R v Derek William Bentley (hanged) UK 1998

This version of the judgment has been prepared by: Dr Robert N Moles and Bibi Sangha
Underlining where it occurs is for editorial emphasis]

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Court of Appeal - 30th July 1998

Lord Chief Justice

In November 1952 Police Constable Sidney Miles was shot dead in the execution of his duty on the roof of a warehouse in Croydon. Two men were charged with his murder: Christopher Craig (aged 16) and Derek Bentley (aged 19).

They were convicted. Bentley's case contained a recommendation to mercy. The trial judge passed on each the only sentence permitted by law:
Craig - because of his age was to be detained during Her Majesty's Pleasure.
Bentley was sentenced to death.

An appeal by Bentley against his conviction was dismissed by the Court of Criminal Appeal. He was executed on 28th January 1953.

In 1993, 40 years later, Bentley was granted a royal pardon in respect of the sentence of death passed upon him and carried out. We are now called upon to review the conviction. Rarely has the court been required to review the safety of a conviction recorded over 45 years earlier. We conclude:

We must apply the substantive law of murder as applicable at the time.
The conduct of the trial and the direction of the jury must be judged according to the standards which would now apply in any other appeal.
We must judge the safety of the conviction according to the standards which we would now apply in any appeal.

Where the appeal court exercises its power to hear new evidence, it inevitably reviews a case different from that presented to the judge and the jury at the trial.

The case at trial

One ground of appeal states that there are such irreconcilable inconsistencies and improbabilities in significant parts of the evidence of certain police officers as to raise a real doubt as to the reliability and truthfulness of their evidence.

The prosecution case was that Craig had deliberately murdered PC Miles and that Bentley had incited Craig to begin the shooting and, although he was technically under arrest at the actual time of the killing of Miles, he was party to that murder and equally responsible in law.

The prosecution relied heavily on the most important observation that Bentley made that night, namely Let him have it, Chris. That was said to be a deliberate incitement to murder Constable Fairfax, who had just arrested Bentley. It led, it was said, to Craig immediately firing at and wounding DC Fairfax. The prosecutor said:  

"It was spoken to a man who he, Bentley, clearly knew had a gun. That shot began a gun fight, in the course of which Miles was killed; that incitement.....covered the whole of the shooting thereafter, even though at the time of the actual shot which killed P.C. Miles, Bentley was in custody and under arrest."

Craig's defence was that he was not guilty of murder, but guilty only of manslaughter because, although he had pulled the trigger and fired the shot, he had intended only to frighten the police officers and the killing had been an accident.

Bentley's case was that he had not incited Craig to fire the gun and had at no time been party to its use. He said he had not known that Craig had a gun until the first shot was fired - and he had not used the words Let him have it, Chris. He had been standing with Fairfax for some time, made no effort to get away from him and behaving quietly, when Craig had fired the fatal shot. He had not participated in the murder.

The prosecution set out to establish that Bentley was party to an agreement to use such violence as might be necessary to avoid arrest. It tried to prove that he was on a criminal enterprise (warehouse breaking) and he knew Craig had a gun with him. Some common purpose was suggested by the fact that Bentley and Craig had knives in their possession.

Bentley’s weapons had been taken from him by Fairfax and at no time had he tried to make any use of them. Bentley said it was only when Craig climbed over the gates at the side of the building that he realised that they were going to break into the warehouse and he didn’t know Craig had a gun. Craig said otherwise.

The warehouse was a two storey building with a flat roof just over 22 feet from ground level. The frontage was 54 feet and it went 90 feet back. At the back was a sloping roof covered by asbestos tiles with glass nearer the top.

Half way along the flat roof was a brick structure 7 feet 6 inches high forming the head of a staircase giving access to the roof through a door which opened outwards. Directly opposite the door was the end of four roof lights, each measuring some 8 by 16 feet and standing some 2 feet 3 inches at their sides to 7 feet 6 inches at the top. Further along the roof was a concrete structure standing 11 feet 6 inches high which was the head of a lift shaft.

On Sunday 2nd November 1952 at 9.15pm Mrs Ware saw 2 young men acting suspiciously near the warehouse. Her husband went to the nearest police call box to call the police and Harrison / Fairfax / McDonald and Miles arrived. Fairfax was the first to go to the roof. Miles (who was in Tamworth Road) spotted someone on the flat roof. McDonald tried to climb a drainpipe but could not manage the last six feet. It was a dark night, with little moonlight, and Fairfax had no torch. When he got onto the roof he saw the two lads standing between the roof lights and the lift shaft. As he approached, they backed away behind the lift shaft. He shouted that he was a police officer and that they should come out from behind the lift shaft. Craig shouted If you want us, fucking well come and get us.

Fairfax rushed behind the lift shaft, and going round the side of it, grabbed Bentley. He pushed him round the front of the lift shaft, intending to apprehend Craig. As they reached the corner Bentley broke away and, as he did so, was said to have shouted Let him have it, Chris. There was a flash and a bang and Fairfax felt something strike his right shoulder which caused him to spin round and fall down.

When this happened, he was about 6 feet from Craig. As he got up, he saw one person moving to his left and one to his right. He grabbed at the one to his right, who turned out to be Bentley, and punched him. Bentley fell down and at the same time there was a second loud bang. He then pulled Bentley up and, using him as a shield, made his way to the corner of one of the roof lights. He felt Bentley's clothing and found a knuckle-duster and a knife. Fairfax said he was going to work him round the roof to the door in the stairhead, and did so. Craig followed, but remained roughly opposite the stairhead. He then moved away to the corner of the roof. Bentley said to Fairfax He'll shoot you.

McDonald’s account was somewhat different. He said that he realised he could not climb the last 6 feet or so and was just beginning to climb down again when he heard someone shout Let him have it, Chris. He did not hear an immediate shot, but had time to get to the ground, when he heard two or three shots fired. He said the time between the shout and the shots was a matter of minutes, but at trial agreed it was less than a minute. On either view a significant time.

Harrison was about 60 feet from the lift shaft. He saw Fairfax grab Bentley and walk him towards the stairhead. Harrison called out to Fairfax to ask if he was all right and received the reply I've got one: there's another one on the roof. He saw Bentley break away Fairfax and heard him call out: Let him have it, Chris. Immediately afterwards, he heard two shots fired from the direction of the lift shaft and saw Fairfax spin round and drop to the roof. He then began to edge along the gully towards where Craig was but Craig fired two shots at him which missed but caused him to retreat.

McDonald thought there was more of a time lag between the shout and the shots. Harrison thought Fairfax and Bentley were further from the lift shaft and so more than 6 feet from Craig. Harrison spoke of a conversation between himself and Fairfax which Fairfax did not recall.

Bentley’s barrister argued that the police evidence was too unreliable to establish that Bentley had shouted as they said. He said the police had invented it.

Apart from the discrepancies (and, it was submitted, the impossibility of Harrison having seen what he alleged if Fairfax was correct about where he was when Bentley broke away from him), Bentley sought also to rely on two extraneous matters.

Harrison's said his statement was taken and witnessed by DS Shepherd on 2 Nov. However Shepherd said he went to the hospital at about 11 pm where he saw Craig. He remained there dealing with him until well into 3 November and thereafter carried out further investigations. It was said that it was at least highly improbable that Harrison's statement could have been made on 2 November. This matter was not explored at the trial. It is quite impossible for us to regard it with such suspicion as to throw doubt on the reliability of the officers’ evidence. Maybe it was started, and so dated, before midnight and completed some time later or that a mistake was made as to the date.

The second matter related to the expression Let him have it: These were the very words used in a case in 1940, R v Appleby (1940) by one of two professional criminals who were found guilty of murdering a police officer. It was suggested that it was too remarkable a coincidence that those same words were used by Bentley, and that the officers, had drawn on their knowledge of Appleby and invented that piece of evidence. We found that submission far fetched.

The expression Let him have it meaning - kill him - was hardly an unusual one, and would have been well known to anyone who had been to see gangster films, particularly those imported from the United States of America.

The statement made by Bentley was said to have been taken entirely at his dictation without any questions being asked by the officers who took it. Yet Bentley was illiterate and of low intelligence, which in itself, it was said, made dictation improbable, and it was argued that fresh evidence established that questions must have been asked.

It was submitted that DCI Smith might have dishonestly orchestrated the evidence. If he did, he made a poor job of it. There is in our judgment nothing in those submissions.

We have concentrated on the Let him have it, Chris shout because of its obvious importance to the prosecution case. Both Bentley and Craig denied that it had been said. But it was clearly ambiguous. It could have an innocent meaning – telling Craig to hand over the gun. That maybe improbable if it was said when Bentley moved away from Fairfax. If Bentley admitted saying the words, he would also be admitting that he knew Craig had a gun. If Craig had fired the gun after the words had been used then that would hardly have been consistent with the defence of accident.

What was important was what Bentley intended by whatever he said. Not what others, especially Craig, understood by them. Bentley’s subsequent conduct may have thrown some light on what he meant by the words, if they were spoken. At least the jury should have taken his conduct into account in deciding whether the words in question, if they were sure he had uttered them, showed that he had been participating in an agreement to use violence to resist arrest or encouraging Craig to shoot at the officer and so to kill PC Miles.

The situation on the roof that night was confused and frightening. It is not at all surprising that different witnesses should give different versions. It is common knowledge that eye witnesses of fast-moving events usually do give versions of events which may differ substantially. Such witnesses are not necessarily lying. Usually they are doing their honest best, but have seen things from different viewpoints.

It is likely that the officers had discussed what each had seen and heard. Maybe the maintenance of the discrepancies is more consistent with honesty than with an attempt to concoct a false account. That is not to say that a mistake could not have been made as to the precise words used or their importance.

Unless collaboration in the compiling of statements were admitted or established, the absence of discrepancies would give rise to grave suspicion that heads had been put together. We see no reason to believe that the discrepancies identified create doubt about the officers’ evidence that the words were used.

Furthermore, we see nothing inherently improbable in the evidence given by any of the officers of what each heard and saw. It was for the jury to decide, having heard all the evidence, what was said and done and the significance of it.

Once he had got behind the stairhead with Bentley, Fairfax went to assist McDonald who had climbed up the drainpipe again. This meant leaving Bentley free to move away if he wanted to. While he had nowhere to escape to, he could have tried to rejoin Craig and make a stand with him. He did not. Once McDonald was on the roof, he asked Fairfax what sort of gun Craig had when, according to both of them, Bentley interrupted and said, He's got a .45 Colt and plenty of bloody ammunition too. Bentley denied saying this, saying that Craig had shouted out that he had a .45 Colt. McDonald’s evidence was that Bentley had said before this: I told the silly bugger not to use it. Bentley denied that.

In the meantime, Harrison had got down to the ground and gone round to the front of the warehouse where he met up with other officers including Miles. They had access to the building and went up the internal staircase and kicked open the door which led onto the roof. As Miles emerged from the stairhead, Craig fired the gun and Miles was killed by a bullet which hit him between the eyes. He died instantly. McDonald and Fairfax went to Miles’ assistance and discovered that he was dead. Bentley was left standing nearby and again, he made no attempt to go anywhere or to do anything. Craig was heard to shout:

I am Craig. You've just given my brother 12 years. Come on, you coppers, I'm only 16.

And:

Come on you brave coppers, think of your wives.

Bentley, who had been brought towards the stairhead, was alleged to have said:

You want to look out: he'll blow your heads off.

He was then taken downstairs and, just before he went to the stairhead, he said:-

They're taking me down, Chris.

According to Fairfax, no shot followed this remark, although Harrison said another shot was fired. The prosecution suggested that this remark was a further incitement to Craig to shoot at the police. Bentley said he was afraid for his own safety and was warning Craig that he would be in the firing line. In effect, it was intended to prevent him shooting. Whilst we accept that the remark could have been a further incitement to use the gun, we feel that the appellant's explanation is much more persuasive. It was, we think, unsafe to infer that the remark constituted further incitement. There is also considerable doubt whether Craig fired any shot which could have been regarded as a response to the remark.

Bentley was placed in a police car. On the way to the police station, he is alleged to have said: I knew he had a gun but I didn't think he'd use it. He has done one of your blokes in.

This he denied. Later, he made a statement under caution. It contains the sentence: I did not know he was going to use the gun.

It was suggested that showed that Bentley knew that Craig had a gun. Bentley stated that he had never said that. Later in the statement, he is recorded as having said: I did not have a gun and I did not know Chris had one until he shot. We consider the significance of these alleged observations later.

Once Bentley had been taken down, Fairfax returned with a gun and went back up to the roof. He fired twice at Craig but missed. Craig fired at him. Craig's revolver was now empty and he jumped or dived off the roof, suffering a fractured spine, breast bone and left forearm. Notwithstanding this, he was able to tell the first police officer who reached him that he wished he had “killed the fucking lot”. He later made a number of statements to police officers sitting with him in hospital, displaying a hatred of the police and a total lack of remorse at what he had done.

Nothing said or done by Bentley after he had been grabbed by Fairfax was aggressive to the police nor did he try to incite Craig to further violence. Craig displayed a hatred of the police. It is important to try to assess the time which must have elapsed between the first shot, which wounded Fairfax, and the killing of Miles. The first officers arrived at the warehouse at 9.25 p.m. and we know from his statement that the police surgeon was telephoned at 9.57 p.m. to come because a police officer had been shot. The shooting of Miles must therefore have occurred a little before 9.57 pm. Although some minutes must have elapsed before Fairfax got onto the roof, there cannot have been a very long time between the arrival of the police and the firing of the first shot. It seems likely that the killing of Miles occurred some time after the wounding of Fairfax.

It is not entirely clear how many shots were fired by Craig. Three spent cartridges were found by the lift shaft and, when it was recovered, the revolver contained six cartridges, two of which had misfired and four of which were spent. Thus at least seven shots had been fired and Craig had at some stage reloaded the weapon. The gun itself had had part of the barrel sawn off, which made it more inaccurate. Four of the cartridges were the wrong size, being .41 instead of .45. This meant that the velocity would be greatly retarded. Fairfax's wound was relatively superficial and it seemed that his shoulder had been struck by a bullet travelling in an upward direction which had passed over the surface of but not penetrated the skin. The bullet had lodged in his braces. The combination of the inaccuracy caused by the shortening of the barrel and the wrong size of the cartridge, together with the lack of proper velocity, made it possible that the gun was fired as close as 6 feet from him, particularly if Craig had been crouching down when he fired.

In order to determine Bentley’s guilt, the jury had to resolve a number of issues. They included in particular the following:

1. What was the nature and scope of the joint enterprise on which Craig and Bentley embarked?

2. When did Bentley get to know that Craig had the gun with him? None of the observations allegedly made by him were inconsistent with the knowledge having been acquired when the two were on the roof. The trial judge suggested that it was inconceivable that Craig would not have told Bentley when they were going on a shop breaking expedition that he had the gun. We do not think that that is necessarily so. The appellant had no record of violence and Craig may not have wanted him to know he was armed in case he refused to go with him.

3. Did Bentley shout out Let him have it, Chris? If he did, what did he intend by the words he used? It could be argued that his actions and words on the roof were consistent with his not having wanted to incite Craig to shoot anyone and that Craig's hatred towards the police suggested that he was engaged on an enterprise of his own.

4. At the time Miles was shot, was Bentley participating or had he withdrawn from any joint enterprise? The jury was likely to find that he had told some lies. His evidence that he was unaware that Craig was intent on any warehouse breaking until he climbed over the gate was difficult to reconcile with the evidence of Mrs Ware and in our view unlikely to be believed.

The police evidence of remarks made by him, showed a concern for the officers’ safety as well as his own, and was consistent with his having known of Craig's possession of the gun. Bentley’s explanation for his possession of the knife and the knuckle-duster does not appear convincing. Both he and Craig said that Craig had given him the knuckle-duster when they were on the bus travelling to Croydon. He said he did not know why. Bentley agreed that the knife was his, having been given to him by one of his friends. He had left it in the coat because it was an old one which he did not usually wear, and for that reason it did not matter that the knife might damage its lining. Although he did not attempt at any time to make use of either of the weapons, his possession of them coupled with the feeble explanations for possession could have persuaded the jury that the pair of them had had violence in mind that night. Nevertheless, his possession of those weapons did not of itself prove that he was aware that Craig was armed with a loaded revolver.

On the evidence presented to the court we conclude that a properly directed jury would have been entitled to convict. The case against Bentley was substantial but not overwhelming. We reject the submissions that the officers’ evidence of matters which incriminated the appellant, particularly the shout Let him have it, Chris 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 very 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 had been fully before the jury. We have deliberately gone through the evidence in some detail to show why we have reached this conclusion. It follows that we should not regard the appellant's conviction as unsafe if the summing-up had been fair and the directions in law adequate. We have also had to consider the fresh evidence which has been put before us, and to decide whether anything disclosed in it affects the safety of Bentley 's conviction.

The summing up to the jury

The QC for Bentley criticised the trial judge's summing up to the jury on a number of grounds, both general and particular. It is necessary to examine these criticisms in some detail.

The Standard of Proof

The trial judge directed the jury in these terms:

"Now there are one or two preliminaries to which I call your attention, though it is hardly necessary. The first one is hardly necessary, because you know as well as I do that in all criminal cases it is for the prosecution to prove their case, and it is said correctly that it is not for the prisoners to prove their innocence."

"In this case the prosecution have given abundant evidence for a case calling for an answer, and although the prisoners do not have to prove their innocence, when once a case is established against them they can give evidence, and they can call witnesses, and then you have to take their evidence as part of the sum of the case. The effect of a prisoner’s evidence may be to satisfy you that he is innocent, it may be it causes you to have such doubt that you feel the case is not proved, and it may, and very often does, have a third effect: it may strengthen the evidence for the prosecution."

The trial judge added:

"Gentlemen of the jury, I started by saying this was a terrible case. It is dreadful to think that two lads, one, at any rate, coming, and I dare say the other, from decent homes, should with arms of this sort go out in these days to carry out unlawful enterprises like warehouse-breaking and finish by shooting policemen. You have a duty to the prisoners. You will remember, I know, and realise, I know that you owe a duty to the community, and if young people, but not so young - they are responsible in law - commit crimes of this sort, it is right, quite independent of any question of punishment, that they should be convicted, and if you find good ground for convicting them, it is your duty to do it if you are satisfied with the evidence for the prosecution."

It was not suggested to us that any other passage of the summing up was directed to the standard of proof. Fitzgerald submitted that these passages did not amount to a direction on the standard of proof at all; that insofar as there was any direction it was inadequate; and that the summing up was fundamentally flawed by the absence of a clear and adequate direction on this crucial matter. The cases show the following.

Woolmington v Director of Public Prosecutions [1935]

"Juries are always told that, if conviction there is to be, the prosecution must prove the case beyond reasonable doubt."

Mancini v Director of Public Prosecutions [1942]

"There is no reason to repeat to the jury the warning as to reasonable doubt again and again, provided that the direction is plainly given."

The courts have consistently insisted on the need for a clear direction to the jury on the standard of proof, and have consistently held that a mere reference to being “satisfied” without a reference to being sure, or being satisfied beyond reasonable doubt, was inadequate.

The Crown rightly accepted that there was force in this ground of appeal. The first passage contained no direction on the standard which the evidence of the prosecution had to meet before the jury could properly convict. In the second passage there was reference to “good ground for convicting”, but no assistance whatever was given to the jury as to what would or would not be such good ground. For the jury to be clearly told that they must be satisfied of the defendant’s guilt before convicting, and on our reading of the authorities that would not have been enough, the jury did not even receive that direction. In our judgment this ground of appeal is made good.

The Burden of Proof

It was submitted that the trial judge had failed to give the jury a clear direction on the burden of proof, and had indeed reversed the burden by suggesting that there was an onus lying on the appellant and his co-defendant.

The judge said that it was for the prosecution to prove their case and that it was not for the prisoners to prove their innocence. This was of course a correct and orthodox direction. However, it was submitted that the effect of that direction was undermined by the passage in which the judge suggested 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 appellant and his co-defendant was such as to rebut that case. It was argued that that misdirection was not cured by the later direction that it was the duty of the jury to convict if they were satisfied with the evidence for the prosecution.

The jury must be clearly and unambiguously instructed that the burden of proving the guilt of the accused lies and lies only on the Crown, that there is no burden on the accused to prove anything and that if, on reviewing all the evidence, the jury are unsure of or are left in any reasonable doubt as to the guilt of the accused that doubt must be resolved in favour of the accused. Such an instruction has for very many years been regarded as a cardinal requirement of a properly conducted trial. The courts have not been willing to countenance departures from it.

We cannot regard the direction in this case as satisfactory.

The Treatment of Police Evidence

In the summing up the judge said:

"There is one thing I am sure I can say with the assent of all you twelve gentlemen, that 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 a devotion to duty for which they are entitled to the thanks of the community?"

Later in the summing up the trial judge 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."

It was said those observations were obviously prejudicial and unfair to the appellant. The prosecutor accepted that, applying the standards of today, there was force in that criticism.

The courts in recent years have criticised judicial comments which place police officers in a different position from other witnesses. If such observations were made in a trial today, we have no doubt that this court would condemn them as prejudicial and unfair.

The jury should make its judgment in an open-minded and fair-minded way. There is an obvious risk of injustice if a jury is invited to approach the evidence on the assumption that police officers, because they are police officers, are likely to be accurate and reliable witnesses and that defendants, because they are defendants, are likely to be inaccurate and unreliable. This is the pitfall into which the trial judge, for all his vast experience and authority, fell.

His direction on this matter cannot be supported.

The Balance of the Summing Up

It was submitted that the trial judge's direction to the jury, read as a whole, was unfairly adverse and prejudicial to the appellant, put unfair pressure on the jury to convict and failed adequately to put the appellant's case to the jury. The prosecutor accepted that there was force in some of these criticisms.

At the outset of his summing up the trial judge described the case as a terrible one, which on any showing it plainly was, and urged the jury in conventional terms to approach it in as calm a frame of mind as they could. He continued:

"Here are two lads, one of 16 and one of 19, admittedly out on a shop-breaking expedition at night, armed with a Service revolver, a dreadful weapon in the shape of a knuckle-duster, and two knives which may or may not be described as daggers - one of them I should think certainly could be - and the result is that a young policeman is shot dead while in the execution of his duty. You may think it was almost a miracle that others were not shot too. One of them, we know, Sergeant Fairfax, was wounded, but fortunately only slightly."

"Now let us put out of our minds in this case any question of films or comics, or literature of that sort. These things are always prayed in aid nowadays when young persons are in the dock, but they have really very little to do with the case. These two young men, are both of an age which makes them responsible to the law - they are over 14 - and it is surely idle to pretend in these days that a boy of 16 does not know the wickedness of taking out a revolver of that description and a pocketful of ammunition and firing it when he is on an unlawful expedition and the police are approaching him. You will remember that so far as Craig is concerned, by his own words he supplied a motive for what he was doing, for he said that he hated the police because they had got his brother 12 years - which seems to show that his brother was convicted for a very serious offence to receive a sentence of that length."

The trial judge then gave the direction on the burden and standard of proof and proceeded to direct the jury on the need to consider the charges against the two defendants separately and on the respective functions of judge and jury. He went on to give directions on the law of murder and of constructive malice in cases where a police officer was shot. He gave the direction on reduction to manslaughter in the case of Craig, and continued with his direction on constructive malice, questioning (with some reason on the law as it then stood) whether Craig had any defence to the charge of murder against him. He summarised the evidence relating to Craig and then, turning to the case of Bentley, directed the jury on the legal approach to the liability of a party to a joint enterprise. He said:

"Now let us see what the evidence is with regard to Bentley. The first thing that you have to consider is: did Bentley know that Craig was armed? Now, you know, because I sit on the Bench and you sit in the jury-box it is not necessary that we leave our common-sense at home. The great virtue of trial by jury is that jurymen can exercise the common-sense of ordinary people. Can you suppose for a moment, especially when you have heard Craig say that why he carried a revolver was for the purpose of boasting and making himself a big man, that he would not have told his pals he was out with that he had got a revolver? Is it not almost inconceivable that Craig would not have told him, and probably shown him the revolver which he had? That is quite apart from what Bentley said afterwards. I should think you would come to the conclusion that the first thing, almost, Craig would tell him, if they were going on a shop breaking expedition, was: 'It's all right. I've got a revolver with me.'"

"Then see what Bentley had on him. Where is that knuckle-duster? Apparently it was given to him by Craig, but Bentley was armed with this knuckle-duster. Have you ever seen a more horrible sort of weapon? You know, this is to hit a person in the face with who comes at you. You grasp it here, your fingers go through - I cannot quite get mine through, I think - and you have got a dreadful heavy steel bar to strike anybody with; and you can kill a person with this, of course. Then did you ever see a more shocking thing than that? You have got a spike with which you could jab anybody who comes at you; if the blow with the steel is not enough, you have got this spike at the side to jab. You can have it to see, if you like, when you go to your room. It is a shocking weapon. Here was Craig armed with a revolver and that sheath knife. Hand me that sheath knife - the big one. One wonders, really what parents can be about in these days, allowing a boy of 16 - they say, perhaps, they do not know, but why do not they know? - to have a weapon like this which he takes about with him? It is not a new one, you can see; it is pretty well worn. That was the thing that Craig was taking about. Where is the other knife? Here is Bentley with a smaller knife, but you can feel it is sharp and pointed. What is he carrying that with him for in his coat, not even with a sheath on it?"

"Can you believe it for a moment although Bentley had said he did not know Craig had the gun? You are not bound to believe Bentley if you think the inference and common sense of the matter is overwhelming that he must have known that he had it. Now, of course, the most serious piece of evidence against Bentley is that he called out, if you believe the evidence, to Craig 'Let him have it, Chris!', and then the firing began, and the very first shot struck Sergeant Fairfax. Gentlemen, those words are sworn to by three police officers - Sergeant Fairfax, Police Constable McDonald, and Police Constable Harrison; they all swear that they heard Bentley call that out, and that then the firing started..."

And then the judge gave the direction concerning the conspicuous bravery of the police officers. The trial judge then reminded the jury of the evidence and the alleged admissions of Bentley and continued:

"Then in his statement he said: 'I didn't know he was going to use the gun'. Again, if he said that, it shows that he knew it. If he knew that he had the gun, can you believe he did not know he had ammunition? Why did he have ammunition? Why did he have the gun? Why did he have the ammunition? You will remember that at one stage the officers said that Craig on the roof told them that he had a 45 and lots of ammunition. I think they said something about 'blowing your head off' - 'He'll blow your head off'. Then later in his statement he said he did not know 'Chris' had a gun till he shot. That, of course, is quite inconsistent with what he said earlier in his statement. You can have the statement when you go to your room, if you like. He did say 'I didn't know he was going to use the gun', and then he said afterwards 'I didn't know Chris had one until he shot'. It does not seem very consistent, but, as I say, the real thing is, is it not, as a matter of common sense, can you believe for a moment that if Bentley had gone on that expedition with this boastful young ruffian who said he carried a gun for the purpose of making himself out bigger than he was, he would not have told Bentley he had the gun? What had he got the gun for, and what did Bentley think he had the gun for?"

The trial judge then observed that that was the whole case. He proceeded to summarise Craig's defence in four sentences, and the appellant's in two:

"In the case of Bentley, Bentley's defence is: I didn't know he had a gun, and I deny that I said 'Let him have it Chris'. I never knew he was going to shoot, and I didn't think he would'."

The judge then made reference to Bentley’s denial as that of a man in grievous peril and continued to remind the jury of their duties. The courts have had to consider the balance of judicial summing up to juries in many cases.

The killing of PC Miles had, very understandably, aroused widespread public sympathy for the victim and his family and a strong sense of public outrage at the circumstances of his death. This background 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. In our judgment, however, far from encouraging the jury to approach the case in a calm frame of mind, the trial judge's summing up had exactly the opposite effect. We cannot read these passages as other than a highly rhetorical and strongly-worded denunciation of both defendants and of 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 must in our view have driven the jury to conclude that they had little choice but to convict.

These complaints formed no part of the appellant's appeal against his conviction. We do not know why not. Complaint was made on appeal of the trial judge's failure to put the appellant's case adequately to the jury, but this ground of appeal was dismissed.

Towards the end of his summing up, the trial judge did indeed remind the jury of three of the essential points that Bentley relied on: that he did not know Craig had a gun; that he did not know that Craig would shoot; and that he did not incite him to do so.

This very brief and somewhat dismissive account, coming at the very end of the summing up and following a much longer account described as the whole case, did not in our judgment do justice to the points which, good or bad, had been made on behalf of Bentley and which the jury should have been invited to consider. Whether the jury would have been impressed by these points if they had been dispassionately identified and laid before them we can never know. As it was, the jury were never fairly invited by the trial judge to consider the points which had been made on the appellant's behalf.

The effect was to deprive him of the protection which jury trial should have afforded.

It is with genuine diffidence that the members of this court direct criticism towards a trial judge widely recognised as one of the outstanding criminal judges of this century. But we cannot escape the duty of decision. In our judgment the summing up in this case was such as to deny the appellant that fair trial which is the birthright of every citizen.

Fresh Evidence

We have had placed before us a substantial body of material which falls under six heads:-

1. Educational and medical records with a statement from Bentley's brother.

2. Reports from three psychiatrists.

3. Expert reports which comment upon Bentley’s statement and the likelihood or otherwise of its having been obtained in answer to questions, having regard to its structure and Bentley’s limited abilities.

4. A statement from a Det Supt in the Metropolitan Police, with his report in 1991 following a request from the Home Office. The report contains many comments about the 1952 investigation.

5. A statement taken last month from Christopher Craig, and a statement from Douglas Barlow, who in November 1952 was company secretary of the company which owned the premises on the roof of which P.C. Miles was murdered.

6. A statement from John Parris, now deceased, who appeared as counsel for Craig at the trial, and a statement and some letters written by Sir Charles Hardie in the period 1991-1993. Sir Charles had been present at lunch with the trial judge on the first day of the trial, and thereafter was in court for part of the hearing.

Power To Receive Fresh Evidence

The power of this court to receive any evidence not adduced in the proceedings from which the appeal lies is to be found in the Criminal Appeal Act. We may receive the evidence if we think it necessary or expedient in the interests of justice to do so.

Material We Exclude

The Crown located the gun which Craig used on the night of the murder. Further tests would yield no information of any real value. The same applies to the statement from Christopher Craig and the statement from Douglas Barlow. What Parris says could be said by way of submission without reference to his statement. The position in relation to Sir Charles Hardie is similar. The only additional information he provides is that at lunch the trial judge said that 'at all costs' Craig and Bentley were to be found guilty. What matters for our purposes is what happened in court, or should have happened there, not what the trial judge personally thought about it.

Non-disclosure?

There was criticism of the extent to which medical and educational information available to the prosecution was disclosed to the defence. In our judgment there is no substance in the criticism. If those acting for the appellant wanted to adduce evidence as to the level of the appellant's intelligence and literacy they were free to do so. Forensically there were dangers in doing so. If the evidence was intended to show that Bentley would have been easily led it might have been difficult if not impossible for the defence to exclude those parts of the medical history which suggested that he could at times lead others astray, that he bullied his family, that he was idle, self-satisfied and arrogant, and that he had an unhealthy interest in guns. Any attempt to cast him in a subordinate role could well have provoked a reaction from counsel for Craig. So those representing the appellant had to proceed with care.

Fresh Psychiatric and Psychological Evidence

The overall effect of that evidence seems to be as follows:

1. On balance it seems probable that the appellant did suffer from epilepsy. That may have been as a result of an accident in childhood which caused brain damage, but the history is unreliable. There is nothing to suggest that he was directly affected by his epilepsy or by any medication he may have been taking for of it at any material time.

2. There is clear evidence of serious educational and behavioural problems, and of impairment of intellectual and cognitive function. That would affect the appellant's understanding, his judgment and his memory.

3. He may or may not have satisfied the criteria for classification as “feeble minded” under the 1913 Act. He was close to the borderline.

It is no disrespect to the doctors who have prepared careful reports to say that they add nothing of significance from a legal point of view to material which was available at the time of trial. It would have been right for the jury to know more than they did about the appellant so as to be able better to assess his role in the expedition, his conduct in relation to Craig, and the evidence on how his statement came into existence, but almost all the relevant material was available and its existence was known to the defence.

Bentley's statement

The police officers who were there said that no questions were asked. DCI Smith said in evidence that the appellant was asked no questions except to clear up, I think, a date in the early part of the statement. The statement is quite short. In typescript it is only about one page long, and it is not well structured, but in the light of the psychiatric and psychological evidence which we have received, coupled with the difficulty most people have in dictating a succinct and relevant narrative, we find it difficult to accept that it was obtained in the way the officers described.

The linguistic evidence is of a type which was not (to our knowledge) available in 1952. That evidence can be summarised as follows:

1. People endeavouring to write down what is said to them do not always record entirely accurately, even when they believe that they are doing so.

2. Nevertheless it can be seen that the appellant's patterns of speech, discernible in the transcript of his evidence, are on occasions in contrast with what appears in the statement, where there are phrases which both experts describe as redolent of police usage - for example I now know...

3 The frequent use of the word “then” is suggestive of a police officer encouraging an interviewee to tell him what happened next, and the proportion of negatives in the statement is such as to render it unlikely that it was produced without questions from the police officers.

We cannot reach a firm conclusion how the statement was obtained, and it is worth noting that in parts it is very helpful to the appellant, even to the extent of being apparently self-contradictory. Having earlier given some indication of knowledge of the gun at the time when the police arrived on the scene the appellant is recorded as later saying I did not know Chris had one [a gun] until he shot, which does rather suggest that the officers were attempting to record faithfully what the appellant wanted to say.

In the light of the evidence now available we think it likely that a significant number of questions were asked, and we cannot therefore exclude the possibility that the sentence to which the trial judge attached special significance in his summing-up (I did not know he was going to use the gun) was in fact no more than the officer’s record of the appellant's negative answer to the question Did you know he was going to use the gun? It is true that the trial judge did then point out the inconsistency of the statement, and go on to invite the jury to focus on the question whether as a matter of common sense" the appellant had gone on the expedition with the boastful Craig without the latter revealing the existence of the gun, but the presence in the statement of the sentence suggesting that the appellant knew that Craig had the gun was damaging, especially if in reality what the appellant was trying to say, consistently at that stage, was precisely the opposite.

It was submitted that if the jury had been persuaded to accept that questions were asked when the statement was obtained that would have affected the credibility of the officers. To some extent that is right, but the effect would have been marginal if the jury accepted, as they well might, that the officers were genuinely trying to record what the appellant wanted to say. Prosecuting counsel appeared willing to accept at the trial that questions may have been asked; and it seems regrettably possible that the officers felt driven to dissemble by the somewhat unrealistic rules which were at the time understood to govern the taking of statements.

If the potentially damaging effect of this sentence in the appellant's statement had been the only ground for questioning the safety of his conviction, we doubt if we should have thought it sufficient ground for disturbing the verdict of the jury. For reasons already given we have already held the appellant's conviction to be unsafe and quashed it. This ground provides additional support for that conclusion.

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