• 冠詞病毒|戴啟思
  • 2020-01-28    


A Fatal Ambiguity

In Croydon Cemetery in South London, there is a headstone with the words 'A Victim of British Justice'. The inscription could equally have said 'A Victim of the Unwitting Use of the Indefinite Article in the English Language.'

The grave is that of Derek Bentley who was hanged in 1953 for the murder of a policeman. He was 19 in 1952 and of below-average intelligence. He was reckoned to have the IQ of a 10-year-old and the reading ability of a 4-year-old.

Bentley had the bad luck to fall with the company of a more intelligent and street-wise teenager, Christoper Craig, who was only 16 in 1952. They set out one November evening of that year to break into a warehouse. They tried to enter by way of a skylight on the roof of the building.

Police officers arrived on the scene. One officer arrested Bentley. Another tried to persuade Craig to give himself up because there was no way out for him. Craig brandished a firearm to keep the police officers at a distance. The conversations with Craig went on for a while. Bentley joined in. He shouted out to Craig, 'Let him have it, Chris!' after a police officer asked Craig to put down the gun. Craig fired the weapon and mortally wounded a police officer.

The law was that if two or more persons embarked on a joint criminal enterprise- burglary in this case-each participant might be responsible for a crime committed by the other even though the crime may not have been contemplated by the other.

Because of this rule, the dim-witted Bentley and the brighter Craig could both be convicted of capital murder. However, because Bentley was over the age of 18, he could hang for the offence while Craig, 16 years old, could only be sentenced to an indefinite term of imprisonment.

Bentley's best defence to the charge was to say that his involvement in the offence came to an end when he was arrested and restrained by a police officer. This arrest was, after all, a full quarter of an hour before the fatal shooting.

However, even under physical restraint, Bentley could still encourage Craig to commit an offence and so be liable for it himself. The critical question for the jury was what did Bentley mean when he said 'Let him have it, Chris!' Did he mean for Craig to shoot the police officer or did he mean that Craig should surrender the firearm as if he had said 'Let him have the gun, Chris!'

Now, all things being equal, I think that you might give Bentley the benefit of the doubt. How could you be sure that the words used had only that fatal meaning?

What tilted the balance against Bentley was a police statement. In those days, there were no audio and video recordings of police interviews. You could insist on writing the statement yourself, but most people were content to let police officers do the work of transcribing what you said. Bentley, having the literacy skills of a small child, would not have been in a position to take control of the dictation process. He would not have been aware of nuances in language creeping into the transcribing process that modified the meaning of what appeared to be a simple sentence.

The statement dealt with Bentley's knowledge about the gun. It was, of course, essential for the police to establish whether Bentley had known that Craig had a weapon before he set out with him to break into the warehouse.

Bentley denied knowing about the gun beforehand. However, when it came to describing his state of mind when he knew that Craig was armed when the police officer was calling out that he should surrender it, Bentley's statement said, 'I did not know he was going to use the gun'.

What did Bentley mean really by these words? 'Was it: 'I did not know that he was going to use a gun which I now know all about because I know the whole story now' or did he mean: 'I did not know that he was going to use the gun which I knew he had with him that evening before we set out'.

Bentley could have meant either. The police officer recording his words might have noticed the ambiguity if these were Bentley's exact words.

If he had seen the difficulty but decided to do nothing to clear it up, then he may have caused a grave injustice. However, recording words spoken by another is always contextual and can be influenced by preconceptions. The police officer may have let the sentence go by because he was unconsciously predisposed to suppose Bentley had known about the gun all along. After all, Craig had murdered a colleague. Perhaps he wrote down a slightly different utterance from Bentley's words.

There was an argument between defence counsel and prosecuting counsel about the significance of the words 'the gun'. Still, the words went before the jury as evidence that it could use to support a guilty verdict which was the verdict returned by the jury. Bentley hanged on 28 January 1953 but Craig, also found guilty of murdering a police officer, was sentenced to an indefinite prison term which ended in 1963 when he was released.

The British public was uncomfortable with the execution of a mentally challenged teenager for a shooting that occurred when he was under restraint. It was a surprise to many that the Home Secretary did not commute the sentence of death to a life term.

Bentley's family campaigned for the reversal of the verdict. His parents did until they died in the 1970s. After that, Bentley's sister lobbied hard for a review of the case.

She was fortunate that in a select body had been established in 1997 to look into historical cases where a miscarriage of justice might have occurred. The Criminal Cases Review Commission can thoroughly explore a conviction long after the time for appeals had ended and, if it believes that there has been a miscarriage of justice, refer the matter to the Court of Appeal for a judicial determination of the issue. (No such safety net body exists in Hong Kong.)

Bentley's case was tailor-made for the Criminal Cases Review Commission. Just over a year after the body had started working, it sent Bentley's case to the Court of Appeal. It overturned the conviction of Bentley.

The Court of Appeal allowed the posthumous appeal. It did so principally because the trial judge had not told the jury in sufficiently clear terms that it was open to them to find that Bentley had given up on the joint plan to burgle the warehouse soon after he had been arrested and restrained.

The Court of Appeal also said that it had been fortified in its conclusion by hearing evidence from linguistic experts. This kind of evidence had not been available in 1952. The experts analysed the statement said to be the exact words of Bentley and pointed out that it contained markers that were redolent of police usage and that the supposedly spontaneous statement was the product of police questioning and prompting that was predisposed to a particular narrative. The language used in the statement contrasted greatly to the way Bentley gave evidence in court.

The lesson to take away from Bentley's case is people trying to make a record of what is said to them do not always record words entirely accurately, even when they believe that they are doing so. This human failing can have deadly consequences.

About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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