On 28 January 1953, 59 years ago, Derek Bentley was executed at HMP Wandsworth in South West London. British execution was by way of hanging.
Like many defence briefs I’ve been shown by today’s gaolers where the gallows used to stand. It’s a cold spot. Surrounded by grey stone. Rather bland for a place so important in our country’s history.
59 years ago, at 9am on that spot, Derek Bentley was hanged by the neck until he was dead. Protests outside the prison led to arrests.
Protests outside the criminal justice system led eventually to his posthumous pardon in 1998
Why we defend
The Derek Bentley case is one that I had read about before I went up to Oxford. It’s one that most law students in this country have at their fingertips and it still features in practitioner texts.
It’s a case that fascinates me and is an important reminder that the doctrine of ‘joint enterprise’ remains one of the most controversial in the English criminal law. For a thorough read on the doctrine, please go to Francis Fitzgibbon QC’s article at the Justice Gap: http://thejusticegap.com/2011/12/joint-enterprise/
The case of Derek Bentley
In November 1952, Derek Bentley was 18. He was an epileptic having received a head injury during the blitz. At aged 4 he was injured having fell from a lorry.
He had few previous convictions. Minor things. Having been sent to an approved school for a stint he was released. He was a functional illiterate and his IQ had been assessed as being 77. He had been rejected from national service as being ‘mentally subnormal’.
2 November 1952
Bentley and another young man decided to go out and steal from the local confectionery factory in Croydon. The other lad was a 16 year old, Christopher Craig. Craig had a service revolver in his pocket with bullets which didn’t properly fit. Whether Derek knew that Christopher Craig had the revolver is still a matter of debate.
Arriving at the factory, they set about their burglary. Unbeknownst to them a hawk eyed local girl had spied them. The police were on their way.
DS Fairfax was one of the first on scene. He climbed a drain pipe and challenged Bentley, grabbing hold of him. Bentley broke free for a moment. Christopher Craig revealed the revolver.
Let him have it Chris
The police say Bentley said. In 1999 Christopher Craig still denied that Bentley said it. Bentley always denied uttering the words.
In any event, Chris Craig fired. Striking Fairfax in the shoulder. Despite the wound, DS Fairfax kept hold of Bentley. He was restrained. When,
There were more shots
And whilst the injured Fairfax had hold of Bentley, one of those shots fired by Christopher Craig struck a PC Miles in the head. He died instantly.
At the trial it was clear that nobody was sure how many shots had been fired and by whom. Some of the officers present that evening were armed.
Nobody could agree what, if anything Bentley shouted. And if he did shout, ‘let him have it’ what it meant.
I, as Bentley’s barrister did at the time, question whether or not he could be responsible for what happened whilst he was effectively under arrest by DS Fairfax.
Indeed, as too should we question whether Bentley was able to participate in the trial process with such a low level of intelligence.
It took the jury 75 minutes to convict. The jury recommended mercy.
Christopher Craig, the alleged gunman could not be executed because of his age.
Derek Bentley could. Despite the Lord Chief Justice expecting a reprieve to be given, Derek Bentley was executed.
The ongoing appeal of Derek Bentley
The Bentley case concerned the public at large. The execution of a man who had not pulled the trigger did not sit well outside of the legal community.
And then, in the 1970s the evidence was analysed again, there were questions as to whether this could simply have been a case of the PC being caught in the cross fire. Indeed, it was concluded he could have been killed by a Met Police pistol.
In 1998 the Court of Appeal quashed Bentley’s conviction. The jury had not been properly directed about joint enterprise. The conviction was not safe.
The Bentley case is still important today. How responsible should Bentley be for Craig’s act? Should he be responsible if he knew he had a weapon?
Could Bentley have a fair trial? If someone is functionally illiterate and of such a low IQ, could they possibly participate in a criminal trial in the Old Bailey? Are there anyways we can adopt the criminal justice process further for those who are mentally impaired? Should we insist on putting people with limited cognitive capacity on trial? Afterall, we assume those under age of 10 cannot be liable.
So 59 years after Bentley’s execution we still in this country are not sure of two things:
1) Should X be responsible for the criminal action of Y
2) Should X be tried in a Court of law when he cannot properly follow or take part.
The Bentley case continues to be important. There can be no doubt that he is the victim of English justice. All of us involved in the justice system must fight for the Derek Bentleys.