Saturday, 26 January 2013

The trial and execution of Derek William Bentley ~ 60 years on

Protest at Wandsworth
At 0900 on 28th January 2013 it is 60 years since Derek William Bentley was hanged at Wandsworth Prison for the murder, on 2nd November 1952, of Police Constable Miles who, at the time he was killed, was acting in the execution of his duty.  Bentley's trial, and that of Christopher Craig, was held at The Old Bailey from 9th to 11th December 1952 before Lord Chief Justice Goddard and a jury.  Both were convicted of the murder though, in Bentley's case, the jury recommended mercy. Bentley's appeal against conviction was dismissed by the Court of Criminal Appeal (Croom-Johnson, Ormerod and Pearson LJJ) on 13th January 1953.  The rapidity of the timescale is striking.

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) [1998] EWCA Crim 2516 - (Lord Bingham LCJ, Kennedy LJ and Collins J).

The trial judge:

Lord Goddard LCJ
Lord Goddard (1877 to 1971) was called to the Bar in 1899.  His career took him to the apex of the legal profession as a Lord of Appeal in Ordinary and, in January 1946, he was appointed Lord Chief Justice.   His wikipedia entry states that this was a time 'when the crime rate, and public concern over crime, were both increasing.'  He favoured capital and corporal punishment but supported abolition of flogging with the cat o' nine tails when the Criminal Justice Act 1948 was  passing through Parliament. It is not the aim of this post to attempt an analysis of Lord Goddard's career but what may be fairly said is that his handling of the trial of Craig and Bentley was seriously deficient and was seen as such by many at the time. 

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) [1998] 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]:

'Rarely has the court been required to review the safety of a conviction recorded over 45 years earlier. In undertaking that task we conclude

(1) We must 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 must be determined according to the common law as now understood

(3) The conduct of the trial and the direction of the jury must be judged according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act. 

(4) We must judge the safety of the conviction according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act. 

Where, between conviction and appeal, there have been significant changes in the common law (as opposed to changes effected by statute) or in standards of fairness, the approach indicated requires the court to apply legal rules and procedural criteria which were not and could not reasonably have been applied at the time. This could cause difficulty in some cases but not, we conclude, in this. Where, however, this court exercises its power to receive new evidence, it inevitably reviews a case different from that presented to the judge and the jury at the trial.'

The judgment then divides into 3 parts: Part I The Case at Trial; Part II The Summing up to the Jury and Part III  Fresh Evidence.

Part I is a detailed review of the case as presented at the trial.  The Court of Appeal had the benefit of a verbatim transcript of the trial, copies of witness statements, the original plan of the warehouse and roof area and original photographs.  Whilst there were discrepancies between the statements of the officers involved (DC Fairfax, PCs McDonald and Harrison) the court concluded that these were consistent with honesty.

Both Craig and Bentley denied that the words 'Let him have it Chris' had been used.  This was a factual question for the jury.   Lord Bingham noted:

'In his final speech, counsel for the appellant (Mr Cassels) put to the jury that there could be some interpretation of the words other than that put upon them by the prosecution and that the words were "not capable of that strong meaning". He did not, however, spell out what that other meaning could be, perhaps because he realised the difficulty he was in having regard to the appellant's denial that the words had been used at all. The appellant's subsequent conduct may have thrown some light on what he meant by the words, if they were spoken. At least the jury should have taken his conduct into account in deciding whether the words in question, if they were sure he had uttered them, showed that he had been participating in an agreement to use violence to resist arrest or encouraging Craig to shoot at the officer and so to kill P.C. Miles.'

In order to determine the appellant's guilt, the jury had to resolve a number of issues. They included in particular the following:-

1. What was the nature and scope of the joint enterprise on which Craig and the appellant embarked?

2. When did the appellant get to know that Craig had the gun with him? None of the observations allegedly made by him were inconsistent with the knowledge having been acquired when the two were on the roof. The trial judge in the course of his summing-up to the jury suggested that it was inconceivable that Craig would not have told the appellant when they were going on a shopbreaking expedition that he had the gun. We do not think that that is necessarily so. The appellant had no record of violence and Craig may not have wanted him to know he was armed in case he refused to accompany him.

3. Did the appellant shout out "Let him have it, Chris"? If he did, what did he intend by the words he used? In particular, 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 P.C. Miles was shot, was the appellant participating or had he withdrawn from any joint enterprise that could be inferred from the evidence? Here again his actions and words on the roof were relevant and the jury would have to determine the intention behind his shout "They're taking me down, Chris”. 

Lord Bingham's concluding remarks to this part of the judgment were - (emphasis added):

On the evidence presented to the court we conclude that a properly directed jury would have been entitled to convict. The case against the appellant was, as it seems to us, a substantial one, albeit not, in contrast to that against Craig, overwhelming. We reject the submissions that the officers’ evidence of matters which incriminated the appellant, particularly the shout "Let him have it, Chris" 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 very 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 ....... It follows that we should not regard the appellant's conviction as unsafe if the summing-up had been fair and the directions in law adequate. We have also had to consider the fresh evidence which has been put before us, and to decide whether anything disclosed in it affects the safety of the appellant's conviction. 

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.

Capital Punishment:

Albert Pierrepoint - executioner
Bentley was the second person to be executed for murder in 1953.  There were 13 executions that year.  Before the abolition of the death penalty for murder by the Murder (Abolition of the Death Penalty) Act 1965, there were to be 67 further executions.  The Homicide Act 1957 introduced the partial defence of diminished responsibility which, if successfully pleaded, reduces the conviction to one of manslaughter and this reduced the number of murder convictions  The use of the death penalty was limited by the 1957 Act introducing what proved to be an unsatisfactory distinction between capital murder and non-capital murder.

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.

Overview:

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.

Footnote:

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

PC Miles
 

8 comments:

  1. This is a brilliant, brilliant post. Thank you.

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  2. What about Harry Maurice Roberts, who has been in prison 46 years & who has had 'secret evidence' used against him to block his release from jail?

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    1. Indeed - another problematic case. The Parole Board used Special Advocates and, by a majority of 3 to 2, the House of Lords approved this - Roberts v Parole Board [2005] UKHL 45.

      The Guardian looked at Roberts' appeal.

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  3. In every capital case the trial judge reported to the Home Secretary immediately after sentence with his views on whether or not the sentence should be commuted. Has Goddard's report ever surfaced?

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    1. Not to my knowledge. When the death penalty for murder was abolished, the legislation contained this:

      Release on licence of those sentenced for murder. No person convicted of murder shall be released by the Secretary of State on licence under section 27 of the Prison Act 1952 or section 21 of the Prisons (Scotland) Act 1952 unless the Secretary of State has prior to such release consulted the Lord Chief Justice of England or the Lord Justice General as the case may be together with the trial judge if available.

      This provision is not repealed but it shows that, even after abolition, the trial judge could (if still available) have had a say in release on licence.

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    2. I meant to add that the Roberts case was factually very different in that he was the one who fired the gun and killed two of the officers. An accomplice killed the third. The death penalty had just been abolished. It will be 47 years this November since he went to prison.

      Roberts case

      There is a serious and genuine problem with putting certain evidence into the public domain - particularly when it is from informants revealing information about very dangerous individuals. The House of Lords judgment merits a full reading.

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  4. A very thorough, thought-provoking piece. From my experience the learning disabled still don't get a fair crack from the criminal legal system.

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    1. Thank you for the comment which touches upon an area of huge concern.

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