THE case of Derek Bentley, hanged 44 years ago for the murder of a policeman, is to be referred to the Court of Appeal, it was announced yesterday.

The Criminal Cases Review Commission - set up this year to investigate alleged miscarriages of justice - has asked for the conviction to be reconsidered. New evidence includes a medical report, never available to the jury, showing that Bentley, aged 19 at the time, had a mental age of 11. The judges are also expected to take account of a recent ruling from the House of Lords about the culpability of an accomplice who is already under arrest at the scene of a crime.

Bentley was executed for his part in the killing of Pc Sidney Miles during a break-in at a warehouse in Croydon, south London, in 1952. The officer was shot dead by Christopher Craig, 16, Bentley's accomplice. At their trial it was said that Bentley shouted "Let him have it, Chris" immediately before Craig shot Pc Miles. Lord Goddard, the Lord Chief Justice, told the Old Bailey jury that when two people go out on a criminal enterprise that ends in murder, both are guilty in law, whoever fired the shots.

Craig, who was too young to hang, was detained at Her Majesty's pleasure and served 10 years in jail. Bentley was executed at Wandsworth prison in 1953.

Bentley's sister Iris, who died earlier this year, began a campaign to clear his name. In 1993 Michael Howard, then Home Secretary, accepted that Bentley should not have been hanged but declined to reopen the question of his guilt.

B M Birnberg, solicitors for the Bentley family, said: "After nearly 45 years there is now a real prospect that this oldest and most brutal miscarriage of justice will be rectified and Derek's name posthumously cleared." Bentley's niece, Maria Bentley-Dingwall, said she was "ecstatic" at the decision but saddened that her mother did not live to see the culmination of her campaign.

The case against Bentley turned on the suggestion that by shouting "Let him have it" he encouraged Craig to shoot Pc Miles. The defence maintained he was urging Craig to hand over the gun.

Lord Goddard told the jury that in law, Bentley had equally fired the shot. However, there was contradictory evidence as to whether Bentley knew that Craig had a gun. No mention was made of his mental condition. Bentley was also technically in police custody when Pc Miles was shot and denied shouting the words. Although three police witnesses confirmed that he had, another said he had not. Craig also claimed never to have heard them.

The judge's summing up left the jury with little option but to convict Bentley. Unusually, they added a plea for mercy.

The Bentley case is the fourth to be referred to appeal by the commission.

2 November 1997: Bentley murder case set to be reopened
1 February 1997: Iris - the whole truth