|Protest at Wandsworth|
Bentley's execution is widely considered to have been a travesty of justice. The general view is that, for political reasons, the Home Secretary - David Maxwell Fyfe - was never going to exercise mercy and grant a reprieve. The refusal was in the face of a petition signed by over 200 MPs. Parliament was not allowed to debate Bentley's sentence until it had been carried out - see The Guardian 28th January 1953 - Efforts to save Bentley fail. The Guardian article shows that there was considerable concern at the time about the execution and, over the years, concern was also to develop about the conviction itself.
On 29th July 1993, Bentley was
granted a posthumous pardon. In 1997, the Criminal Cases Review Commission referred the case to the Court of Appeal. On 30th July 1998 , Bentley's conviction was quashed - R v Derek William Bentley (deceased)  EWCA Crim 2516 - (Lord Bingham LCJ, Kennedy LJ and Collins J).
The trial judge:
|Lord Goddard LCJ|
In the 1998 appeal, Lord Bingham commented -'It is with genuine diffidence that the members of this court direct criticism towards a trial judge widely recognised as one of the outstanding criminal judges of this century. But we cannot escape the duty of decision. In our judgment the summing up in this case was such as to deny the appellant that fair trial which is the birthright of every British citizen.'
Today, the Lord Chief Justice is more likely to be found presiding over the more difficult or controversial cases in the Court of Appeal (Criminal Division). However, in the 1950s it was not unusual for the Lord Chief Justice to act as a trial judge. In a post retirement interview, Goddard said - " ... I thought that Bentley was going to be reprieved. He certainly should have been. There's no doubt in my mind whatsoever that Bentley should have been reprieved"
A little on the old common law:
At common law offences were classified felonies and misdemeanours. The main felonies were homicide, rape, theft, burglary, robbery, arson. A misdemeanour was any offence which was not a felony. The classification had important consequences in terms of powers of arrest and the penalties available. The distinction between felonies and misdemeanours was abolished by the Criminal Law Act 1967.
Murder was (and still is) a crime defined by common law but, in modern law, partial defences to murder are available e.g. diminished responsibility. If successfully pleaded, these partial defences reduce the conviction to one of manslaughter. Diminished responsibility did not come into English law until the Homicide Act 1957 and was therefore not available to a defendant in 1952.
Before the Homicide Act 1957, either (a) intent to kill or (b) intent to cause grievous bodily harm had to be proved OR (c) it had to be shown that the defendant killed in furtherance of a felony or when resisting or preventing lawful arrest (even though there may have been no intent to either kill or cause grievous bodily harm). Head (c) was referred to as constructive malice and was abolished by the Homicide Act 1957.
The common law had also developed a common purpose rule. Kenny - Outlines of Criminal Law 1934 stated - '... if several persons act together in pursuance of a common intent, every act done in furtherance of it by any one of them is, in law, done by all.' The case cited by Kenny for this proposition is R v Betts and Ridley (1930) 22 Cr App R 148. In this area, the law has now developed into what is usually referred to as joint enterprise.
The 1998 Court of Appeal judgment:
R v Derek William Bentley (deceased)  EWCA Crim 2516.
Lord Bingham began by saying that the court was sitting to hear a referral from the Criminal Cases Review Commission - a body created by the Criminal Appeals Act 1995. Such referrals are treated as appeals. The approach to be taken was then set out. In the words of Lord Bingham - [emphasis added]:
Lord Bingham's concluding remarks to this part of the judgment were - (emphasis added):
The potential impact of how a defence was conducted on the possibility of a reprieve is worthy of particular note.
Part 2 is concerned with Lord Goddard's direction to the jury. This was found to be seriously deficient in a number of respects.
1. Standard of proof - the summing up lacked clear direction on the standard of proof required before the jury could properly convict.
2. Burden of proof - the direction could have misled the jury into thinking that the case had been proved and that they should convict unless Bentley satisfied them of his innocence.
3. Treatment of Police Evidence - The jury had to decide on the evidence in an open-minded and fair-minded way. There is an obvious risk of injustice if a jury is invited to approach the evidence on the assumption that police officers, because they are police officers, are likely to be accurate and reliable witnesses and defendants, because they are defendants, likely to be inaccurate and unreliable. This is the pitfall into which the trial judge, for all his vast experience and authority, fell.
4. Balance of the summing up - Points made by the defence were not fairly put to the jury thereby depriving the defendant of the protection which jury trial should have afforded. A particular point in Goddard's summing related to the knife and the knuckle duster which had been found in Bentley's clothing though Bentley had neither used them nor threatened to do so.
Lord Bingham noted: 'The appellant's explanation for his possession of the knife and the knuckle-duster does not appear convincing ...... Although he did not attempt at any time to make use of either of the weapons, his possession of them coupled with the decidedly feeble explanations for such possession could well have persuaded the jury that the pair of them had had violence in mind that night. Nevertheless, his possession of those weapons did not of itself prove that he was aware that Craig was armed with a loaded revolver.'
Goddard had said to the jury: 'Then see what Bentley had on him. Where is that knuckle-duster? Apparently it was given to him by Craig, but Bentley was armed with this knuckle-duster. Have you ever seen a more horrible sort of weapon? You know, this is to hit a person in the face with who comes at you. You grasp it here, your fingers go through - I cannot quite get mine through, I think - and you have got a dreadful heavy steel bar to strike anybody with; and you can kill a person with this, of course. Then did you ever see a more shocking thing than that? You have got a spike with which you could jab anybody who comes at you; if the blow with the steel is not enough, you have got this spike at the side to jab. You can have it to see, if you like, when you go to your room. It is a shocking weapon. Here was Craig armed with a revolver and that sheath knife. Hand me that sheath knife - the big one. One wonders, really what parents can be about in these days, allowing a boy of 16 - they say, perhaps, they do not know, but why do not they know? - to have a weapon like this which he takes about with him? It is not a new one, you can see; it is pretty well worn. That was the thing that Craig was taking about. Where is the other knife? Here is Bentley with a smaller knife, but you can feel it is sharp and pointed. What is he carrying that with him for in his coat, not even with a sheath on it?'
5. Direction on constructive malice and joint enterprise - the Court of Appeal did not find fault with Lord Goddard's direction on the law of constructive malice as it then stood and also in relation to joint enterprise even on the basis of the law as the court found it in 1998 but the matter did not rest there. Bentley's defence at the 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. Lord Goddard's direction to the jury failed to grapple with this.
Part 3 - Fresh evidence - Certain items of fresh evidence are set out. The court read it all but excluded some of it from further consideration. Of particular note is the evidence relating to Bentley's education, the reports of psychiatrists and a psychologist and an expert report relating to how Bentley's statement might have been made. The medical reports available at the time of the trial indicated that Bentley was of low intelligence and educational reports indicated illiteracy. A report prepared by Dr Gudjonsson for the 1998 hearing stated that, on balance, Bentley was probably epileptic and there was clear evidence of impairment of intellectual and cognitive function which would have affected his understanding, judgment and memory. The Court of Appeal was unable to discover any reasonable explanation for the failure to adduce in evidence the reports available at the time but it was noted that courts in the 1950s were less receptive to this form of evidence.
The report relating to Bentley's statement to the Police is also significant. In the statement, Bentley had said he did not know Craig was going to use the gun. However, the report indicated that this statement may not have been made in the way the Police indicated at the time - that is, without questions being asked. Given the expert view of Bentley's intelligence, the Court of Appeal found it difficult to accept this. It was more likely to have been produced as a result of questioning. The possibility could not be excluded that Bentley's comment about the gun may have been in response to a question such as 'Did you know he was going to use the gun' to which Bentley replied 'I did not know he was going to use the gun.' The Court of Appeal came to no firm conclusion on this though remarked that doubt relating to how the statements was obtained added support to the conclusion that the conviction was unsafe.
|Albert Pierrepoint - executioner|
Capital punishment continued to be available in law for a number of offences. It was abolished for treason by the Crime and Disorder Act 1998 and finally disappeared for military offences with the passing of the Human Rights Act 1998. Protocol 13 to the European Convention on Human Rights bans the death penalty even in times of war.
For the student, the Cabinet Papers 1915-1982 are of particular interest - National Archives The Death Penalty.
Some of the changes to the law since the Bentley case:
Since the trial of Craig and Bentley the law has changed in significant ways. The Homicide Act 1957 abolished the common law doctrine of constructive malice and introduced a defence of diminished responsibility.
As already noted, the Murder (Abolition of the Death Penalty) Act 1965 abolished capital punishment for murder and introduced a mandatory life sentence.
The Courts Act 1971 reformed the criminal courts by abolishing Assizes and Courts of Quarter Sessions and replacing them with the Crown Court of England and Wales.
With regard to sentencing for murder, the current position is that the judiciary set the minimum term of imprisonment to be served before parole may be permitted. The minimum terms are set in accordance with the Criminal Justice Act 2003 Schedule 21. Terms can be very lengthy and, in the most serious cases, may be whole life terms. On this see the post of 28th November 2012 - Whole life terms for murder - Vinter and others v UK. The European Court of Human Rights judgment in Vinter is awaited with great interest.
The partial defence of provocation in the Homicide Act 1957 was replaced with a defence of Loss of Control - Coroners and Justice Act 2009 - see post of 18th January 2012 - Homicide: A major Court of Appeal judgment. This partial defence reduces the conviction to one of manslaughter.
At the heart of the Craig and Bentley case was the common law notion of what is referred to as joint enterprise. The law here remains very problematic and the House of Commons Justice Committee has called for legislation to clarify matters - see post of 19th January 2012 Joint Enterprise. In December 2012, the Director of Public Prosecutions issued guidance relating to prosecutions in joint enterprise cases - CPS 20th December 2012. It seems unlikely that anything further will done in the near future - see the response of 13th March 2012 by Kenneth Clarke (the Secretary of State for Justice) to the Justice Committee's report.
The Law Commission's report on Participating in Crime also examines Joint Enterprise.
This case is, in many ways, reminiscent of a bygone era : a time of strict laws and stern judges. As the Court of Appeal found in 1998, Bentley had a case to answer but the trial judge's summing up was extraordinarily unfair. When delivering the verdict, the jury had recommended mercy for Bentley but this was seemingly ignored in the events which followed. Lord Goddard may have expected a reprieve but the Home Secretary clearly felt that other considerations required the law to take its course.
The murder of PC Miles was a heinous crime and the murder of a police officer today would attract a starting point for the term to be served before eligibility for parole of 30 years. In 1953, upon a conviction, the judge could only pass the death sentence but, in Bentley's case, there were factors which ought to have merited the exercise of mercy and the commutation of the sentence to one of life imprisonment even though such a course would have required a very bold Home Secretary. In particular, the factors included Bentley's limited level of intelligence; the jury's recommendation of mercy and the concern expressed by some 200 MPs as well as the general public.
The whole appearance is of a system motivated more to vindicate the strength of the law rather than to achieve the justice of fair trial and punishment.
Changes to the law and practice have been many since the Bentley case. One major innovation is the European Convention on Human Rights which came into force in September 1953. This emphasises the right to a fair trial (Article 6) and places an obligation on the State to secure that right.
Changes to the law do not render trials immune from error. Those charged with very serious offences must continue to have highly experienced and objective judges and must be represented by the best criminal lawyers available. Nothing less should ever be tolerated.
The views of the journalist Bernard Levin (1928-2004) on Lord Goddard were scathing. Levin regarded Goddard's period in office as a 'calamity' and his influence on penal reform as 'almost universally malign.' As for the Craig and Bentley case - Goddard had 'displayed an animus against both defendants as undisguised as it was unjudicial' and the judge had 'injected a crude emotionalism into the case.' See the article by David Pannick QC - The Times 7th September 2004 - Why Levin merits an honourable mention in our legal history