Despite admitting that he would have granted a reprieve if he had been in office 40 years ago, Mr Clarke 'wrongly' refused a pardon solely on the grounds that Bentley's innocence could not be proven.
David Pannick QC, representing Bentley's sister, Iris, in a judicial review of Mr Clarke's decision, told Lord Justice Watkins, Lord Justice Neill and Mr Justice Tucker that Mr Clarke had 'fettered his discretion, failed to have regard to relevant factors and had regard to irrelevant factors' because, legally, a person's innocence was not a prerequisite for granting a pardon.
Bentley was hanged in January 1953 for the murder of Constable Sydney Miles. His accomplice, Christopher Craig, then 16, fired the fatal shot after Bentley - who was already under arrest - allegedly shouted: 'Let him have it.'
The ambiguity of those words has haunted the legal establishment for 40 years and, taken with Bentley's age, just 19, and the fact that he was an epileptic with a mental age of 11 to 12, has led to widespread insistence that he should never have been hanged. Craig, who was too young for the death penalty, was released in 1963.
Yesterday, Mr Pannick argued that 'granting a free pardon would not entail recognition that Derek Bentley was morally and technically innocent'.
He cited a number of cases dating back 200 years but laid particular emphasis on a 1985 case in which Lord Justice Watkins had stated that: 'The effect of a free pardon is such as, in the words of the pardon itself, to remove from the subject of the pardon, 'all pains, penalties and punishments whatsoever', but not to eliminate the conviction itself.'
Rejecting Mr Pannick's argument that Mr Clarke had been wrongly 'hidebound' by Home Office policy, Stephen Richards, for the Home Secretary, said the effect of a free pardon was to 'clear the person of all infamy and all the consequences of the offence . . . to make him a new man and give him new capacity and credit'.
Had Mr Clarke granted a free pardon, the public would have perceived that Bentley was innocent, he said.
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