Law Report, 31 July 1998
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]
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. |
Sources
said yesterday that a decision on that would be announced before the commission
heard the case. Derek Bentley was 19 when he was hanged for his part in
the murder of Pc Sidney Miles in 1952 during a burglary that went wrong.
Christopher Craig, his accomplice, fired the shot that killed Pc Miles
after Bentley had been detained by another officer.