§ 6.43 p.m.
§ LORD GOODMAN rose to ask Her Majesty's Government: Whether it is not desirable, in view of the social and legal implications, for an impartial review of the cases of Hanratty and Bentley. The noble Lord said: My Lords, I am most obliged to the Government for enabling this short debate to take place on what I regard as a very important matter. May I make a few preparatory remarks which I think need to be made to illustrate my approach to the matter? First, I should like to make it absolutely clear that this is in no way an attack, or even a criticism, on my part of our system of criminal jurisprudence. I believe that we have very splendid criminal courts, and that it is a rarity indeed for a man on criminal trial to suffer an injustice. I should like to make that point, because what we are dealing with are cases of a very exceptional nature. It is foolish to believe that any system of justice that can be devised by man is not open to fallibility. The suggestion here is that once in a decade, very occasionally, an injustice does take place in very special and unexpected circumstances, which are often beyond the predictions of ordinary lawyers and which cannot be safeguarded against by ordinary jurisprudential precautions. I believe this to be so in both the cases that I am mentioning to-day.
§ The second point is that my remarks imply no criticism whatever of the police. I have very little to do with crime, and frankly I have no interest in crime as such: it is a distasteful subject. There is no glory or credit in crime. Both crimes to which this debate relates were hideous ones. They both involved the death of innocent people—in one case a policeman, acting in circumstances of great heroism, and in the other case a potentially innocent citizen and the killing of a perfectly innocent young woman. Neither crime could be justified nor could any attempt be made to excuse it. That has nothing to do with the matter I am seeking to discuss.
§ The third disclaimer I should like to make is that I do not suggest by what I say any inadequacy on the part of defence lawyers. In both cases, having read a good deal of the transcripts and 1054 the presentation of the cases, it seems to me that the defence lawyers made a more than adequate fist of what they did. So far as the Hanratty case was concerned, they had a specially difficult job because they were seeking to assemble evidence almost minute by minute. I think it would have been difficult to have found people who would have discharged their duty more conscientiously than those who defended Hanratty. Those are the points which I think ought to be made at the outset of the relatively short observations in which I intend to indulge.
§ Very occasionally, as I have said, cases occur in our criminal courts in which, although they have been concluded, and concluded with the finality with which these cases were concluded, that is to say, by a capital sentence, there nevertheless remains a stir of public anxiety and concern. Where this happens and where that stir of public anxiety and concern fails to be allayed by the passage of time, it appears to be a pretty historic certainty that there is something that needs to be looked into. If you examine the occasional cases where this has happened, public concern is a pretty good index of the need for examination and re-examination. This has happened with very great rarity. It is difficult to put a finger on any number of cases of which this observation could be made; but where it has happened—as in the case of Oscar Slater, the case of Evans and a few others—time does not enable one to bury the situation. Hence I am completely unapologetic about the suggestion that has been made that it is an injustice to the survivors concerned in the individual cases to rake up the matter again. Well, it is not I who may cause injustice, but the circumstances. The matter will not allow itself to be buried. Hence, the justice to these people is to see whether the cases can be finally disposed of by a system of examination and inquiry which will be finally reassuring to the parties concerned. To be candid, this may be an impossibility. In both these cases the young men who met these tragic ends had respectable and devoted parents. Those parents have suffered the appalling tragedy of seeing the circumstances in which their sons died. I do not know the parents and I have not met any of the people concerned but it is quite clear, from the 1055 record of what has happened since, that they have devoted themselves unsparingly to seeking to procure a declaration of the innocence of their children and a declaration that the verdicts were wrong.
§ That is what one would expect and it indicates, it I may say so, the nature and quality of the parents. But it is not a factor that we can reasonably take into account; nor does it provide evidence one way or the other. However, what, to my mind, does provide a justification for raising this matter is that notwithstanding the years that have passed in each case, notwithstanding the fact that public statements have been made, seeking to provide reassurance from honourable Ministers and honourable officials, the public anxiety on this matter remains unaltered, unchanged, and at the same pitch. I do not think that in those circumstances as a general proposition, unless it is possible to show that the whole thing is a response to some organised lobby, which is not the case in respect of either of these cases, there is an onus on the Government to consider whether that circumstance by itself is not enough to justify a special inquiry into the case.
§ I do not intend to deal with the facts of each of these cases at any length. That would be an impossibility. I observe that the noble Viscount has appeared with a whole armful of thick files. would regard myself as having done a grave disservice to the House if this Unstarred Question occasioned the necessity for him to read the lot, or any of them, I hope to seek to demonstrate that there are circumstances attaching to each of these cases, without any expression of my own view as to the guilt or innocence of the young men, that make it desirable, wise and sensible that there should be a further investigation.
§ I should like to deal first with the case of Bentley. This is in many ways the simpler case so far as the facts are concerned, a case upon which it is possible to say that the form of inquiry could he a simple one. It is my belief that if a form of inquiry were adopted in the case of Bentley it might well suffice to have an independently-minded criminal lawyer of high standing who could investigate the existing facts as they are without investigating any further facts and who would, in my belief, very likely 1056 arrive at the conclusion from the transcript of the trial proceedings in the Court of Criminal Appeal that there was a manifest injustice for reasons that I shall seek to indicate. I do not wish to adopt the one or two conjectures, speculations and surmises that have appeared in recent publications. There have been recent books about both these cases, very carefully and meticulously compiled, containing a good deal of speculation and suggestions about how the crime may have come about in circumstances other than the finding by the court. These are matters that I do not need to probe or concern myself with. For instance, in the Bentley case there is an interesting suggestion that certainly seems to have some circumstantial support, that the shot that was tired did not come from the gun of the young man Craig but came from the gun of one of the policemen who was engaged in the gun battle. It is my view that as a matter of law this would be irrelevant. If it were the case that the gun battle had been instigated by a criminal firing, by one person, to which the police responded, then it is my belief that in law if one of the police shots went astray and killed someone the person who instigated the gun battle would be as much responsible as if he had fired the shot himself. Hence this is not a matter, for a number of reasons. with which I shall concern myself. It is a matter which might well at some stage be investigated if it were thought desirable to do so because the Bentley facts speak for themselves so far as the necessity of an inquiry is concerned, without looking for new and extra facts.
§ The circumstances of the case will be well known. There can have been few murder cases in this country that aroused greater interest and feeling. There were debates in the House of Commons, attempts to adjourn the House of Commons, and Motions to endeavour to persuade the Home Secretary of the day that it was his duty to reprieve the young man Bentley. All of them, for one reason or another, failed. The circumstances in which the Home Secretary reached his decision about advising Her Majesty as to the exercise of mercy are not matters that concern me at this juncture. What concerns me is that there appears to be an absolute abundance of evidence that on a properly conducted trial, weighing and assessing the evidence 1057 produced in that case, the jury would not have arrived at a verdict of guilty and that the circumstances of that verdict were to a large extent influenced by the nature of the judge's summing up.
§ There is something I want to say about the judge's summing up. A great deal has in recent months been said about the late Lord Goddard. It is not necessary for me to embark on any of the criticisms or comments that have been embarked upon in recent years about the general conduct of his trials. I had no personal knowledge of him. As a lawyer, on a number of occasions I heard cases in his court. I would only say—because I have some criticisms to make later—that I often felt that if I were engaged in a piece of personal litigation and was undoubtedly in the right, there is no judge before whom I would have preferred to have been tried than Lord Goddard. That is my assessment of the position. But everybody errs, Homer nods; and there can be little doubt that anyone who now, in the cold light of day and with the passage of time, reads his summing up in this case could hardly fail to arrive at the conclusion that this was not one of the most creditable performances of a distinguished judge. The summing up will at some stage need to be examined with some care to indicate why this matter ought to be the subject of examination.
§ Let me recite the brief facts of the crime. Undoubtedly there was a crime. Two young men, the young man Craig and the young man Bentley, had agreed—and this was admitted—to break into a butcher's shop in West Croydon. Craig, as it emerged, had a gun. The whole point of the case, and the whole area of controversy, turned on the question of Bentley's knowledge of whether Craig had a gun and when Bentley acquired that knowledge. That determined the verdict. If it had been established that Bentley did not know that Craig had a gun then it would certainly have been an inexorable consequence that Bentley would have been acquitted, unless possibly it could be shown that at some stage in the proceedings Bentley was urging him to use the gun having then come to the knowledge that he had it. That was not the Crown's case. The Crown's case was that these young men went together into the crime and either 1058 explicitly, or by implication from their course of conduct and the nature of the crime, both agreed that in the event of the police appearing, in the event of some attempt to apprehend them, Craig would use violence on behalf of both. That was the case. This argues a pre-arrangement between the two young men of a coherent and orderly character which would certainly be appropriate among professional criminals.
§ The point that one has to make—and I regret having to make it in circumstances where it might still be distressing to the members of the family—is that the young man Bentley was not an ordinary criminal. When he was in prison pending his trial and awaiting execution there were medical examinations. It emerges from the medical report that this young man, aged 19, was expressed by the doctor to be nearly feeble-minded and to have the intelligence of a boy of 11 or 12 years of age and to he hardly able to read or write. Against that medical assessment it is preposterous nonsense to suggest that those two boys set out with an organised, coherent plan whereby one of them had decided in advance carefully, cruelly and with calculation that the other would act in terms of violence if they were apprehended. It is preposterous nonsense, and I use no lesser words to say so. If 'you have a boy of this type of intelligence, is it really to be supposed that the cool, calm reckoning of professional criminals would have entered into his calculations? This boy was not a professional criminal. It is highly relevant to say this. This was a boy who had no record of violence; he had a criminal record and had been in an approved school.
§ Some while after his execution, the Home Secretary concerned in the matter was asked why no precautions were taken against the possibility of further violence by the young man after his tenure in the approved school, and the Home Secretary replied that in the approved school there had never been the slightest reason to apprehend that there would be violence on the part of the boy. He was not a violent boy. The circumstances of the crime confirm that fully. I do not intend to go into plans of where they stood or did not stand. Being inexpert and clumsy young criminals, the two boys were detected as they climbed on to the roof by a 1059 small child looking out of a window. The child called her father, and her father called the police. The police then climbed on to the roof and discovered the two boys, and the boy Bentley was promptly arrested. There is some conflict of testimony as to whether he came out by himself when challenged or whether he was dragged out.
§ There is no conflict of testimony that from that moment onwards he did not display a flicker of resistance or a flicker of violence. He was supine to the point of total timidity. He played no part in any physical action in relation to the police. I think this emerges incontrovertibly from the evidence. There is a slight conflict of evidence, but not relevant, about what happened when the boy Craig fired at the first policeman. The first policeman flung himself to the ground, and Bentley was flung with him or was thrown down by the policeman. This is really irrelevant in view of the later narrative, because Bentley obviously concurred in the whole situation and made no effort to escape. He was for all practical purposes under arrest. He was plainly under arrest. He had been apprehended by a policeman in the course of a crime.
§ There was an odd feature of the prosecution counsel's address because he had opened his case by saying that he accepted the possibility that the boy Bentley was under arrest at the time the crime was committed: but then in the course of cross-examining Bentley, Bentley asserted, as indeed was the case, that if he had wanted to he could have run away. This was indeed the case, because the policeman had left him by himself during most of the exchanges with Craig. He was alone. He could have run away. This boy was so cowed, so timid, so unwilling to commit any further breaches of the law, that he stayed exactly where he was for a period that has been variously estimated at 15 or 20 minutes. During the whole of the time this boy, whose behaviour if it were to vindicate the verdict of guilty required him to be designated as a positive desperado, had not moved from the position in which he was put by the policeman and had made no effort of any kind to assist the boy Craig.1060
§ The prosecuting counsel further stated that in view of Bentley's answer that he was able to escape if he had wanted to, Bentley was thereby rejecting the possible defence that he was under arrest and was himself asserting that he was not under arrest. This appears to me the oddest of propositions. It is equivalent to saying that if I, through some misfortune, am taken to a police station and imprisoned in a cell, I am not under arrest if the window is open by some chance and I can climb out of it. This was an extraordinary proposition but it appeared to have some weight in the proceedings, because there certainly was some doubt instilled in the mind of the jury as to whether, when incontrovertibly he was under arrest, it was considered that he was not.
§ In any event, the situation was this. There was against the boy Bentley—and this boy was convicted on a capital charge and hanged—so far as I can see, only two pieces of evidence. One was that he had in his possession two weapons. One of the weapons was a sheath knife and the other weapon was a knuckle-duster. He stated, and I think it was confirmed in evidence by the other boy, that the knuckle-duster had been given to him by the boy Craig. Nobody suggested that the boy had made any attempt whatsoever to use either weapon. Both, from the point of view of this crime, were totally irrelevant. It was difficult to see why they were introduced; and certainly difficult to see why they were introduced with the wealth of horrible detail that regaled the summing-up of the Lord Chief Justice in relation to the matter. I will read to your Lordships in a moment what he said about the knuckle-duster. He said a good deal more about the knuckle-duster than he said about the whole of Bentley's defence, and this was a startling and surprising aberration.
§ In justice to the Lord Chief Justice, it is clear that he was strongly inflamed by the circumstances of the crime. He felt great anger about it. He obviously and legitimately, as we all should, felt horror that an innocent policeman had been killed in the course of his duty for a crime as futile and purposeless as this. But the strength of his feeling led him, I think, to the doing of a grave injustice 1061 to the boy Bentley. Because, apart from the question of the knuckle-duster, and apart from the question of the sheath knife, neither of which was used, the only relevant evidence against the boy was an allegation that he had used some words, when the boy Craig appeared from behind some partition with a gun to encounter the first policeman, such as, "Let him have it, Chris!" Now these words were used in connection with the firing of the pistol that had no lethal effect. The pistol was apparently a .45 and undoubtedly Craig shot at the policeman. Providentially that policeman was saved; the shot hit his shoulder and he was knocked over. He was, I think, happily not gravely hurt. This was a very fortunate outcome. But it is alleged that the boy Bentley gave him that encouragement at that moment of time.
§ That encouragement might give rise to two possibilities of criminal responsibility. The one I have already indicated is that there was a preconcerted arrangement between the two boys that if they were apprehended, then Craig was to defend Bentley by the exercise of violence. I discard that as phenomenally unlikely, having regard to the mental state and condition of the boy Bentley and the extreme improvidence of the whole approach to the matter. The idea that you could read into an enterprise of this character even the providence of having made arrangements, express or implicit, as to how they were going to defend themselves in the event of arrest, is, I think, far-fetched and positively fanciful.
§ The next possibility which might inculpate the boy was that in relation to this particular situation, although he only then knew that the pistol was in the possession of Craig, he urged him to use it. If that were the suggestion, then one must remember that it was 15 or 20 minutes later that the actual lethal act, the firing, took place in consequence of which the unfortunate and very gallant policeman was killed. What one has to say to oneself is this: that the encouragement supposedly given 15 or 20 minutes earlier to the firing of one shot still remained as the inducement and incitement to Craig to fire the shot 15 or 20 minutes later when the other boy had been arrested, when he had totally with- 1062 drawn from the situation, when he had given no manifestation of any kind of supporting any further violence or illegality, despite the opportunities that existed for him. There were on the roof, as it emerged, because the police made use of them, milk bottles and bricks that had been thrown. It is not unreasonable to conjecture that there were other forms of weapons that might possibly have been used if there were a resolute young desperado determined to assist his colleague. In fact, the evidence is entirely to the contrary. The police evidence made no suggestion that this boy showed the slightest intention or desire or inclination to resume the controversy, to resume the battle.
§ Prosecuting counsel made another weird suggestion. What he said was that when the whole situation started the boy Bentley obviously had his mind with the boy Craig; that the two minds were as one, in unison, in determining to resist the onslaught. If in fact this were the case, that the words alleged, "Let him have it, Chris", were used, or had the interpretation which was placed upon them, this certainty might have been a possibility at the outset. What prosecuting counsel then said, forgetting, if I may say so, the whole question of the onus of proof in criminal trials, was that there was no evidence from that moment onwards that the boy Bentley had withdrawn his mind. Whether he was expected to write a formal letter and send it to Craig to tell him that in the circumstances he no longer wished to participate in this enterprise—what action he was supposed to take to indicate that he was resigning from the partnership—will remain one of the unsolved problems of jurisprudence for years to come. There was nothing he could do. What he did do, quite clearly, was to indicate that he had resigned from the club from the very moment of his arrest. He did not stir; he did not resist; he gave no encouragement of any kind. What he did was to remain in a state, I imagine, of absolute terror, of shaking terror, while this appalling battle went on with a boy of a totally different calibre and character, about whom it would be quite inappropriate to make any comment. He has served the sentence. One earnestly hopes that he can be restored to a useful life—indeed, he has been restored to a useful life.1063
§ But the fact remains that the boy Bentley played no further part in the matter, and I think there was incontrovertible proof that, so far as he was concerned, he wanted no further part in the matter.
§ Now let us test the likelihood; because I am not saying that any policeman lied. It is not necessary for me to say that the policeman lied. All I am saying is that the inherent probabilities are strongly, and almost overwhelmingly, against what was suggested by the police. You have to look at the second statement that was attributed to the boy Bentley by the police. When arrested he was taken down to a police car. On the way down there was certainly a statement. It was not denied that as he was crossing the parapet—Craig was still firing—he called out, "Look out, Chris. They're taking me down", by that, clearly meaning that he had no wish to be shot by his colleague on the way down. There is no other meaning attributable to those words. "Look out!" was not a warning against any special or specific approach by the police, and the police did not suggest that it was. It was, "Look out for me; I am going down."
§ When the boy finally descended and was taken into the police car he is then alleged to have said "I knew he had a gun but I didn't think the idiot—or fool—would use it". Reflect for a moment, my Lords. This is a boy who is supposed previously to have said in the hearing of the self-same policeman, "Let him have it Chris!". He is now saying to the self-same policeman, "I knew he had a gun but I didn't think he would use it". Is it remotely possible that those two statements can be reconciled—that boy who had made the first statement could have made the second statement? He knew perfectly well that the policeman would have been aware of his violent exhortation to Chris to use the gun to shoot the policeman. How, then, could he have made the second statement? But the reports that he had made those two statements came from the same source, from the police.
§ I do not want to say much more about this case, my Lords. There can be added to the facts odd suggestions in cross-examination about whether or not 1064 he knew that there was a sheath knife. His cross-examination was one of brutal ferocity. Having regard to his mental state and IQ., the cross-examination should have been as careful, patient and humane as was consistent with extracting the facts. But that was not the form which this cross-examination took.
When one looks at the tragic summing-up—as I say, it does no credit to the reputation of a very great judge—one finds that there are circumstances which, at any rate to me, appear incontrovertibly to establish the need for an inquiry. I have the summing up with me, but I will not read the whole of it. Consider, however, this portion:
Now let us see what the evidence is in regard to Bentley. The first thing you have to consider is: Did Bentley know that Craig was armed?
The evidence, and the only evidence, on this matter was quite simple: that Bentley had said he had not known that Craig was armed until Craig told him so when they were on the roof and when the police arrived; that Craig had said that Bentley did not know that he was armed. Craig had no motivation and one of the things that has been said about Craig is how he emerged as a transparently honest witness.
The judge went on:
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…?
The judge is asking the jury:
Can you suppose for a moment…?"—
and of course one can suppose for a moment, one can suppose for many moments, that he had not told his friend Craig that he had a revolver. The only evidence to show that he had told his friend Craig that he had a revolver was the evidence on this point supplied by the Lord Chief Justice, and nobody else.
Then we come to the next horrifying sentence:
Is it not almost inconceivable"—
these were the actual words he used—
that Craig would not have told him and probably showed him the revolver which he had?
This is totally baseless speculation. There was not a word in evidence in the case to justify that comment to the jury. There was not a syllable of evidence which justified the suggestion that it was inconceivable that Craig should not have told Bentley that he had the weapon. We are told by the Lord Chief Justice that it was "inconceivable". The whole of the summing up is shot through and through with tendentious suggestions of that kind. I will read what is said by the judge about the knuckle-duster and the other weapons:
Then see what Bentley had on him. Where is that knuckle-duster? Apparently it was give to him by Craig. Bentley was armed with this knuckle-duster. Have you ever seen a more horrible sort of weapon?
That remark, my Lords, bore no evidence to the case at all; the knuckle-duster had not been used by anybody. The number of innocent children who never appear in a court but who must be possessed of knuckle-dusters probably exceeds many thousands, if not hundreds of thousands. If every child found in possession of a knockle-duster or a lethal weapon had found himself arraigned at the Old Bailey in front of Lord Goddard, I shudder to think of the number of executions that might have taken place.
The Lord Chief Justice said:
Have you ever seen a more horrible sort of weapon?
I am quite satisfied that it would have been a most unworldly jury if they had not seen a more horrible weapon. He went on:
You know, this is to hit a person in the face with who comes at you.
We have some interesting speculation about what one does with a knuckle-duster that was never used by anyone and played no part in the crime and was admittedly belonging to the other boy and not to this boy with whom we are here concerned. The Lord Chief Justice goes on:
You grasp it here, your fingers go through—I cannot quite get mine through.
One is almost relieved that that was the case lest in his enthusiasm he might have found it necessary to demonstrate what one could do with the weapon. My Lords, I believe that in the whole history of summings up in criminal trials there can hardly have been a more inappro-
priate and improper passage in relation to the capital trial of an unfortunate youth whose association with the crime on any account was as tenuous as one could make it. That was the summing up presented to the jury.
§ I have no desire to keep your Lordships here all night discussing this matter. I conclude by saying that this case went to the Court of Criminal Appeal, normally a bastion of justice, a great protector of people who, by chance or misfortune, may have been wrongly convicted. In the present case the presiding judge in the Court of Criminal Appeal and the two judges who sat with him arrived at the sweeping conclusion that there was nothing to criticise in the summing up. That was the outcome of the appeal by this wretched youth. How any experienced judge, reading this summing up, could have arrived at the conclusion that there was nothing to criticise in the summing up passes my understanding and, I venture to think, passes belief. It is unnecessary and undesirable that one should stress the unfortunate features of this case: in so doing one might give rise to doubts and anxieties about our system of justice which I believe would be unjustified. Every so often something goes wrong, and in this case something went very badly wrong. In my view, it is due to the parents of this boy, and to our whole criminal system and the system of justice in this country, that this case should be carefully reviewed so that what I believe to be the justness of the situation can at least historically be restored. That is my view about the case of Bentley.
§ I come next to a more difficult case, that of Hanratty. This case in some ways aroused greater public anxiety and concern than does the case of Bentley. It is a difficult case and it is again a very horrible crime, happily a crime of a most unusual character. A man and woman are in a motor car in a quite isolated field, I think towards dusk, one evening. Another man appears almost from nowhere, a sinister figure with a gun, who climbs into the motor car and orders them to drive off. They drive and stop at various points; there are various incidents and episodes connected with the case, arid at some appalling stage he shoots the man dead and then, later, shoots the woman. Happily, he does not kill her, although she remains, I fear 1067 and believe, still very seriously crippled. It was a most appalling crime and everyone's sympathy must go out to her, a person against whom not a whisper of criticism can be uttered, whatever role she may have played in the trial. Nobody has suggested that her participation in the trial was anything but totally honourable and public-spirited.
§ From that moment onwards a hue-and-cry arises for the arrest of the criminal. At one stage a man is arrested, but I believe that he is not charged. He is presented to an identification parade where the young woman does not identify him. It is important to point out that this is a man of whom it is later said that he made confessions for exhibitionist reasons. Unless he was a man with a remarkable gift of prophecy, he could not, in the circumstances that had happened, have involved himself in this case at the outset in the way he did if his motives were truly exhibitionist. There is nothing exhibitionist about the fact that the police sought him. There was nothing exhibitionist about the fact that this man had occupied a room, the same room in the boarding house or hotel that the ultimate accused had occupied. There is a question about whether or not he did occupy the same room but there was certainly evidence at one stage that he occupied room 4 and a later suggestion that he occupied room 24. I am prepared to waive this point. I am prepared to leave it on the basis that this man had stayed in the same small hotel—which is sufficient coincidence in itself, without necessitating identifying which room it was—in which the police had subsequently found the cartridge that had been fired from the gun. They found cartridges in that room in the hotel which had been occupied by this man.
§ This man subsequently made two or more confessions in very queer circumstances. He is alleged to have confessed to another man who is described in the book where the confession appears as a businessman. I do not want to identify him any further. What his motivation was is not known, but there is a very circumstantial confession produced in handwriting from the man who stayed in the room and who associated himself with and apparently confessed to the crime.1068
VISCOUNT COLVILLE OF CULROSS
My Lords, the noble Lord really ought to be aware that this man did not stay in the room in which the cartridges were found.
§ LORD GOODMAN
I would not wish to dispute that particular point, if it is conceded that he stayed in the hotel—
§ LORD GOODMAN
—containing the room where the cartidges were found. That is quite enough to create the sufficiency of coincidence for the purpose I require in order to establish a prima facie case that there should be an investigation.
If he did not stay in the room then various versions that have been put about are in fact inaccurate. That may well be the case and it would be surprising if it were not. I have no personal knowledge, and it would be quite wrong to establish the point when there is a clear contradiction from the Government Benches. It is the case that he stayed in this small hotel; it is not a great hotel; it is not a hotel where a number of people might gravitate quite ordinarily because they all go to the Savoy or the Dorchester. It is a small hotel in Maida Vale, and it would indeed be an odd chance that two men should select it by sheerest accident. But they might. It is an odd chance that a man who later confesses to the crime should stay there on the night of the crime. It is also, I believe, the case that the man who confessed to the crime was absent during the night of the crime from the hotel, and there were some equivocal exchanges between himself and the proprietor of the hotel as to what he had done during the night.
I wish to make this point clear. I am not suggesting that this man is guilty of the crime. What I am saying is that there is a sufficiency of coincidence to make one believe that if the circumstances now known had been known to the jury when they tried this case they would have been unlikely to arrive at the same conclusion. There is the coincidence that the man was in the same room; the coincidence that the man was arrested by the police for this crime; the coincidence that subsequently he confessed to the crime, and the coincidence that on a number 1069 of occasions he brought libel actions against people who alleged he committed the crime yet never pursued a single one. It is my belief that he has not brought a libel action against Mr. Paul Foot Who makes a clear-cut allegation that he is guilty of the crime. It is my belief that he has not challenged this fact. No one can regard those as unmaterial circumstances.
Here again, if the facts of the case as presented to the jury had been totally free, or substantially free, of doubt, these later circumstances might have much less relevance. I am not suggesting that this jury arrived at a perverse verdict, because they arrived at a verdict on the basis of the facts they knew and not of the facts I am retailing. If nothing more had been known, and if nothing more had emerged, I doubt whether anyone could really criticise the findings of the jury, because one of the peculiarities of the two cases of Bentley and Hanratty is that the normal suggestion made against any proposal to reopen a case, that the jury had an opportunity of seeing the accused, is totally irrelevant. It could not matter whether the jury saw Bentley or not. They knew the poor lad was a young criminal and that he assorted he had not got a gun and went on asserting it. Whether they saw him or not was quite irrelevant to the circumstances of the case.
The same is true in relation to Hanratty, because the jury would not have known of the circumstances of these confessions or of this startling coincidence; and in relation to Hanratty also the unfortunate young man had this situation to deal with: that he had not surrendered to the police, when they had made it known that they wanted to arrest him. The explanation he put forward was wholly plausible. It was that he was a criminal on the run; he thought the police wanted to arrest him for a crime, and he did not present himself to be arrested because it is not the technique of criminals to present themselves to be arrested; they wait to be found. That weighed against him, and undoubtedly it aroused prejudice against him. This is a case where, in the light of the confessions and coincidences, and in the light of the fact that if you examine the evidence critically, now knowing that it is peppered with these doubts 1070 and uncertainties—that you have another case, as you had in Bentley, of a boy who had never indulged in violence although he had a criminal career—there is more to be said. The police conceded that he had never indulged in violence although he had a criminal career. There was never any suggestion he had indulged in sexual violence of any kind; nor was he suffering from any kind of sexual frustration.
These are difficult matters, my Lords. One can examine them in much greater detail. There is more to be said in relation to those cases. They cannot be swept under the carpet and I do not believe that anything the Government say today will succeed in sweeping them under the carpet. The only thing that will satisfy public anxiety is a full and candid inquiry. Such an inquiry would do credit to our system of jurisprudence. It would not arouse the fear that we are all driving a great wedge into a situation where every criminal case can be reopened. The public are not concerned about every criminal case. There is concern about the rare case where the circumstances suggest that something has gone wrong with the best of human systems. That is what they are concerned with, and it is because of that concern that has been manifested so firmly, so strongly and so continuously over the years that I invite the Government, and the Minister who is to reply, not to close their minds to the possibility of considering an investigation. I do not necessarily ask the Minister to give his answer tonight, but I ask him to listen very carefully to the debate and to convey to his colleagues what has been said. I ask whether it is not wise for once to concede the possibility of error in judicial processes and, by so doing, to satisfy the public.
§ 7.28 p.m.
THE EARL OF ARRAN
My Lords, I am no lawyer; I am no orator, and I shall stick strictly to my brief, which is to ask for a public inquiry into the circumstances of the so-called Craig and Bentley case. I am against postmortems and these cases are, alas! exactly that. Next we shall be re-trying Crippen and the murderer of the "brides in the bath". What has been done cannot be undone—or so it is argued—and if there is one thing I have learned in life it 1071 is that there is no justice. I speak not about the law and its processes but of the cruelties of human and animal existence. But, my Lords, one does one's best and there are certain occasions when, in the name of human dignity, one is forced to protest. If one is to try to eliminate legal injustices, at least in the future, our first step should surely be to acknowledge the injustices of the past. The stubborn resistance that successive Governments demonstrate when attempts are made to reopen cases where there has been reasonable cause for doubt is notorious. Your Lordships will recall the, if you like minor, case of Commander Swabey, whose cause my noble cousin, the late Marquess of Salisbury, supported. It took fifteen years for Commander Swabey's name to be cleared. One has only again to think of the sixteen-year old struggle before Timothy Evans was finally granted a posthumous Royal Pardon—and I emphasise the word "posthumous".
The Executive appear to adopt a singular attitude in such matters. Apparently when decisions concerning life and death are made, or were then made, the men responsible were seemingly guided by a mysterious infallibility. They were never wrong. But in fact sometimes they were wrong. Undoubtedly, as the noble Lord, Lord Goodman—to whom I think we are all very much indebted—said, mistakes have been made in capital cases and men and women who should still be alive are dead as a result of fatal errors of judgment. It is not in fact only my opinion. Indeed, the present noble and learned Lord, the Lord Chancellor, said as much during a Commons debate in 1969, when he was, I think, Shadow Home Secretary. I have naturally informed him that I was going to mention the case.
THE LORD CHANCELLOR
Yes, my Lords. I should make it plain, however, that as the context shows, my remarks on that occasion related solely to the use of the prerogative and had nothing whatever to do with the question of guilt, and that is what the noble Lord, Lord Goodman, is raising by his Question. I do not want to interrupt the noble Earl, but he should not misuse what I was saying.
THE EARL OF ARRAN
No, my Lords, but I must quote the noble Lord verbatim. It may be that he was talking about the prerogative—indeed, he was talking about the prerogative and the wrongness of one man having to make one decision. Nevertheless, he said this:I think that in the past Home Secretaries have proved inadequate. With great respect to a distinguished succession of gentlemen of humane and civilised bent, I say that they demonstrably made mistakes. Oddly enough, the mistakes they made have erred occasionally in the direction of severity".And Mr. Hogg went on:One has only to mention some of the cases—Evans, Ruth Ellis, Bentley, and for rather different reasons, even Hanratty, on whose guilt I do not wish to cast the smallest doubt."—[OFFICIAL REPORT, Commons, 16/12/69; col. 1172.]And the noble and learned Lord went on to make his case, which was, in fact, that no such great power should lie in the hands of one single man.
THE LORD CHANCELLOR
My Lords, the only point I was making was that this is a Question which relates to the guilt of two persons who were charged with murder. The passage to which the noble Earl refers—and he has not yet read it all, but he has read enough of it—shows that I was dealing solely with the prerogative of mercy, which has nothing whatever to do with guilt but assumes guilt. I do not want to spoil the noble Earl's speech, but it really is a misuse of my words to indicate that they have the smallest relation to the important subject now under discussion.
THE EARL OF ARRAN
My Lords, I have referred the noble and learned Lord to his quote, and he will not go back on that.With great respect to a distinguished succession of gentlemen of humane and civilised bent,"—and he was referring to Home Secretaries—I say that they demonstrably made mistakes.I say again to the noble and learned Lord:…they demonstrably made mistakes. Oddly enough, the mistakes they have made have erred occasionally in the direction of severity.And he goes on to mention two or three cases. Those were the noble and learned Lord's words. I leave it to the House to decide.
THE LORD CHANCELLOR
I am bound to tell the noble Earl that he has not quoted me correctly. I began the passage as follows:At this point, I digress for a moment to the question of the prerogative of mercy. Whatever the result of the debate to-day—and certainly if it turned out that the House was not prepared finally to abolish capital punishment—and that was the subject of the debate—I feel that the Home Secretary should, on any view, cease to be solely responsible for the exercise of the prerogative".Then follows the passage which the noble Lord quoted. After mentioning the case of Hanratty and saying, as the noble Lord read:…on whose guilt I do not wish to cast the smallest doubt",I went on to say:… the Home Secretary in the isolation of his chamber deciding between life and death is attempting a job which ought not to be done by any one man. On any view of the prerogative of mercy, even on the basis of imprisonment. I should like to see a reprieve board advising the Home Secretary.I do not want to spoil the noble Earl's speech, but he really must abandon a point which is utterly without foundation and which has no relevance to the subject under discussion.
THE EARL OF ARRAN
My Lords, I ask the noble and learned Lord to stick to what he said, in whatever context it was made. He made these remarks, and he will not deny that he made them.
THE LORD CHANCELLOR
My Lords, I only ask that the noble Earl should quote them correctly and fully and not go off at a tangent. I am not seeking to depart from what I have said. I am only repeating what I said, and in particular repeating those parts of my remarks which the noble Earl did not see fit to quote.
THE EARL OF ARRAN
My Lords, would the House like me to repeat what the noble Lord said, or what Mr. Hogg said at that time? I will gladly do so if your Lordships so wish. I thank the noble and learned Lord for his kindly interruption. Such an occasion as the noble and learned Lord the Lord Chancellor mentioned—and he did mention it—is the trial of Bentley and Craig and the termination of Mr. Bentley's life by hanging. I will not speak of Mr. 1074 Hanratty; his case is outside my scope and my knowledge. It may be that the noble Lord who is to follow me will be able to supply information on that point.
My Lords, I am not, publicly, at least, a champion of individuals. What we all do privately as Members of the Upper House of Parliament, with all that such a grave responsibility involves, is our duty and not to be bruited abroad. This is the first time that I have ever publicly supported in Parliament the case of an individual. I make this point because it simply emphasises the importance that I attach to the case in question. I should further make it clear that I am no doctrinaire opponent of capital punishment. If it is satisfactorily proved to me that hanging is an effective deterrent to murder, then I will vote in favour of the reintroduction of hanging. So far, thank God!, it has not been proved. I apologise for the preamble. I have only made it lest your Lordships think that I am in some ways prejudiced.
May I turn to the case itself. Certain facts—and I think the noble Lord, Lord Goodman, has made them clear—are not in dispute. They are all recorded in a book called To Encourage the Others by Mr. David Yallop. They have also been the subject of a B.B.C. television play based on Mr. Yallop's book. On December 11, 1952, Mr. Craig, then 16, and Mr. Bentley, then 19, were found guilty of the murder of police constable Miles. The judge was the late Lord Goddard, to whom I shall be referring later. Mr. Craig was detained during Her Majesty's pleasure, and I am glad to say that since his release he is leading a useful and happy life. He has, to his credit, I think, not changed his name. Mr. Derek Bentley was hanged.
Now, my Lords, to the stuff of the case. I will make four immediate points, no more. This is not the public inquiry which we hope to see set up. First, let me deal with the pathetic exercise, the secret policy inquiry—why secret?; why police?—into the case which the Home Secretary has recently caused to be held. This inquiry was confined seemingly to one specific issue, the calibre of the bullet and the possibility that Police Constable Miles had been killed by a fellow officer, in mistake of course. The inquiry heard evidence from only two witnesses, both of whom gave evidence at the trial, the 1075 pathologist, Dr. David Haler, and the ex-police sergeant, Detective Sergeant Fairfax. This matter of the size of the bullet was one aspect, albeit only one, but an important one, although there are others which I shall mention to your Lordships. Was the wound inflicted by a .32 or a .38, or was it a .45, which was Mr. Craig's gun? On these points both Dr. Haler and Sergeant Fairfax made statements which, although I cannot positively identify the voices because I have never spoken to those concerned, I have myself heard and seen. Dr. Haler and Sergeant Fairfax now deny having made these statements, although in fact Dr. Haler confirmed his statement to two highly-reputable members of the legal profession. These two legal gentlemen are prepared to testify to this. The author is prepared to make his recordings freely available to any public inquiry on the Craig and Bentley case.
Once again, my Lords, you must bear in mind that it was said in evidence at the trial that the shot came from a .45 calibre revolver. On this I quote a statement by Dr. David Haler to the writer of the book, as recorded. I quote very briefly:Yallop: Now you subsequently described during the Old Bailey trial and also on your original deposition the bullet as being of large calibre? What, for example, did you mean by large calibre?Haler: Well, it was bigger than a .22.Yallop: Yes, but can you be more precise?Haler: Indeed. The bullet was between a .32 and a .38 calibre.Yallop: Is there any possibility that the calibre could have been bigger?Haler: Oh, no. Putting it at .38 is the very ultimate extreme.Police officers who conducted the latest secret inquiry did not see fit to interview Mr. Yallop or Mr. Craig or any member of the Bentley family. They confined it to interviewing two witnesses, Dr. Haler, the pathologist, and Sergeant Fairfax. Am I correct in that statement?
THE EARL OF ARRAN
That is as recorded in the newspapers. To come 1076 back to the inquiry itself, the two senior police officers, Detective Chief Inspector Smith and Detective Sergeant Shepherd, in charge of the investigation at the time of the Craig-Bentley case—I am not speaking of the latest inquiry but of the time of the trial—were grievously in error. They swore on oath during the trial that:Craig, within one hour of the gun battle, made vital self-incriminating remarks which constituted vital evidence.But Sergeant Fairfax, who was in the cubicle next to Craig, has clearly stated on tape:Craig was unconscious when he was placed into the ambulance. I travelled with him to the hospital. He remained in an unconscious condition for the rest of the night and well into the following day. He wasn't talking to anybody, either voluntarily or in any other way.I repeat the last sentence:He wasn't talking to anybody, either voluntarily or in any other way.This interview former Sergeant Fairfax now denies having given, as also does Dr. Haler. But if these records are true statements (I repeat, I cannot personally vouch for them because I have never met the people concerned), it would appear that they are lying. Why, if they are not lying, have they not taken legal action over this highly actionable statement contained in Mr. Yallop's book and in the film that was made from it?
The second point I want to make—it has been made already by the noble Lord, Lord Goodman, much better than I can do it—is the matter of Mr. Bentley's mental age. I do not want to repeat it, but I think it was briefly this. At the age of 17 Mr. Bentley had an IQ of 66 and a mental age of 9. At the age of 18, after a National Service medical, lie was placed in the lowest possible grade—Grade IV—and totally exempted from National Service. This was after psychiatric examination. I apologise to Mr. Bentley's parents if they are in the House, but I must give the facts. I know a little about these things.
The Brixton Prison medical officer, in his pre-trial report to the Old Bailey, indicated that Mr. Bentley was sane, fit to plead to the indictment and fit to stand trial. But shortly before Mr. Bentley's execution—this is very grave—Professor Sir Dennis Hill, a world authority on 1077 human brain waves or the human brain, wished to make public the fact that Mr. Bentley was an epileptic. In his opinion this fact alone should have ensured Mr. Bentleys reprieve. The Home Office refused to give Sir Dennis permission on the ground—I say this with appalling solemnity—that it would not be in the public interest. Why not in the public interest?
VISCOUNT COLVILLE OF CULROSS
The noble Lord said the Home Office did not give Sir Dennis Hill the opportunity to do something. I did not hear what it was that he was not given the opportunity to do.
THE EARL OF ARRAN
The Home Office refused to give Sir Dennis permission to give the facts to the Home Office or to have them stated or brought before those who were to decide the fate of Mr. Bentley. I am glad to see that the noble and learned Viscount is taking very careful notes. The phrase is that it would not be in the public interest.
Thirdly, I must draw your Lordships' attention to two statements by Mr. Frank Cassels, defence counsel for Mr. Bentley. In one of them he said before the trial:I think both the little bastards ought to swing.In the other statement, made to the late Lord Goddard after the trial and before Mr. Bentley's appeal, he said:I think he will hang and I think he ought to hang.Mr. Cassels, as recorded in Mr. Yallop's tape recordings, has freely admitted making these remarks. While referring to Mr. Cassel's statement I must also refer to a statement by the late Lord Goddard, before the trial had even begun: I repeat, before the trial had even begun. In consultation with learned counsel Lord Goddard said that Craig was obviously guilty and could have no defence. Mr. Parris, defence counsel for Mr. Craig and I believe now a Q.C., is willing to confirm this.
Lastly, I come to the trial itself, conducted by the late Lord Goddard. If I may amplify what the noble and learned Lord, Lord Goodman, said, during that trial the late Lord Goddard interrupted the evidence no fewer than 250 times, on almost every occasion in a sense damaging to Mr. Bentley and Mr. Craig. 1078 He showed anger when asked by the foreman for a vital exhibit. He brandished the knuckle-duster (I think that is in confirmation of what the noble Lord, Lord Goodman, said) to the jury. His 45 minutes' summing-up contained only one sentence referring to Bentley's defence. It is none the less a fact that he expected Mr. Bentley to be reprieved. He said so to Mr. Yallop afterwards. I quote from his Lordship:Yes, I thought that Bentley was going to be reprieved. He certainly should have been reprieved. There is no doubt in my mind. Bentley should have been reprieved.Now the late Lord Goddard was not exactly an anti-hanger. In his evidence before the Royal Commission on Capital Punishment he said of the case of a certain Thomas Ley, in New South Wales:I have no doubt that the person was insane. His whole conduct showed a typical case of paranoia.Lord Goddard went on:Insane or not, ho should have been hanged.In a nutshell, that was his Lordship's attitude.
My Lords, that is the evidence. I fear that I have wearied the House and the noble and learned Lord who sits on the Woolsack, and certainly I have wearied myself; but I hope that I have helped to establish a prima facie case for a public inquiry. I have tried to be factual and, against my ordinary nature to be unemotional. This is not a time for oratory. There is public unease, and when there is public unease there should be a public inquiry. We do not want any more of what I call these "hole-in-the-corner" inquiries with interested parties—namely, the police—as the inquirers.
I ask these eight simple questions. First, with regard to the recent secret inquiry, why was the author of the book, Mr. David Yallop, not questioned? Why was Mr. Christopher Craig not questioned? Why was no member of Derek Bentley's family questioned? Second, why, for example, were Police Constables Pain, Bugden and Alderson, who were at the scene of the crime, not questioned? Alderson, in particular, who sat next to Bentley in the car on the way to the station, was not questioned. Third, why were Professor Sir Dennis Hill, Mr. Frank Cassels, Mr. John Parris and many other 1079 people, whose evidence has a direct bearing on Derek Bentley's conviction and execution, not questioned? Fourth, why was one item covering a few hundred words, from a book of some 100,000 words, the only piece of evidence—according to the newspapers—subjected to the latest police investigation? Fifth, why was evidence not taken as to the mental condition of Mr. Bentley, though in fact such evidence was freely available? Sixth, why was the manifestly biased summing-up of the late Lord Goddard totally ignored?
Seventh, why, in short, during the latest police inquiry, was one aspect of the affair the only one taken into consideration when the other circumstances of the case were so unsatisfactory and, indeed, so horrifying? Eighth—and this is more or less a rhetorical question—why has neither Sergeant Fairfax nor Dr. Haler taken legal action against Mr. Yallop, who has accused them of having gone back on statements which he maintains were made? Either Mr. Yallop is the biggest rogue unhanged, and is guilty not only of deceiving myself—and I do not count—but of causing me to deceive the High Court of Parliament, which is your Lordships' House and the highest Court in the land; or he is telling the truth, the whole truth and nothing but the truth. I do not expect the noble Viscount who is to reply to give the answers to those questions. Had I wished him to do so, I should have given him advance notice. I simply put them as questions for his right honourable friend to answer in the very near future.
My Lords, before I sit down, I think I should add a note about the climate at the time of the trial and the climate to-day. Your Lordships, or those of your Lordships who were alive at the time of the trial, will recall that at the time there was a feeling of anger about thuggery and acts of violence, particularly where the police were involved—I do not mean where the police committed violence, but where it was committed against them. The book by Mr. Yallop is called, To Encourage the Others. It is rightly so called. It was a matter of making an example and it is much the same to-day—probably rightly so. But it remains a fact that the then Home Secretary, Sir David Maxwell-Fyfe (later 1080 the noble and learned Earl, Lord Kilmuir), did not consult Lord Goddard, the trial judge, which I understand is customary procedure, before denying Mr. Bentley a reprieve.
VISCOUNT COLVILLE OF CULROSS
My Lords, that is not true. The noble Earl is simply incorrect factually.
THE EARL OF ARRAN
My Lords, the noble and learned Viscount, Lord Dilhorne, to whom I spoke shortly before this afternoon's debate, said that it was customary procedure.
VISCOUNT COLVILLE OF CULROSS
Yes, my Lords. But the point is that the Home Secretary of the time did consult the trial judge.
THE EARL OF ARRAN
My Lords, I thank the noble Viscount very much. I am only too glad to be corrected. I submit to your Lordships that, despite the petition on Mr. Bentley's behalf, the greatest public demand for the reprieve of a man in this country, the dice were loaded against him at the beginning, during the trial and at the end.
My Lords, I began by saying that I am against post-mortems—I still am. But it remains a principle of British justice, or rather of natural justice, that justice should not only be done but evidently be seen to have been done. To those who might ask, "What is the use: Mr. Bentley has been dead for 19 years?", I would say that although we cannot bring Derek Bentley back from the dead—and when I say "we", I mean each and every one of us, for we are all responsible—we should never have put him there. As Voltaire said:To the living we owe our respect, to the dead we owe nothing but the truth.
§ 7.57 p.m.
§ LORD BROCKWAY
My Lords, I should like in a very special way to express my appreciation to the noble Lord, Lord Goodman, for having raised this issue tonight. His authority in the legal field, and in many other respects, gives this debate a prominence which it could not otherwise have been given. Those of us who are concerned about one case or the other are deeply indebted to him. There is also a personal reason why I want to thank him. I first raised the issue of Hanratty's condemnation to 1081 death—perhaps 10 years ago—immediately after the trial. Yet ever since I have been silent about it and I do not think anything has been more on my conscience than that silence. It arose from the fact that legal proceedings were taken against me. I was not allowed to speak outside Parliament, and I felt it wrong to use the privilege of Parliament to say things which I could not say outside. Even to-night, I shall not trespass upon what may remain of that sub judice condition to make what is perhaps the strongest case on the innocence of Hanratty.
I became involved because the Hanratty case was so closely associated with Slough, which I represented in Parliament. My first concern was with a woman constituent who after the shooting was thought dead, lying at the side of the road, paralysed in both of her legs, the assailant having driven off. My first sympathy was with my woman constituent. Despite her paralysis she has very bravely maintained her work at the road research laboratory in Slough. No word that I will say to-night will be a reproach on her in any way whatsoever. There followed the trial at Bedford. I was disturbed in the proceedings of the trial by the contradictions in the identification of the supposed criminal. First there were doubts; then there were other considerations, and finally there was an identification on the ground of his Cockney pronunciation. I might say that I have heard on records the voice of someone else who has been concerned in this case and he had a Cockney pronunciation just as great as that of Hanratty who was identified on that ground.
At the trial I was not concerned about something which has since become very important. I refer to the alibi that Hanratty was in Rhyl when the murder took place. It was raised only at the later part of the trial, but subsequently the evidence that he was in Rhyl when he was supposed to have committed the murder became very strong indeed. My doubts during the proceedings of the trial were intensified when a newspaper man in Slough who was assigned to investigate the case came to me with his evidence, which was supplemented by that of others who had examined the case.
I ask your noble Lordships to believe that I approached this issue with an im- 1082 partial mind. I sought to see all who were involved in the case. I saw the wife of the murdered man and her brother. I saw more than once the man who subsequently confessed that he had committed the murder. I saw the Catholic priests who were with Hanratty in the death chamber. I wish that it were possible to repeat what they said, but it would be denying their religious authority. I had interviews with Superintendent Kennedy and the detectives at Scotland Yard. I saw one Home Office secretary after another. After all that investigation, which I had sought to make on the broadest possible grounds in order to find the truth, I had no doubt whatsoever that Hanratty was innocent of the charge on which he was hanged.
That investigation led me to the view that the circumstances of the Hanratty case were these: a married man employed at the Slough research laboratory; an unmarried woman. Together they gave very valuable service in surveys of road traffic around the country. They were much together. These things happen and I am not going to condemn them. They fell in love. They made a practice of going to a public-house at Taplow and after that of going in their car to an isolated cornfield. On one occasion a man rapped at the window of the car and threatened them with a weapon. He got into the car and they travelled about Slough for nearly two hours. The charge is that the man had his weapon at the hack of the first man all through that drive. I find that a little difficult to accept.
I have no doubt that the second man was asked to intervene in order to break up the affair. In the two hours that he argued, the suggestion that he threatened the first man with his weapon is removed by the fact that he allowed the man to get out of the car, buy cigarettes and return to it. What happened at the end of this? The man got out of the car at a petrol station and was shot. The allegation was that the other man raped the woman in the car, shot her and left her for dead. But she was in fact left paralysed. As a result of my investigations I have no doubt that that is the explanation of the affair; that it was an attempt to break up the association between the man and the woman. I am not suggesting that those who sought that 1083 intended that it should go to the extent of the murder of the man and the paralysing of the woman.
But when we come to the case against Hanratty let us remember that the first charge was made not against him but against another man. The charge against Hanratty was based on the fact that in this boarding house, exaggerated in terms of being called an hotel, cartridges were found in the room of Hanratty which identified him with the shooting. Whether the other man occupied the same room or not, he occupied the same hotel. I need not repeat the fact that, at the identification parade, the woman did not recognise Hanratty in the first instance, and recognised him only by a pronunciation in the second instance.
§ LORD BROCKWAY
Yes; I did not say otherwise. It gives me great encouragement that the Minister is so anxious to get up to correct things which need no correction at all. It suggests to me that the Minister himself is very doubtful about these cases. It has occurred in a previous instance.
VISCOUNT COLVILLE OF CULROSS
No, my Lords, it merely indicates that I have taken the trouble to do my homework, and I am trying to ensure that the House is given an accurate account of what occurred. I entirely appreciated that the noble Lord was referring to the same identification parade, but it might have been interpreted that there were two. I am merely ensuring, I hope, that the House has the facts accurately put before it; and if there is a mistake I must seek to correct it.
§ LORD BROCKWAY
I am grateful to the Minister—very grateful indeed. Now it is acknowledged about Hanratty that he had had a record of robbery. I have met his parents. They very movingly described to me how, in his younger years, he had had an accident which had affected his brain, and how, in those younger years, his character had changed after that accident. I think one of the reasons for doubting the Hanratty case is that mental inheritance. But never was he charged with an offence involv- 1084 ing firearms. Never once in his whole story was there any suggestion that he had committed violence. There was the charge that the murderer had raped the woman after he had shot the man. There had never been any suggestion in the whole record of Hanratty's history that he had been guilty of any sexual assault at all. I mentioned earlier that during the proceedings at the trial I was doubtful about the alibi at Rhyl. It was raised only in the last moments of the trial, possibly because of the difficulty of the defence in meeting information which came in. But I say to the Minister now that the strength of the evidence that Hanratty was at Rhyl when he was alleged to have committed this crime is certainly strong enough to justify this request for an inquiry. Not one person, but people one after another say that he was there.
My Lords, some are saying that one ought not to raise this issue to-night because this man was hanged nearly ten years ago. I know the parents of Hanratty. In all my life I have rarely met a man or a woman of working class stock so fine, so noble and so good as Hanratty's parents. They are just the best of our working class. Many of us are interested in world questions—Vietnam, the Middle East, industrial struggles here—but every one of us who is a parent, if our son were charged and hanged for a murder which we knew he had not done, would, as a parent, forget Vietnam; as a parent we should forget the Middle East; as a parent we should forget industrial struggles here. Our whole life would be concentrated on vindicating the son who had been wrongly charged. That is the life of Hanratty's parents.
Here in Parliament we ought not to be so concerned with great foreign and domestic issues that we forget the individual personal dedication to a human being who belongs to us. I just want to say to those parents, if I am within their hearing, that the Minister may reply to-night as the Home Office has replied before, refusing even to have a public inquiry—not a police inquiry but a public inquiry—into this case; but even if the Establishment of our land so denies parents whose son has been condemned to death for murder when the evidence against that charge is so great, those 1085 parents can live the rest of their lives knowing that, whatever the Home Office, backed by Scotland Yard and its interests, decide, men and women, not biased but who have looked at this problem in an objective way—someone of the authority of Lord Goodman to-night—men and women of good will, of good feeling and of objective investigation, are quite sure that their son was not guilty of the charge which was made against him.
§ 8.19 p.m.
§ LORD FOOT
My Lords, I have no doubt that your Lordships will be eager to hear the reply to be made by the Minister from the Government Front Bench, and I do not want to detain the House for more than a few minutes. Indeed, I do not want to follow the previous speakers in speaking about the merits of these two cases. I want to confine myself—and I must confine myself—to the case of Hanratty, because I have not sufficient knowledge to speak on the Bentley case.
Really, I have two limited purposes and objects in speaking to your Lordships at all. The first is that, in the Hanratty case, I want to stand up and be counted. I hope that no erroneous conclusion will be drawn from the fact that there are so few speakers on this Question to-night. It would be a great mistake for anybody to suppose that that indicates there is not widespread concern about the case. I suspect that one of the reasons why more noble Lords did not set their names down to speak is because we knew that this debate was to be initiated and introduced by the noble Lord, Lord Goodman. We all know in advance that if ever he takes anything up everything that should be said will be said; and not only will everything that should be said be said, but it will be said with great panache and brilliance and with great philosophy in a way that is beyond the capacity of ordinary mortals like ourselves. I should like to emphasise what I believe to be the breadth and the depth of concern on the part of anyone who has studied this case: that this is one of those rare cases, as the noble Lord has said, where justice has in fact miscarried.
The other object which I have in mind is that I should like to make a few observations upon the reasons given by Mr. Maudling, 1086 the Home Secretary, last year when he refused a judicial inquiry into the Hanratty case after he had read Paul Foot's book, Who Killed Hanratty? I want to make it plain at the outset that in making what may appear to be critical observations on the reasons which the Home Secretary then gave I do not want to suggest that I think that he failed to give to the consideration of this case all the time that was required or, indeed, to approach it with the utmost sympathy. But I remain unconvinced by the reasons which the Home Secretary gave on that occasion, and as I apprehend it is likely that the noble Viscount may tonight follow him in the sort of answer which he gave on that occasion, I would like to anticipate what he is likely to say and express one or two observations about the Home Secretary's reasons.
In the beginning of the Home Secretary's statement in refusing that inquiry at that time—and I am quoting from the statement written into the OFFICIAL REPORT of another place for October 28. 1971—he started off by explaining what his approach to this matter was; and with this, with the utmost respect, I have no quarrel. He started off by pointing out that in cases of this sort it was for the jury to reach a verdict on the evidence which they had heard and that the Court of Appeal had subsequently dismissed Hanratty's appeal and it was not therefore for the Home Secretary to set aside the verdict of the court. There is nothing in that from which I dissent. He went on to say, again, if I may say so, quite rightly:But I have considered whether there are any grounds for my intervention on the basis of material which was riot before them."—[OFFICIAL REPORT, Commons, 28/10/71; col. 2051.]That, again, my Lords, if I may say so, was entirely the right approach: to consider whether new relevant material has emerged since the trial which was never available to the jury, and whether that new material was of such weight and usefulness as to suggest that the verdict of the jury might have been unsatisfactory and wrong. There is one thing about the Hanratty case—there may be all sorts of arguments about the case—which is plain, and that is that since the trial a very great mass of new relevant material has come to light. The problem is that that material falls into two categories.
1087 There is, first of all, the new material which has been uncovered by what I might call the private investigators who have given this case their attention. Lord Russell of Liverpool, and Paul Foot, in the most recent examination, suggest that there has been a great deal of relevant new material which has been uncovered by these private investigators. But at the same time, as the Home Secretary, Mr. Maudling, made clear in that statement, this case has been reviewed in the Home Office under successive Home Secretaries over the years; and as Mr. Maudling himself said, a great deal of information (that means information over and above the information available at the time of the trial) has been accumulated.
So we have two types of new material: that which has been exposed to the public by the private investigators, and, on the other hand, the material in the files of the Home Office. The importance of that is that it is not available for public inspection or public assessment, and in so far as it is evidence of witnesses it is the evidence of witnesses who have never been submitted to the scrutiny of cross-examination. The result is that when Mr. Maudling went on to deal with Mr. Foot's book he made two major points. He said first of all that:Mr. Foot has not had full access to all the available material, and in some respects his arguments are based on premises that are not supported by the facts."—that is, facts known only to the Home Office.
Dealing with the alleged new material, he said:Other material which has been described as new evidence has proved upon examination to relate to matters which have already been the subject of investigation.He means that he has put this alleged new material contained in Mr. Foot's book side by side with the secret facts, or alleged facts, known only to the Home Office and makes the fair assertion (which there is no way of checking) that the premises and the so-called new evidence do not correspond with the secret information which he has accumulated. Mr. Maudling went out of his way later on to say:I recognise and entirely respect the doubts which still remain in many minds, and I have considered carefully whether the appointment 1088 of a public judicial inquiry would help to resolve the issues.If that is so, does not the anxiety in the public mind arise in large measure from the fact that there is no impartial authority which can look at all the evidence—that is to say, the evidence uncovered by the private investigators and the evidence in the possession of the Home Office? These doubts can never be allayed until the public know that some impartial authority has been allowed to see all the evidence.
There was some new evidence given by Mr. Foot which the Home Secretary did not dispute was new. It was largely evidence relating to the Rhyl alibi. It is somewhat curious, to my mind, to see the way in which that matter was dealt with by the Home Secretary in his refusal of an inquiry. He said this (col. 2052):My predecessors gave special attention to the possibility that Hanratty might have been at Rhyl at the time of the murder, and I have for my part examined with care all the additional evidence tending to support this alibi. At a trial, alibi evidence is subject to searching cross-examination to verify its relevance and reliability; and—these are the words to which I draw special attention:after close scrutiny I remain unpersuaded that any of the evidence produced since the trial could stand up to such critical examination, bearing in mind that the recollection of witnesses must necessarily become impaired by the passage of time.My Lords, with all respect to the Home Secretary, I find that an extraordinary reaction because one would not have thought that it was the duty of the Home Secretary to try to guess whether a particular witness was likely to prove convincing if he gave evidence under oath in a court of law. Surely, if you want to find out whether or not evidence is convincing, the thing to do is to put it to the test; to hold an inquiry in which the evidence may be subjected to scrutiny and cross-examination. Then you will discover either that it is convincing, in which case it would have been wholly right for it to be heard, or that it is unconvincing and valueless, in which case that would have been demonstrated, and it would have been a very useful exercise in clearing up the anxieties which exist.
At the end of the reasons for the refusal of this inquiry—I have covered them all, I think—Mr. Maudling gave 1089 two specific reasons why he had concluded that a public judicial inquiry would not help to resolve the matters in issue. He said:I do not believe that any judicial tribunal can be expected to arrive at a convincing opinion as to the facts on the basis of the recollection of witnesses as to specific details ten years after the event.I have two observations to make upon that. In the first place, there is nothing unique, nothing really unusual, in cases being decided in the courts on the basis of the recollection of witnesses as regards events which took place years ago. Indeed, most civil actions, as the noble Viscount will know, personal accident cases and cases of that kind, are heard very often two, three or four years after the events about which the witnesses have come to court to give evidence. And the courts have to cope with the situation. Naturally, the courts assess the value of the evidence bearing in mind how old and stale it is. But there is nothing unique about the judicial tribunal listening to evidence from witnesses about events which took place many years before.
The second reason given by the Home Secretary for refusing, or feeling that an inquiry would not be helpful, was:Secondly, there are fundamental objections to the use of such a procedure as a means to the informal trial of some other person outside the normal processes of law which would be inevitable in this case.My Lords, I understand the Home Secretary's apprehension on the point that an investigation of this sort might turn into a kind of indirect trial of some other person and that is indeed a danger against which we should guard. But I think the argument he uses is, first, dangerous and, secondly, it poses a difficulty which does not exist. When I say it is a dangerous argument I mean that this is a case where there is no dispute that a brutal crime was committed. The only matter which has ever been in issue in this case is whether it was Hanratty who was the criminal.
If it is going to be said that in cases of that kind—where the whole question in issue is not whether a crime has been committed but who committed it—you can never have an impartial or a judicial inquiry because there will always be in the background the question, "Well, if he did not do it, who did?" you would 1090 be prevented from having a judicial inquiry however monstrous might be the injustice which had occurred. You cannot have an inquiry if that is to be the absolute rule.
The reason why I say I think that this is a false argument which raises an unreal difficulty is that it depends (does it not?) on what are the terms of reference, what is the remit you give to the inquiry. If you say, "Your job is simply to answer the question: was it Hanratty who committed this crime? That is the limit and extent of your remit; you are not concerned with who else might have done it, you are concerned with whether he did it or not", you would then he putting to the inquiry the very question which the original jury had to answer, the only difference being that you would be asking the inquiry to give an answer to the question, not only in the light of the information available to the jury, but also in the light of all the information which has been uncovered since.
My Lords, I do not think that there is any difficulty in this matter. I think that the possibility of somebody being indirectly tried can be avoided, and I join with the noble Lord, Lord Goodman, in asking the Minister please not to close the door. I hope that nothing that has been said here to-night, where there has been a bit of feeling, will damage the possibility that the Home Secretary will have another look at both of these cases.
§ 8.36 p.m.
§ BARONESS LEE OF ASHERIDGE
My Lords, I wish to detain your Lordships for only the briefest of moments at this late hour and after all that has been said so cogently and so eloquently; but distinguished as have been the speeches (we have had expert legal statements from the noble Lord, Lord Goodman, the noble Lord, Lord Foot and others; we have heard from the noble Lord, Lord Brockway, detailed circumstantial stories of individual men and women he has known and dealt with and who suffered) it is very important that the Minister should keep in mind, if he will forgive my saying so, that he will also be replying to a large number of people outside this House. He will be replying to many people like me. I would not presume to comment on the legal points in this case, because I have not studied it and I have not had the personal contacts which other 1091 Members of your Lordships' House have had. But I have a conscience about it. I have been trying to remember—some of your Lordships may be able to quote them more accurately than I can—those haunting lines of Housman:Be still, Oh soul, be stillAnd let injustice be.It is but for a day.But we cannot be still, we cannot let injustice be, and it is not just for a day.
My Lords, you cannot violate certain moods of the British people. Why is it that people like me, who do not know this case intimately, will not be silent about it? Is it not because the very basis of our legal system—I agree with everything that the noble Lord, Lord Goodman, said; the last thing in the world we want to do is to denigrate it in any sense—is that not only should justice be done but that it should be seen to be done? So I ask the Minister please to remember that we appreciate that he cannot say anything definitive this evening, but if he will consult his colleagues, if he will consult everyone who could have influence in this matter, he will be adding to his own distinction and to his Government's credit—and if he will listen to the haunting fear that so many of us have that there has been an injustice done.
§ 8.40 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, I have been subjected to a number of moving appeals, not least from the noble Baroness, Lady Lee, who has just spoken. I do not in any way discount what the noble Lord, Lord Brockway, has done in that line either, or the feeling with which he did it. I am a little alarmed that the terms of the Motion and something that one of the noble Lords said should imply that I inevitably approach this case with a lack of impartiality. The same implication presumably applies to my right honourable friend the Home Secretary. I knew nothing more about this case when I first started reading it than I rather suspect the noble Baroness, Lady Lee, knows now. I had read small parts of some of the material in the newspapers and I have taken the trouble to attempt to read and to learn the most voluminous amount of material, including both the book by Mr. Foot and also the book by Mr. Yallop 1092 and a great deal else, in order to try to equip myself to deal with this debate. Why I should be supposed to be partial in these circumstances I really do not know.
§ LORD GOODMAN
My Lords, I do not like to interrupt the noble Viscount but I hope that nothing I said conveyed the slightest suggestion that I thought that he or the Home Secretary were partial in the matter.
§ LORD BESWICK
My Lords, may I ask the noble Viscount, Lord Colville, to make it clear that there is not a Motion before the House at all. One reason why there have been few speakers here is that it is a Question that has been asked.
VISCOUNT COLVILLE OF CULROSS
The noble Lord, Lord Beswick, is perfectly right and perhaps I may be forgiven, having been here until the House rose early this morning, for making a minor technical slip. I quite agree it is an Unstarred Question. I am much obliged for being reminded of the fact. If I have misread the implications, the noble Lord, Lord Goodman, is not attempting to pursue them. That is all to the good and I am grateful for what he has said. I am also very much obliged for the three prefatory points that he made in his approach, in which he does not endorse the criticisms of some of the institutions of State and indeed individuals that have been, I am afraid, only too apparent in some of the material that I have had to read in the course of preparing for this Question.
It might be helpful for the House if I could just deal with the circumstances in which, by convention and as a result of trial and error, I think it has been worked out in what circumstances the Home Secretary can intervene in cases of this sort. I am delighted to hear from the noble Lord, Lord Foot, that he agrees with the first paragraph of my right honourable friend's statement in another place last October, when my right honourable friend made it perfectly plain that the Home Secretary is not a court of appeal from the Court of Criminal Appeal, nowadays the Court of Appeal (Criminal Division). The role of the Home Secretary—and this, I think, was implicit in, or at any rate cognate to, what my noble and learned friend on the Woolsack said—is to do with the prerogative of mercy, and 1093 not to re-try cases. It is when new material comes before the public and is presented to any Home Secretary that he begins to get into a position where he can consider an inquiry, and not until then. I am sorry to say that in those circumstances the Bentley case simply never leaves the starting line. The only new information—
§ LORD GOODMAN
My Lords, I hesitate to interrupt the noble and learned Viscount, but I should like to make something clear. I have not invited the Home Secretary to do anything. I have invited Parliament, which is a supreme authority, to consider whether in circumstances where there are grave considerations pointing to someone's innocence—the technical questions of who does what in relation to reviving the case have no relevance at all—Parliament should not, in its full, complete and untrammelled authority, order an inquiry. The ambit of the Home Secretary's previous authority and the precedents in the matter are totally irrelevant.
VISCOUNT COLVILLE OF CULROSS
In that case I think I shall have to take refuge behind a technicality. If that is what the noble Lord, Lord Goodman, wants, this is not a suitable Motion for it. I have to answer this on the basis that it is a Question which is asked of Her Majesty's Government, and I am answering it with the assistance of those who advised me in the Home Office, because it is customary for the Home Secretary to deal with this sort of matter.
§ LORD GOODMAN
My Lords, this is really a matter of such importance that even at this hour I must pursue it. I did not invite this particular Minister, welcoming as I do his reply, to reply to this Question. If there is some more appropriate Minister who should have replied to it he ought to be here at this moment to reply.
VISCOUNT COLVILLE OF CULROSS
I think, with respect, I am probably the appropriate Minister to attempt to reply, but I cannot of myself commit Parliament to setting up a public inquiry as the result of an Unstarred Question, asked even by the noble Lord, Lord Goodman. This is not the procedure by which one does it and I have simply got to take refuge in that fact.
§ LORD GOODMAN
I do not think there is a case for irony in a matter of such social importance or that the fact that the Question is asked by me or anyone else has any particular relevance. What has very great relevance is that an enormous apparatus of technicality relating to the previous circumstances in which someone has seen fit to consider whether an injustice is done has no possible relevance to my inquiry. That is the point I want to make. I cannot see why, in relation to an Unstarred Question, the appropriate Minister should not come to answer the Question which is asked of him and not some other Question.
VISCOUNT COLVILLE OF CULROSS
I thought I was answering the Question that was asked of me. If the noble Lord wishes to pursue the whole matter by another procedure at another time we shall have to see what happens, but at the moment, if I may, I shall try to proceed with my speech. There are other occasions on which public inquiries of one sort or another have been set up after a trial has taken place and an appeal has been heard. I should have thought that it might have interested the House, in considering this matter, to know in what circumstances those public inquiries were set up and to consider whether they are precedents or parallels for doing the same here. If, at the end of the reply that I am now trying to give, any noble Lord considers that there should be new, totally different, machinery, other criteria and a complete change in the system, then I hope that he will put down constructive suggestions, Motions, Resolutions and anything else that is necessary. I am afraid that I propose to deal with this upon the basis of a fairly well-tried practice that has been going on for some time and has had the advantage of being looked at and considered by a number of quite wise people over a long time. That is what I propose to tell your Lordships about this evening.
§ LORD GOODMAN
My Lords, it is impossible for me not to intervene again, much as I regret it. May I now ask the noble and learned Viscount, Lord Colville of Culross, whether he is proposing to deal with this matter on the footing that, provided a well-tried procedure operates in this case, he and the Government are indifferent about whether 1095 the existence of injustices are not revealed? If that is so, may I say that we can all go home as there seems to be little point in continuing the discussion?
VISCOUNT COLVILLE OF CULROSS
My Lords, I am finding it extremely difficult to make a speech at all, let alone tell the noble Lord what I am trying to say. That intervention, if I may say so, does not really assist me to get on with the matter and it does not seem to me that anything I may say in answer to it is going to help us very much. I am trying to get on with the matter and I have told noble Lords how I am proposing to deal with it. If noble Lords do not want to listen to me, there is a perfectly good answer. They can remove themselves. But I am going to go on with this speech on the basis that I have started it.
As I said, it has been the practice for an inquiry to be set up when new evidence emerges. I had got to the point of saying that in those circumstances I am sorry to say that the Bentley case does not fall into that category. I have read the book by Mr. Yallop. It is true that I did not see the equivalent film on television, but I have read the book from cover to cover. I think the noble Earl, Lord Arran, has been very convinced by it. I am afraid that I am rather less convinced by it, but this is probably neither here nor there because what one has to deal with is the question whether that book provides new evidence which would justify my right honourable friend in setting up a public inquiry.
THE EARL OF ARRAN
My Lords, if I may interrupt the noble Viscount, it is not a question of new evidence, but of evidence that was not sufficiently produced at the time of the trial. That is in fact new evidence, is it not?
VISCOUNT COLVILLE OF CULROSS
No, my Lords; I do not think that is so. I think there is a subtle distinction. There can be in a criminal trial evidence which was available, but for one reason or another was not chosen to be used. The existence of that evidence does not, I think, constitute a situation—
THE EARL OF ARRAN
If I may interrupt again, if there was evidence that was not produced at the time of the trial 1096 and a man was convicted and sentenced to death, does that not constitute evidence which should be heard now? That evidence was available at that time. Should we not hear it now?
VISCOUNT COLVILLE OF CULROSS
My Lords, I cannot possibly explain anything if I get halfway through a sentence and then I am interrupted. I was saying that there may in a criminal trial be evidence which is available and is known to one or other of the parties at that time but which for one reason or another they choose not to use. In those circumstances, I do not think that some years later, because somebody considers that they were mistaken in their choice of not using it, the existence of that evidence would be grounds for reopening that matter by way of public inquiry.
THE EARL OF ARRAN
I cannot understand how the noble Viscount has the audacity to say things like that.
VISCOUNT COLVILLE OF CULROSS
It is a fairly basic legal arrangement in the Court of Appeal, and it also applies further afield. If the noble Earl does not agree with me, then I am sorry, but that is what I am informed and that is my own experience in the matter. If, however, there is evidence which was not available to anybody at the trial, but only becomes available afterwards, then if that evidence seems to be sufficient, I think that there could be a case for reopening the matter by way of public inquiry.
The question in the Bentley case then arises: is there such new evidence?
§ LORD DENHAM
My Lords, I think we are getting very much out of order. This is an Unstarred Question, admittedly on a subject of great importance on which a number of noble Lords feel very strongly indeed, but my noble friend really has not had a chance to make more than two consecutive sentences. I think the House probably would appreciate it if my noble friend could carry on with his speech.
VISCOUNT COLVILLE OF CULROSS
My Lords, I do not mind giving way to 1097 noble Lords, but the fact remains that I must try to keep this speech within some bounds of time, and if I am continuously interrupted I shall simply have to take material out of it, because I cannot keep the House here for ever. I was attempting to say that if new evidence emerges which was not available to anybody at the trial, then this may give grounds for a subsequent public inquiry. What one wants to see is whether in the Bentley case such new evidence has become available.
There are, to the best of my knowledge, two sources from which such evidence has been suggested. One is in the book by Mr. Yallop, and the other is in, I think, a newspaper article where a certain gentleman called Mr. Ley has come forward. I do not want to go in great detail into these matters, but certainly in Mr. Yallop's book some of the points mentioned by the noble Earl, Lord Arran, were raised: the question of the calibre of the bullet and, as a result of that, the question whether it may have been fired by one of the police guns which came upon the scene rather than by the gun held by Craig. We have heard Lord Goodman's view upon the relevance of this, and I do not know that I should be very happy to dispute with him on the legal point. But I think, perhaps, for the benefit of those who have been interested in this, I should say a few words. The inquiries that we have carried out show that there can be no doubt that there were no police weapons in the area at the time when Police Constable Miles was shot. We have carried out extensive inquiries to see whether this could be so, and there is no doubt that the first gun that arrived upon the scene was that which was carried by Sergeant Fairfax when he went upstairs, having taken Bentley down; and the only two cartridges that were fired from any of the live police weapons issued that evening were fired from that gun by him. That, I am afraid, is the end of that line.
There was also the question of Mr. Ley. who said that he had seen certain parts, or perhaps the whole, of the incident from the house nearby. This statement also has been investigated extensively, and I am sorry to say that there is absolutely no evidence whatever to support what Mr. Ley alleges. Moreover, it would have been impossible for him to 1098 see from the window from which he said he saw. If he climbed on to the roof, then he was an athlete of no mean achievement, because a policeman could not do it in broad daylight: and, in any case, if he was on the roof he could not have seen into the area where the action took place, because it was shielded by the lift shaft or the skylight—I am not sure which. That, I am afraid, is the calibre of that evidence.
When one goes beyond that, one takes oneself, I fear, back to the question of what might have happened at the trial rather than the grounds of new evidence which has come to light since. The noble Lord, Lord Goodman, was very interested in what happened at the trial, and I am not surprised, because if one wishes to criticise the matter, then I have no doubt that that is a very good place to start. The noble Lord did it, if I may say so, with great delicacy, and a good deal more delicacy than has been shown in some other quarters on this subject. I applaud him, and was glad to hear the way that he did it.
But even assuming that the noble Lord put the case in the way that I am sure everybody would expect him to do, as well as it is possible to do it, one has to face that fact that if one wishes to reopen the trial on the basis that it was not properly conducted; that there was something wrong with the summing up; that the Court of Criminal Appeal (as it then was) was wrong in saying that there was nothing wrong with the summing up, then one is becoming a court of appeal from the Court of Criminal Appeal. It may be that the noble Lord will say that the Home Secretary should not do that but somebody else should. But, at any rate for the purposes of answering this Question, I am afraid I cannot advise the Home Secretary or try to influence him to turn himself into that sort of body.
I would just say this to the noble Lord, Lord Goodman, about the summing up. Of course it is perfectly true that Lord Goddard made the remarks that were attributed to him by the noble Lord, Lord Goodman. But the question that was before the jury, as I understand it, was one of constructive murder. I, too, have been reading the summing up, and I should like to quote a short passage 1099 from it. What Lord Goddard said was this:Is there evidence from which you can properly infer that these two youths went out with the common purpose not merely to warehouse-break but to resist apprehension, even by violence, if necessary. That is all. It is, I repeat, no answer if you come to that conclusion "—he was speaking to the jury—for one of the two accused to say, 'Yes; but I did not think he would go as far as he did.'We have already heard that on this question of the knowledge that Craig had the gun the then Lord Chief Justice suggested inferences about what might have happened before the two young men arrived at the shop that they finally decided not to break into. We have also heard that he described how Bentley had those two weapons. We have heard what the Lord Chief Justice said was perhaps the most serious piece of evidence against Bentley: those words, "Let him have it, Chris!". The noble Lord, Lord Goodman, also referred (and this is also mentioned in the summing up) to the statement which was vouched to by two of the policemen in the trial, where Bentley said:I knew he had a gun but I did not think he would use it";and the noble Lord pointed the contrast between those two.
In addition to that, in the summing up there was a statement that Bentley made at the police station:I didn't know he was going to use a gun.This was contradicted by another statement:I didn't know Chris had a gun until he shot.…That was a flat contradiction of the previous statement. There was also the evidence which, strangely enough was not in the judge's original summing up but was brought in only after one of the defence counsel had drawn attention to a mistake that Lord Goddard had made. This was the evidence that Sergeant Fairfax shouted to Craig, to drop the gun. Police Constable McDonald, another of the officers in the case said to Fairfax:What sort of gun has he got?And before Fairfax could reply, Bentley said:He's got a .45.1100 That was in evidence: it was cross-examined. It was in the evidence given by two of the police officers: both Fairfax and McDonald vouched for it.
§ LORD GOODMAN
I am so sorry, but I must interrupt. The Minister said—and I think this is a crucial matter—that the Lord Chief Justice, in his summing up, pointed the contrast that I made between the original statement, "Let him have it Chris!" and, "I knew he had a gun but I did not think he would use it." I have no recollection that he did more than address the attention of the jury to those statements and suggest that one reinforced the other. I do not believe anyway that the judge, in his summing up, did not point the contrast between the two, the fact that they were inconsistent.
VISCOUNT COLVILLE OF CULROSS
My Lords, I believe that the noble Lord is quite right, but I am just coming to the point. This is what a trial by jury is for. It may be that at the end of the day, after they have delivered their verdict (and the noble Lord, Lord Goodman, knows this as well as I do) the Court of Criminal Appeal, or the Court of Appeal, will say that the summing up was faulty in law. The time to take up that point is on appeal to the Court of Criminal Appeal. I am merely telling the House that the jury had before them the selection of facts which I have been telling the House about.
There was one other piece of evidence which was not mentioned in the summing up but which was given in evidence and also told upon the matter. The fact of the matter is that, having heard the law described as I began just now, and having heard all the evidence, the jury did convict. I cannot see how I can possibly suggest that the Government should at this stage interfere and say that the jury were wrong, that the judge was incorrect in his summing up and that the Court of Criminal Appeal should have said so but did not, and that therefore we should now have an inquiry to re-try the case. Because, with the greatest respect, and however hard anybody feels about the result, that is the only result of a public inquiry that could possibly arise in that particular case. I do not believe that it would be a satisfactory precedent for anyone if this were to occur.
§ LORD DAVIES OF LEEK
My Lords, I am grateful to the noble Viscount for giving way. Nothing has been said about the ambiguity of the phrase, "Let him have it, Chris!" That was not taken into consideration at the time. I should like that to be put on the Record.
VISCOUNT COLVILLE OF CULROSS
My Lords, it was because I was fully aware that the phrase was capable of more than one interpretation that I took the trouble to look up what else was said which might have borne upon this subject, and that is why I have wearied the House by reading it over. Incidentally, the other alternative for the interpretation of that phrase isDo give it to him, Chris.But what was it that Bentley was asking Craig to give to Fairfax? It does not necessarily mean that one is led to the opposite conclusion. I agree that there are two interpretations, but one is not necessarily innocent, as one might at first think, set in the legal context.
§ LORD DAVIES OF LEEK
My Lords, I should like to thank the noble Viscount for his courtesy in giving way.
VISCOUNT COLVILLE of CULROSS
I did take this point, my Lords, and that is why I went into further detail.
Now I must come on to the Hanratty case. This has been considered many times by successive Home Secretaries. It has been considered twice in Parliament; once on a Motion of (I think) the noble Lord, Lord Brockway, and once on a Motion of this House. Successive Home Secretaries, despite the growing volume, first of all of alibi evidence, and secondly of the increasingly complex, diverse and, I am afraid, not altogether consistent confessions by Mr. Alphon, have still come to the conclusion that there is nothing on which they could properly take the opportunity of reopening this matter by way of public inquiry.
Now again I must deal with some of the technicalities of this. The noble Lord, Lord Foot, if I may say so, went into this in some detail. I am going to digress from some of the problems that my right honourable friend touched upon in the rather short statement. There is no doubt that in this case new evidence is available now that was not available at the trial, although in fact a certain amount of what 1102 I think is popularly thought to be new evidence was available at the trial but was not chosen to be used by the defence, for reasons no doubt best known to themselves. It is not by any means all in this case, and a great deal has happened since; but I do not think it ought to be thought that the whole of the Rhyl alibi evidence which was available at the trial is comprehended in the amount which was actually tendered to the court. There was a great deal more, and some of it was not used. But there was also a good deal which has since been produced. We now have to consider this in the light of the kind of inquiry which might be set up.
This kind of post-trial inquiry would be, as I have said, primarily concerned with new matters which were not known at the time of the trial, and the basis derives from the Home Secretary's responsibility to exercise his prerogative. This is a constitutional matter. It is all very well for the noble Lord, Lord Goodman, to say that Parliament ought to set up a public inquiry, but I suppose that what those who are genuinely concerned in this matter would really like to see at the end of the day is a pardon for Hanratty. I do not think that anybody but the Queen herself, advised by her Ministers, has the prerogative of mercy and can therefore issue that pardon. So inevitably my right honourable friend is saddled, and, to a lesser extent I myself, with answering for this matter.
For that very reason, and to try to satisfy those who wish this matter to be pursued, he can in the exercise of his responsibility for advising the Queen, arrange for inquiries into the facts of the case if it is thought necessary and appropriate, and very occasionally he can appoint a judge or a member of the Bar to consider all the information available, and I think to do so in public. It is however a fairly exceptional procedure and a good deal rarer than is commonly supposed. There have been several such inquiries in capital cases, but with the exception of one, into the case of Timothy Evans, they have all been carried out as a result of urgent information or new material that came forward before the man was executed, in order to enable the Home Secretary to receive new advice for the purposes of recommending a reprieve. Only in the 1103 case of Evans was this done in public after the execution, and that was the Brabin Tribunal which was presided over by Mr. Justice Brabin. It was appointed in the wholly exceptional circumstance that another man living in the same house, Christie, was later discovered to be a multiple murderer and confessed to the murder of Mrs. Evans—a very clear new fact to come about.
The experience of that one inquiry has served to demonstrate very clearly the difficulties of attempting to get at the truth so many years after the event. This is where the noble Lord, Lord Foot, comes very much into it. I would not suppose that one would fail to take account of the sort of evidence that would be likely to come before the inquiry. If it is a matter of the fading recollections of an accident it is quite true that the mind grows dim and the memory not so bright as it used to be; but in this case, an alibi case, we are dealing with fleeting glances of recognition which took place ten years ago. We are doing so in the circumstances where, ever since, there have been people asking questions in the locality, trying to find out about things, showing photographs and generally examining and investigating the whole state of affairs. There is a considerable difference in the ambiance of the evidence one is thinking about there.
But let me revert to what Mr. Justice Brabin found in the way of difficulties in the case of his Tribunal. He said:Stale evidence is often bad evidence. When recollection begins to fail imagination often takes its place and a witness is sometimes unable to distinguish the one from the other. A witness doing his best to tell the truth may, without realising it, be giving evidence from his imagination, but giving it with the same confidence and demeanour that would mark his evidence if it were accurate. There comes a time when recollection almost entirely vanishes and imagination of one witness is competing with that of another in recounting events which both have really forgotten. It can happen that what is spoken about as reality is in the main make-believe.Later he goes on:In this inquiry the events of 1949 have been checked against other evidence and accounts given over 12 years ago. The evidence shows various influences have had an effect on some of those who gave evidence and over the years people have had different motives for seeking to mould general and particular trends of thought. Some of the evidence has been buffeted during that time.1104 It is no use disregarding the practical experience of Mr. Justice Brabin on the previous occasion. I ask your Lordships to consider whether the material which the noble Lord, Lord Foot, specifically referred to, the limited area of the Rhyl alibi (and I appreciate what he said about that), is not peculiarly susceptible to just those difficulties that the judge has spoken about in that passage.
§ LORD FOOT
My Lords, if I may interrupt the noble Viscount, does he not agree that if you appoint a legal authority of distinction, a person familiar with the criminal courts, to conduct the inquiry, possibly with assessors, he is perfectly capable of making his own estimate of the value of any witness who comes before him, and the evidence that that witness gives; and, indeed, is in a very much better position, having the witness before him, seeing him examined and cross-examined, of testing the value of that evidence than the Home Secretary, or the noble Viscount, sitting in the Home Office and reading Mr. Foot's book?
VISCOUNT COLVILLE OF CULROSS
Once more, in trying to deal with this by stages, I have not yet reached the point where we have run into another difficulty. I understand what the noble Lord says about this. The fact remains that we have to remember that, when Mr. Justice Brabin finished that inquiry, he could not, as a result of the problems that I have just described, come to the conclusion beyond reasonable doubt; and the only thing he could do was to come to a conclusion—even in that case—on a balance of probabilities: the civil test rather than the criminal test. This must be a serious consideration to be borne in mind.
Unfortunately, this is not the only difficulty, and this is where I take the matter further. The noble Lord, Lord Foot, is perfectly right: it may be possible, and no doubt would be extremely desirable, to try to define the terms of reference of the inquiry. Unfortunately, I do not think that that is what everybody wants to do. I do not know whether I was right in interpreting the noble Lord, Lord Brockway, but whether or not he thinks that it was Alphon who was responsible, I seem to detect that at any rate the whole of the motive and the story that is implicit in Alphon's confessions appeals to him as being more likely 1105 to be the truth than the theory which has been put forward and which was accepted by the jury. I am not suggesting that he is accusing Alphon; I am saying that he accepts that this is the story which he considers more probable.
§ LORD BROCKWAY
My Lords, the Minister will agree that I have been very careful not to make any remark on those lines in this debate. I would say that the theory which I put forward for the murder was based not so much on Alphon's confessions as on my conversations with all the persons concerned which I described while I spoke.
VISCOUNT COLVILLE OF CULROSS
My Lords, I was careful myself not to impute to the noble Lord any suggestion that he was accusing anybody. I was identifying the theory which in fact happens to be the theory put forward also by Mr. Alphon in one form or another.
I would also suggest that those of your Lordships who have read Mr. Paul Foot's book, and particularly its final words, would find in it an indication that the public inquiry for which Mr. Foot (not the noble Lord, Lord Foot; Mr. Paul Foot) is asking is one which, in effect, would bring Alphon to informal trial. One has only to think of the difficulties that have occurred in some of the Tribunals of Inquiry Act cases, where people have been accused in circumstances where there was not a criminal trial. There was a recent case on the V. & G. inquiry, where there were all sorts of complaints about accusations being made. That was under a Tribunal of Inquiry where the witnesses were capable of being suppœnaed, put on oath, and dealt with generally in the way that they would be dealt with in a court of law. The sort of public inquiry that could he set up in this case would not be susceptible of subpœna of witnesses; the witnesses would not be on oath; there would be no protection for them; they would not be privileged. I should have thought that there was the gravest danger that a public inquiry in this case would be likely to turn into a para-judicial trial. And I am afraid that the person who would be very liable to be tried would be Mr. Alphon. I feel that this is an exceedingly dangerous thing to encourage, and I am very much afraid that this is what would happen.
1106 Since I am talking about the 1921 Act, in case anybody thinks that that would be the right way to proceed, I should add that the Statute is so phrased that it would not be capable of being used in these circumstances, even if both Houses so considered that otherwise it would be a suitable method of handling the whole affair.
§ LORD GOODMAN
My Lords, I apologise for troubling the Minister but I wonder whether I might ask him this question. He raised, validly, the question of a public inquiry in relation to someone who might seemingly be under accusation at the trial. Clearly, that is a highly objectionable course if there is a prospect of a man thereafter being charged. Supposing one accepts that there is no prospect of anyone being charged. How would the position be worse if the inquiry contrived to secure that Hanratty was cleared and then left the position as it was? Why is it then so obnoxious that matters have been raised that reflect upon the possible guilt of somebody else?
VISCOUNT COLVILLE OF CULROSS
My Lords, I should have thought that it was because they reflected upon the possible guilt of someone else who was in no position to defend himself adequately against this.
VISCOUNT COLVILLE OF CULROSS
My Lords, he would not be accused. This is the whole point. The whole procedure would not be a trial of somebody else. It would be an attempt to exonerate Hanratty, which in the process would have the effect of putting somebody else on trial. I am very sorry, but I do not think that this is the right way to handle this matter. I believe it to be a real danger and one which is simply not acceptable.
My Lords, I do not think I ought to go into further details about these matters. Fortunately, noble Lords have not wished to speak about details of these cases very much. I hope that the noble Earl, Lord Arran, understands from what I said earlier why it is that I do not specifically answer his eight questions. I will tell him what the compendious answer is. In the case of, "Why did not Fairfax and Dr. Haler sue for defamation? 1107 the answer is, I do not know; it is not for me to say; it is up to them. In the case of all the other questions, the investigation that would be made in the terms as I put it would only be confined to new evidence, and that would only concern Sargeant Fairfax, Dr. Haler and Mr. Lee, and the policemen who were in charge of issuing the guns and counting the ammunition when they came back; and that is what the inquiry did go into.
THE EARL OF ARRAN
My Lords, I I know that the noble Viscount is a most patient man, and I hope that a patient House will realise that the point I am trying to make here is that evidence suppressed at the time of the trial is in fact new evidence. That is the point I am trying to establish.
VISCOUNT COLVILLE OF CULROSS
I suspect that the noble Earl is now talking, among other things, about medical evidence. Whether or not the defence lawyers, who are quite heftily attacked, as is almost everyone else, by Mr. Yallop in his book, were right in the way they handled their cases is something one cannot go into now. The fact of the matter is that the medical evidence was before Sir David Maxwell-Fyfe, as he then was, including documents from Sir Denis Hill, as he now is, and all the material was before the then Home Secretary when he had to make his truly dreadful decision. I cannot see how that material could go into a public inquiry now. As I say, it was before the Home Secretary at the time.
I think I have answered most of the questions specifically asked of me in the debate. I hope that noble Lords will not think that I have been impatient in dealing with interventions; that is certainly not the impression I want noble Lords to have. While I plainly admit that it is not for me to say whether there will or will not be a public inquiry into either of these cases—
VISCOUNT COLVILLE OF CULROSS
I said that it was for my right honourable friend to make the decision in this case. All I can do is act as the vehicle for the views of your Lordships. I am bound to conclude that I should be very hesitant indeed in letting your Lordships go home to-night thinking that there was 1108 any likelihood of a public inquiry taking place into either of these cases.
§ LORD DAVIES OF LEEK
The noble Lord is concluding on a rather peremptory note. The issue is not whether the noble Lord or his right honourable friend in another place makes a decision in this matter. This is something for Parliament to decide. We want to find a means by which Parliament can make this decision. I would have expected the noble Lord to show more humanity from the point of view of finding a formula by which Parliament can discuss this issue—I am anxious not to raise the temperature of the debate—and reach a majority decision on whether an inquiry should take place
VISCOUNT COLVILLE OF CULROSS
The noble Lord has made the point and I hope that in answering it I shall be answering the last question on this matter, because this is an Unstarred Question. I have been interrupted during my reply on more occasions than I can recall anyone being so interrupted when dealing with an Unstarred Question.
The noble Lord, Lord Davies of Leek, asks whether there is another way of dealing with this matter. It must be apparent that I have put forward some serious practical difficulties, one of convention and constitution and others of practice, practicality and fairness to people who might be involved. The ingenuity of the British is well-known. If noble Lords or right honourable and honourable Members of another place can think of a completely new piece of machinery which would be suitable for dealing with this matter, and they find that it does not suffer significantly from the difficulties from which the present pieces of machinery known to us suffer in this respect, then I am sure that my right honourable friend and the Goverenment would consider it. The trouble is that I do not know what it might be. I have gone through the complete range of those known to me and those who advise me and I have told your Lordships of the difficulties. I assure the House that if new pieces of machinery are found, I will consider them. I cannot say more.