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Derek Bentley pardoned but hanged

Derek Bentley

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. -- Sheila Steele

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.