16 James Hanratty: a Vindicatory View

OUTSIDE THE ARCHED courtroom at Bedford Special Assizes on 22 February 1962 I stood looking admiringly at the statue of John Howard which stands in the town square opposite the public building.

James Hanratty was sentenced to death; his appeal was rejected and, amidst a growing campaign of a miscarriage of justice, the Home Secretary, Mr RA Butler, refused a request for a reprieve. We were still a few years away from the abolition of the death penalty for murder. Before that happened, in late 1965, I had the temerity to put pen to paper. In 1963 I wrote a Penguin Special called The A6 Murder: R v James Hanratty: The Semblance of Truth. It was a mod­est attempt to explain the English criminal justice system that had produced what I thought was the unjust verdict of guilt on the basis of the admissible evidence heard in the courtroom. The jury should not have convicted him; and he should certainly have been spared the hangman’s noose. But I concluded then that the European sys­tems of justice at that time had been designed to unravel the truth of the criminal event. Unlike the English system they were designed not to prove the prosecution’s case, but to seek the truth of what

happened.

That book inspired me to develop throughout my professional career an attitude of comparative study, and led me to become a critic of the jury system. Students of criminal law and procedure in the law schools of the 1960s gave the subject some sensible judg­ment and academic discussion. As far as I am aware, most of the public comment came from journalistic sources, and was actively hostile. If student awareness of the book went unnoticed in publica­tion terms, it received widespread review from the contemporary journals and noted commentators. It received a firm academic rebuke from a leading member of the Institute of Criminology at Cambridge. In a lengthy review in New Society of 17 January 1963, the late Professor Richard F Sparks wrote that ‘a rather turgid account of that trial and the gruesome events leading up to it is not very impressive’. For the rest there was a resounding critique about its handling of the case (or its inattentiveness to past mental behav­iour of ‘the psychopath and the Court’). Its adverse comments at least served to promote future controversy about the case - at least until 2002. Throughout the ensuing three decades the publicity was mostly aimed at convincing the readers of the media and their authorship that there had been a serious miscarriage of justice. I took little or no part in these public utterances, save for the fact that I was interviewed from time to time on either radio or TV.

I should explain at this point what I had imbibed as my experi­ence in 1961/2, and occasionally thereafter so far as it is relevant. During the latter part of the 1950s I had become the legal corre­spondent of first, the Guardian (still then the Manchester Guardian) and then the Observer.

The Hanratty trial covered in my book was largely academic and explanatory: the subtitle tells everything - ‘the semblance of truth’. Ever since the nineteenth century the English Anglo-Saxon jury system (strictly speaking, trial by judge and 12 laymen appointed electorally) had evolved into a modern system, recognised as an acceptable mode of fair trial (in public, independently and impar­tially of any outside influence, by Article 6 of the European Convention on Human Rights and Fundamental Freedoms of 1950. Twelve states of Western Europe, Scandinavia and Turkey signed the Convention.) What contrasted the British method from that in Europe? Basically, the principal approach. For whatever reason, Europe had sought to seek the truth of the event through an investi­gation, conducted by an examining magistrate (juge d’instruction) to determine which suspect(s) should be tried, at which time the suspect(s) would invariably be the first to give evidence before the court of trial - usually a mixed tribunal of professionals and jury, which together rendered the verdict.

If R v Hanratty was not one of the most significant trials in our legal his­tory, it raised, as I have tried to show, a large number of general ques­tions about the way in which we deal with those who are accused of crime. In particular, the judicial killing of a youth, certified as a mental defective with a long history of mental unbalance (not one word of which was heard at the trial), makes cruelly clear that the English crimi­nal process is concerned not with the truth about the crime, but solely with the assessment of criminal responsibility. Indeed, the trial system, which is the instrument of that assessment, is contrived in such a way as to reduce to a minimum one's knowledge of the crime; and in Hanratty's case, as I have tried to make clear, this effect was most pronounced.

Justice is not merely a process devised by lawyers for assessing the guilt or innocence of an accused. Justice is a process which allows all those concerned with the administration of the criminal law, and even those interested in society's attitude towards crime and its criminals, to see the particular malaise in society that produced the crime. Research into the causes of crime - it seems a blindingly obvious statement - should find its most fruitful material from the administration of criminal justice.

There was one feature of the Hanratty case that made it unusual, and affected distinctly the reason why some of us thought he com­mitted the crimes, but was convicted by the jury on inadmissible evidence. The first concerned a valuable piece of evidence. During the period after the criminal event, James Hanratty had stayed in a boarding house in North London; on one occasion he had left a pair of distinctive gloves that bore a close resemblance to those described, not altogether satisfactorily, by Valerie Storie, when she was the victim of rape by the killer of Michael Gregsten in a car in a Berkshire cornfield. For some reason, that piece of evidence was uncovered by the police only during the trial. After the defence had given evi­dence, the prosecution sought to adduce that material as rebutting evidence. Mr Justice Gorman, displaying a fondness for the admis­sibility of evidential material, rejected the prosecution's plea; a cir­cumstantial piece of evidence was excluded from the trial.

The media and others attacked me persistently throughout the 1960s and onwards. The culmination was a considerable tome (approximately 450 pages) by Mr Bob Woffinden in 1997. Throughout three decades, the campaign to dissociate James Hanratty from com­plicity in the crime of 1961 did not desist. Paul Foot and Woffinden, in particular, disliked my reasoning for concluding that, although convicted wrongly on the admissible evidence, Hanratty was by strong implication guilty of the crime. Their unremitting advocacy, bolstered by political activity, was abruptly halted by an official requirement for the exhumation of Hanratty's body, and a further reference to the Court of Appeal to give a direction, among others, whether the admissibility of fresh evidence of the new DNA mate­rial should be upheld as being ‘safe'.

The matter came before the Court in April 2002 before the Lord Chief Justice (Lord Woolf), Lord Justice Mantell and Lord Justice

² L Blom-Cooper, The A6 Murder (Harmondsworth, Penguin Books, 1963) 132-33.

Leveson. The Court admitted the fresh evidence. The issue was whether the DNA material, after all these years, could be taken as conclusive evidence that James Hanratty was the murderer and rapist. Counsel for the appellant accepted that if the DNA material was found to be uncontaminated, the submission, standing alone, was certain proof of James Hanratty’s guilt. They held that it was uncontaminated. The conclusion of informed commentators 40 years ago had been proved accurate. The only argument remaining was the issue of contamination of the DNA. Bob Woffinden and his colleagues persisted, somewhat unrealistically, that the Court of Appeal on 10 May 2002 got it wrong.

The long saga of the Hanratty case has been closed. Yet what, if anything, has been learnt from this never-ending campaign to insin­uate yet another miscarriage of justice? Apart from intrinsic factors in the instant case, it is not without significance that it took place in 1962, at the height of the public controversy over capital punish­ment, still then three years from abolition by Parliament. In the con­text it is noteworthy that there were, professionally at least, some worries about the propriety of the jury’s verdict of guilt. Before considering the case in its public context, the trial, the verdict, the trial judge’s approach, the professional reaction and the appellate process deserve some after-thoughts.

Many legal figures thought that the trial judge had been disposed favourably to the defence, and was even helpful to the defence in the course of the trial. Generally speaking, commentators consid­ered that the system of trial by jury may have come to the right result, but that, evidentially speaking, the verdict was insecure. It was certainly the view of the lawyers engaged in the case. Counsel for the prosecution was Mr Graham Swanwick and his junior Mr Geoffrey Lane, then on the point of becoming a Queen’s Counsel (eventually progressing to become Lord Chief Justice in 1980). Geoffrey Lane was a personal friend of mine, with whom I discussed the Hanratty case from time to time. One incident, during the Saturday evening of 17 February 1962 after a retirement of some little time, will suffice to tell the tale.

When the jury returned from its deliberations in the early even­ing, to ask for further guidance on the standard of proof, and received a traditional direction, Geoffrey Lane told me personally that at that moment his doubts about a conviction were resolved. He thought it, rightly indicated a jury acquittal. He did not wait for the opposite result that, surprisingly, came later. He proceeded to endorse his brief (for the non-professional, that means that his written instructions to appear as counsel were marked by him indi­cating on the document the result of the prosecution). The simple fact that junior prosecuting counsel should conclude a likely acquit­tal was reflective of a thoroughly professional view of all the evi­dence entrusted to the jurors (in fact, since day one, only 11 of them; one juror fell sick at the outset; this happened at a time before juries could, after a time limit, enter a majority (10-2) verdict).

The classic statement is that the appeal judges are not there to try the case where there was evidence proper to be left to the jury upon which the jurors could come to the conclusion at which they arrived. If there is evidence on both sides, and it is impossible to say that the verdict is one which the jury could not properly have arrived at, that is that. In short, the appeal court is not a court of appeal; the verdict of the jury is theirs and theirs alone. It is not reviewable. Did Hanratty fit the bill? The fact that others, fully informed, thought otherwise is neither here nor there. The fact­finder is exclusively the inarticulate, monosyllabic jury. The appeal judges, presided over by Lord Parker CJ, could find no reason to interfere with the jury’s decision. James Hanratty was executed on 4 April 1962. But should he have been reprieved by the exercise of the Royal Prerogative? A ‘lurking doubt’ about the trial may not be enough for the judiciary. But what about a Home Secretary? Since abolition in 1965, the prerogative power is only of historical inter­est in the process of the penal system. But occurring during the campaign for abolition of the death penalty, it is worth some thought.

RA Butler had become Home Secretary in 1957 and there was a suspicion, at least in liberal circles, that he was a secret abolitionist, but his innate moderation led him to independent judgment, although he had been a party to the retention of capital murders under the Homicide Act 1957. The exercise of the reprieve power was, moreover, for him a profound constitutional responsibility. For 19 months no executions had taken place, and he adopted a stern task, probably in isolation of the contemporary debates on abolition. According to his biographer, Anthony Howard, Butler concluded that ‘the law must take its course’. Howard added that ‘the decision did not spare him some severe journalistic criticism but, perhaps because it coincided with the end of the parliamentary session, it did not provoke any major political storm.’^[180]

At that time I was deeply involved in the campaign for the aboli­tion of capital punishment, and I do not recall that the Hanratty case aroused much of an interest in the campaign. Much more was focused on the cases of Ruth Ellis and Timothy Evans before the Homicide Act of 1957, and the consequences of that flawed piece of legislation. The activities of the early 1960s in the abolition campaign are relayed in a separate chapter. For this chapter, my early involvement in the Hanratty case tells its own intrinsic tale of disputed miscarriages of justice.

My conclusion is that, in the context of a criminal trial, the considered verdict of those educated and training in the law was definitively trumped by the decision-making of unqualified jurors. Was that the expectation in 1950 of the architects of Article 6 of the European Convention on Human Rights when describing a ‘fair trial’ before an independent and impartial tribunal? I think not. The authors of contemporary civil liberties in the legal process, deter­mining both civil and criminal obligations, preferred professional­ism to populism.