about the records of people that were found half guilty, we've got a particular

00:13:11.260 story don't we? Yes this week I researched Half Guilty using as ever the Survey of Scottish

00:13:20.380 Witchcraft database and also a couple of books that I had a look at to find this information

00:13:27.480 and I think Zoe what I found was a particular story in relation to one family a very tragic

00:13:34.220 story in relation to one family and how they were affected by an accusation of witchcraft

00:13:40.140 and how some people were found guilty and some people were found half guilty

00:13:45.760 and the differences between the two.

00:13:48.560 So this is the Laies family.

00:13:50.600 So remember, this all happened in 1597.

00:13:53.820 And it appears to start with the mother of the family being accused of witchcraft

00:13:57.680 on the 2nd of February in that year.

00:14:00.260 Her name was Jonnet Wishart and she was accused of casting spells.

00:14:04.420 It's said that she was, and this is a quote, implicated by another witch.

00:14:08.360 so it's likely some other poor soul had confessed and named her and we've talked about that quite a

00:14:12.880 lot of times about people being put under tremendous pressure with their with the torture

00:14:17.920 whether it's sleep deprivation or other and eventually giving up other people's names which

00:14:22.740 you know presumably a lot of people did under absolute pressure you know it was to it was to

00:14:28.040 get out of there was to make the torture stop so so she was she was named by somebody else

00:14:32.960 implicated by another witch. She was accused of causing illness due to her spells and it's noted

00:14:38.740 that the commission, which is when they were given permission to prosecute this case, came from

00:14:43.360 actually from James VI himself, so the lead guy. She was found guilty and executed and then a month

00:14:50.700 later Jonnet's husband John, his son Thomas and their three daughters Elspeth, Jonnet and Violet

00:14:57.640 were all put to trial they all went on the same day which was the 22nd of march 1597

00:15:03.320 in aberdeen at the toll booth then thomas leis the son was accused of witchcraft he was accused

00:15:10.320 of leading a witch's meeting ditty mentions that leis's lover elspeth reed confessed that leis had

00:15:17.140 asked her to meet a man to take him by the ear and put her foot on the man's foot all of which

00:15:22.300 she refused to do the witch's meetings were said to include food drink and dancing all in the

00:15:27.380 company of the devil the meeting place was the market cross he was also accused of having

00:15:32.980 predicted the birth of a female child his daughter before elspeth reed knew that she was pregnant

00:15:37.780 and he was accused of helping his mother bewitch goods and gear belonging to a neighbor not quite

00:15:43.640 sure what that means you know what that means claire bewitch goods and gear no i think it's

00:15:47.900 just like their chattels i presume their their property and i'm not but as if like to like to

00:15:53.280 bewitch it though do you think that means that she you know they blamed her that it went missing

00:15:57.700 or that it wasn't working properly or oh yeah oh i see what you mean what was the what was the

00:16:02.360 nature of it um yeah possibly i was thinking like farm equipment not working yeah or maybe

00:16:08.280 or something of the likes and after the trial he was killed as a witch and the record record

00:16:14.680 that he was burnt john leas the father of thomas and husband of john it was found half guilty by

00:16:21.280 a way of his association with his son and wife, as were his three daughters, Elspeth,

00:16:25.700 Jonnet and Violet.

00:16:26.940 There was no evidence at all that they'd done anything.

00:16:30.100 And apparently they were absolved of the accusations, but found guilty about association.

00:16:34.960 That's really crazy.

00:16:35.720 Their punishment was that they were found half guilty, and that meant that they were

00:16:40.460 then banished from Aberdeen, but there are no records to show where they went.

00:16:44.280 So, I mean, that's interesting, this idea about the apology for people like this, you

00:16:48.760 You know, to keep in mind that they weren't found guilty, they were found half guilty,

00:16:52.700 but their entire life must have been ruined by that, to be banished.

00:16:56.320 You know, it wouldn't have been at all an easy thing to happen,

00:16:59.660 to have to walk into a new place and start again,

00:17:02.420 because people would be like, oh, where have you come from?

00:17:04.160 What's going on with you?

00:17:05.100 And then it would carry around with you.

00:17:07.600 Exactly.

00:17:07.940 It was a time when people, as we understand it, didn't move around so much.

00:17:11.840 So it wasn't usual for people to simply arrive in another place.

00:17:16.600 People, people, people's names and histories were important. You know, a new person would be something of interest. And if we just take any of the sisters that were involved, they'd seen their mother and brother killed as a witch and their father and two sisters banished along with them, leaving their friends, their family and having to go somewhere else.

00:17:38.960 So it just shows from one accusation, from one accusation, entire families were ruined. 0.73

00:17:46.840 And I don't imagine that that was an uncommon type of story.

00:17:50.140 It was certainly a very uncommon type of disposal that they were found half guilty.

00:17:54.600 But I think, I mean, there was literally nothing to suggest that these people were involved in witchcraft.

00:18:00.120 But it was enough that two other members of the family had been found guilty as witches.

00:18:04.720 So by association, they must have had some involvement.

00:18:08.960 So strange. So today we remember Jonit Wishart, Thomas Laius, John Laius, Elizabeth Laius,

00:18:17.200 Jonit Laius and Violet Laius.

00:18:28.080 This week's guest is Andrew Tuchel. He's definitely a brilliant person to follow on

00:18:32.560 Twitter if you want legal analysis and his Twitter bio describes him as being

00:18:37.760 Law and Scottish Politics, Jacobin Sympathetic Scribbler,

00:18:42.240 at GCU Law Lecturer, at Sun Scottish National Columnist and Jaded Flaneur.

00:18:48.520 So our guest today, Andrew Tickell, is going to be talking to us about some legal aspects of the witch trials.

00:18:55.260 Yeah, the reason that we got in contact with Andrew was that we noticed on Twitter

00:19:00.560 that he was going to add the witchcraft trials to the syllabus of the course that he was teaching.

00:19:07.560 on Miscarriages of Justice and I'm delighted to see that I'll be going to the university

00:19:13.100 to talk about Miscarriages of Justice and hopefully to talk about the women that were

00:19:18.200 killed as witches too.

00:19:29.580 Andrew, welcome to the Witches of Scotland. 0.92

00:19:32.220 My very great pleasure to be with you.

00:19:34.220 Would you mind telling our listeners a wee bit about what you do and who you are?

00:19:38.780 Sure, of course. Well, I suppose I have two different hats. So by day, I suppose I'm a

00:19:42.740 lecturer in law at Glasgow Caledonian University. So I'm a legal academic and I sort of began life

00:19:48.320 being more interested in constitutions and things. But as you will, you mutate over the course of an

00:19:53.560 academic career. And I mutated into more of a criminal law evidence and miscarriage of justice

00:19:58.840 sort of teacher. So those are the kind of themes that I mostly deal with day and daily in Glasgow

00:20:03.480 Caledonian University. So I'm kind of interested in that. But I also am a writer. I'm not sure if

00:20:09.740 I really qualify as a journalist. My shorthand isn't up to it. But nevertheless, I write about

00:20:13.800 politics, about law, about culture occasionally. In a range of different places, I write a weekly

00:20:19.320 column in the Sunday National as well. So those are my kind of two divided identities.

00:20:23.560 we wanted to ask you on today in particular because um you tweeted in response to the

00:20:31.120 witches of scotland campaign can you tell people how you're interacting with it sure absolutely

00:20:36.460 well for a few years i've been running not that long actually uh a fourth year option module for

00:20:42.620 my students on miscarriages of justice it was a course that i came up with partly you know tapping

00:20:47.680 into the netflix generation's enthusiasm for stories of the wrongfully and unjustly condemned

00:20:52.720 But I wanted to have quite a broad sweep to it. You know, it's quite easy and quite right to be concerned with wrongful convictions in a classic legalistic sense. And you could run a module on that. But it always struck me as more interesting to ask the more fundamental question, what do we really mean by a miscarriage of justice anyway?

00:21:11.380 I mean, you, Claire, will be applying a legal interpretation of that in the course of your advocacy in the courts and in front of the appeal court. But in uni, I don't think we necessarily have to take a limited definition of that.

00:21:24.920 And so from the very beginning of the module, I wanted it to have a really open sense of what do we mean by a miscarriage of justice?

00:21:32.480 What kind of cases are we talking about?

00:21:34.840 And from its very beginnings, it's been preoccupied by some examples of people who were by the standards of the law, by the standards of the criminal law in the books of the time, by what they actually did.

00:21:45.380 You know, they were found guilty of crimes that now you look at and think, geez, where's the justice there?

00:21:50.400 Think of Alan Turing as one figure, unjustly condemned, but legally condemned for being gay.

00:21:57.900 And so from the very beginnings of the module, I wanted it to have a really broad sense and sensibility about what we mean by this idea.

00:22:06.200 And partly it's just assessed to having individuals pick their own thing to look at, pick their own study.

00:22:11.500 And, you know, the stories are great. Some are very Scottish, some are American, some are from New Zealand.

00:22:15.920 I mean, all over the world, you're hearing stories.

00:22:18.160 And so every year I get new examples and new stories I wasn't familiar with from the courts and outside the courts from all different corners of the world about people being wrongfully accused.

00:22:28.320 And so for a number of years, the Witches of Scotland as a kind of cohort was a group that I wanted to find space for in the course.

00:22:36.780 But I was kind of struggling. This is a very academic thing to find a good bit of reading, you know, just something that would work for a couple of hours blether with the students.

00:22:44.400 And then last year, one of my students did the witches, did the witches.

00:22:48.680 So she was focusing on what do the modern literature tell us about false confessions, circumstances which tend to incentivize them.

00:22:56.760 And so she made the obvious links that a number of people have between the deprivation of sleep, the deprivation, all of these kind of techniques which drive wrongful confessions.

00:23:06.420 And so I thought, you know, with that very wonderful piece of work that one of my students did and with your campaign, it all came together to give it that kind of modern as well as a historic resonance and to raise these fundamental questions about what do we really mean by a miscarriage of justice and critically, what should we do about them?

00:23:24.000 So that's the long answer, I suppose, to your question.

00:23:26.440 I would actually love to be on that course because as somebody...

00:23:29.260 Me too.

00:23:29.920 Yeah. Zoe and I are also true crime fanatics.

00:23:34.960 Oh, really?

00:23:35.280 You have a Netflix true crime court case, and we're both there as well for that.

00:23:41.220 There's so many good stories. I mean, I begin with one like Oscar Slater.

00:23:45.020 The case of Oscar Slater deserves to be world famous.

00:23:48.460 And then despite the fact that it's a murder case from Glasgow at the very turn of the 20th century,

00:23:53.280 it's got so many dynamics which are so familiar in terms of a suspect suspect,

00:23:57.640 a very whiter than white victim, bad eyewitness evidence,

00:24:01.040 single-minded prosecutors,

00:24:03.500 single-minded police officers

00:24:04.580 operating on tunnel vision.

00:24:06.380 You know, press vilification

00:24:07.440 and ethnic, you can work all through.

00:24:09.580 And, you know, we have these stories

00:24:10.700 in Scotland as well,

00:24:11.620 and partly just because of the culture

00:24:12.840 and the way that true crime

00:24:14.360 remains quite American.

00:24:15.880 You know, if you want your podcasts on this,

00:24:17.500 if you want your programs on it,

00:24:19.040 then a lot of it is going to be

00:24:20.640 American-accented,

00:24:21.800 whereas I think the equivalent

00:24:22.780 Scottish cases, just for the main,

00:24:25.520 for the main anyway,

00:24:26.600 probably don't have that big profile

00:24:28.180 and big recognition with the public

00:24:31.120 that I would argue they merit

00:24:32.820 in view of just the interests of the facts, you know?

00:24:35.420 Now, we have quite a lot of international listeners

00:24:38.100 and I'm wondering if you can, for their benefit,

00:24:41.760 maybe just tell a wee bit of the Oscar Slater story.

00:24:44.240 Now, I know it's going off-piste a little bit.

00:24:45.980 Claire, do you mind if we just take a wee diversion here?

00:24:48.920 As long as Andrew doesn't, go for it.

00:24:50.420 No!

00:24:51.160 Can you explain that a little bit to our other listeners?

00:24:54.700 Of course.

00:24:55.260 As soon as I mentioned it, it was a bit of a rabbit hole.

00:24:57.700 But Oscar Slater was a German Jewish man who lived in Glasgow in the turn of the 20th century, and he was accused of the murder of an 80 year old woman called Marion Gilchrist in the West End of Glasgow.

00:25:10.700 Her home was accessed by her killer, who rifled through her personal papers, took a single diamond brooch from her wash hand basin, and then walked out of the house, cool as a cucumber, walking past her maid, who was called Helen Lambie, and a downstairs neighbour who needed his spectacles but wasn't wearing them, who both saw the killer leave the house.

00:25:30.680 And inside, they found the body of Marion Gilchrist, this 80-year-old woman, having been brutally done to death by this person unknown.

00:25:37.340 And so, effectively, the trail went after him based on eyewitness evidence, which shifted a lot about what this person looked like. Did he have a crooked nose? Did he have a moustache or not? Was he wearing a Donegal cap or a fawn coat? And so they had that line of inquiry, and then they had this diamond brooch that was taken from the scene of the crime, which seemed the most powerful piece of evidence that could connect a person to the scene of the crime.

00:26:01.700 Well, suspicion fell on Oscar Slater, who was a shady customer, as so often people turn out to be in these miscarriage of justice cases. They're not Disney victims. They are plausible casting in the role of the killer. He was a man who made his money in ways that to Presbyterian Scotland in 1909 did not seem entirely ethical.

00:26:22.000 You know, he was a man who drank, smoked, played billiards, dealt in gems.

00:26:27.240 And ultimately, suspicion fell on him because he pawned his mistress's brooch, which was a diamond brooch.

00:26:32.580 So the police thought, aha, we have our man here.

00:26:35.220 And even more incriminating, apparently, than that, when they went to arrest him,

00:26:39.080 they discovered that he'd decamped from Scotland, gone down on the train to Liverpool,

00:26:43.140 hopped on a boat called the Lusitania and made for the United States.

00:26:46.460 So it looked like a flight from justice.

00:26:48.600 But in fact, it was no such thing.

00:26:50.440 the brooch he'd pawned did not belong to the victim. The eyewitnesses who identified him

00:26:55.260 gave very sketchy evidence against him. He agreed to come back to Scotland and face trial where

00:27:01.420 much was made of his personal life. The fact that his partner was a sex worker was raised in

00:27:06.880 evidence. And the judge said, a man like this who lives in this way, how could he benefit from the

00:27:11.840 presumption of innocence? And so Oscar Slater was convicted and spent many, many years in Peter

00:27:16.940 Heed. He was sentenced to death, in fact, though that was commuted, and was only released as a

00:27:21.520 result of an appeal court hearing in the 1920s, sometime afterwards. But he came to prominence

00:27:26.320 because, amongst other things, people who believe he was wrongfully convicted included Arthur Conan

00:27:32.100 Doyle, the inventor of Sherlock Holmes, who wrote a wonderful pamphlet about it you can find on the

00:27:36.740 internet, which really summarizes the public case for why Oscar Slater was wrongfully condemned.

00:27:42.840 So a story with so much in it. That's as short as I can make it. It's got so much in it,

00:27:46.500 But so many resonances for a modern student watcher, someone with interest in these wrongful convictions.

00:27:53.060 And what we've got in relation to his case, which unfortunately we don't have in relation to the cases of the women and men accused as witches, is an absolutely splendid blow by blow account of what happened at the trial because it was watched and a book was written.

00:28:09.000 That's right. It's William Roughead, who's great. I mean, they've recently published over in America.

00:28:14.140 You can get copies here of his collection because he went to lots of different cases and wrote about a range of other miscarriage of justice cases, including the Sandiford murders, slightly further up the road in Glasgow involving a woman who was wrongfully convicted of murdering a friend by a sort of suspicious old goat, a lecherous old goat who manifested himself as an elder in the Church of Scotland, but allowed this maid to be blamed for murdering someone else.

00:28:38.100 So Rough Head was a great writer and you can still get access to a bunch of his accounts of things like Madeleine Smith, as well as Oscar Slater.

00:28:45.720 And as you say, that was absolutely critical towards bringing that to public attention, which, of course, it was.

00:28:50.400 It was the Netflix of its day, albeit using slightly older fashioned technology.

00:28:54.980 Yeah, I've never thought of it that way, but that is absolutely right.

00:28:57.400 And I've been lucky enough to see the book on another woman accused of something famously acquitted or not proven Madeleine Smith.

00:29:04.380 But I think this is probably for the podcast

00:29:06.760 that Zoe and I are going to be.

00:29:10.020 That's our next project.

00:29:11.440 That's our next project, a true crime project.

00:29:13.960 So we look forward to speaking to you about that.

00:29:16.100 Now we've nabbed you for Witches of Scotland.

00:29:18.560 My pleasure.

00:29:19.500 Tell me, in terms of miscarriage of justice

00:29:22.340 and when you're talking about it broadly,

00:29:24.280 what sort of things do you look at?

00:29:26.040 Because I, as a lawyer, obviously look at the legal test

00:29:29.580 that's set down in statute.

00:29:31.160 And there is said that there's only one test

00:29:33.340 for a miscarriage of justice in Scotland and it is that, that there has been a miscarriage of

00:29:37.580 justice. So it's not terribly illuminating. We have to try and fit it into various boxes when

00:29:44.140 we argue things in the appeal court, that the appeal court recognises a miscarriage of justice,

00:29:49.040 but what, with a particular emphasis on the witches, do you look at when you're discussing

00:29:53.860 a miscarriage of justice? Yeah, I mean, you can go for different definitions. I mean,

00:29:57.020 some people would say it's just about wrongful convictions, but I think what you see increasingly

00:30:01.040 in the scholarship around this is looking at it as a study of legal error, if you like. I mean,

00:30:05.920 we can talk about injustice till the cows come home and all the different things that might be

00:30:09.840 an injustice socially. But I think if I was going to define it in a limited way, you talk about

00:30:13.520 legal error, I suppose, in the widest sense. So popular books like The Secret Barrister,

00:30:18.460 for example, talk about things like wrongful denial of bail, your lawyer being incompetent

00:30:22.620 and you spend months in prison. Well, we can think of that as being potentially a miscarriage of

00:30:26.080 justice in the wider sense of a legal error or an error around the legal system. Or, for example,

00:30:31.800 some of the dodgy DNA cases involving the wrong people being put in the frame for crimes they

00:30:36.540 haven't committed because the labs mishandle forensic samples. Even though you're not convicted

00:30:41.560 of any crime, I think it's entirely appropriate to see that kind of thing as being a miscarriage

00:30:45.900 of justice in the wider sense. I think what's interesting about the witches, though, and we

00:30:49.860 can maybe tackle this in different ways, is you're looking, of course, back to earlier centuries.

00:30:55.720 I suppose we might quibble about the evidence in these cases.

00:30:58.460 Could any reasonable tribunal find someone guilty of being a witch on the facts?

00:31:03.280 I think it raises really interesting questions raised by your petition about what do we do about this?

00:31:08.200 And what's the point of doing it, really?

00:31:09.660 I mean, over the past wee while, there's been a lively exchange of views, if I can put it that way,

00:31:14.660 about whether it's a waste of one's lifeblood to be concerned about the lifeblood that these men and women spent,

00:31:20.920 mostly women, as a consequence of suspicion visited upon them by their society. I think

00:31:25.500 you can see similar arguments could at least be made in principle about the other pardons and

00:31:30.080 disregards we've seen in recent times. I mean, we've seen in the field of convictions for

00:31:34.580 protest around mining during the Thatcher period, John Scott recommended that that should be

00:31:39.000 addressed. There are still living miners, I suppose, and people with those convictions and

00:31:43.180 a sense of injustice, which that addresses. Equally powerfully, the pardons and disregard

00:31:47.960 for men convicted of homosexual offences before that was addressed. Again, there are living bodies,

00:31:54.600 men who were able to testify to the significance of this in terms of their life. Whereas I think

00:31:59.560 what's interesting and challenging, I suppose, in the case of witches is the muteness through

00:32:04.020 history of that experience and perhaps the lack of public awareness of the fact that it happened.

00:32:11.860 And it happened in some cases in quite a sophisticated legal way, which I suppose might be the kind of thing which gives lawyers like yourself the fear.

00:32:22.300 You know, obviously, you couldn't, because of the misogyny of the structure, you couldn't have been the lawyer that was prosecuting the witch.

00:32:29.660 But, you know, your brothers from the legal profession are implicated up to their necks in effectively this, well, yeah, this profound injustice.

00:32:40.280 So many interesting things I want to talk to you about there. You're absolutely right. What is different from this campaign is that we have no surviving members of the people who were collectively accused, tortured, convicted of witchcraft.

00:32:57.880 so what does a pardon say what is it that a pardon does for these people and I suppose

00:33:04.680 I looking at it in a completely legal way my first question was could I seek to overturn the

00:33:09.900 convictions of any people convicted of witchcraft so that was the first thing that I looked at and

00:33:15.880 the answer to that was I could not find any living relatives and even if I could I very much doubt

00:33:23.040 the Scottish Criminal Cases Review Commission

00:33:25.040 for referring a case back,

00:33:28.400 saying that someone now had a legitimate interest

00:33:31.200 in their forebear's conviction

00:33:33.240 and whether or not they would send that back.

00:33:35.280 And as you know, of course,

00:33:36.860 it wouldn't help anyone else.

00:33:38.240 It would only help that one person.

00:33:39.520 So even if I was over that hurdle.

00:33:42.060 So the next thing I thought of was,

00:33:44.040 well, how in the modern day,

00:33:46.480 particularly looking at the Scottish Parliament,

00:33:48.220 how has it dealt with the people convicted

00:33:50.740 of homosexual offences

00:33:51.880 and also latterly the minors, although that came to light after our campaign had already started.

00:33:58.580 I looked into the wording of the way that the pardons had been provided before,

00:34:03.880 and the wording was very interesting because it seemed to suggest that this was being done

00:34:09.420 not only for the living, but also for the dead.

00:34:12.900 And I found that acknowledgement a reassurance, certainly, and asking for it in this case,

00:34:17.880 because there was an acknowledgement that it still meant something to address historical injustices that had occurred

00:34:24.960 and to say sorry for them, not only in a way of simply apologising, but actually formally saying sorry.

00:34:33.040 And the nearest way that one can do that, I think, in the modern world is a pardon.

00:34:38.200 Is the question of addressing miscarriage of justice, is it about saying sorry?

00:34:42.240 Is that what it's about, apologising to people?

00:34:44.940 I think people often get rather in a fankel when we talk about these kind of things, because many societies have faced similar issues.

00:34:53.620 I'm reminded just what you were saying there of the example of Australia, for example, which dealt with its legacy of its behavior as a state towards this aboriginal people.

00:35:02.600 And there, the prime minister back in the 1990s apologized.

00:35:07.260 And that caused, provoked a range of the debates which you're experiencing around this petition, around the idea, why should I apologize for something I'm not responsible for, being the counter-argument.

00:35:16.780 And I'm reminded of something that a Lebanese-Australian philosopher called Raymond Gaeta said about this, that really, when we're talking about guilt and sort of shame, they're different things.

00:35:28.180 And to conflate the two is to make a kind of intellectual confusion.

00:35:31.660 I mean, I didn't burn the witch.

00:35:33.320 You didn't burn the witch.

00:35:34.540 We didn't burn the witches.

00:35:35.640 So in a sense, it would be misplaced profoundly, I suppose, to feel personally guilty for that.

00:35:41.620 But Gaeta makes the point that if you're going to invest meaning, significance, a sense of your own rootedness in the world in the good things that your community have done down the centuries, and heaven knows most people want to identify in some ways with the jurisdiction of their country.

00:35:59.300 If you want to do that, if you want to take the good, then you have to be prepared to own the bad as well, because both are part of an accurate account of what happened.

00:36:09.840 So you can't swell with a sense of pride if you are utterly unprepared to confront the things that your collective and your forebears did.

00:36:20.040 And of course, that's a mobile picture. Many of us are, you know, folk that have come here from a range of different places.

00:36:25.100 But if you own our history, then you have to own both sides of it.

00:36:28.540 And I think that was Gaeta's point. I think he's right, in fact. And so in some ways, the idea of guilt is a bit of a distraction because no one's saying you're guilty of this, but it is saying this is our history and it's our history, which is worth knowing about for starters, which again, I think is open with the witches to question about how much it becomes more than a sort of jokey burn the witch, sail the witch.

00:36:51.240 You know, there's sort of deep unseriousness about the discussion of the idea of torturing women to death, which is, you know, make of that what you will.

00:37:00.600 Well, I mean, it's something that we've had, we've had very little criticism, really, from people about it, but the criticism we have had, I'm a bit like a broken record here, a stuck record, is that it's generally been from men that have criticised it.

00:37:14.500 And they have generally made jokes at the same time along the lines of, you know, well, we've got a witch in charge of the country, you know, or they've missed one of the witches.

00:37:26.580 She lives in my house, you know, or why don't we dump them to see if they're telling the truth?

00:37:31.380 You know, that sort of thing, which there is always, well, it's just a joke, you know, but it's something that's really deeply misogynistic. 0.85

00:37:39.420 there's this really deep sort of strain through it of yeah but you're worthless you know and I

00:37:44.760 think that's for me that's one of the reasons I think it's really important that we look at this

00:37:48.940 is because it sort of brings out into the light this misogyny that a lot of people do or some

00:37:54.040 people do hold and say actually do you know what it's 2021 you're gonna just quit it

00:38:00.480 my officer's neighbor has a wonderful t-shirt that she wears occasionally which is what we

00:38:06.020 are the survivors of all the witches you failed to burn, which is magic. Absolutely. Yeah. I mean,

00:38:12.220 also, I think in terms of the wider sense about how do these things happen is also sort of

00:38:16.960 something we might take modern lessons from. I always say to my students, you know, you need,

00:38:22.920 if you want to understand how these things happen, you have to take them seriously and imagine

00:38:28.420 yourself as, you know, not necessarily the perpetrator, but if we're talking about, you

00:38:32.240 know, police officers with tunnel vision around a case. Well, these aren't morons. I mean, 1.00

00:38:36.840 you have people applying their minds to the world as they understand it, and they're making errors.

00:38:40.900 So let's try and enter their shoes and make sense of it. And I think around, you know,

00:38:45.520 thinking about scapegoating, which is another one way of looking at this. Well, how do we end up

00:38:51.100 with scapegoating? And why do we do it? What's the good of it? I know that's just a strange kind

00:38:55.760 of counterintuitive question, but it's such a persistent dynamic across culture, in drama,

00:39:01.440 and religion, and a range of different things. Why do we do it? And what's the good we get out

00:39:06.960 of it? Because there is a good, a collective good we get out of it. There's different ways

00:39:10.260 of thinking about it. One of my favorite ways is from a French thinker who made most of his

00:39:14.620 career in America called René Girard. And René Girard makes the point that desire what we want

00:39:19.980 in life, or indeed what we don't want, the burdens we want to avoid. We often tell ourselves that

00:39:25.680 the things we want in life are because they're intrinsically good things. We want that pair of

00:39:30.180 shoes because they're great shoes. They want to drive that car because it's a really great car.

00:39:34.200 But in truth, Girard says, we mostly desire things because other people want them.

00:39:38.680 And so it's one of those things that human beings learn through mimesis. We mimic each other,

00:39:43.420 just like we learn language by mimicking our parents when we're talking. And so his argument

00:39:47.400 is basically when you've got limited resources in a society, including a sense of security,

00:39:52.020 when that begins to get eaten up by many demands of people wanting the same kind of things,

00:39:57.200 you get social tensions arising. And those social tensions down the centuries in complex societies

00:40:02.840 and in simple ones, or more simple ones in terms of just the number of human bodies involved,

00:40:08.020 they earth some of these conflicts by putting the sins of the community onto that goat,

00:40:12.560 just like the book of Leviticus, and chasing it out of the village. The core of that kind of

00:40:17.800 thinking that what we can do is pour all of our sense of social anxiety onto a convenient

00:40:24.980 scapegoat, and in the modern form, not just chase them into the desert, but do them to death to ease

00:40:31.720 our sense of anxiety in a difficult world. Well, you know, I don't think you need to look terribly

00:40:38.140 far in our society, in our politics, in international politics, to see that kind of

00:40:43.500 mimetic desire, scapegoating mechanism playing out very powerfully. And I don't know enough about

00:40:49.180 Scotland in the 16th century to say to what extent and what factors were driving that sense

00:40:53.720 of insecurity. But nevertheless, I think in any student of miscarriage of justice, you need to

00:40:58.480 understand that social psychology, which can perhaps help us explain why it made Scots in 0.76

00:41:03.700 the 16th century feel better to strangle and burn these people. Because this is about humanity and

00:41:09.480 human cognition, which although it's subject to, of course, change in what you think and why you

00:41:13.940 think it, nevertheless is still prey to these little creatures of the underworld of our soul,

00:41:19.860 You know, these demands of our unconscious that come up and cause this kind of thing to happen.

00:41:24.760 I think that's so key, Andrew, that it's these are things that happened to people when people were as intelligent as we currently are, had the same emotions as we do.

00:41:37.240 They weren't just because they didn't have iPhones and fast cars didn't mean they weren't as intelligent.

00:41:43.920 They couldn't understand the world.

00:41:45.600 They couldn't they couldn't process the world.

00:41:47.740 They had all the information that we have. They were, of course, living at a very, very different time. And the different time, I think, between the 16th and 18th century was that the church had a stranglehold over people and they vehemently believed that the devil walked amongst them.

00:42:05.240 There is no doubt we've spoken to a number of people, including Professor Julian Goodyear, who says, let's be absolutely clear about this. The belief was that witches existed and the object was to find them and to weed them out of our society.

00:42:21.320 And it was that premise that underlied all of these things at the moment. And more recently, and I think we've certainly spoken about this before, is that Margaret Atwood, who wrote The Handmaid's Tale, and she said she was always surprised when people thought it was a futuristic sci-fi book when she actually based it on the trials that took place in America, the very small amount of trials that took place in America.

00:42:46.600 and her book was I think dedicated to or written as a result of her interest in a woman called

00:42:53.200 Mary Webster, Half-Hung Mary, who she also wrote a very very famous poem about which is very very

00:42:58.660 haunting and she had a conversation with Ruth Bader Ginsburg where Ruth Bader Ginsburg said

00:43:04.280 what you're thinking about this kind of the demonization of women it won't happen again 1.00

00:43:09.020 because women are now in positions of power, they are in our parliaments, they are in our courts, 0.99

00:43:14.200 they are our medics, they are our people who hold positions of power and Margaret wasn't as confident 0.92

00:43:21.240 about that and I don't think I'm as confident about that either because I still see places in

00:43:26.420 the world where mostly women and children are still called witches, that's still used as a tool

00:43:32.720 of persecution. We don't have to look far away in the world for that happening, I mean we only

00:43:37.400 we need to look as sort of recently for example at Hillary Clinton or Nicola Sturgeon, you know

00:43:42.320 like the word witch is still used really heavily to shut women down and there was the the very

00:43:48.960 recent interviews with mary beard where she was talking about women being called witches beyond a

00:43:54.780 certain age when they're no longer i suppose fertile they're no they're no longer useful in

00:44:00.240 society they're no longer attractive in the way that young women are and then then you reach into 1.00

00:44:05.360 this sort of crone sort of version of your life where you're a witch and therefore useless but 1.00

00:44:10.640 slightly scary there's a there's a you know it's funny but also a little bit creepy you know or

00:44:15.880 you could be a bit evil or you know something it's it's very interesting and obviously completely

00:44:21.300 horrifying there is definitely that word which you know i've said this a few times i occasionally

00:44:26.340 go into the search in in twitter and put in the word which to see what's currently being said

00:44:32.060 really to see if if our podcast is being touched i put it in and it almost always is about nicola

00:44:37.840 sturgeon is the first hit that comes up and she's routinely referred to as the wee witch you know

00:44:43.460 alongside the wee dictator but it's it's very very frequently that she's described as a witch

00:44:48.140 which is just in scotland you know and i think part of it is that people don't know this history

00:44:55.040 by and large you know which is part of our mission is to get people educated about it 0.94

00:44:59.400 but i think also it's just a very neat way of saying shut up wifey you wee witch you know it's 0.85

00:45:05.580 It's a really quick way of shutting people down. 0.74

00:45:08.260 Yeah, it's interesting that around the sort of educational thing.

00:45:11.100 I mean, it's always hard to know how much your education was kind of general

00:45:14.760 or whether you went to a strange school with people.

00:45:16.780 I mean, we did so much British history and German history. 0.77

00:45:19.380 I seem to be perpetually obsessed with the threat that Germany poses to European peace.

00:45:23.980 I don't know why that was relevant during the late 2000s.

00:45:26.880 But yeah, it's amazing about these local histories.

00:45:29.380 I find anyway, at least when I was educated, maybe things are different now,

00:45:32.560 that these stories about Scottish history aren't really told in this way. And even actually,

00:45:38.240 to some extent, the kind of religious history of Scotland as this Presbyterian bastion of a

00:45:42.580 particular outlook, you know, the comparison of Scotland to other European countries and the

00:45:46.800 prevalence of this kind of witch hunting that went on and what that might tell us about that

00:45:50.840 society. I don't really know why education in Scotland seems so reluctant to talk about often

00:45:56.260 even Scottish books plays, in my experience anyway, as well as our history. But as you say,

00:46:02.420 I suppose it is a phrase with continuing resonance in terms of our politics and ways of constructing people.

00:46:08.300 You would be the same as us then. You had no teaching on the history of women, I suppose, the history of witches in your education.

00:46:16.860 I was trying to cast my mind back. I don't think so. I mean, I just like the weird one because I grew up in the West Coast in Mid-Argyle.

00:46:22.560 So I was looking on the map to see if anyone got burned. 0.96

00:46:25.640 And I mean, there was one or two people, I suppose, who were slightly eccentric druids around my immediate vicinity who did believe in things like fairies.

00:46:32.520 So some of that legacy of superstition was one that was still alive when I was there.

00:46:37.780 I mean, I did know people who honestly believed in the wind being full of noises and, you know, the fairies being there as a real life phenomenon now.

00:46:46.700 But no, no, I mean, not even in primary school where it was a bit more open minded in terms of the education.

00:46:52.000 yeah it's quite extraordinary as i've said several times so i got i learned a lot about

00:46:56.900 cheviot sheeps and arable farming quite right too where was that

00:47:00.860 i i know how to keep in glasgow glasgow you weren't even you weren't even brought up in

00:47:07.660 the country were you you weren't even in a farming community in govan hill that's in govan hill they

00:47:11.960 went with the cheviots so overrun overrun with sheep there i was only one generation that we

00:47:17.680 I suppose part of my family being Irish from living on a farm so you know perhaps maybe they

00:47:22.860 thought I would go but it was bizarre and as you say yeah I went from cheery at sheep farming to

00:47:27.640 World War II and that was nothing in between that covers all the main points so tell us how are you

00:47:37.400 going to approach the story of the witches of Scotland in your course yes well I think it's

00:47:42.620 it really raises a couple of points you've highlighted what do we do about mass miscarriages

00:47:47.320 of justice. I mean, you've experienced representing mostly individual people,

00:47:52.840 individually wrongfully condemned. But of course, very often that legal framework of

00:47:57.200 individuals wronged fails to capture the wider social point that actually to look at this as a

00:48:02.660 series of individuals tragically wrongfully condemned is to completely miss the fact this

00:48:06.860 is a systematic persecution of people who don't merit it. And I think that is one of the challenges

00:48:11.060 actually, and one of the big limits of taking a very legalistic view on this, because you look

00:48:15.660 for individual factors and individual stories. And actually, what does the witches of Scotland,

00:48:20.000 the witches of Europe tell us? It tells us about those wider social factors, about how whole

00:48:24.620 categories of people, what 80 odd percent of them being women, become lightning rods through which

00:48:29.760 their society earths their anxieties. And in the process of that, destroys them utterly. 1.00

00:48:35.920 Who's picked as the victim? Who's the one who's convincing casting as the witch? I've used that

00:48:40.600 metaphor a few times, but I do think thinking about miscarriages of justice in a kind of

00:48:45.220 dramatic way about good and bad casting is actually quite helpful. You know, the idea,

00:48:50.340 we often talk about it in the wider culture of how people look. We may not be phrenologists in

00:48:54.800 the Victorian sense anymore, but how people present in court, whether it's, does that person

00:48:59.460 look like a rapist or not? Or, you know, is that the kind of guy like Oscar Slater who would have

00:49:05.720 done this terrible deed? You know, human beings are. And the whole court system, which makes the

00:49:10.680 drama of an encounter, an eyes meeting across a courtroom and says you can judge credibility

00:49:16.100 and reliability based on how people answer questions in an unfamiliar environment, I

00:49:21.140 think we can ask awkward questions about all of those assumptions. But nevertheless, casting

00:49:25.740 becomes hugely important. And sometimes if you have, well, guilty people who are miscast,

00:49:31.280 that can be very helpful, I think, to result in them walking out of court acquitted of crimes

00:49:35.720 they factually are guilty of. And equally, of course, very often what you find with these

00:49:39.700 miscarriage of justice cases, is the casting is plausible. You know, and I think so often the

00:49:44.380 whole discussion of miscarriages of justice from the kind of Stephen Avery version, making a

00:49:48.940 murderer type thing, suffers from a kind of Disney version of this, which sort of imagines in two

00:49:54.780 different ways. And the victims of miscarriages of justice are going to be sort of whiter than

00:49:59.280 white victims. And also at the other end of it, that they'll come out of this experience of 16 0.80

00:50:05.980 or 20 years in prison undamaged by the process of that injustice they've experienced. Both

00:50:13.540 these assumptions seem to me fundamentally mistaken, unfair, misunderstand how miscarriages

00:50:18.700 of justice happen and don't allow people suffering they've actually experienced to have a kind

00:50:23.880 of moral damage on them. So I think in terms of the witches, what I see this as is taking

00:50:28.380 us to that casting point and making us think about what is it culturally that men, of all

00:50:33.540 the different ways you could explain and expel the social anxieties of the community, why did

00:50:40.460 lightning crash in the head of these people? Of all of the other options that you have, yes,

00:50:45.180 witches were real, Satan's real, they believe that certain damaging social outcomes, environmental

00:50:50.560 catastrophes can be attributed to the malice of the fallen angel. I mean, that's one way of

00:50:55.840 explaining how these things happen. But I think it really does, it takes us into that, about that

00:51:00.220 wider picture about why is it that some groups of people in given societies preponderantly end up

00:51:07.080 being the convincing scapegoats for those societies and i think that's something that

00:51:11.200 really grabs me about the idea of witches of scotland and why i still feel so strongly about

00:51:16.320 it because unsurprising zoe and i are both feminists as you would imagine and we are struck

00:51:22.520 that we live in a society which is still a patriarchy men as a generality still control

00:51:28.540 power, self-controlled land, self-controlled money and that is why I find it so interesting that

00:51:34.660 women were the perceived at the time of the witch trials to be weaker in the sense that they were

00:51:42.140 both intellectually and morally weaker than men and therefore susceptible to the devil's charms 0.86

00:51:48.280 and therefore that's why women would be witches and of course what more would the devil be doing 0.98

00:51:53.460 with women they're having sex with them because the devil had been normally always seen as a man 0.99

00:51:59.340 then the people with whom the devil would be having sex were women that was you know that 0.82

00:52:05.220 that was again the rationale that was given and you just feel that unless and until we don't

00:52:12.360 live in a patriarchy anymore where women are equal then it's particularly important to examine

00:52:19.140 the causes of why these miscarriages of justice happened

00:52:25.040 so that we do not go on to repeat them in some way.

00:52:30.120 And I think that's right.

00:52:30.800 I mean, the old idea of what's at Eve sets the balls of corruption rolling,

00:52:34.000 that sort of fear, anxiety is something which I think you're right.

00:52:37.820 Our own society is not immune from at all.

00:52:41.200 I was recently reading one of my lockdown reads that I got into

00:52:44.500 was Ursula Le Guin.

00:52:45.960 I don't know if you've ever read anything by Ursula Le Guin,

00:52:47.780 But I was very struck by a quote of hers, which really goes, I think, fundamentally to some of the issues which you're talking about.

00:52:56.200 Let me find it because it's really, it captures for me, it's from her final book that she wrote in her Earthsea kind of cycle.

00:53:03.720 And she wrote, interestingly, about a bunch of different things.

00:53:06.160 But in that, she really reflects on male mistrust of women in general.

00:53:10.800 And this is what she said.

00:53:11.700 She says, how men feared women, she thought, walking among the late flowering roses, not as individuals, but women, when they talked together, worked together, spoke up for one another.

00:53:22.680 Then men saw plots, cabals, constraints, traps being laid.

00:53:28.760 I mean, you could add witches at the end of that and you've got a pretty nice expression of something with that anxiety.

00:53:35.180 Witch cabal for coven and you've got it covered. That's an excellent quote. I've not heard that before.

00:53:39.860 It makes me think of the Margaret Atwood quote, which I'm going to paraphrase here because I can't remember exactly.

00:53:44.260 But she said quite some years ago that men fear that women will laugh at them and women fear that men will kill them.

00:53:51.540 You know, and there's there, you know, it's still sadly, I think that is still there's a prevalence of that.

00:53:57.140 You know, we've still got pretty horrendous domestic violence rates and so on.

00:54:01.540 And the idea that what makes it worse for me, the story about the witches and the history of the witches, not a story, what happened with witches.

00:54:09.860 is not just that it was that men went, well, here's a woman that were going to scapegoat.

00:54:14.540 You know, for example, Lilius Adie that we've looked at very recently in our most recent podcast was from Fife.

00:54:21.300 And because she wasn't actually convicted, she died before she was convicted, her skeleton remained.

00:54:29.880 So you'll probably know this, but they took her skull and there was photographs made of the skull.

00:54:33.760 And then a reconstruction was done by some of the Dundee University academics there.

00:54:38.200 and they worked out that she had been very tall she was about six foot tall and that she had very

00:54:43.960 prominent front teeth so there was a one of the things that doug spears the archaeologist said

00:54:48.820 to us was that she would you know she would have stood out for that reason that she was a bit odd

00:54:52.320 looking she's a bit strange you know this this idea that strangeness could then sort of bring

00:54:57.860 the bring the witchcraft thing to you what makes it worse for me it's not only that which is 0.77

00:55:02.220 appalling it's the sort of the complicity of lots of women in the communities that were the ones

00:55:07.560 often that would say she's a witch she's a witch go and look at her whether you know this interesting

00:55:13.480 thing about was it to save themselves was it because it was exciting was it because it gave

00:55:18.620 them sort of social currency was it because they had no power and this was a way of getting some

00:55:23.740 power was it to get land or money you know that's the part that i find horribly compelling actually

00:55:30.160 about it but maybe it could be explained by that idea of of some of this at least being unconscious

00:55:35.060 You know, if we go back to that way of thinking about it, I mean, it's a world where conscious explanations are rooted in myth, a fear of the island being full of noises and, you know, spirits being abroad.

00:55:46.000 But I suppose transference in the simple psychological sense of that which most riles us up about other people and the vices we are most able to identify in others are our own vices concealed from ourselves.

00:55:59.240 you know the accuser who is suddenly conscious of you know she's the witch i think there's an

00:56:04.320 awful lot of that you can see in these kind of cultures um you know anxieties again are largely

00:56:11.080 unconscious and i think that's such a huge part of how these things work i mean people i suppose

00:56:15.940 here's the other thing people generally don't want in modern scotland modern justice systems

00:56:20.920 to convict the wrong person i mean in the sense i think one could probably say much the same about

00:56:26.140 the past. There's no good. You don't get the emotional and psychological hit. Your anxieties

00:56:31.640 aren't relieved if you burn the wrong witch. But of course, one of the things about that whole

00:56:37.980 idea of the earthing of tensions is it's only temporary. With these scapegoats, there's always

00:56:43.120 the other one. It never works forever. It's like the modern version of this is people's favorite

00:56:48.800 beauty regime. Buy our particular product. It works for approximately a week, but you have to

00:56:53.940 keep buying it it's the similar sort of logic to some of this kind of earthing of social tensions

00:56:58.780 that it's never an ultimate solution to the social problem it just locks you in unconsciously into

00:57:04.200 the structure where you expel all of your poison in this way that's exactly in a practical sense

00:57:10.360 what happened because one person was accused of being a witch they were perhaps held um they had

00:57:15.600 sleep deprivation they were asked about having sex with the devil they were asked about who did you

00:57:19.800 meet who your friends were and gibbering maybe at a later stage they gave a full and detailed

00:57:24.660 coven meeting with all these different women they would then go to the other women they would treat

00:57:29.360 them in the same way they would talk about other women and before you know it that anxiety that

00:57:33.820 people had that the devil was amongst us took hold like a fire itself and spread through country

00:57:40.880 the scotland's country burning for 200 years there were four particular periods when it burned

00:57:46.620 strongly but that anxiety which people were trying to identify the witch and stamp it out

00:57:51.720 caused there to be more allegations of witchcraft which then caused there to be

00:57:56.920 more women that were killed feeding itself and only after 200 years really burning out

00:58:03.700 burning out i think what's interesting to me as well and this was a point my student made back

00:58:07.720 when i was first inspired to this is that we're also dealing with confessions which are of the

00:58:11.660 kind that I think for the average person today are the most difficult potentially to understand,

00:58:17.060 you know, in terms of the typology of false confessions, you know, the voluntary one,

00:58:20.800 the coerced compliant one. And then lastly, this idea of the coerced internalized one of which the

00:58:26.220 most famous, one of the most famous examples, as you'll know, is the Reykjavik confessions case

00:58:31.040 involving people being convinced as a result of their interrogation that they did in fact kill

00:58:35.460 people that they didn't kill. And there was no evidence to support that. You know, the idea I

00:58:39.700 I lied, I confessed to a crime to cover up the fact my partner was driving the car.

00:58:43.940 That people can understand. I did it to make the questioning stop. I did it to try and get away.

00:58:49.460 I did it to stop being tortured. I think people can sort of understand that. But if you are in

00:58:53.700 the territory where the false confessor is actually subjectively convinced they've seen

00:59:00.740 things they have not seen and are perhaps people who are more inclined to summon up those imaginary

00:59:07.060 phantoms. I think that's also another dynamic

00:59:09.140 which I thought is really modern

00:59:10.920 about how these forms of interrogation

00:59:13.460 can produce this kind of unreliable

00:59:15.480 testimony of such a lurid

00:59:17.300 kind. So interestingly

00:59:19.100 when I was researching this before the Witches 1.00

00:59:21.180 of Scotland, because I've been interested in the women

00:59:23.000 accused of witches for a very long time

00:59:24.960 but before the campaign started

00:59:27.340 I was researching

00:59:28.880 the Lord Advocate Mackenzie, the

00:59:31.160 Bloody Mackenzie and

00:59:33.000 for all that he was called the Bloody Mackenzie

00:59:34.800 he thought that, inverted commas,

00:59:37.060 most of the witch trials weren't actually about witches at all and he rather subtly had to go

00:59:44.620 around trying to kibosh as many prosecutions as he could it would seem and he told tale of a very

00:59:51.540 very sad one which was particularly poignant when he recorded a woman being interrogated

00:59:57.540 and she asked her interrogators can I be a witch and not know it she believed so much that the

01:00:03.560 people that were telling her that she was a witch and she was living in a society where those people

01:00:08.260 were the good people they were the holy people they were the people in whom society placed a

01:00:13.320 trust that she was thinking well maybe they're right maybe i am a witch but is it possible for

01:00:19.040 me not to know and that just it really got to me to be frank that that feeling because you just

01:00:25.180 wonder what sort of state would a woman be to feel that it just really really resonated in a

01:00:32.360 in a very appallingly bad way.

01:00:36.840 I just couldn't really see how sad it was

01:00:38.820 that someone was in that situation.

01:00:40.640 Not expressing myself very well,

01:00:42.020 but that's probably just because I'm thinking about it

01:00:43.680 all over again.

01:00:44.860 But that's right, because to even ask that question,

01:00:48.020 to open the door to the possibility

01:00:50.100 that unconsciously asleep, unbeknownst to yourself,

01:00:53.460 you are this terrible thing.

01:00:56.220 And I suppose that is what it was for people. 0.90

01:00:57.840 It wasn't just accused of, you know,

01:00:59.260 putting a hex on someone,

01:01:00.400 your neighbor's sheep you know we're talking about being a morally corrupted person I mean

01:01:06.040 this was the idea that you are secretly unbeknownst to yourself that kind of person well we see 0.90

01:01:09.940 culturally echoes of that and you know your Jekyll and Hyde type phenomenon it probably speaks to

01:01:13.920 quite human basic horrors of the fact that maybe your conscious mind isn't the full part of

01:01:18.920 yourself and maybe you do things when you lack control which will damn you in the grand scheme

01:01:23.580 of things and I suppose that's part of it as well without and that's one of the challenges I suppose

01:01:26.860 just historically in general as well it goes back to the point you were making about taking the

01:01:30.380 passed seriously on its own terms. And I think it's so hard for us to do. I mean, when we're

01:01:35.360 looking historically, there's a terrible temptation to kind of universalize in a kind of, you know,

01:01:40.400 sort of nice and friendly sort of way. You were sort of saying, you know, people with the same

01:01:44.420 emotions as us and the same intellect as us. And of course, that's true. But what the intellects

01:01:49.600 and emotions graft onto is a world which for, I mean, I'm an atheist myself, you know, I don't

01:01:55.540 live in a world which is populated by spirits or an all-seeing creator God that's going to

01:01:59.820 ultimately mark my homework and tell me whether I'm for the bad fire or the good. But if you are

01:02:04.640 someone in that worldview who lives in that cosmology where the whole world just resonates

01:02:10.220 in a completely different way. And I think sometimes I'm not a historian, but sometimes

01:02:14.200 it can be such an intellectually challenging thing to work yourself into the imagination and

01:02:18.720 the emotional reactions of someone who does that. But if you do, I think you do have the reaction

01:02:23.280 you had to that confession because it's got such a terrible, melancholic tragicness to it of someone

01:02:29.640 who's just so saturated with their own social preoccupations

01:02:32.920 that they're beginning to doubt, by the sounds of it,

01:02:35.360 their own sanity, judgment, recall, memory.

01:02:38.400 And of course, memory is so much more fragile

01:02:39.780 than any of us are often able to admit to ourselves

01:02:43.520 or about others.

01:02:44.860 Absolutely.

01:02:45.320 So tell us, we'll put you on the spot, Andrew.

01:02:47.340 What do you think?

01:02:48.900 And please don't simply say you agree with it

01:02:50.880 simply because you're on talking to us.

01:02:53.460 What do you think about a pardon and apology

01:02:57.120 in a national memorial?

01:02:58.180 do you think these are good things individually or in total what's your what's your i i think i

01:03:05.440 think memorials are good pardons for me um flare up a different set of arguments i have about

01:03:11.200 pardons and and it's about kind of ideas of mercy forgiveness and how they connect to the idea of

01:03:16.260 pardon and one of my problems with that and it's a problem which i have about this to some extent

01:03:20.580 but also about the pardons that were distributed in general to um to the homosexual offense people

01:03:26.960 have been convicted of that, and indeed to Turing himself, is that pardon presupposes a measure of

01:03:31.860 guilt. And pardons don't say you're not guilty. In the classic sense, it's the exercise of mercy.

01:03:38.720 It commutes the guilty person's sentence or their level of guilt. And I suppose it comes down to

01:03:44.740 whether you see the arguments of mercy and the arguments of justice as being basically a species

01:03:49.800 of the same thing, or do you see them as radically different kind of things? And you see this with

01:03:54.700 When Alan Turing was initially the first reaction to him, I think Gordon Brown initially apologized for the treatment of Alan Turing, who was chemically castrated by the British state, despite having served nobly in the, albeit not in perhaps the armed sense of World War II, but famously as a codebreaker, as many people will know, because he was gay.

01:04:13.800 And that's a pardon or apology followed by a royal pardon. If you read what the Queen proclaims, it was very much that royal prerogative of mercy. And I do think, is this really an argument about mercy or is this an argument about justice? And that would be where I would come in on that.

01:04:29.460 That's quite interesting, because we've had contact from a number of people in England talking about pardons and how they get pardons for people in England. And there was, some years ago, an attempt to get a pardon from the English Parliament from a certain people that were convicted of witchcraft. And the pardon was removed because a pardon had to come from the Queen. And you couldn't ask Parliament to do it. Whereas here, we can ask our Parliament to pardon.

01:04:56.300 And I understand what you say is that the idea of the pardon requiring mercy, interestingly enough here, the language which has been used in both of the pardons that have been proposed, the homosexual offences, inverted commas, and for the minors, both of them make the point that these people were not guilty of an offence.

01:05:18.680 So I think it's quite interesting that the language that's being used for the pardon actually does emphasise that we with our modern eye look at them and see that they aren't doing that.

01:05:29.780 And I think that is, in a legalistic sense, different from the prerogative of mercy, which the Queen would have to give.

01:05:37.000 So I think our Parliament has looked at it in a different way.

01:05:40.500 Probably because I'm a lawyer, I think, well, if I can't get a conviction overturned, the next best thing I can get.

01:05:47.040 because I would love to try and get all these

01:05:48.940 conventions overturned.

01:05:51.740 The legal aid board

01:05:53.140 would be up for that. You've got a bunch of,

01:05:54.880 that's a career there.

01:05:57.380 Some people have actually,

01:05:59.340 those speaking negatively, have said

01:06:00.960 what a waste of legal aid

01:06:03.220 and I'm thinking

01:06:04.020 this, see if you

01:06:07.100 think I'm getting paid legal aid for this, then 1.00

01:06:09.040 I've got a bridge I want to sell you.

01:06:11.320 You know?

01:06:12.480 Do you have to put the date of birth 1569

01:06:15.020 in the moment the applicant?

01:06:16.080 One other thing that we've had as a criticism is that this came from a from a solicitor in Scotland said if we if we were going to be looking for an apology and a pardon for the witches, then he had he had some issues with the Romans that they had come and attacked our country.

01:06:35.160 and would we be seeking redress from them?

01:06:38.680 What would you think about that,

01:06:40.200 about this idea that, you know,

01:06:41.900 if you get apologies for one group,

01:06:43.700 you need to get apologies from everybody

01:06:44.980 that's done Scotland wrong in some way?

01:06:47.720 The idea of an infinite regress.

01:06:49.360 Well, I suppose I go back to the point that,

01:06:50.920 you know, if you're going to avow the history of your country

01:06:52.740 and the 16th century is not that long ago,

01:06:54.880 then you have to take the good and the bad at the same time.

01:06:57.340 I mean, you can maybe even sharpen up the argument still further.

01:06:59.920 I mean, Claire, you'll know better than any of us

01:07:01.840 that the actual innocence is not a ground of appeal.

01:07:04.280 As you said at the outset, it's a miscarriage of justice. And so, you know, my client's innocent laughter on the bench, you know, I mean, like, don't care. It's not really the point. And therefore, you could say, you know, people have argued this over the years that the grounds of appeal against conviction should be changed to allow the court, at least in some cases, to say, actually, this woman, this guy didn't do it.

01:07:24.260 And so many people would argue that even the current grounds of appeal are actually inadequate because they still leave a haze over people, potentially, that they were factually guilty in the language of the kind of scholarship around this, but acquitted on a technicality, to use a tabloid type of phrase.

01:07:40.380 So I think you're right, actually, that if you look at the way the Scottish Parliament has legislated about this, it's not been legislating in a way which is characteristic of how you might think of mercy. Mercy, if you think about it, is often erratic, personal. You can't have a right to mercy. That doesn't really make any sense, I think. I have a right to mercy, even in the Christian theological sense, that's the thing. You don't have the right to, you deserve to be punished, but you get the mercy anyway.

01:08:06.740 And so I suppose the way the Scottish Parliament's legislated for this is to recognise, like the witches or the supposed witches, that we're dealing with a class of people who, by dint of falling under suspicion and finding themselves persecuted, experienced injustice.

01:08:24.400 I just think that for me, and it's probably a philosophical point enough, abstract enough for me to step away from it, but I think we sometimes get confused about the difference between justice and mercy.

01:08:34.840 And I think there are differences between these things, because you throw yourself on the mercy of others, whereas you demand justice. And justice does seem to have more of that kind of affirmative, demanding, assertive quality. And as you can see, I think in terms of the existing structures of what Parliament's done, pardon for the class of people is probably the way to go.

01:08:53.360 And I think very often it feels like, well, strong echoes of lots of discussions.

01:08:58.760 I mean, you might think echoes about reparations, arguments of what we owe the rest of the world for colonial adventures.

01:09:04.960 Britain went on down the centuries, losses and things like that.

01:09:07.940 I think culturally, if you're going to look at this through the lens of the culture wars, that's where some of those arguments are coming from. 0.81

01:09:14.300 I just want everyone to know that when we're finished the Witches of Scotland campaign, we're not moving on to what may or may not have happened with the Italians.

01:09:23.360 Justice for Colgacus, that kind of thing. 0.98

01:09:25.460 Yeah.

01:09:31.420 Thanks so much for joining us again

01:09:33.040 for the Witches of Scotland podcast.

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01:10:06.500 So thanks so much for listening.

01:10:08.120 Thank you. Bye.

01:10:09.840 Bye. 0.58

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Witches of Scotland - February 27, 2021

EPISODE 24 - ANDREW TICKELL -MISCARRIAGES OF JUSTICE

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