R v Bentley, decd
| Jurisdiction | England & Wales |
| Judgment Date | 30 July 1998 |
| Date | 30 July 1998 |
| Court | Court of Appeal (Criminal Division) |
Court of Appeal, Criminal Division
Before Lord Bingham of Cornhill, Lord Chief Justice, Lord Justice Kennedy and Mr Justice Collins
Criminal procedure - Bentley trial - unfair through flawed summing-up
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...
To continue reading
Request your trial
-
R v S.B.
...that element was proved. But the judge also said that the jury had to be satisfied but without adding the coda "so as to be sure". 10 In R v Bentley [2001] 1 Cr App R 307 paragraph 49, Lord Bingham CJ said this: "The jury must be clearly and unambiguously instructed that the burden of provi......
-
DPP v Rattigan
...of adverse comment allowed at that time was substantially less than it had been fifty years earlier. 70 In R. v. Bentley (Deceased) [2001] 1 Cr. App. R. 21 the English Court of Appeal had the task of reviewing the historic conviction of Derek Bentley for the murder of PC Miles in 1952. One......
-
Queen v Philip Blaney
...R v Gordon [2001] NIJB 50 at pp 66 to 69. During the passage in which he did so the learned Lord Chief Justice referred to R v Bentley [1999] Crim LR 330 and to subsequent English and Scottish authorities. However, at page 69, the learned Lord Chief Justice pointed out that, on the view tha......
-
R v Lyons ; R v Parnes ; R v Ronson ; R v Saunders (No 3)
...standards of fairness but has accepted that the case was governed by the law applicable at the date of trial. Thus, for example, in R v Bentley (Deceased) [2001] 1 Cr App R 307 the court found the summing-up to have been unfair but had to apply the doctrine of constructive malice because th......
-
Provocation: Speculative Defence Not to Be Left to the Jury
...Court of Appeal. The issue of provocationshould have been determined by the jury.HELD, DISMISSING THE APPEAL:1. Following R v Bentley [2001] 1 Cr App R 21 the substantive law ofmurder and provocation as applicable in 1955 had to be applied inthis case. Only developments within the common la......
-
Case Management, Similar Fact Evidence in Civil Cases, and a Divided Law of Evidence
...whilst caught up in a poll tax demonstration, would have undergone. However, inthe notorious miscarriage of justice case, RvBentley [1999] Crim LR 330, CA, in which B’s convictionwas quashed 45 years after he hadbeen hanged, Lord Bingham CJ stressed, ‘There is an obvious riskof injustice if......
-
Injustice Perpetuated? The Contribution of the Court of Appeal
...a case different fromthat presented to the judge and the jury at the trial. 11 [2007] EWCA Crim 2016, [2008] 1 Cr App R 7 at [52].12 [2001] 1 Cr App R 21 at [4] and [5].13 Ibid. at The Journal of Criminal Law This latter statement recognises that not all change of law cases turnpurely on th......
-
The Supreme Court on Compensation for Miscarriages of Justice: Is it better that ten innocents are denied compensation than one guilty person receives it?
...should be of concern even ifthere is an accurate and fair determination of guilt or innocence’.70 In the65 RvBentley (deceased) [2001] 1 Cr App R 21.66 Adams n 5 above at [168].67 Re MacDermott’s & McCartney’s Applications n 11 above at [15] (Morgan LCJ).68 A number of convictions have alre......