Derek Bentley: Miscarriage of Justice
Baines Law – Derek Bentley: Miscarriage of Justice
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Transcript
It was dark and there was very little moonlight as the officers approached the warehouse of the wholesale confectioners in Croydon.
It was shortly after quarter past nine in the evening of Sunday 2 November 1952, and the police were answering the call of a Mr Ware from nearby Tamworth Road. Two young men had been seen acting suspiciously before scaling the gate which ran alongside the premises of Barlow and Parker.
PC Harrison and DC Fairfax, and a police car containing PCs McDonald and Miles were the police officers at the scene.
DC Fairfax had no torch, but his evidence at trial was that as he got on to the roof he saw the two youths standing between the roof lights and the lift shaft. As he approached, they backed away behind the lift shaft.
He shouted that he was a police officer and that they should come out. Sixteen-year- old Christopher Craig shouted back (expletive omitted) “If you want us, come and get us.”
DC Fairfax then rushed forward around the side of the lift shaft and grabbed the second youth – 19 -year-old Derek Bentley. Bentley broke away from the officer and, as he did so yelled “Let him have it, Chris” whereupon there was a flash and a bang, the officer spun round as a bullet his his right shoulder knocking him down.
Getting up he saw Craig no more than six feet away but he was closer to Bentley. He grabbed and punched Bentley who fell down. At the same time there was another loud report. The officer pulled Bentley up and, using him as a shield, made his way to a roof light. He felt over Bentley’s clothing and found a knuckle duster in a coat pocket and a knife in the other. Bentley said to the officer “He’ll shoot you.”
Meanwhile, PC McDonald had climbed up a drainpipe so DC Fairfax went to assist him, leaving Bentley alone for a short time. He could have rejoined Craig had he chosen to do so, but no doubt aware that there was nowhere to go and there were a number of police around, decided against it.
Fairfax told McDonald that Craig had a .45 Colt and plenty of ammunition.
PC Harrison had gone round to the front of the warehouse and met up with other officers including PC Miles. Harrison and Miles climbed the internal staircase and kicked open the door at the top.
As PC Miles emerged on to the roof, Craig fired again. The bullet hit PC Miles between the eyes killing him instantly.
Bentley was still standing nearby. Again, he made no attempt to go anywhere or do anything. Craig shouted: “I am Craig. You have just given my brother 12 years. Come on you coppers, I’m only 16. Come on you brave coppers, think of your wives.”
Bentley was alleged to have said to the officers, “You want to look out. He’ll blow your heads off.” He was then taken off the roof and placed in a police car. On the way to the police station the officers’ he said, according to the officers, “I knew he had a gun, but I didn’t think he’d use it. He has done one of your blokes in.”
Afterwards Bentley denied making that remark, although later, under caution, he said “I did not know he was going to use the gun.”
DC Fairfax, this time armed, returned to the roof and fired twice at Craig but missed. Craig’s revolver was now empty. He attempted to escape by jumping off the roof but in doing so fractured his spine, breast bone and left forearm.
Nonetheless, he told the police later that he wished he had killed the lot of them. He made a number of statements to the police showing a hatred of them and a complete lack of remorse.
It was not clear exactly how many shots were fired by Craig. Three spent cartridges were found by the lift shaft and, when it was recovered, the revolver contained six cartridges, two of which had misfired and four of which were spent. The gun itself had part of the barrel sawn off which made it more inaccurate.
Four of the cartridges were the wrong size, being .41 instead of .45 which meant that the velocity would be greatly retarded. DC Fairfax’s wound was relatively superficial.
On 9 December 1952 Craig and Bentley stood trial at the Old Bailey for the murder of PC Miles. The case was tried by Lord Goddard, Lord Chief Justice, and a Jury.
Two days later the jury found each of them guilty, but they added a rider for mercy in the case of Bentley.
The Lord Chief Justice passed upon each of them the only sentences which were available to him. Craig, the gunman, who was only 16 was to be detained during Her Majesty’s pleasure (the equivalent of a life sentence upon an adult). The sentence upon Bentley was death by hanging.
Bentley’s appeal against conviction and sentence was dismissed by a three-man Court of Appeal on 13 January 1953.
There was a public outcry and 200 Members of Parliament signed a memorandum asking the Home Secretary, Sir David Maxwell Fyfe, to show mercy and commute the sentence of death.
The Home Secretary refused. When Derek Bentley was hanged at Wandsworth Prison on 28 January 1953 around 5,000 people protested outside the prison, there were angry clashes with the police and the death notice posted on the prison gates was torn down.
Afterwards Bentley’s family campaigned for 40 years for a posthumous pardon. He was eventually pardoned in 1993, but the campaign for proper justice continued and the case was referred by the Criminal Cases Review Commission to the Court of Appeal under section 9 of the Criminal Appeal Act 1995.
The Court of Appeal gave its on the fresh appeal on 30 July 1998. Its judgment was delivered by Lord Bingham who sat with Lord Justice Kennedy, the V-P of the Queen’s Bench Division and Mr Justice Collins.
On the evidence presented to the court and the law as it then was, Lord Bingham said that a properly directed jury would have been entitled to convict. The case against Bentley was a substantial one, although not as overwhelming as that against Craig. The Court would not regard Bentley’s conviction as unsafe if the judge’s summing-up had been fair and the directions in law adequate.
Therein lies the tale. At trial Lord Goddard directed the jury on the standard of proof as follows:
“Now, there are one or two preliminaries to which I call your attention, though it is hardly necessary. The first one is hardly necessary because you know as well as I do that in all criminal cases it is for the prosecution to prove their case, and it is said correctly that it is not for the prisoners to prove their innocence.
“In this case the prosecution has given abundant evidence for a case calling for an answer, and although the prisoners do not have to prove their innocence, when once a case is established against them they can give evidence, and they can call witnesses, and then you have to take their evidence as part of the sum of the case. The effect of a prisoner’s evidence may be to satisfy you that he is innocent, it may be it causes you to have such doubt that you feel the case is not proved, and it may and very often does have a third effect: it may strengthen the evidence for the prosecution.”
Later in his summing-up Lord Goddard said: “Gentlemen of the jury, I started by saying this was a terrible case. It is dreadful to think that two lads, one, at any rate, coming – and I daresay the other – from decent homes, should with arms of this sort go out in these days to carry out unlawful enterprises like warehouse-breaking and finish by shooting policemen. You have a duty to the prisoners. You will remember, I know, and realise, that you have a duty to the community, and if young people, but not so young – they are responsible in law – commit crimes of this sort, it is right, quite independent of any question of punishment, that they should be convicted, and if you find good ground for convicting them, it is your duty to do it if you are satisfied with the evidence for the prosecution.
Lord Goddard failed to explain the standard of proof which flowed from the 1935 case of Woolmington where Viscount Sankey said: “Juries are always told that, if conviction it is to be, the prosecution must prove the case beyond reasonable doubt.”
It beggars belief that this plain omission was not picked up in the Court of Appeal shortly after Bentley’s conviction. Lord Bingham’s court in 1998 was referred to a number of cases all tried around the time of Bentley and Craig and in all of them the jury was told that they must be satisfied of the defendant’s guilt beyond reasonable doubt, or that they should be sure of his guilt before they convicted.
For many years the courts have consistently insisted on the need for a clear direction to the jury on the standard of proof, and have consistently held that a mere reference to being satisfied without a reference to being sure or being satisfied beyond reasonable doubt, was inadequate.
The burden of proof in a criminal case, of course, lies fairly and squarely on the shoulders of the prosecution; it is never for an accused person to prove or establish his innocence.
But here Lord Goddard failed again in his direction to the jury. He rightly said early on that it was for the prosecution to prove their case and that it was not for the prisoners to prove their innocence but later he said this:
“Now, let us take first of all the case of Craig. It is not disputed, and could not be disputed, that he fired the shot which killed that Police Constable. You are asked to say that the killing was accidental, and that therefore the offence is reduced to manslaughter. Gentlemen of the jury, it is the prerogative of the jury in any case where the charge is of murder to find a verdict of manslaughter, but they can only do it if the evidence satisfies them that the case is properly reducible to one of manslaughter – that is, not with regard to any consequence that may happen, but simply whether the facts show that the case ought to be regarded as one of manslaughter and not one of murder.”
He added: “In that case, the only possible way of reducing the crime to manslaughter is to show that the act was accidental and not wilful.”
Allowing the appeal against conviction, Lord Bingham said: “The jury must be clearly and unambiguously instructed that the burden of proving the guilt of the accused lies, and lies only, on the Crown, that (subject to exceptions not here relevant) there is no burden on the accused to prove anything and that if, on reviewing all the evidence, the jury are unsure of or are left in any reasonable doubt as to the guilt of the accused, that doubt must be resolved in favour of the accused.
“Such an instruction has for many years been regarded as a cardinal requirement of a properly conducted trial. The courts have not been willing to countenance departures from it. We cannot regard the direction in this case as satisfactory. By stressing the abundant evidence calling for an answer in support of the prosecution case, and by suggesting that the case had been established, and by suggesting that there was a burden on Craig to satisfy the jury that the killing had been accidental, 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.”
But that was not all. Summing-up to the jury Lord Goddard also said: “There is one thing I am sure I can say with the assent of all you twelve gentlemen, that 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, 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 a devotion to duty for which they are entitled to the thanks of the community?”
Bentley’s defence was that he had not used the words “Let him have it Chris”. Lord Goddard summarised that defence and Bentley’s denial in this way: “Against that denial (which is, of course, 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.”
It was difficult to reconcile comments of that sort with the general principles underlying jury trial. There was an obvious risk of injustice if a jury was invited to approach the evidence on the assumption that police officers, because they were police officers, were likely to be accurate and reliable witnesses and defendants, because they were defendants, were likely to be inaccurate and unreliable. This was a pitfall into which the trial judge, for all his vast experience and authority, fell and his direction could not be supported.
The judge’s comments went beyond the proper bounds of judicial comment and made it very difficult, if not practically impossible, for the jury to do other than that which he was plainly suggesting.
The killing of PC Miles had very understandably aroused widespread public sympathy for the victim and his family but, said Lord Bingham, this background 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.
Far from encouraging the jury to approach the case in a calm frame of mind, the trial judge’s summing-up in a number of passages had exactly the opposite effect. They could not be read as anything other than a highly rhetorical and strongly-worded denunciation of both defendants and of their defences. The language was not that of a judge but of an advocate – and it contrasted strongly with the appropriately restrained language of prosecuting counsel.
It was with genuine diffidence that Lord Bingham’s appeal court directed criticism towards a trial judge who was widely recognised as one of the outstanding criminal judges of the century, but the summing-up in this case was such as to deny Derek Bentley that fair trial which was the birth right of every British citizen.
A further ground of appeal also succeeded. Bentley’s defence at trial rested strongly on the contention that if, contrary to his assertion, there had ever been any joint agreement to resist arrest by violence, he had dissociated himself from it. There had been no attempt by Bentley to struggle, resist or attempt to escape following his seizure by DC Fairfax. He compliantly surrendered the weapons in his possession. In fact, he was under arrest for a significant period, perhaps 15 minutes, before PC Miles was shot.
Lord Bingham said that the Court of Appeal in 1953 failed to grapple with this issue. It was a matter of profound and continuing regret that this mistrial occurred and that the defects were not recognised at the time.
After his arrest in November 1952, while on remand at Brixton prison, the Principal Medical Officer took a detailed history from Bentley. His full-scale IQ was recorded as 77 which was judged to be borderline feeble-minded. He was said to be quite illiterate and could not even recognise or write down all the letters of the alphabet. His personality was described as rather fatuous with little moral sense but with a highly inflated opinion of himself.
Craig, who was released from his sentence of imprisonment after 10 years, at trial was described as illiterate.
Derek Bentley was one of the last men to be sentenced to death in the United Kingdom. The outcry over his case contributed strongly to the abolition of the death penalty in 1965.
All that Society can do now is to offer words. There can be no real justice for Derek Bentley. The State took his life but does not have the power to give it back.
That alone should be a salutary reminder to everyone who goes around with the words “bring back the death penalty” on their lips.