UK News Electronic Telegraph
Friday 31 July 1998
Issue 1162

Summing-up 'put unfair pressure on the jury to convict'
By Terence Shaw, Legal Correspondent

Bentley cleared after 45 years

THE murder conviction of Derek Bentley was quashed by the Court of Appeal yesterday because he had not had a fair trial.

Lord Bingham, the Lord Chief Justice, sitting with Lord Justice Kennedy and Mr Justice Collins, said the summing-up at his trial by Lord Goddard "was such as to deny the appellant that fair trial which is the birthright of every British citizen".

Lord Goddard had misdirected the jury on the standard and burden of proof required for conviction, the appeal judges said. They agreed with Edward Fitzgerald, QC, counsel for Bentley, that the then Lord Chief Justice had made prejudicial and unfair remarks in directing the jury on how they should approach the evidence of the police and that his summing-up had put unfair pressure on the jury to convict.

In allowing the appeal and quashing Bentley's conviction as unsafe, Lord Bingham said it "must be a matter of profound and continuing regret that this mistrial occurred and that the defects we have found were not recognised at the time".

Delivering the reserved judgment, Lord Bingham said the Court of Appeal had only rarely been required to review the safety of a conviction recorded more than 45 years earlier. In doing so, it had to apply the substantive law of murder applicable at the time, though the liability of a party to a joint enterprise must be determined according to the common law as now understood.

Conduct of the trial and direction of the jury together with the safety of the conviction must be judged according to standards which the court now applied in appeals under the 1968 Criminal Appeals Act.

The judges said that on the evidence presented, a properly directed jury would have been entitled to convict. The case against Bentley was "a substantial one, albeit not, in contrast to that against Craig, overwhelming". They rejected the submissions that the police officers' evidence of matters which incriminated Bentley, 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 at the trial had to make a "very difficult tactical decision" about the extent to which the defence should attack the police.

The judges said: "There was an obvious risk of alienating a 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."

The court would not regard the conviction as unsafe if the summing-up had been fair and the directions in law adequate, said Lord Bingham. Dealing with the criticisms of Lord Goddard's summing-up, Lord Bingham said he had failed adequately to direct the jury on the standard and burden of proof for a conviction.

Referring to two passages in the summing-up where Lord Goddard made observations to the jury on how they should approach the police evidence, Lord Bingham said he had no doubt that if made in a trial today, the Court of Appeal would condemn them as prejudicial and unfair.

It may be that when Bentley was tried such comments were regarded as acceptable. But it was "difficult to reconcile comments of that kind with the general principles underlying jury trial". Dealing with the balance of the summing-up, Lord Bingham said the killing of Pc Miles had understandably aroused public sympathy for the victim and his family.

He said: "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."

He had made comments which could not be read as other than "a highly rhetorical and strongly-worded denunciation of both defendants and of their defences" and he had used language which was not that of a judge but of an advocate. Lord Bingham said: "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. At its lowest it may have done so."

The jury were never fairly invited to consider the points made on Bentley's behalf and the effect was "to deprive him of the protection which jury trial should have afforded".

Lord Bingham said it was with "genuine diffidence" that the court was criticising "a trial judge widely recognised as one of the outstanding criminal judges of this century". He said: "But we cannot escape the duty of decision. The summing-up was such as to deny the appellant that fair trial which is the birthright of every British citizen."

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