Bentley’s sister had died one year earlier. What comfort was it to her in the last year of her life to know that her brother should never have been hanged, or to die not knowing that at last he was to be exonerated of murder?
In that immediate context, it is especially interesting to note that, in R v Jogee in 2016, the doctrine of joint enterprise in homicide was the subject of a substantial reappraisal by the Supreme Court. The court held that the doctrine had been wrongly interpreted and applied inappropriately in directions to juries for over thirty years. How fortunate it is that no one had been hanged on the basis of joint enterprise as wrongly understood by the lower courts during that period because, of course, capital punishment had already been abolished.
I also remind myself that for some years after 1957 the death penalty (although substantially abolished) was still in force for those, for example, who killed ‘in the course or furtherance of theft’. You may have thought that the words ‘course or furtherance’ were plain English, and brooked of no ambiguity. If you did think that way, you would be wrong. It led to repeated argument in the Court of Criminal Appeal, on which the issue of whether or not the guilty party should hang depended on the study of etymology as much as upon the evidence. The confusion that successive decisions created was a powerful factor in leading ultimately to the total abolition of capital punishment. What did I say about the nuances of language?
As to the deterrence argument, my experience suggests that very few murders are the product of true premeditation. The killer rarely considers the consequences before the fatal act. And – going back to where I started – the terrorist actively seeks martyrdom.
Finally, and irrespective of all the above, I reject the principle of ‘an eye for an eye’. It is a matter for each one of us to examine our consciences and ask whether we find state-authorized killing a justifiable exception to the injunction that ‘Thou shalt not kill’. You know where I stand on that.
The second source of relief was a purely personal one for someone like me, who in those days, if defending, generally did so under the auspices of legal aid. In the early 1960s, the level of legal aid fees was greatly increased. With a wife and burgeoning family now to support, that was very good news for me.
The 1960s passed for me with a rapidly growing and increasingly demanding workload, mostly standing on my own feet, but on many occasions being led by a QC. To listen to the best advocates conducting a case to which I was privy gave me a wealth of experience, and growing confidence.
Two cases of my life as a junior are perhaps worth recall. Their status in my recollection is in part due to their circumstances, but also because I was led in the first by Gilbert Gray QC (‘GG’), and in the second by Peter Taylor QC. They were the two colossi whose advocacy – in utterly different ways – provided my exemplars in my first years as a jury advocate. As I note elsewhere, Peter Taylor ultimately became Lord Chief Justice. That is surely quite enough to serve as a testimonial to his prodigious talents. GG receives his own special mention much later in this memoir, and he is the subject of my first account.
KEITH KITCHING AND GEOFFREY ELLERKER
Bully boys in blue
The defendants were both officers in the Leeds City police – our client, Kitching, a uniformed sergeant; Ellerker a uniformed inspector. Both were stationed at Millgarth Street police station in central Leeds. (Quite separately, Ellerker was to serve a prison sentence for assisting in a cover-up involving a police superintendent who had committed the offence of causing death by dangerous driving.) They were tried before Mr Justice Hinchcliffe and a jury at Leeds, I think in 1970.
The prosecution was led by John Cobb QC. He was an exceptionally able and hard-working Silk, later to be appointed to the High Court, but sadly to die shortly afterwards. Tall, thin and of ascetic demeanour, his written opinions frequently contained the phrase, ‘I have given this matter long and anxious consideration.’ It is perhaps not surprising that in those circumstances he soon became known among his colleagues as ‘long and anxious Cobb’.
I digress. David Oluwale was a Nigerian vagrant who in the late 1960s was well known in Leeds city centre. He slept where he lay, in shop doorways or other such areas as might afford him shelter. He was classed as a dullard, and in 1965 he had been hospitalized for a time after a diagnosis of schizophrenia. He had been before the courts on several occasions for the sort of offences you might expect – drunkenness and breach of the peace. To most citizens he was a nuisance, but one which was tolerated. But not to our client or his co-accused inspector. The evidence showed that they detested him, and took a sadistic pleasure in harassing and humiliating him. If Kitching found him sleeping rough, he would summon Ellerker and the pair would assault him. On two occasions, they took him in a police van and dumped him on the far outskirts of the city. In the last twelve months of his wretched existence Oluwale was arrested five times. In each instance Kitching or Ellerker (or both) were involved in some way. Shortly put, they had it in for him.
On 18 April 1969, shortly after 5 a.m., two uniformed policemen were seen by an early-duty bus conductor in The Calls, a part of Leeds that in those days was semi-derelict. His attention was drawn by the fact that they were apparently chasing another man in the direction of a road called Warehouse Hill. At one end that road was a cul-de-sac, bounded by the River Aire. I am not consciously playing with words when I say that the road was a dead end; it was for David Oluwale.
The compelling inference is that it was he who was fleeing from the two policemen, and that in so doing he fell into the river and was drowned. Three weeks later, his body was recovered from the river some miles downstream. Its condition by then precluded any assessment by the pathologist of whether, when still alive, he had been assaulted in any way.
At the subsequent trial, with characteristic and scrupulous thoroughness John Cobb’s team established that all the police officers on duty in Leeds on that night could say exactly where they were at the time spoken of by the bus conductor – that is to say, all except Kitching and Ellerker.
The Director of Public Prosecutions (DPP) decided, on counsel’s advice, that both men should not only be charged with other offences of assault on Oluwale (and with a related offence, in one instance, of perjury), but that there was sufficient evidence to charge both with manslaughter of the unfortunate man. The basis for that charge lay in the argument that it was they who had chased Oluwale into a place from which they knew he had no escape, and that they recognized that his death in the river was the likely outcome.
It is unnecessary for me to set out the legal or evidential reasoning that led to what followed. Suffice it to say that the judge directed the acquittal of both men on the charge of manslaughter, as well as of perjury. In the end, however, they were both convicted of two offences of assaulting Oluwale in order to occasion him actual bodily harm. Kitching was sentenced to twenty-seven months’ imprisonment; Ellerker to three years.
The case came at a time when public confidence in the city’s police was at a low ebb, and subsequent events showed that the prosecution was a timely and effective deterrent to any further misconduct of this nature. It was also, no doubt, a very early signal to our society that racially engendered prejudice would be rooted out and punished.
On a personal note, it was an education to me to see both Cobb and Gilbert Gray in action for some days, along with a close understanding of the issues. Cobb – angular, meticulous, studied, ruminative and grave; Gray – avuncular, instinctive, colourful and ever the pre-eminent thespian. I learned much from both, and was ever grateful.
In November 1972, again at Leeds, I was led by Peter Taylor QC in what was to be my last major trial