A Chief Justice got away with murder

We owe it to Derek Bentley to question alleged miscarriages of justice more energetically, says Marcel Berlins

THE JURY didn't want Derek Bentley to hang. They had listened to the cocky, almost boastful evidence of 16-year-old Christopher Craig in the witness-box, casually admitting to owning 40 guns and frankly accepting that he had been the instigator of the criminal enterprise that had resulted in his killing PC Sidney Miles. They had contrasted that with the 19-year-old Bentley's pathetic, child-like performance, showing in nearly every answer his lack of comprehension, his low IQ, his mental dullness. The jury knew that Craig could not hang because of his age; and for Bentley, they recommended that he be shown mercy. Unfortunately, Bentley had the bad luck to be tried and sentenced by one of the last of the hanging judges, Rayner Goddard, the Lord Chief Justice.

We don't have hanging judges today. There are, to be sure, judges who support the death penalty and would be prepared to impose it. But the concept of the hanging judge implied more than mere support for capital punishment. It meant an unwavering belief in "an eye for an eye", a refusal to accept that the act of killing could have any mitigating circumstances, an enthusiasm for putting on the black cap before announcing an imminent execution, and an element of sadistic pleasure in ordering a fellow human being's death.

Lord Goddard fitted all the criteria. A brilliant lawyer, he was also a domineering bully with viciously punitive views on all aspects of criminal justice policy. His idea of fun, after a legal dinner, was to take part in a "boat race", in which two groups of lawyers and judges would arrange themselves on the dining-hall floor in the formation of a rowing eight, and shuffle on their bottoms towards a finishing line. More sinister and perverted was his habit, according to his clerk, of ejaculating when passing a death sentence, so that a fresh pair of trousers had to be brought to court on those occasions.

Such was his influence that few in the legal profession dared criticise him. In 1953 the barrister John Parris - who had represented Craig at the trial - attacked Goddard's campaign in the House of Lords to bring back flogging; and suggested that legal opinion was not unanimous in regarding him as a model of courtesy, fairness and impartiality. Parris was suspended from practising as a barrister for four months.

A commentator who submitted an anti-Goddard article to a legal journal was told by its editor that, good as it was, it could not be published, for fear of reprisals from the legal establishment. When Bernard Levin wrote a critical piece in 1958, the Attorney General of the day seriously considered prosecuting him for criminal libel - punishable with imprisonment. In 1971, on Goddard's death (at 94), Levin wrote a column in the Times denouncing his behaviour in the Bentley trial as unjudicial, vindictive and crudely emotional, and his reign as chief justice as calamitous. Violent abuse and complaint poured in from the judiciary, still defending their former chief; the Times was boycotted, and Levin blackballed from membership of the lawyer-heavy Garrick Club.

With a different trial judge, Bentley would have had a chance: perhaps of being convicted only of manslaughter or possibly acquitted altogether. Another judge would at least have put Bentley's defence to the jury, especially the ambiguity of the words he was alleged to have shouted (and probably didn't say at all): "Let him have it, Chris".

But Lord Goddard bullied the jury into finding Bentley guilty by misrepresenting the law and distorting the facts. He didn't need to bully the appeal court judges into rejecting Bentley's appeal - there was no chance, anyway, that they would have dared rule that the Lord Chief Justice had been wrong. He stiffened the Home Secretary's resolve to refuse clemency by making it firmly known that he saw no mitigating circumstances, in spite of the jury's plea for mercy.

It is some small consolation that no judge these days - not even the Lord Chief Justice - can exercise the kind of malevolent power that Goddard did in his day. It is doubtful that a modern-day Derek Bentley would be prosecuted at all, in today's legal framework. His mental backwardness would almost certainly make him unfit to stand trial. But even if he was ruled capable of being tried, the evidence against him would be different, and far less damaging. Interviews with him would be tape-recorded - and be in the presence of his lawyer.

There would be no possibility of the police writing out his "confession" in police language and having it admitted in evidence. The law of "joint enterprise" has been changed so that, if Bentley was unaware that Craig was carrying a loaded gun, he couldn't be charged jointly with the murder. The trial judge would not be able to get away with the highly biased and legally incorrect summing-up to the jury that Goddard gave. An appeal would not be so rushed and cursory.

One of the most astonishing aspects of the Craig and Bentley process was its sheer speed. PC Miles died on 2 November 1952. The trial started on 9 December, and lasted just three days. Bentley was hanged on 28 January 1953 - less than three months from the murder. Is it too complacent to shrug away the whole Bentley horror by saying that it was the fault of one old and powerful maverick judge, the like of whom we shall never see again; or to say that our criminal justice system is now immeasurably better than 46 years ago - in the sense of providing safeguards for a defendant?

Of course miscarriages of justice will never disappear, but miscarriages of the Bentley kind - even without capital punishment - are highly unlikely. More disturbing than the scandal of Derek Bentley's trial, polluted by a judge whose savage emotions overcame his sense of justice, has been the disgrace of successive Home Office manoeuvrings designed never to admit that a gross mistake had been made.

Everything that had gone wrong in the Bentley case was apparent from the available documents, including Lord Goddard's grossly defective summing- up to the jury. Yet at no stage did the scrutiny of the Home Office's C3 branch, given the job of sniffing out injustices, or of several home secretaries (some of them lawyers), conclude that anything was amiss. Only the grudging admission that Bentley shouldn't have been executed emerged from Kenneth Clarke, barrister.

Happily, in place of the comatose C3, we now have the independent and energetic Criminal Cases Review Commission to look into alleged miscarriages. It was the commission that sent Bentley's case to the appeal court (and which a few months ago, accompanied by little publicity, was instrumental in getting the court to quash the conviction of another man wrongly convicted and executed, Muhammed Mattan). If there is one practical step the Government can take to try to atone and apologise for Bentley and many other miscarriages of justice, some as yet undiscovered, it is to fund the commission properly so that it has the money and the people to do its job.