R v Secretary of State for the Home Department, ex parte Bentley
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WATKINS |
| Judgment Date | 07 July 1993 |
| Judgment citation (vLex) | [1993] EWHC J0707-1 |
| Docket Number | CO/2912/92 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 July 1993 |
[1993] EWHC J0707-1
Before: Lord Justice Watkins and Lord Justice Neill and Mr Justice Tuckey
CO/2912/92
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Crown Office List
MR D PANNICK Q.C. and MR M SHAW (instructed by Messrs B M Birnberg & Co., London, SE1) appeared on behalf of the Applicant.
MR S RICHARDS and MR R SINGH (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
This is the judgment of the Court.
Iris Pamala Bentley, the applicant for judicial review, has been campaigning for almost 4O years to obtain recognition of what she and many other people regard as a gross miscarriage of justice in the case of her brother, Derek Bentley. She wants that recognition to take the form of a posthumous Free Pardon for him. That, Mr. Kenneth Clarke, the Secretary of State for the Home Department (the Home Secretary), by a decision which was announced on l October 1992, declined to recommend.
That is the decision which we have been asked by the applicant to review. The relief which she seeks, and for which she has the leave of this Court to apply, is a declaration that the Home Secretary erred in law in declining to recommend a posthumous Free Pardon for Derek Bentley and mandamus to require the Home Secretary to reconsider the matter.
Bentley, then 19 years of age, was convicted, together with Christopher Craig, at the Central Criminal Court on ll December 1952 before Lord Goddard, Chief Justice, of the murder of Police Constable Sidney George Miles at Croydon on 2 November 1952. He was sentenced to death. The jury added a recommendation for mercy. An appeal by Bentley against conviction was dismissed by the Court of Criminal Appeal on 13 January 1953. Craig was also found guilty of murder, but being only l6 years of age, he could not be sentenced to death. He was ordered to be detained during Her Majesty's pleasure.
It had been alleged by the Crown that during the evening of 2 November 1952 a married woman saw Bentley and Craig climbing over a gate at the side of a confectionery warehouse in West Croydon. She informed the police. Detective Constable Fairfax, accompanied by Police Constable Harrison and two other officers, came to the scene at about the same time as a wireless car in which were Police Constable Miles and Police Constable McDonald.
D.C. Fairfax, on being told that Bentley and Craig had climbed up on to the roof of the warehouse via a drainpipe, did likewise. He saw Bentley and Craig almost immediately. He walked towards them. They backed away and went behind a brickstack. D.C. Fairfax, when about six feet away, shouted out "I am a police officer. Come out from behind that stack". Craig shouted back that if he wanted them he would have to come and get them. D.C. Fairfax then rushed behind the stack and seized hold of Bentley. He pulled Bentley round the stack with a view to closing in on Craig, at which point Bentley broke away and shouted "Let him have it, Chris". There was then a flash and a loud report. A bullet hit D.C. Fairfax on his right shoulder, making him spin round and fall to the ground. He got up and again seized hold of Bentley and knocked him down with his fist. There was then a second shot and D.C. Fairfax pulled Bentley up in front of him as a shield and pulled him behind a large skylight where he held him down and felt over his clothing to see if he was carrying a gun. D.C. Fairfax did not find a gun but found a knuckleduster and a knife. Bentley said "That's all I've got, guvnor. I haven't got a gun". D.C. Fairfax then told Bentley that he was going to work him round the roof to the door of a fire escape, and Bentley said "He will shoot you". D.C. Fairfax then worked him round until they were both sheltered behind the staircase head.
D.C. Fairfax shouted to Craig to drop his gun, and Craig replied "Come and get it".
Meanwhile, P.C. Miles and others reached the roof by another route. P.C. Miles confronted Craig, who shot at him, hitting him between the eyes. P.C. Miles dropped dead.
The day after Bentley was convicted, Lord Goddard CJ, wrote to the then Home Secretary, Sir David Maxwell Fyfe, and stated: "In Craig's case the defence endeavoured to obtain a verdict of manslaughter. Had the jury returned such a verdict I should have passed a sentence of detention for fifteen years as I am convinced that he is a most dangerous criminal……In Bentley's case the jury added a recommendation to mercy. I have no doubt the reason for their recommendation was that they realised that a capital sentence could not be passed on Craig whom they probably regarded as the worst of the two. So far as merits were concerned, I regret to say I could find no mitigating circumstances in Bentley's case. He was armed with a knuckleduster of the most formidable type that I have ever seen and also with a sharp pointed knife and he called out to Craig when he was arrested to start the shooting."
On l6 January 1953, Philip Allen, later Lord Allen, wrote a Home Office memorandum in which he advised that effect be given to the jury's recommendation for mercy. His advice rested "principally on the ground, which has been held to be valid in previous cases, that it would not seem right to exact the extreme penalty from the accomplice when the principal offender is escaping with his life". There was reference in the memorandum to Bentley's mental state and to it being "just above the level of a feeble minded person". That memorandum was endorsed with comments from Sir Frank Newsam, the Permanent Secretary, who also advised against the execution of Bentley. Nevertheless, Sir David Maxwell Fyfe, for reasons which he set out in a memorandum of his own, decided that the law should take its course.
In that memorandum he stated:
"It was a very bad murder, involving the death of a police officer, committed at a time when there is much public anxiety about numbers of crimes of violence. Many of these crimes of violence are committed by young persons and I must pay regard to the deterrent effect which the carrying out of the sentence in this case would be likely to have. If Craig had been of an age when he could have been executed, the sentence would have been carried out in his case and there would have been no grounds for interfering with the sentence against Bentley. It would be dangerous to give the impression that an older adolescent could escape the full penalty by using an accomplice of less than 18 years of age. I feel also that it is important to protect the unarmed police."
Bentley was hanged on 28 January 1953. The Home Secretary, in announcing the decision now complained of, stated, inter alia:
"I have concluded that nothing has emerged from my review of this case which establishes Derek Bentley's innocence and that I therefore have no grounds for recommending a free pardon…
In my judgment most of the concern that has arisen about this case reflects strong feelings that Derek Bentley should not have been hanged. Personally I have always agreed with that concern but I cannot now simply substitute my judgment for that of the then Home Secretary, Sir David Maxwell Fyfe…
It has been the long established policy of successive Home Secretaries that a Free Pardon in relation to a conviction for an indictable offence should be granted only if the moral as well as technical innocence of the convicted person can be established. I do not believe that is the case on either point in relation to Derek Bentley."
An accompanying memorandum from the Home Office emphasized that:
"Successive Home Secretaries have taken the view it would not be right to recommend the exercise of the Royal Prerogative for the grant of a Free Pardon in any particular case unless satisfied that the person concerned is both morally and technically innocent of any crime."
The grounds for relief relied upon by Mr. Pannick Q.C., on behalf of the applicant, as stated in the application, are that (l) the Home Secretary erred in law in his approach to the problem confronting him for the following reasons: (a) He considered that a Free Pardon depended on whether it could be established that Bentley was morally and technically innocent of the crime of which he was convicted. He said that this had long been the approach taken by the Home Office to the question of a Free Pardon. (b) A Free Pardon would not entail recognition that Bentley was wrongly convicted. As Watkins L.J. Explained in the Court of Appeal in R. V. Foster [1985] Q.B. Ll5, 130A:
"The effect of a free pardon is such as, in the words of the pardon itself, to remove from the subject of the pardon, all pains, penalties and punishments whatsoever that from the same conviction may ensue', but not to eliminate the conviction itself."
Thus a pardon is not the equivalent of an acquittal. It leaves unaffected the fact of a conviction.
(c) The Home Secretary failed to have regard to relevant considerations or he acted perversely. If a Free Pardon leaves the conviction unaffected but expunges the penalty, the question in considering the grant of a free pardon is not whether Derek Bentley was innocent of the crime, but whether, in all the circumstances, he should be relieved of the punishment which was imposed. The punishment was, of course, the sentence of death, which Sir David Maxwell Fyfe refused to commute to life imprisonment.
(2) It may be that the Home Secretary asked himself the wrong question because he was following Home Office policy in relation to a Free Pardon, which policy was established...
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