Leading Article: Let him have it, Mr Clarke

THE EXECUTION of Derek Bentley in January 1953 was one of the most deplorable judicial killings of the post-war period. Look first at the facts as accepted by the court. The fatal shooting of a policeman took place in the course of a burglary undertaken by Bentley and his colleague, Christopher Craig. The court assumed (it was never proved) that there had been common purpose and 'an understanding that force would be used to avoid arrest'. Craig, who fired the crucial shot, was, at 16, too young to be executed. Bentley was just old enough to hang.

At the time of the shooting, Bentley - who had a mental age of between 11 and 12 - was already under arrest. The court accepted that he had shouted: 'Let him have it, Chris', and interpreted those words to mean: 'Shoot the policeman]' and not: 'Surrender your weapon'. There has been unease about whether these words were indeed uttered, and at least one policeman has subsequently revised the evidence on the subject that he had given to the court.

Many people, including those who still support capital punishment or who feel that the courts and the Home Secretary of the day, Sir David Maxwell Fyfe, acted within the bounds of legal propriety and the conventions of the day, feel horrified about the circumstances in which this mentally retarded young man was done to death by the state for a murder that he had not himself committed. Yesterday the Home Secretary, Kenneth Clarke, gave voice to this widespread distress, as well as his own opposition to capital punishment. He said: 'I personally agree that Derek Bentley should not have been hanged.' But Mr Clarke added: 'I cannot simply substitute my judgement for that of the then Home Secretary. . . .' Nothing had emerged to establish Derek Bentley's innocence and so there were no grounds for recommending a free pardon. Nor was the Home Secretary willing to order a public inquiry or to refer the conviction to the Court of Appeal.

Mr Clarke is a populist politician who is not usually inhibited by the bureaucratic timidity of the department in which he is serving. In this case, however, he appears to have accepted a brief that contrives to be at the same time inflexible and evasive. It states (para 5) that successive home secretaries 'have taken the view' that it would not be right to grant a pardon unless the person concerned was 'morally and technically innocent'. Para 6 notes that 'it has been the policy of successive home secretaries that it would not normally be right to exercise this power of reference' (to the Court of Appeal) unless there was new evidence or some other consideration of substance.

The fact that Mr Clarke's predecessors have 'taken a view' and adopted policies about the 'normal' course of events should have been weighed in the balance by the Home Secretary but should not have been decisive. Ministers are bound by the law of the land and the policies of their government. They are not bound by positions adopted by their predecessors. Mr Clarke indicated yesterday that he believed the execution of Derek Bentley was morally objectionable. He should therefore have ignored his advisers, exercised his ministerial discretion and either recommended a pardon or instituted some form of public review.