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Derek Bentley
An object lesson from
1953
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Hanged on 28 January 1953, granted posthumous
pardon in July 1998
This is a case where
whatever justice was obtained through the pardon was achieved
by the efforts of people who would not let it rest. The 1991
movie Let Him Have It starring Christopher Eccleston recounts
the events leading to this 19 year old with the mental age of
an 11 year old.
In America, mentally
handicapped are still being executed. In Canada, we insist on
trying youthful offenders as adults and sentencing them accordingly.
The lessons to be learned
are lessons of humanity. The information is all there -- that
we choose to ignore it diminishes us all, showing that we have
not accepted our responsibilities as adults.
Bentley trial
unfair through flawed summing-up
Before Lord
Bingham of Cornhill, Lord Chief Justice, Lord Justice Kennedy
and Mr Justice Collins
[Judgment
July 30]
Law Report,
31 July 1998, Times of London
Having regard
to the evidence adduced at trial the jury, if properly directed,
would have been entitled to convict Derek Bentley of murder as
the offence was then constituted, before the abolition of constructive
malice and the introduction of the defence of diminished responsibility.
However, since
the trial judge in his summing-up failed to direct the jury on
the standard and burden of proof, to give sufficient direction
on the law of joint enterprise, or adequately to summarise the
defence case, made prejudicial comments about the defendants
and their defences, and indicated that the police officers' evidence,
because of their bravery on the night in question, was more worthy
of belief than that of the defendants, Bentley was denied the
fair trial to which he was entitled and his conviction was in
consequence unsafe.
The Court of
Appeal, Criminal Division, so held, when, on a reference by the
Criminal Cases Review Commission under section 9 of the Criminal
Appeal Act 1995, it allowed an appeal on behalf of Derek Bentley
by his niece, Maria Bentley-Dingwall, and quashed his conviction
for murder following a trial before Lord Goddard, Lord Chief
Justice, and a jury at the Central Criminal Court on December
11, 1952.
On November
2, 1952, Christopher Craig, aged 16, armed with a knife, a revolver
and ammunition, and Bentley, aged 19, who had knife and a knuckle-duster,
went on a warehouse-breaking expedition. At about 9.15pm they
were observed climbing into warehouse premises in Croydon and
the police were called, arriving at the site at about 9.25pm.
DC Fairfax
and PC Harrison, finding that the defendants had climbed on to
the roof pursued them there and a third officer followed. DC
Fairfax arrested Bentley who was then, on the three officers'
evidence, heard to shout: "Let him have it, Chris".
Craig fired at DC Fairfax, slightly injuring him. Bentley broke
away, but that officer grabbed him and removed the knife and
knuckle-duster which he found in Bentley's pockets.
Thereafter,
Bentley remained wholly docile beside the officer, offering no
incitement and, on the police evidence, making various remarks
which showed concern for his and their safety. Craig continued
firing, and shot dead a fourth officer, PC Miles, as that officer
reached the roof, probably at a little before 9.57pm.
On the way
to the police station Bentley was alleged to have said "I
knew he had a gun but I didn't think he'd use it" and his
statement under caution recorded: "I did not know Chris
had one until he shot".
Following a
two-day trial, he was convicted with the jury's recommendation
to mercy. He was sentenced to death, the only sentence then permitted,
his appeal was dismissed on January 13, 1953 and he was executed
on January 28. On July 29, 1993 he was granted a royal pardon
in respect of the death sentence and execution.
Mr Edward Fitzgerald
QC and Mr Henry Blaxland for Bentley; Mr Nigel Sweeney and Mr
David Perry for the Crown.
THE LORD CHIEF
JUSTICE, giving the judgment of the court, said that rarely had
the court been required to review the safety of a conviction
recorded over 45 years earlier. In undertaking that task it concluded:
1 It had to
apply the substantive law of murder as applicable at the time,
disregarding the abolition of constructive malice and the introduction
of the defence of diminished responsibility by the Homicide Act
1957.
2 The liability
of a party to a joint enterprise had to be determined according
to the common law as now understood.
3 The conduct
of the trial and the direction of the jury had to be judged according
to the standards which the court would now apply in any other
appeal under section 1 of the Criminal Appeal Act 1968.
4 The safety
of the conviction had to be judged according to the standards
which the court would now apply in any other appeal under section
1 of the 1968 Act.
Where between
conviction and appeal there had been significant changes in the
common law, as opposed to changes effected by statute, or in
standards of fairness, the approach indicated required the court
to apply legal rules and procedural criteria which were not and
could not reasonably have been applied at the time.
That could
cause difficulty in some cases but not in the present case. Where
the court exercised its power to receive new evidence it inevitably
reviewed a case different from that presented to the judge and
jury at trial.
The case at
trial
His Lordship
referred to the material seen and read by the court on the present
appeal: the plan of the warehouse area and the photographs at
trial, a verbatim transcript of the trial, the opening and closing
speeches of counsel and the statements of witnesses, both called
and not called.
The main thrust
of the prosecution case was:
1 Craig had
deliberately and wilfully murdered PC Miles and Bentley had incited
him to begin the shooting and, although himself technically under
arrest, was party to, and equally responsible in law for, that
murder.
2 The words
"Let him have it, Chris" were particularly important
on to prove his participation and amounted to deliberate incitement
to a man whom Bentley knew had a gun to murder DC Fairfax who
had just arrested him.
3 Such incitement
led to Craig immediately firing at and wounding that officer
and covered the whole shooting thereafter even though at the
time PC Miles was shot Bentley was in custody and under arrest.
Craig's defence
was manslaughter on the basis that the killing was accidental.
But the case against him was very strong and on the law as it
then stood any verdict other than guilty of murder would have
been perverse.
Bentley's case
was:
1 He had not
incited Craig to fire the gun and had at no time been party to
its use.
2 He had not
known that Craig had a gun until the first shot was fired.
3 He had not
used the words alleged or any other words of incitement.
4 He had stood
by DC Fairfax for an appreciable time, making no effort to get
away and behaving in a wholly docile manner when Craig had fired
the fatal shot and
5 He had not
participated in the murder.
To prove its
case against Bentley the Crown set out to establish that he was
on a felonious enterprise, warehouse-breaking, and that he knew
Craig had a gun with him.
To support
the contention that there was a common purpose to use violence
to resist arrest the Crown relied on evidence of the knife and
knuckle-duster in Bentley's possession which were taken from
him by DC Fairfax. It was accepted that at no time had he tried
to make use of them.
Bentley denied
that he had gone on a warehouse-breaking expedition, it being
only when Craig had climbed over the gates leading to the building
that he realised they were going to break in. Craig said that
he had not told Bentley until they were on the roof and saw someone
below, but before any shooting, that he was armed.
He too denied
that the "Let him have it, Chris" shout had been made,
and on any showing the words were ambiguous: capable of bearing
an innocent meaning or as encouragement to Craig to hand over
his weapon.
That was admittedly
an improbable construction since, if Bentley admitted saying
them, he would be admitting to knowledge that Craig had a gun,
and Craig's firing after those words was hardly consistent with
the defence of accident.
In his final
speech, Bentley's counsel put to the jury that there could be
some interpretation of the words other than that ascribed by
the prosecution, but he did not spell out what that could be,
perhaps because he realised his difficulty, given Bentley's denial
that he had used them at all.
But Bentley's
subsequent conduct might have thrown some light on what he meant,
if he had spoken them. At least the jury should have taken his
conduct into account in deciding whether the words, if used,
showed his participation in an agreement to use violence to resist
arrest or encouraging Craig to shoot at the officer and so to
kill PC Miles.
To determine
Bentley's guilt the jury had to resolve a number of issues, including:
1 What was
the nature and scope of the joint enterprise?
2 When did
Bentley get to know Craig had the gun?
None of the
observations allegedly made by him was inconsistent with that
knowledge having been acquired on the roof.
The trial judge
suggested that it was inconceivable that Craig would not have
told him when they were going on the expedition: but that was
not necessarily so. Bentley had no record of violence and Craig
might not have wanted him to know he was armed in case he refused
to accompany him.
3 Did Bentley
shout "Let him have it, Chris"? If so, what did he
intend by those words?
It could be
argued that his actions and words while on the roof thereafter
were consistent with his not having wanted to incite Craig to
shoot any officer and that Craig's display of hatred towards
the police suggested that he was engaged on an enterprise of
his own.
4 At the time
PC Miles was shot was Bentley participating or had he withdrawn
from any joint enterprise that could be inferred from the evidence?
On the evidence
presented to the court a properly directed jury would have been
entitled to convict. The case against Bentley was a substantial
one, albeit not, in contrast to Craig, overwhelming.
Discrepancies
in the officers' evidence of matters which incriminated Bentley
did not mean, contrary to Mr Fitzgerald's submission, that that
evidence should be regarded as necessarily unreliable or invented.
The discrepancies were apparent at the time of the trial and
were before the jury. Counsel had to make a difficult tactical
decision about the extent to which the defence should attack
the police.
There was an
obvious risk of alienating the jury and jeopardising any chance
of a reprieve on conviction if, in a much publicised trial arising
from the wanton killing of a policeman in the execution of his
duty, the defence were to impugn the good faith of his colleagues.
There were also dangers if Bentley's character were fully before
the jury.
The court had
deliberately gone through the evidence in some detail to show
why it had reached the conclusion: that it should not regard
Bentley's conviction as unsafe if the summing-up had been fair
and the directions in law adequate.
The summing-up
Mr Fitzgerald
had complained of the following:
1 Standard
of proof
The judge had
not given a direction on the standard of proof, and in so far
as any direction was given, it was inadequate and the summing-up
was thereby fundamentally flawed.
In cases contemporary
with the trial, juries had been told that they had to be satisfied
of the defendant's guilt beyond reasonable doubt, or so that
they were sure of guilt, before convicting.
Since then
the courts had consistently insisted on the need for a clear
direction to the jury on the standard of proof, and held that
a mere reference to being "satisfied" without reference
to being sure, or satisfied beyond reasonable doubt was inadequate.
In the light
of R v Edwards ((1983) 77 Cr App R 5) a conviction might be regarded
as safe despite the absence of an adequate direction even on
a matter as fundamental as the standard of proof where the case
against the defendant was overwhelming. But the court would question
whether a conviction could ever be regarded as safe in a capital
case if no adequate direction were given.
The summing-up
contained no direction on the standard which the prosecution
evidence had to meet before the jury could properly convict.
Although the trial judge had referred to "good ground for
convicting" no assistance whatever was given to the jury
as to what would or would not be such ground.
Even if it
would have been enough for the jury to be clearly told that they
had to be satisfied of the defendants' guilt before convicting,
and on the court's reading of the authorities that would not
have been enough, the jury did not even receive that direction.
That ground
of appeal was made good.
2 Burden of
proof
The trial judge
had failed to give the jury a clear direction on the burden of
proof and had in fact reversed it by suggesting that there was
an onus lying on the defendants.
Mr Fitzgerald's
submission was based on the trial judge's suggesting that the
prosecution had given abundant evidence for a case calling for
an answer and that a case had been established against the defendants,
then continuing, in effect, to consider whether the evidence
of the defendants was such as to rebut that case.
He had further
submitted that the confusion which those directions were bound
to have left in the jury's minds was compounded by additional
misdirections given to them in relation to the case against Craig.
The relevant
part of the summing-up, Mr Fitzgerald argued, gave the jury the
impression that there was a burden on Craig to show that the
killing was accidental and the proper verdict was therefore manslaughter.
The court accepted
that submission. The jury had to be clearly and unambiguously
instructed that the burden of proving the accused's guilt lay
only on the Crown, that ordinarily there was no burden on the
accused to prove anything and that if, on reviewing all the evidence
the jury were unsure of or left in any reasonable doubt as to
the accused's guilt that doubt had to be resolved in the accused's
favour.
Such an instruction
had for many years been regarded as a cardinal requirement of
a properly conducted trial. The courts had not been willing to
countenance departures from it.
The direction
here could not be regarded as satisfactory. The jury could well
have been left with the impression that the case against Bentley
was proved and that they should convict him unless he had satisfied
them of his innocence.
3 Observations
on the treatment of police evidence
Mr Fitzgerald
criticised, as obviously prejudicial and unfair to Bentley, passages
in the summing up where the trial judge had said:
"The police
officers that night, and those three officers in particular,
showed the highest gallantry and resolution; they were conspicuously
brave. Are you going to say they are conspicuous liars? Because
if their evidence is untrue that Bentley called out 'Let him
have it, Chris' those three officers are doing their best to
swear away the life of that boy.
"If it
is true, it is, of course, the most deadly piece of evidence
against him. Do you believe that those three officers have come
into the box and sworn what is deliberately untrue; those three
officers who on that night showed such a devotion to duty for
which they are entitled to the thanks of the community?"
Summarising
Bentley's defence and denial of those words, the trial judge
had said:
"Against
that denial, which of course is the denial of a man in grievous
peril, you will consider the evidence of the three police officers
who have sworn to you positively that those words were said."
His Lordship
said that in recent years the courts had deprecated judicial
comments which suggested that police officers would be professionally
ruined if a defendant was acquitted or which placed police officers
in a different position from other witnesses.
If observations
to the effect just quoted were made in a trial conducted today
there was no doubt that the Court of Appeal would condemn them
as prejudicial and unfair. No authority was referred to dating
back to the 1950s or earlier in which such judicial observations
were disapproved, and it might be that such comments were at
that time regarded as acceptable.
It was, however,
difficult to reconcile them with the general principles underlying
jury trial. The guilt of a defendant was to be judged by the
jury as the tribunal of fact on all the evidence in the case.
That tribunal should make its collective judgment on the evidence
in an open and fair minded way.
There was an
obvious risk of injustice if a jury were invited to approach
the evidence on the assumption that police officers, because
they were such, were likely to be accurate and reliable witnesses
and defendants, because they were such, likely to be inaccurate
and unreliable.
That was the
pitfall into which the trial judge, for all his vast experience
and authority, fell. His direction here could not be supported.
4 Balance of
the summing-up
Mr Fitzgerald
submitted that the direction to the jury, read as a whole, was
unfair and prejudicial to Bentley, put unfair pressure on the
jury to convict and failed adequately to put his case to them.
Having referred
extensively to the summing-up and to authority where the balance
of judicial summing-up and the permissible limits of judicial
comment had been considered, His Lordship said that the killing
of PC Miles had understandably aroused widespread public sympathy
for him and his family and a strong sense of public outrage at
the circumstances of his death.
That made it
more, not less, important that the jury should approach the issues
in a dispassionate spirit if the defendants were to receive a
fair trial, as the trial judge began by reminding them.
However his
summing-up had exactly the opposite effect and the passages to
which the court had referred could not be read as other than
a highly rhetorical and strongly worded denunciation of both
defendants and their defences.
The language
used was not that of a judge but of an advocate, and it contrasted
strongly with the appropriately restrained language of prosecuting
counsel. Such a direction by such a judge had to have driven
the jury to conclude that they had little choice but to convict;
at the lowest, it might have done so.
Those complaints
formed no part of Bentley's appeal against conviction. The court
did not know why and questioned whether, in the light of the
authorities it had cited, the judge's summing-up would have been
thought acceptable even by the standards prevailing at the time.
Complaint had
been made on the appeal of the judge's failure to put Bentley's
case adequately to the jury; but the Court of Criminal Appeal
had dismissed that ground of appeal.
However the
trial judge's brief and somewhat dismissive account of his case,
coming at the end of the summing-up and following a much longer
account described as "the whole case" did not do justice
to the points which, good or bad, had been made on his behalf
and which the jury should have been invited to consider.
Whether they
would have been impressed by those points if dispassionately
laid before them would never be known. As it was they were never
fairly invited by the judge to consider them. The effect was
to deprive him of the protection which jury trial should have
afforded.
It was with
genuine diffidence that the court directed criticism towards
a judge widely recognised as one of the outstanding criminal
judges of the century. But it could not escape the duty of decision.
The summing-up
here was such as to deny Bentley that fair trial which was the
birthright of every British citizen.
5 Direction
on constructive malice and joint enterprise
In the light
of authorities binding on the judge, his direction was in accordance
with the law as it then stood and was, if anything, favourable
to Bentley.
But Mr Fitzgerald
argued that later developments in the law governing the liability
of secondary parties to joint criminal enterprises, in particular
R v Powell; R v English ([1997] 3 WLR 959), rendered his direction
unsound.
Even if the
court undertook the anachronistic exercise of applying current
principles to the judge's direction in 1952 its soundness was
not invalidated. Nothing in it suggested that Bentley could be
liable if he did not know Craig had a gun, nor did he suggest
that Bentley could be liable if he did not foresee its use.
His direction
was founded on the premise of an agreement between the defendants
to use such violence as might be necessary to avoid arrest. That
would plainly embrace the use of the gun, even if Bentley did
not intend it to be fired, or fired so as to cause injury, and
did not expect it to be fired unless he regarded the firing as
a wholly remote possibility.
On the basis
of the law of constructive malice as it then stood and the law
of joint enterprise as it currently stood, his direction was
correct.
But that was
not the end of the matter. The case called for a particularly
careful direction and review of the evidence relevant to (i)
the existence and nature of any agreement or understanding between
the defendants; (ii) its scope and purpose, and (iii) its duration
and possible termination.
That last was
of special importance since Bentley's defence rested strongly
on the contention that if, contrary to his assertion, there had
ever been any joint agreement or understanding to resist arrest
by violence, he had dissociated himself from it, reliance being
placed on a number of facts already referred to.
Whether, properly
directed, the jury would have found that Bentley had done enough
to withdraw and signify his withdrawal from the enterprise which
they had to have found to exist between him and Craig could not
be known.
But it was
an important limb of his defence and it was clear that the judge
should have given the jury a careful direction on it. He gave
none.
That absence
of direction was the second main ground of appeal against conviction,
but failed, apparently on the basis that Bentley had insisted
that he had not been under arrest when PC Miles had been shot.
That reasoning
was not persuasive: the Crown case had been that he was under
arrest at that time, and it was difficult to see how any answer
given by Bentley could have any bearing on the legal question
of whether he was under arrest. The Court of Criminal Appeal
failed to grapple with that ground of appeal, which should have
succeeded.
For those reasons
Bentley's conviction was unsafe. The appeal would be allowed
and the conviction quashed.
It had to be
a matter of profound and continuing regret that the mistrial
occurred and that the defects found here were not recognised
at the time.
The court received
fresh psychological and psychiatric reports relating to Bentley's
educational and medical disabilities, although most of that material
was available and its existence known to the defence at the time.
It accepted,
without deciding, that it would have been right for the jury
to have known more about him, so as to able them the better to
assess his role in the events and how his statement came into
existence.
The court also
received fresh evidence from linguistics experts to show, that,
contrary to the police evidence, his statement was likely to
have been obtained by officers asking him a significant number
of questions. That might have affected the officers' credibility.
The effect
was not sufficient in itself to disturb the verdict, but it provided
additional support for the court's conclusion.
William
Heirens:
In prison since 1946 -- and innocent
For more U.K.
cases, Innocent | Mailman and Gillespie | Why wrongfully
convicted from disadvantaged sectors of society get so little
attention
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Guildford Four
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
