Was `let him have it' a borrowed quote?

The words that sent Bentley to the gallows had featured in a murder trial 12 years earlier. Was that another injustice? Julian Kossoff reports

"LET him have it", the fateful words that doomed 19-year-old Derek Bentley to hang for the murder of a policeman 45 years ago - a conviction that was overturned by the Court of Appeal last week - could have been "borrowed" by the police from an almost identical murder case 12 years earlier.

At the Court of Appeal on Thursday, Mr Edward Fitzgerald QC, representing Bentley, referred to the case of William Appelby who had been executed in 1940 following the murder of a police officer. In Appelby's case it was also alleged that he told his accomplice to "let him have it".

Ken Otter, a retired police Chief Inspector from County Durham, who has made an indepth study of the Appelby case, believes it is now time to grant him a posthumous appeal.

Six months after the outbreak of the Second World War, Appelby, 27, and Vincent Ostler, 24, both petty thieves from the small country town of Hawksworth in Yorkshire, set off in a stolen Vauxhall motor car heading for Durham.

They were planning another burglary in a string that they had already committed at Co-op stores throughout the north of England. Arriving in Durham in the late afternoon they lingered in the historic cathedral town, drinking tea and going to the cinema.

As the winter night closed in they drove to Ferryhill, a small mining community, to break into the town's Co-op, but seeing lights on in the premises they drove on to the nearby village of Coxhoe.

At about 2am, Ostler and Appelby arrived at Coxhoe and climbed onto the roof of the Co-op store - an act Bentley and Craig would replicate at the warehouse in Croydon 12 years later. They broke through a skylight window and lowered themselves into the store to search for cigarettes and cash. Outside, a passing pit man, Jesse Smith, on his way to work, noticed a light in the building and ran to the police station nearby.

He alerted PC William Shiell and a police war-reserve officer who was on duty with him. A chase ensued. PC Shiell raced after Appelby and Ostler as they fled down the cobbles on Coronation Street, flashing his torch and shouting for them to stop. Finally, he cornered the two burglars in a back alley.

Without warning Ostler pulled out a revolver and gunned down PC Shiell. He and Appelby then made their escape in the stolen car leaving PC Shiell dying in the street. However, before he died he declared that the man who shot him had a ginger moustache - this description did not fit either Ostler or Appelby - and stated that he had heard the gunman's accomplice say: "Let him have it."

As PC Shiell was being buried on 5 March 1940, Ostler and Appelby were taken into custody. Ostler put up a desperate struggle with his arresting officers. By contrast, Appelby surrendered peacefully and readily admitted to being present when Ostler had shot PC Shiell but strenuously denied that he had ever said "let him have it", or that he knew Ostler had a gun with him.

After a trial lasting five days, the jury returned a guilty verdict against both men but the jury recommended that mercy be shown to Appelby. Despite this plea both men were sentenced to hang.

Appelby applied to appeal, on the grounds that the dying and distraught officer had been mistaken in his description of his killer, and therefore PC Shiell's recollection of Appelby saying "let him have it" could not be relied upon. Leave to appeal was refused and both men were hanged at Durham prison on 11 July 1940.

Mr Fitzgerald QC told the Court of Appeal: "It was too striking a coincidence that Bentley should use the same words. It is far more likely that the police attributed to him words that would have been well known to all members of the force, to damn him."

Mr Otter said: "When William Appelby went to the scaffold he could never have imagined that his conviction would be the basis for an appeal that has become one of the most notorious miscarriages of justices this century. Is not now the time to grant Appelby the appeal he was unjustly denied?"