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Chapter 5

The Judge and the Jury

 

ON Sunday evening, November 2, 1952, two young men, Christopher Craig (16) and Derek Bentley (19), planned to break into a warehouse in Croydon, a town on the southern outskirts of London. The planned robbery would end in both young men being sent to trial for murder.

Their robbery was thwarted when nine-year-old Edith Ware noticed from her bedroom window the two young men scaling a gate. Her father alerted the Croydon police, and the building was soon surrounded by the constabulary. There was no possibility for the two felons to escape.

Relatively early in the stand-off, Bentley surrendered and was arrested. Craig, on the other hand, was in possession of a pistol and began to fire at the police officers. Fifteen minutes after the arrest of Bentley, Police Constable Sidney Miles was shot between the eyes and died instantly. Detective-Sergeant Fairfax was slightly wounded in the arm during the same gun fight in which police returned Craig’s fire.

Apparently the facts of the case were indisputable. However, as David Yallop, in his account of the incident and trial (To Encourage the Others, Corgi Books, London 1990) argues, the case was far from clear-cut. A large question hangs over the identity of the perpetrator of the death of Constable Miles. Although during the trial it was accepted as a fact that Craig fired the fatal bullet, there is persuasive evidence to conclude that Constable Miles was killed by "friendly fire" from another police officer seeking to immobilize Craig. David Yallop has marshalled the facts related to the fatal shooting and made a compelling case against the accepted theory that Craig fired the fatal bullet.

However, this issue is not central to our examination of the trial judge’s directions to the jury and the response of the jury to those directions.

The trial judge was the holder of Great Britain’s highest judicial appointment, Lord Chief Justice Goddard. In Great Britain it is the practice to elevate judges of the High Court, Great Britain’s highest court, to the peerage. They thus hold seats in the House of Lords. Lord Goddard had been appointed Chief Justice in 1946. During the post-war period there was a rapid increase in crime. Indeed in 1947, two years after the conclusion of the Second World War, the crime rate in Great Britain was fifty percent higher than it had been in 1939, the year of the commencement of the war. This fact led to calls for harsher penalties and sterner judgments.

If the dispute over who wielded the weapon which killed Constable Miles is set aside, the case against Christopher Craig was straightforward. That he had fired at policemen was not in dispute. That one policeman was dead was a fact beyond question. Thus one would expect the jury to find Christopher Craig guilty of murder. And so it did.

Craig had one marked advantage—he was sixteen years old. British law precluded the passing of the death sentence upon any person under the age of 18. Derek Bentley at nineteen years of age possessed no such advantage. His case was entirely different. Not only did he possess no gun, he claimed that he was unaware that Craig was carrying a pistol on his person. Further, Bentley had been under arrest for fifteen minutes prior to the fatal shooting of the constable. It could not be doubted that Bentley was guilty of attempted robbery. The crucial question which faced the all-male jury was whether Bentley was also guilty of the capital crime of murder.

In the deliberation of the jury there can be little dispute that Lord Chief Justice Goddard’s summing-up played a vital role. He set the stage when he stated to the jury,

Then, of course, as you have been properly warned, any question of fact in the case is entirely one for you, not for me. I have to direct you as to the law, and you will have to consider the facts and apply the facts in accordance with the law as I tell it to you. David Yallop, To Encourage the Others, p. 392

The Judge’s words "in accordance with the law as I tell it to you" (emphasis added) are notable. One man, albeit an eminent legal professional, considered himself qualified to be the arbiter on legal issues which were matters of life and death for Derek Bentley. In any professional field, experts frequently differ. This observation applies to the legal profession equally as to all other professions. By way of example, the judgments of the Supreme Court of the United States frequently display sharp differences of legal interpretation. Divided decisions among these renowned justices are frequent. Study of majority judgements and the written conclusions of dissenting justices often disagree to a remarkable extent. The six-to-three judgment in the Smith v. the State of Oregon case and the five-to-four judgment in the Fulminante v. State of Arizona case (see chapter 8 entitled "The Supreme Court Overrides the Fifth Amendment"), are cases in point. But Lord Goddard’s emphasis was that he would tell the jury the law, and how to apply the law to the facts of the case.

The Chief Justice also quoted the ruling of "one of the greatest Judges of Victorian times—Mr. Justice Brett, who was afterwards Lord Esher" (Ibid., p. 394), in respect of what constituted a willful act and what could be termed an accidental act. It is likely that none of the jurors had ever heard of this nineteenth century judge, and thus would be in no position to evaluate his "greatness" in comparison to the other judges of his day. But manifestly, the jury were expected to accept Lord Goddard’s evaluation of Mr. Justice Brett’s stature as a judge of earlier days. This evaluation was further emphasized by the Chief Justice informing the jury that Mr. Justice Brett was subsequently elevated to the peerage and took the title of Lord Esher.

These observations are not made in order to denigrate the legal system, nor to reduce Lord Goddard’s professional status. Rather, we would remind each one that judges are fallible men, wise often, but nevertheless subject to bias and faulty perceptions.

Lord Goddard’s summing up in relation to Derek Bentley virtually left the jury no option but to declare him guilty of murder. In every manner he gave credence to the prosecution’s case and dismissed the defense's presentation. As David Yallop concluded, Bentley’s defense—

surely justified better treatment than it received from Lord Goddard. Ibid., p. 225

Yallop also concluded that Lord Goddard’s

summing up contained both a dangerous confusion of thoughts, and a number of inaccuracies. Ibid., p. 223

The Chief Justice went to great lengths to convince the jury that Derek Bentley knew that his accomplice was armed with a pistol, and encouraged him to use it. Such conclusions were necessary under the law to ensure Bentley’s conviction of murder, since he had not wielded the weapon and possessed no gun himself. Lord Goddard opened his remarks concerning Bentley as follows,

Well, now I turn to Bentley. Members of the jury, these two youths are tried together, and they are both tried for the murder of the policeman. It is quite unnecessary, where two or more persons are engaged together in an unlawful criminal act, to show that the hand of both of them committed the act. The simplest illustration I could give you—after all, this is only a matter of common sense—is this: If two men go out housebreaking, it is a very common thing for one of them to break into a house and the other to stand outside and keep watch, but they are both taking part in the unlawful enterprise, and therefore they are both of them guilty, so if one stands outside so that the other may hand out the loot to him, he is not guilty merely of receiving stolen property; he is guilty of breaking in, because he is a party to the breaking in; and where two are engaged on a felonious enterprise—and warehouse-breaking is a felony—and one knows that the other is carrying a weapon, and there is agreement to use such violence as may be necessary to avoid arrest, and this leads to the killing of a person or results in the killing of a person, both are guilty of murder, and it is no answer for one to say "I did not think my companion would go as far as he did." Ibid., pp. 396, 397

After laboriously reiterating the legal position, that one who knew that his companion in crime carried a gun, could not then successfully plead in mitigation, that he did not believe that his companion would ever use it, Chief Justice Goddard then theorized,

Now let us see what the evidence is with regard to Bentley. The first thing that you have to consider is: Did Bentley know that Craig was armed? Now, you know, because I sit on the Bench and you sit in the jury-box it is not necessary that we leave our common sense at home. The great virtue of trial by jury is that jurymen can exercise the common sense of ordinary people. Can you suppose for a moment, especially when you have heard Craig say that why he carried a revolver was for the purpose of boasting and making himself a big man, that he would not have told his pals he was out with that he had got a revolver? Is it not almost inconceivable that Craig would not have told him, and probably shown him the revolver which he had? That is quite apart from what Bentley said afterwards. I should think you would come to the conclusion that the first thing, almost, Craig would tell him, if they were going off on a shop-breaking expedition, was: "It’s all right. I’ve got a revolver with me." Ibid., pp. 397, 398

Here is a judge who has presented guesswork as if it were substantial evidence. It does not necessarily follow that a boastful young man would confide to his accomplice that he was in possession of a firearm. It simply suited the judge’s suspicions to propose such a notion as fact. Certainly this conclusion deprived Bentley of the right to be accorded the benefit of the doubt. And this doubt was quite substantive.

Lord Goddard then ostentatiously brandished other weapons found on the person of the accused.

Then see what Bentley had on him. Where is that knuckleduster? Apparently it was given to him by Craig, but Bentley was armed with this knuckleduster. Have you ever seen a more horrible sort of weapon? You know, this is to hit a person in the face with who comes at you. You grasp it here, your fingers go through—I cannot quite get mine through, I think—and you have got a dreadful heavy steel bar to strike anybody with; and you can kill a person with this, of course. Then did you ever see a more shocking thing than that? You have got a spike with which you can jab anybody who comes at you; if the blow with the steel is not enough, you have got this spike at the side to jab. You can have it to see, if you like, when you go to your room. It is a shocking weapon. Here was Craig armed with a revolver and that sheath knife. Hand me that sheath knife—the big one. One wonders, really, what parents can be about in these days, allowing a boy of 16—they say, perhaps, they do not know, but why do not they know?—to have a weapon like this which he takes about with him? It is not a new one, you can see; it is pretty well worn. That was the thing that Craig was taking about. Where is the other knife? Here is Bentley with a smaller knife, but you can feel it is sharp and pointed. What is he carrying that with him for in his coat, not even with a sheath on it?

Can you believe it for a moment although Bentley had said he did not know Craig had the gun? You are not bound to believe Bentley if you think the inference and common sense of the matter is overwhelming that he must have known that he had it. Ibid, p. 398

David Yallop’s comments upon the judge’s actions are worthy of consideration.

The theatricality of putting the knuckleduster on his hand and showing his clenched fist to the jury, the request to have the knives handed up to him so that he could jab the air with them as he made his points, these were gambits that Lord Goddard frequently used when he sat in judgment and they were extremely effective. Ibid., pp. 223, 224

The judge totally ignored the fact that Bentley did not in any way make use of the two weapons on his person. In fact he personally handed them to the arresting policeman, Sergeant Fairfax. He displayed no form of resistance when arrested.

Lord Goddard then presented what he considered to be definitive evidence of Bentley’s involvement in the shooting.

Now, of course, the most serious piece of evidence against Bentley is that he called out, if you believe the evidence, to Craig "Let him have it, Chris!", and then the firing began, and the very first shot struck Sgt. Fairfax. Gentlemen, those words are sworn to by three police officers—Sgt. Fairfax, Police Constable McDonald, and Police Constable Harrison; they all swear that they heard Bentley call that out, and that then the firing started. There is one thing I am sure I can say with the assent of all you twelve gentlemen, that the police officers that night, and those three officers in particular, showed the highest gallantry and resolution; they were conspicuously brave. Are you going to say they are conspicuous liars?—because if their evidence is untrue that Bentley called out "Let him have it, Chris!", those three officers are doing their best to swear away the life of that boy. If it is true, it is, of course, the most deadly piece of evidence against him. Do you believe that those three officers have come into the box and sworn what is deliberately untrue—those three officers who on that night showed a devotion to duty for which they are entitled to the thanks of the community? Ibid., pp. 398, 399

In fact only two police officers had testified that Bentley made the remark attributed to him. Christopher Craig supported Bentley’s denial that he issued any such command. The lack of any resistance to his arrest; his voluntary passing over of the two weapons he carried; and the fact that during the shooting Bentley’s life was also in peril, since Sergeant Fairfax used him as a shield; all point to the accuracy of Bentley’s denial.

Surely the Chief Justice’s aligning of courage and honesty on the part of police officers was a curious one. Courage is one matter, honesty is entirely another matter. They are not united features of character. It is quite likely that the police officers spent no little time in discussions concerning the events of that night. In such discussions it is not uncommon for one party to possess a false recall, and to convince others that they too heard the same statement. This is particularly true in the center of a life-and-death situation, when the last matter that addresses the thoughts is the need to provide an accurate recall of what transpired in the heat of the moment. In such circumstances, it would be well nigh a miracle if three separate witnesses were to possess identical recall.

We are aware of a couple taking their wedding vows. Later the groom recalled that the officiating minister apparently forgot the bride’s name and substituted the words "this dear woman." The bride, in discussing this matter with the groom, accepted his recall and genuinely testified that she had also heard those precise words. They were not a little surprised when they received the video tape record of the wedding to find that the minister had used entirely different words.

Now, it is true that there is some level of stress during a wedding, but we would suggest that the midst of a gun battle would produce considerably greater stress. This couple had no good reason to misreport the minister’s words. In fact, they view the incident with mirth. On the other hand, arresting police officers in the line of fire have a genuine motive, whether conscious or unconscious, to misreport the words of a felon involved in a crisis situation.

The judge unfairly dismissed Bentley’s denial of the alleged words spoken as—

the denial of a man in grievous peril. Ibid., p. 400

He also made much of Bentley’s alleged statement to police officers in the police car transporting him to police headquarters, "I didn’t know he was going to use the gun." Lord Goddard asserted that "If he said that, it shows that he knew it." (Ibid., p. 399)

It shows no such thing. Such a statement could equally have been uttered by someone who was aware that his friend possessed a gun, or by one who was quite ignorant of this fact.

This trial lasted but ten hours. The jury took only seventy-five minutes to consider its verdicts in both cases. The judge’s summing-up, with its emphasis on the prosecution’s case and unproven assumptions concerning Bentley’s guilt, no doubt left the jurors with little to discuss. Yet they cannot have accepted Lord Goddard’s assumptions in their entirety, for in the case of Bentley they returned a verdict of "Guilty, with a recommendation to mercy." The date was December 11 1952.

Had the jury been informed of its right to judge the law as well as the facts, a right which the Chief Justice forbade—"you will have to consider the facts and apply the facts in accordance with the law as I tell it to you" (emphasis added)—had they been informed that they possessed the prerogative to discount the judge’s directions and conclusions—it is likely that they would have acquitted Bentley of murder and that his crime would have been reduced to attempted robbery.

Bentley’s appeal to the High Court was dismissed on January 11 1953. Since the judges who sat on the appeal were direct subordinates of the Chief Justice, it would have been difficult for them to find fault with the Chief Justice’s conduct of the trial.

Arrogantly ignoring the jury’s recommendation of mercy, the British Government’s Home Secretary, Sir David Maxwell Fyfe (later Lord Kilmuir) rejected Bentley’s final appeal for clemency on January 26 1953. This decision generated an outrage among the citizens of the nation, and strenuous efforts by a large number of the members of the House of Commons to save Bentley’s life.

On the evening of January 26, and during the day of January 27, 1953, the matter was strongly pressed in the House of Commons. The Speaker callously ruled that,

"While a capital sentence is pending the matter should not be discussed by the House [of Commons]." In other words the case could only be discussed after Bentley was hanged. Ibid., p. 271

The following morning at 9 a.m., Derek Bentley was hanged. Only 87 days had passed since the crime was committed. How different from the American justice system!

Placing a symbolic black piece of cloth upon his judicial wig, Lord Goddard had passed sentence upon Bentley on December 11 1952, using the following words,

Derek William Bentley, you are nineteen years of age; it is my duty to pass upon you the only sentence which the law can pass for the crime of willful murder. The sentence of the Court upon you is that you be taken from this place to a lawful prison, and thence to a place of execution, and there you suffer death by hanging, and that your body be buried within the precincts of the prison in which you shall have been last confined before your execution; and may the Lord have mercy on your soul. Ibid., p. 230

On January 28 1953, Lord Goddard’s sentence was effected.

Because of his age, Christopher Craig was sentenced to be "kept in strict custody until the pleasure of Her Majesty is known." In effect this sentence indicated that Craig was to be imprisoned for an indeterminate period, to be decided by the advice of the government of the day to Queen Elizabeth, who had just ascended to the throne in February, 1952. Craig, in fact, was released in 1963 after ten and one-half years’ imprisonment.

The comments of Sir Malcolm Hilberg, in his book Duty and Advocacy concerning the Bentley case and the relation of judge to jury, are worthy of record.

A jury is twelve ordinary citizens, with probably little or no training in consecutive thought. They will be largely if not entirely swayed by emotion. But remember that in all probability they do not think so. The less training or capacity for reasoning they have, the more certain it is that they will pride themselves on being susceptible only to strict logic and impervious to mere emotion. In finding Bentley guilty, that jury showed a frightening facility for standing logic on its head; they had shown a truly remarkable—or perhaps only too human—susceptibility to mere emotion. But they did display one undoubted virtue. In recommending mercy, the jury betrayed that it had a conscience. That attribute was to be singularly lacking in the Home Secretary, Sir David Maxwell Fyfe. Ibid., p. 233

The jury had considered the law as directed by the judge. They had not considered justice. When juries are ill-informed of their privileges and responsibilities, the way is opened not only for unjust decisions, but for the denial of the inalienable rights of religious and civil liberty.

 


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