Derek Bentley

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					Derek Bentley Hanged on 28 January 1953, granted posthumous pardon in July 1998

Derek William Bentley (30 June 1933 – 28 January 1953) was hanged at the age of 19 for a murder committed by a friend, creating a cause célèbre and leading to a 45-year long successful campaign to win him a posthumous pardon.

The incident that led to the death sentence
Bentley had a difficult upbringing during which he suffered serious injury from a V1 flying bomb and developed epilepsy. He was of limited intelligence (mental age of 11), easily influenced, and unable to read or write. Together with Christopher Craig, aged 16, he tried to break into a warehouse in Croydon, Surrey, England on 2 November 1952. Craig was armed with a revolver. The two youths were spotted climbing over the gate and up a drain pipe to the roof of the warehouse by a little girl in a house across the road from the building. She alerted her parents and her father walked to the nearest telephone box and called the police. When the police arrived, the two boys hid behind a lift-housing. One of the policemen, Detective Constable Frederick Fairfax, climbed the drain pipe onto the roof and grabbed hold of Bentley. Bentley broke free and was said by a number of police witnesses to have shouted the words "Let him have it, Chris". Craig opened fire with his revolver, grazing Fairfax's shoulder. Nevertheless, Fairfax arrested Bentley, who is said to have told him that Craig had a Colt .45 and plenty of ammunition. The weapon was in fact a Colt .455 Eley calibre, for which Craig had a variety of undersized rounds, some of which he had had to modify to fit the gun. Craig had also sawn off half of the weapon's barrel, so that it would fit in his pocket. Following the arrival of more policemen, a group was sent onto the roof. The first to reach the roof was Police Constable Sidney Miles, who was immediately killed by a shot to the head. After exhausting his ammunition, Craig jumped some ten metres from the roof, fracturing his spine and left wrist when he landed on a greenhouse, at which point he was arrested. Various medals were awarded to the several participating police officers, including one – posthumously – to Miles, and the George Cross to Fairfax.

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Legal proceedings
Even if he was convicted of murder, Craig would not face execution as he was below the age of 18. Bentley on the other hand was over 18, although less mature. The case took place before the Lord Chief Justice of England and Wales, Lord Goddard, at the Old Bailey in London. The doctrine of 'constructive malice' meant that a charge of manslaughter was not an option, as the "malicious intent" of the armed robbery was transferred to the shooting. Bentley's best defence was that he was effectively under arrest when PC Miles was killed; however, this was only after an attempt to escape, during which a police officer had been wounded. As the trial progressed the jury had more details to consider. The prosecution was unsure how many shots were fired and by whom, and a ballistics expert cast doubt on whether Craig could have hit Miles if he had shot at him deliberately; the fatal bullet was not found, Craig had used bullets of different under-sized calibres, and the sawn-off barrel made it inaccurate to a degree of six feet at the range from which he fired. There was also the question of what Bentley had meant by "Let him have it", if indeed he had said it. Though in the gangster movies of the time the expression meant "shoot", it could also be construed as signifying that Bentley wanted Craig to surrender the gun. The Principal Medical Officer responsible was Dr. Matheson, and he referred Bentley to Dr. Hill, a psychiatrist at the Maudsley Hospital. Hill's report stated that Bentley was illiterate and of low intelligence, almost borderline retarded. However, Matheson was of the opinion that Bentley was not suffering from epilepsy at the time of the alleged offence, that he was not a "feeble-minded person" under the Mental Deficiency Acts, and that he was sane and fit to plead and stand trial. English law of the time did not recognise the concept of diminished responsibility due to retarded development, though it existed in Scottish law (it was introduced to England by the Homicide Act 1957). Criminal insanity – where the accused is unable to distinguish right from wrong – was then the only medical defence to murder. Bentley, while suffering severe debilitation, was not insane. The jury took 75 minutes to decide that both Bentley and Craig were guilty of the Miles' murder. Bentley was sentenced to death, while Craig was ordered to be detained at Her Majesty's Pleasure (he was eventually released after serving 10 years' imprisonment). Bentley's lawyers filed appeals highlighting the ambiguities of the ballistic evidence, Bentley's mental age and the fact that he did not fire the fatal shot. These efforts failed to reverse his conviction, however, and the death sentence was mandatory. David Maxwell Fyfe, who had helped to draft the European Convention on Human Rights, had become Home Secretary when the Conservatives returned to office in 1951. After reading the Home Office psychiatric reports he refused to request clemency from the young and as yet uncrowned Queen, despite a deputation with a petition signed by over 200 of his fellow MPs. Parliament was not allowed to debate Bentley's sentence until it had been carried out, i.e.
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they could not discuss whether he should be hanged until he had been hanged. The Home Office also refused Hill permission to make his report public. On January 28, 1953, Derek Bentley was hanged at Wandsworth Prison by Albert Pierrepoint. To Encourage the Others In his definitive 1971 work on the case, To Encourage the Others, David Yallop rigorously documented Bentley's mental deficiencies, inconsistencies in the police and forensic evidence, and the conduct of the trial, all of which worked against the defendants. More significantly, he proposes the theory that Miles was actually killed by a bullet from a gun other than Craig's sawn-off .455 revolver. Yallop draws this conclusion from an interview with Dr. David Haler, the pathologist who carried out the autopsy on Miles, and who estimated the head wound was inflicted by a bullet of between .32 and .38 calibre, with the latter being (in Haler's words) "the very ultimate extreme." He estimated that the bullet had been fired from between six to nine feet away. Craig had been firing from a distance of just under 40 feet, and had used a variety of under-sized .41, and .45 calibre rounds in his revolver, but it would have been impossible for him to use one of .38 or smaller calibre. Haler did not offer in his trial evidence any estimate of the size of the bullet that had killed Miles. While Craig accepts that the bullet that killed Miles came from his gun, he maintains that all of his shots were fired over the rear garden of a house adjacent to the warehouse, approximately 20 degrees to the right of Miles's location from where Craig had been firing. The standard Metropolitan police pistol at the time was the .32 Webley automatic, a number of which were issued on the night, although it was claimed that they arrived on the scene after Miles was killed and that the only ammunition not returned was two rounds fired by Fairfax. At least one witness, however, claims to have seen armed officers on the scene before Miles was shot. In his book The Scientific Investigation of Crime, the prosecution's ballistics expert Lewis Nickolls stated that he recovered four bullets from the roof, two of .45, one of .41 and one of .32 calibre. The latter was not entered as an exhibit in the trial, nor mentioned in Nickoll's evidence to the court. When Yallop telephoned Haler the day after the initial interview, he confirmed his estimate of the bullet size. Shortly before the publication of Yallop's book (and its serialisation in The Observer), at the request of the publisher's solicitors Haler was provided with a transcript of the interview, which he again confirmed was accurate. It was only after the subsequent broadcast of the BBC Play for Today adaptation of To Encourage the Others (directed by Alan Clarke) that Haler sought to deny that he had given any specific estimate of the size of the bullet that killed Miles beyond being "of large calibre."

Campaign for a pardon for Bentley
Following the execution there was a long campaign, usually led by Bentley's sister Iris, to secure a posthumous pardon for him. On 29 July 1993 Bentley was granted a royal pardon in respect of the sentence of death passed upon him and carried out. A Court of Appeal verdict of 17 July 1997, in a case with similarities to the Bentley case, cleared Philip English of murdering Sergeant Bill Forth in March 1993, with the reasons
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being given by Lord Hutton. English had been handcuffed before his companion Paul Weddle killed Sgt. Forth with a concealed knife. The existing joint enterprise law allowed the conviction of English for murder because they had both been attacking Sgt. Forth with wooden staves, making English an accessory to any murder committed by Weddle as part of that assault. Lord Hutton made the 'fine distinction' that a concealed knife was a far more deadly weapon than a wooden stave, so that proof of English's knowledge of it was necessary for conviction. The appeal may have influenced the allowing of a posthumous referral of the Bentley case. Eventually, on 30 July 1998, the Court of Appeal set aside Bentley's conviction for murder 45 years earlier. Though Bentley was not accused of attacking any of the police officers being shot at by Craig, for him to be convicted of murder as an accessory in a joint enterprise it was necessary for the prosecution to prove that he knew that Craig had a deadly weapon when they began the break-in. Craig was armed with a large knife as well as the gun. Lord Goddard may have had the problem when summing up that much of the evidence was not directly relevant to Bentley's defence. Lord Chief Justice Lord Bingham ruled that Lord Goddard had not made it clear to the jury that the prosecution was required to have proved Bentley to have known that Craig was armed. He further ruled that Lord Goddard had failed to raise the question of Bentley's withdrawal from their joint enterprise. This would require the prosecution to prove the absence of any attempt by Bentley to signal to Craig that he wanted Craig to surrender his weapons to the police. Lord Bingham ruled that Bentley's trial had been unfair, in that the judge had misdirected the jury and, in his summing-up, had put unfair pressure on the jury to convict. It is important to note that Bingham did not rule that Bentley was innocent, merely that there had been defects in the trial process. Had Bentley still been alive, the ordinary course would have been a retrial. Lord Mustill had asked for new laws on homicide when setting out his reasons at the time of Lord Hutton's ruling on English's appeal. However, Lord Bingham's ruling blamed Lord Goddard for a miscarriage of justice without making further alteration to the law on joint enterprise. The English judgment, delivered just over two months after the Labour government took office, remained the most recent precedent in joint enterprise law, though the Bentley verdict attracted far more media attention.

Film

Let Him Have It is a 1991 British film set in 1952 and based on a true story. It is based

on the case of Derek Bentley, who was hanged for murder under controversial circumstances. While he did not directly play a role in the murder of PC Sidney Miles, he received the greatest punishment in the case. It stars Christopher Eccleston as Bentley, with Paul Reynolds and Tom Courtenay, and was directed by Peter Medak. The title of the film is taken from Bentley's alleged cry of "Let him have it, Chris!" shortly before Christopher Craig shot PC Miles. Despite what the film showed, a police officer dying from cancer stated that Derek Bentley never said the infamous phrase. It is believed that the reason the police attributed the quote to Bentley is that there was a
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similar case where someone had said "Let him have it!", and it was still fresh in the police officer's' minds; and also with the police still grieving over PC Miles, they wanted revenge; and Bentley was the only person they could get it from. Christopher Craig was sentenced to jail At Her Majesty's Pleasure , but only spent ten years there. He has been a law abiding citizen ever since.

Derek Bentley's family had bought an expensive bottle of wine to celebrate their victory in proving that he was innocent. Sadly however, Bentley's parents never got to drink it, and died 1990. After numerous unsuccessful campaigns to get Derek Bentley a full pardon, he was posthumously pardoned in 1990 (despite the film's end titles stating that Bentley's sister Iris was still fighting for his pardon). Bentley's sister finally opened the bottle of wine, which was meant to be opened several years before.

(by: Iain MacFarlaine)

Birth: Jun. 30, 1933Death: Jan. 28, 1953 Execution Victim. Considered the victim of one of the greatest miscarriages of British justice. He suffered from epilepsy, had been injured during the War when a bomb fell on his house, was unable to read or write, had an I.Q. of 66 and the mental age of a four year old. He had never been in any trouble with the law, except for two minor offences of petty theft for which he was bound over to keep the peace, until the November 2, 1952, when he and a boy of sixteen, Christopher Craig, broke into the premises of Barlow and Parker's wholesale confectionery warehouse in Tamworth Road, Croydon (demolished in 1977 and replaced by houses) and climbed onto the roof in order to gain entrance through the skylight. Before they could do so, the police arrived. Bentley surrendered at once, but Craig produced a .455 Eley ; not, as is often claimed, a Colt .45. Bentley shouted "Let him have it, Chris" (although this is under dispute) and Craig shot Police Constable Fairfax in the shoulder. Armed reinforcements were called and the first to arrive, Police Constable Sidney Miles was shot dead. At the trial, both Craig and Bentley were found guilty of murder although, in Bentley's case, the jury added a recommendation of mercy. Craig was too young to be hanged and served ten years. It was expected that Bentley would be granted a reprieve, but none was forthcoming. Bentley was buried in Wandsworth Prison until 1966, when his remains were re-interred in Croydon Cemetery. Ironically, that was where P.C. Miles's ashes had been scattered. However, his parents and his sister Iris were

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not allowed to have the words "A Victim of English Justice" inscribed on his tombstone. Consequently, there was no marker until a few years ago. In 1992, the Conservative Government refused to re-open the case, but one of the first acts of Tony Blair's Labour Government was to grant Derek Bentley a posthumous pardon. At the time of the execution, Reginald Paget, the Labour M.P. for Northampton, had summed up the case as follows : "The great condemnation of the German people was that they stood aside and did nothing when dreadful things happened. Now, a three-quarter witted boy of nineteen is to be hanged for a murder he did not commit and which was committed fifteen minutes after he was arrested. Can we be made to keep silent when a thing as horrible and as shocking as this is to happen?" (bio by: Iain MacFarlaine)

Birth: Jun. 30, 1933Death: Jan. 28, 1953 Execution Victim. Considered the victim of one of the greatest miscarriages of British justice. He suffered from epilepsy, had been injured during the War when a bomb fell on his house, was unable to read or write, had an I.Q. of 66 and the mental age of a four year old. He had never been in any trouble with the law, except for two minor offences of petty theft for which he was bound over to keep the peace, until the November 2, 1952, when he and a boy of sixteen, Christopher Craig, broke into the premises of Barlow and Parker's wholesale confectionery warehouse in Tamworth Road, Croydon (demolished in 1977 and replaced by houses) and climbed onto the roof in order to gain entrance through the skylight. Before they could do so, the police arrived. Bentley surrendered at once, but Craig produced a .455 Eley ; not, as is often claimed, a Colt .45. Bentley shouted "Let him have it, Chris" (although this is under dispute) and Craig shot Police Constable Fairfax in the shoulder. Armed reinforcements were called and the first to arrive, Police Constable Sidney Miles was shot dead. At the trial, both Craig and Bentley were found guilty of murder although, in Bentley's case, the jury added a recommendation of mercy. Craig was too young to be hanged and served ten years. It was expected that Bentley would be granted a reprieve, but none was forthcoming. Bentley was buried in Wandsworth Prison until 1966, when his remains were re-interred in Croydon Cemetery. Ironically, that was where P.C. Miles's ashes had been scattered. However, his parents and his sister Iris were not allowed to have the words "A Victim of English Justice" inscribed on his tombstone. Consequently, there was no marker until a few years ago. In 1992, the Conservative Government refused to re-open the case, but one of the first acts of Tony Blair's Labour Government was to grant Derek Bentley a posthumous pardon. At the time of the execution, Reginald Paget, the Labour M.P. for Northampton, had summed up the case as follows : "The great condemnation of the German people was that they stood aside and did nothing when dreadful things happened. Now, a three-quarter witted boy of nineteen is to be hanged for a murder he did not commit and which was committed fifteen minutes after he was arrested. Can we be made to keep silent when a thing as horrible and as shocking as this is to happen?"

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a) Guardian 31 July 1998 - Derek Bentley pardoned b) BBC News 30 July 1998 c) Times Law Report 31 July 1998 - Summary of the Court of Appeal judgment d) Court of Appeal judgement in full e) Daily Telegraph 23 Jan 1997 - Iris Bentley's obituary See also - The Derek Bentley Archive

Justice at last, 45 years too late, By Duncan Campbell,31 July 1998

The bottle of Moet & Chandon champagne that had been sitting in a south London cupboard for 40 years was finally opened yesterday to celebrate the quashing of Derek Bentley's conviction for the murder of PC Sidney Miles.
Since William Bentley bought the bottle in 1958 in expectation of toasting his son's pardon, the family has experienced many raised and dashed hopes. In the Court of Appeal yesterday the long crusade reached its conclusion. The Lord Chief Justice, Lord Bingham, sitting with Lord Justice Kennedy and Mr Justice Collins, quashed the conviction in a 52-page judgment which severely criticised his predecessor Lord Goddard, ruled that the conviction had been unsafe because of the judge's intemperate summing-up and expressed regret that the mistrial had not been spotted soon enough to save Bentley. Maria Dingwall-Bentley, who has led the campaign to clear her uncle's name since her mother, Iris Bentley, died of cancer last year, said she was elated by the result but sad that her mother was not alive to see it. "I'm absolutely thrilled," she said as she popped the cork and declared the champagne much better than expected. "The British justice system has had a death on its hands for all those years." She said she held the former home secretary Kenneth Clarke in "absolute contempt". He had had the opportunity to pardon her brother on fresh evidence presented to him by a police reinvestigation but declined to do so. Benedict Birnberg, the family solicitor, who has worked on the case for many years, said: "We are elated at this historic judgment which is 46 years too late. The poignancy is that we cannot resuscitate Derek and that Iris is not here to celebrate this victory." Tamsin Allen, another member of the legal team which unearthed fresh evidence for the appeal, said that it would seek compensation for the family. She accused the Home Office of lack of will in reopening the case. Christopher Craig, who fired the shot that killed PC Miles during a warehouse robbery and served 10 years for the crime because at 16 he had been too young to hang, said he was saddened that it had taken so long to clear Derek Bentley's name. He offered to give evidence in the appeal but was not called. "I am truly sorry that my actions on November 2, 1952, caused so much pain and misery for the family of PC Miles, who died that night doing his duty, also for the Bentley family," said Mr Craig, who has worked as a plumber and farmer since his release and who lives in Bedfordshire. "A day does not go by when I do not think about Derek and now his innocence has been proved by this judgment." He said he would never make another public statement on the subject.
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Fred Broughton, chairman of the Police Federation, said: "Our thoughts are with the family of PC Sidney Miles, who gave his life in the line of duty and whose death is often forgotten." It has been one of the longest-running campaigns to clear a convicted prisoner's name and has led to books, plays, a film and songs commemorating Bentley in a way that can hardly have seemed possible when he was a slow, easily-led teenager with a mental age of 11. He had been born in 1933 and, with his family, bombed out three times in south London during the second world war. He had fallen foul of the authorities by the time he was 14 and in 1948, his headmaster at Norbury Manor school in south London described him as "the most irregular boy I have had in my career" and said that he was "meek, indifferent, sheeplike". His school report noted that "his parents have on several occasions confessed that the boy is out of hand and out of their control." He was sent to Kingswood approved school near Bristol for breaking into a store. There he was described in reports as "lazy, indifferent, voluble and a 'wise guy' type". Yesterday Hugh Maw, the educational psychologist at that school, recalled the young Bentley. "He was never violent, he was bullied and easily led," said Mr Maw, whom Bentley nicknamed Slasher because of his haircut of the time. When there was trouble at the school, said Mr Maw, Bentley would be the one left behind as the brighter boys fled. This led to frequent beatings from the authorities and Mr Maw and his wife recalled seeing Bentley's back covered with stripes. It was already apparent that he was educationally sub-normal, as it was then classified. He was unable even to write his name. When he left the school, he fell under the influence of Christopher Craig, whose older brother was a well-known criminal. The Bentleys disapproved of the friendship, knowing of Craig's habits, but their son ignored their entreaties, meeting up with Craig on what was to be his last night of freedom. Craig was armed with a Colt .45 and had given Bentley a knuckleduster and a knife. Bentley said that he was unaware that they were going to carry out the robbery on the confectionery warehouse until Craig started climbing gates leading into an alleyway. A neighbour spotted the break-in and called the police. Craig resisted arrest and it was what happened over the next 15 minutes that was to form the basis of the prosecution of both men. Three police officers said that Bentley had shouted out "Let him have it" and one alleged that after those words were uttered a shot was fired and one officer received a glancing blow, probably a ricochet, on the shoulder. Bentley was overpowered and according to police evidence warned them "he'll shoot you". It was 15 minutes later that PC Miles received the fatal shot. Even after his conviction, Bentley hoped for the reprieve which did not come. He was convicted on December 11, 1952, his appeal turned down on January 13, 1953, and he was hanged two weeks later on January 28.

Bentley family can demand inquiry 30 July 1998
The Court of Appeal has quashed the conviction of Derek Bentley, the teenager hanged in 1953 for the murder of a policeman in south London. The court also granted a full posthumous pardon to Mr Bentley who was convicted of murdering the policeman in a failed burglary in 1952, although it was his accomplice who fired the gun that killed him.

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Mr Bentley's family immediately called for a full investigation into the miscarriage of justice. Niece Maria Bentley-Dingwall said on the steps of the High Court: "We definitely want a public inquiry now." Her solicitor confirmed that a compensation claim would be lodged, probably on behalf of the estate of Bentley's sister Iris, who died in 1997. The three Appeal Court judges said Mr Bentley had been denied a fair trial because of the way the original trial judge, Lord Chief Justice Goddard, summed up the case. The victory was the culmination of a ceaseless campaign begun by Iris Bentley. In 1993 she won a limited pardon for her brother when the then Home Secretary, Michael Howard, agreed that he should not have been executed on 28 January 1953. Ms Bentley-Dingwall, 35, said after the decision: "He was never meant to hang and the one thing that torments me today is that Derek will never be able to walk free and that my mother Iris is unable to be with me." Mr Bentley, who was aged 19 but had a mental age of 11, played no physical part in the killing of PC Sidney Miles during the Croydon warehouse break-in. His 16-year-old accomplice Christopher Craig fired the fatal shot, but police witnesses said Mr Bentley had encouraged him to shoot, shouting: "Let him have it Chris." Both men denied these words were spoken. Craig, who was also convicted, was too young to be hanged and Mr Bentley went to the gallows instead. Craig later made a statement expressing his relief at the Appeal Court decision and his sorrow over the "pain and misery" of his actions.

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
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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
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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

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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

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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
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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
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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
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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.

23 January 1997 Bentley's sister dies without winning pardon she fought for By Ben Fenton Iris Bently died yesterday without seeing a successful end to her 44-year campaign for a free pardon for her brother Derek, hanged in 1953 for the murder of a policeman.
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Miss Bentley, 64, who had fought cancer for 20 years, had been hoping to hear her brother's case considered by the newly-established Criminal Cases Review Commission. It was due to be dealt with in April. The Home Office is also considering the possibility of a pardon based on new evidence presented by Miss Bentley's solicitors last September. 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. But Craig, then 16, was too young to be hanged and at the Old Bailey trial officers testified that moments before the fatal shot Bentley had called out to his accomplice: "Let him have it, Chris." The jury recommended mercy for Bentley, an epileptic with a mental age of around 11. Despite this, Lord Chief Justice Goddard, the trial judge, sentenced Bentley, from Collier's Wood, south-west London, to hang. Iris Bentley led petitions to Sir David Maxwell Fyfe, then Home Secretary, for a reprieve, but Bentley was hanged in Wandsworth prison on Jan 28, 1953. Penelope Dening, a journalist who co-wrote Miss Bentley's story of her campaign ["Let Him Have Justice", see Books section), said yesterday: "It is very sad, but if, as I expect, the commission finds that Derek should be pardoned, it will have come eight weeks too late. Her solicitors had told the commission that she was dying, but it seems they did not bring the case forward." In 1992 Kenneth Clarke, then Home Secretary, had refused a pardon for Bentley, but a year later the Appeal Court ruled that he had not considered all the options open to him. Miss Bentley said after Mr Clarke's decision: "I won't give up. No way. Not until the day I die." Weeks later, Michael Howard, Mr Clarke's successor, granted a partial pardon that upheld the conviction while denoting that the hanging had been wrong. Miss Bentley had suffered from bowel cancer and later cancer of the spine which first affected her in 1974. Her death in St George's Hospital, Tooting, came 36 hours after she underwent a major operation. Campaigners for Bentley's pardon always claimed that he had not been guilty of the killing in any way. There was no doubt that he was involved in the shooting, but they claimed that the police had concocted the story of his alleged encouragement to Craig. Craig himself was detained as a minor and was released in 1963. In recent years he has broken his silence on the case to allege that he never heard Bentley use the words which did so much to lead to his conviction. Miss Bentley, a former cinema usherette told journalists in 1953 that she would "devote the rest of my life to fighting for the reform of the criminal law". She spoke of her unending desire to clear her brother's name earlier this year despite her knowledge that she might not have long to live. "I won't be ready to go until I have Derek's [full] pardon," she said. "I want to be buried with the pardon, to take it to Mum and Dad."

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