By Rob Jerrard,
The Murder of Sydney George
Miles: Bentley trial unfair through flawed summing-up. 45 years old case
finalised.
Previous History
In R v Bentley Queen's
Bench Division Regina v Secretary of State for the Home Department, Ex parte
Bentley on 8th July 1993 The court said that the Home Secretary should look
again at the case of Derek Bentley, who was executed for murder in 1953 and
examine whether it would be just to exercise the prerogative of mercy so as to
give full recognition to the now generally accepted view that Bentley should
have been reprieved.
The QBD Court so recommended
on an application by Iris Bentley for judicial review of the Home Secretary's
decision of October 1, 1992 not to recommend a posthumous free pardon for her
brother, Derek Bentley.
On July 29th 1993 he was
granted a royal pardon in respect of the death sentence and execution.
IRIS Bentley the sister of
Derek Bentley who is now dead, began a campaign on the last day she saw her
brother at Wandsworth prison, London. On the eve of his execution, she promised
to clear his name. For 40 years she has been true to her word. A broken
marriage and a 20-year battle against cancer did not weakened her
determination. Her brother's execution on January 28, 1953, turned Iris
Bentley, then 21,into a crusader.
The Case; the Final outcome
Regina v Bentley
(1998) The Times, July
31Court of Appeal
The Facts as given in the
Report.
On November 2, 1952, 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.
The alleged words uttered.
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". (Note, By modern standards this would have been recorded in the
officer's pocket book and the defendant given a chance to read and agree and,
given the opportunity to sign. it (Code C11.13)
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.
The court had been required
to review the safety of a conviction recorded over 45 years earlier. Much has
been said and written about this case, this is the final chapter
THE COURT CONCLUDED
1It 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.
2The liability of a party to
a joint enterprise had to be determined according to the common law as now
understood.
3The 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.
4The 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
Reference was made 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 TRIAL WAS.
1Craig 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.
2The 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.
3Such 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 THINGS, 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.
4At 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 Counsel for Bentley'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
Counsel for Bentley 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.
Counsel for Bentley'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, Counsel for Bentley 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
Counsel for Bentley
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.
4Balance of the summing-up
Counsel for Bentley
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 Counsel for Bentley
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.
The Decision
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, so
held, when, on a reference by the Criminal Cases Review Commission under the
Criminal Appeal Act 1995, it allowed an appeal on behalf of 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.
COMMENT
Has it all been said? A
recent article is worth considering, "Could Bentley have been convicted
now?" by Neil Corre 162 JPN 776 examines what impact PACE would have
had on the evidence.
Did the Lord Chief Justice
allow a fair trial? Bernard Levin writing in The Times, on 31st July 1998 did
not think so.
"It was the
Craig-Bentley trial that made my mind up about Lord Goddard. He was a bully. It
was monstrous the way he interrupted Bentley's defence counsel and made certain
that manslaughter was not an option for the jury."
Fifty-one officers have been
killed on duty since 1965; I cast the mind back to safer days.
Can you remember where you
were on the day President John F Kennedy was shot dead? I have heard this
question asked of people. Where were you on 2 November 1952, the day Sydney
George Miles was shot dead. Sydney George Miles was a police constable who was
murdered that day. It was a long time ago; I do remember it clearly because of
the impact that sort of news had upon my generation. Now the shooting of a
police officer hardly warrants space in the newspapers.
Their have been letters to
the Newspapers, for me the one that struck home was from a Mrs L.B. Harvey in The
Times, 8 October 1992, which asked, "Sir, where is the sympathy for
the widow and children of P.C. Sydney Miles - a family man doing his duty to
protect the public from law-breaking youngsters, one carrying a gun?"
What type of young men were
the police dealing with on that day?
To get a full picture
perhaps it is worth reading accurate accounts from published books, E.G.; see
page 139 of "Hanging in the Balance
by Brian B Block & John
Hostettler, Waterside Press 1997; & Chapter 18 of "Reprieve" by
Fenton Bresler Harrap 1964. Not a particularly nice image is apparent of the
exploits of these two youths who were in anybody's book "Responsible"
for the death of PC Miles a 42 year old father of two with 22 years service
completed.
It is said those five
words,"let him have it Chris", sent Derek Bentley to his execution
and, ignited a forty-year controversy which led to books, documentaries and
campaigns aimed at righting what many argue was a grave miscarriage of justice.
In Bentley's defence it was stressed that at the time of the shooting he was
under arrest. It is also said that Bentley was not the principal offender, was
not armed with a gun, did not fire the fatal shot, was quite young and made no
attempt to use the knife and knuckle-duster found on him or to break away from
police custody.
It is difficult to place
yourself in the position of that jury; what should be remembered is that both
youths were engaged in a joint criminal venture, as a result of which a
policeman was shot dead. The jury were told that Bentley knew Craig was armed
that night. The jury were instructed as to the law as it then stood. Who are we
to judge them now?
"It was natural that
those charged with the maintenance of law and order should feel that every
possible measure of protection should be given to officers of justice in the
performance of their arduous duties, and for this purpose that should aim at
striking terror into the mind of the malefactor..." Kenny's Outline of the
Criminal Law.
Would the result have been
any different today? If it happened in 1998 armed police response would be
swift: but in 1952 Craig and Bentley knew there was very little chance those
officers would be armed. Now no more will be said, let the matter rest: the
family of P.C. Miles deserve that: let's remember him.
Rob Jerrard
LINKS