The Standards of Fair Play in Trial - Term Paper Example

Topic: A representation of Derek Bentley in miscarriage of justice 1. Introduction: This paper maintains that there exists true justice, that is tested by acceptability of its results by the people governed, who exercises the residual political power. Miscarriage of justice happened because of failure to observe the standards of fair play in trial. These thesis statements will be tested in the case of Derek Bentley who got a post-humous pardon after 45 years. 2. Analysis and Discussion 2.1 Facts of the case: The Times Law Report (1998) reported the facts of the case as follows: “On November 2, 1952, Christopher Craig, aged 16, armed with a knife, a revolver and ammunition, and Bentley, aged 19, who had knife and a knuckle-duster, went on a warehouse-breaking expedition. At about 9.15pm they were observed climbing into warehouse premises in Croydon and the police were called, arriving at the site at about 9.25pm.” The report also stated that after finding that the defendants (Craig and Bentley) had climbed on to the roof, DC Fairfax and PC Harrison, pursued them there and a third officer followed. It added that DC Fairfax arrested Bentley who was then, on the three officers' evidence, heard to shout: "Let him have it, Chris". Afterwards, it said that Craig fired at DC Fairfax, slightly injuring him and then Bentley broke away, but that officer grabbed him and removed the knife and knuckle-duster which he found in Bentley's pockets. The report further narrated: “Thereafter, Bentley remained wholly docile beside the officer, offering no incitement and, on the police evidence, making various remarks which showed concern for his and their safety. Craig continued firing, and shot dead a fourth officer, PC Miles, as that officer reached the roof, probably at a little before 9.57pm.” Furthermore, it said that on the way to the police station Bentley was alleged to have said "I knew he had a gun but I didn't think he'd use it" and his statement under caution recorded: "I did not know Chris had one until he shot". The Times Law Report (1998) also presented that following a two-day trial, Bentley was convicted with the jury's recommendation to mercy. Thus, the report said that Bentley was sentenced to death, the only sentence then permitted, his appeal was dismissed on January 13, 1953 and he was executed on January 28.1953 2.1 The decision to quashed the conviction reverse the decision and the grant of posthumous pardon Campbell, (1998), said: “The Lord Chief Justice, Lord Bingham, sitting with Lord Justice Kennedy and Mr. Justice Collins, quashed the conviction in a 52-page judgment which severely criticized his predecessor Lord Goddard, ruled that the conviction had been unsafe because of the judge's intemperate summing-up and expressed regret that the mistrial had not been spotted soon enough to save Bentley.” BBC News (1998) said: “ The court also granted a full posthumous pardon to Mr. Bentley who was convicted of murdering the policeman in a failed burglary in 1952, although it was his accomplice who fired the gun that killed him.” 2.3 The reason of the court in reviewing and reversing the 1953 decision. Court decisions normally have finalities, which mean that after a lapse of time a decision is made, there is no more right of appeal and therefore the judgement whether imprisonment or execution must be carried out. This is best illustrated in the date of execution of Derek Bentley. Postponements could not be granted then. However, pursuant to justice the UK Court of Appeals entertained a review of Bentley’s case. In relation to taking the review, The Times Law Report (1998) said: THE LORD CHIEF JUSTICE, giving the judgment of the court, said that rarely had the court been required to review the safety of a conviction recorded over 45 years earlier. In undertaking that task it concluded: 1 It had to apply the substantive law of murder as applicable at the time, disregarding the abolition of constructive malice and the introduction of the defence of diminished responsibility by the Homicide Act 1957. 2 The liability of a party to a joint enterprise had to be determined according to the common law as now understood. 3 The conduct of the trial and the direction of the jury had to be judged according to the standards which the court would now apply in any other appeal under section 1 of the Criminal Appeal Act 1968. 4 The safety of the conviction had to be judged according to the standards which the court would now apply in any other appeal under section 1 of the 1968 Act. Laws have their validity for period of time until repeal or appended hence as a general rule present laws cannot work back in time to have retroactive effect except if favourable to the accused. To give validity to this view, The Times Law Report (1998) quoted THE LORD CHIEF JUSTICE, giving the judgment of the court, saying: “Where between conviction and appeal there had been significant changes in the common law, as opposed to changes effected by statute, or in standards of fairness, the approach indicated required the court to apply legal rules and procedural criteria which were not and could not reasonably have been applied at the time. That could cause difficulty in some cases but not in the present case. Where the court exercised its power to receive new evidence it inevitably reviewed a case different from that presented to the judge and jury at trial.” 2.4. The errors that was committed Mr Edward Fitzgerald QC, representing Bentley several pointed errors in previous trial or, some of which the 1998 Court of Appeal agreed with and are discussed below. 1. 1 Standard of proof - The Times Law Report (1998) said that the judge had not given a direction on the standard of proof, and in so far as any direction was given, it was inadequate and the summing-up was thereby fundamentally flawed. The same report said that in cases contemporary with the trial, juries had been told that they had to be satisfied of the defendant's guilt beyond reasonable doubt, or so that they were sure of guilt, before convicting. It also said that since then the courts had consistently insisted on the need for a clear direction to the jury on the standard of proof, and held that a mere reference to being "satisfied" without reference to being sure, or satisfied beyond reasonable doubt was inadequate. The reviewing Court of Appeal upheld that the ground for appeal was good because of failure of the jury to receive a direction from the trial judge on the standard of proof since the case was a capital one since the charge was punishable by death. 2. 2 Burden of proof - The report said that trial judge had failed to give the jury a clear direction on the burden of proof and had in fact reversed it by suggesting that there was an onus lying on the defendants. It further said that Mr Fitzgerald's submission was based on the trial judge's suggesting that the prosecution had given abundant evidence for a case calling for an answer and that a case had been established against the defendants, then continuing, in effect, to consider whether the evidence of the defendants was such as to rebut that case. …The court accepted that submission. The jury had to be clearly and unambiguously instructed that the burden of proving the accused's guilt lay only on the Crown, that ordinarily there was no burden on the accused to prove anything and that if, on reviewing all the evidence the jury were unsure of or left in any reasonable doubt as to the accused's guilt that doubt had to be resolved in the accused's favour. The same report said that the direction here could not be regarded as satisfactory and that the jury could well have been left with the impression that the case against Bentley was proved and that they should convict him unless he had satisfied them of his innocence. (The Times Law Report, 1998) (Paraphrasing made) 3 Observations on the treatment of police evidence Mr Fitzgerald criticised, as obviously prejudicial and unfair to Bentley, passages in the summing up where the trial judge had said, among others: “Against that denial, which of course is the denial of a man in grievous peril, you will consider the evidence of the three police officers who have sworn to you positively that those words were said.” (The Times Law Report, 1998) The Times Law Report (1998) said: “His Lordship said that in recent years the courts had deprecated judicial comments which suggested that police officers would be professionally ruined if a defendant was acquitted or which placed police officers in a different position from other witnesses.” Further it said: “There was an obvious risk of injustice if a jury were invited to approach the evidence on the assumption that police officers, because they were such, were likely to be accurate and reliable witnesses and defendants, because they were such, likely to be inaccurate and unreliable.” The reviewing court said that it was the pitfall into which the trial judge, for all his vast experience and authority, fell and that his direction here could not be supported. : The Times Law Report (1998) (Paraphrasing made) 2.5 Comparison of the law in 1952 from now If one would want to compare the 1952 UK criminal law to that of present, there have been changes that have been made as result of previous experience of miscarriage of justice. The best proof is the found on the bases used by the Court of Appeal on the review of Bentley’s case. These changes include the abolition of constructive malice and the introduction of the defence of diminished responsibility by the Homicide Act 1957, the new meaning of common law as now understood, the right of appeal and the standards of conviction under section 1 of the Criminal Appeal Act 1968. There are of course other changes but for purposes of this paper only the applied new rules are discussed here. 2.6 What is justice? Why is it important? Justice is the end while law is the means. (Georgetown University Law Center, 2006) Every deserve justice whether it is criminal or civil. As to what each of this means is answered in the next section 2.7 Civil v. criminal justice Civil justice entails the compliance with civil liability or obligations that may be created under different source, which may include contract, torts, and the law. Criminal justice entails the meeting right and commensurate punishment that was laid down by the law. The law however in both cases must comply with due process requirements. There are two types of due process. The first one is one is the substantive due process while the second one is the procedural due process. The latter involves basically the right to right to be heard before condemnation. The procedural right under criminal justice therefore emanating from procedural due process includes the right to fair trial, the presumption of innocence and right to appeal based in valid grounds. The case of Derek Bentley is a representation of a miscarriage of criminal justice since there seems to be a violation of some of his rights under the due process clause. He however must be also entitled to civil justice, which includes his lost economic opportunities when he could have been alive. The persons who have misused their authority and power may be held civilly liable. 2. 8. Could the error in Derek Bentley’s case still happen? Yes, if people will not guard their rights because as residual of power their will also be the responsibility since the price of power is responsibility. 2.9 Are the positive effects on exposing past miscarriage of justice? Criminal laws are put into effect to accomplish a purpose which is part of human’s quest for the truth. The reality of news laws being introduced and amending previous ones are proofs of an unending quest for truth. One resolution that has come from the case of Bentley is the issue on death penalty. Here Derek died first to obtain justice. Why the need to be hanged when eventually one will be proven innocent. Amnesty International (n.d.) reported that on July, 30, 1998 the Court of Appeal quashed the conviction which led to the execution in 1952 of Derek Bentley, a 19-year-old epileptic with a mental age of 11, for a crime he did not commit. In further said that public disquiet over his case had been a factor in the decision to abolish the death penalty in the 1960s. Conclusion: Laws are enacted because there was a need to have justice. The object of the law then is justice. Justice is the birthright of every British citizen and each must have it no matter may be the cost. In the attainment of the same however, human being are part of institutions for their implementation. In the field of criminal law (Fletcher, 2000), crimes must be punished and the offender must get what he rightly deserved under the law. But prior to any conviction, the accused must be accorded his rights under the law which includes the right to presumption of innocence, hence it is the burden of the prosecution to prove; the right to fair hearing which should include the cold neutrality of a judge and the jury which should be fairly appraised and informed by the judge as the necessity of looking every case that comes into their hands with partiality to help them in their decision making. Human beings who are given the power under human government to attain human justice include those of the prosecution people, the judges and the jury, the Home secretary who has the power to recommend to not recommend pardon to the Crown and of course the Crown which exercises power over its people. These people of course sometimes err on the basis on some bias in favour of preconceived biases, by ignorance or for the sake may of just having to given to public outcry or simply because they are just emotionally attuned to what their decisions maybe. Justice however must attain its end of promoting peace, prosperity and happiness for people. In the case of Derek Bentley, the quest for justice was a long span of time to obtain a quashing conviction, after almost half a century. In this case we have seen that there exists a true justice, the triumph of which may take time to come. It is said that justice delayed is justice denied but would seem that no matter how delayed, even after death or 45 years after, justice could still be sweet. Bibliography: 1. Amnesty International, (n.d.), International Criminal Court Excludes Death Penalty, {www document} URL http://web.amnesty.org/library/index/engACT530041998?open&of=THEMES/DEATH+PENALTY, Accessed June 11, 2006 2. BBC News (30 July 1998), Bentley family can demand inquiry, {www document} URL http://www.innocent.org.uk/cases/derekbentley/index.html Accessed June 11, 2006 3. Campbell, (1998), The Guardian Unlimited, Justice at last, 45 years too late, {www document} URL {www document} URL http://www.innocent.org.uk/cases/derekbentley/index.html Accessed June 11, 2006 4. Fletcher, G (2000) ;Rethinking Criminal Law ; Oxford University Press 5. Georgetown University Law Center (2006), 2006 Georgetown Law Center Commencement Ceremony, Media Advisory, {www document}http://www.law.georgetown.edu/news/releases/may.12.2006.html, Accessed June 11, 2006. 6. The Times Law Report (31 July 1998), Bentley trial unfair through flawed summing-up, {www document} URL http://www.innocent.org.uk/cases/derekbentley/index.html Accessed June 11, 2006 Read More