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Offline mike tesko

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R V JEREMY BAMBER

Neutral Citation Number: [2002] EWCA Crim 2912 Case No: 20011745 S1

IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) REFERENCE BY THE CRIMINAL CASE REVIEW COMMISSION UNDER SECTION 9 OF THE CRIMINAL APPEAL ACT 1995

Royal Courts of Justice Strand, London, WC2A 2LL 12th December 2002

B e f o r e :

LORD JUSTICE KAY MR JUSTICE WRIGHT and MR JUSTICE HENRIQUES ____________________ Between: R Respondent - and -

JEREMY NEVILL BAMBER Appellant

____________________

Mr M. Turner QC and Mr M Duck instructed for the Appellant Mr Victor Temple QC, Mr J Laidlaw and Ms A. Darlow instructed for the Respondent Hearing dates : 17th October 2002 to 1st November 2002 ____________________

HTML VERSION OF JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS) ____________________

Crown Copyright ©

Lord Justice Kay : 1. On 28 October 1986 Jeremy Nevill Bamber was convicted of 5 counts of murder by a majority of 10-2 following a 19 day trial in the Crown Court at Chelmsford before Drake J and a jury. He was sentenced to life imprisonment with a recommendation that he serve a minimum of 25 years.

2. Following his trial he sought leave to appeal against conviction. His application was refused on the papers by the single judge but was renewed to the full court. On 20 March 1989 the full court presided over by the Lord Chief Justice, Lord Lane, heard his renewed application for leave. The court dismissed his application.

3. The case comes back before this court following a reference by the Criminal Case Review Commission ("the CCRC") under Section 9 of the Criminal Appeal Act 1995. As we shall explain the reference came about solely because of fresh scientific evidence. However, once the reference has been made, under the legislation as it presently stands, it is open to those advising the appellant to take any point that they wish. That is so whether the other point is related to the initial reference point or not and there is no requirement to obtain the leave of the court to pursue a particular ground as there would be on any other form of appeal against conviction. Those representing the appellant have availed themselves of this opportunity and 16 grounds of appeal have been raised before the Court, although 1 has not been pursued at the hearing.

4. The case, since it involved the killing of five members of the same family allegedly by a sixth member of the family, not unnaturally attracted considerable media attention. As a result the basic facts may well be recalled by many who will read this judgment or hear of it. It is nonetheless important that we start by setting out in some detail the facts established by the evidence and the cases for both the prosecution and the defence.

5. The killings occurred in the early hours of 7 August 1985. All five of those who died met their deaths from gunshot wounds. They were the appellant's parents, Ralph Nevill Bamber and June Bamber, his sister, Sheila Caffell, and his sister's 6 year old twin sons, Nicholas and Daniel Caffell. There was no dispute at trial that four of the five had been murdered. In respect of the fifth, Sheila Caffell, there was an issue, which lay at the very heart of the case, as to whether she had been murdered as the prosecution alleged or whether she had taken her own life as the defence contended.

6. Unusually in a case of this kind, it was accepted at trial that there were only two possible explanations for the dreadful events of that night. The first, as alleged by the prosecution was that the appellant had killed all five members of his family, shooting them with a .22 rifle with the probable motive of inheriting the whole of the family estate. The second, the defence case, was that Sheila Caffell, who had a history of mental illness, had murdered her parents and her two sons with the rifle, and had then turned the gun upon herself in an act of suicide. The view realistically accepted by all at trial was that the facts that were common ground enabled any other possibility to be ruled out.

7. The police were first alerted that something out of the ordinary had occurred when they received a telephone call from the appellant. The call was logged at 3.36 a.m. but there was evidence that made clear that it must have been at least 10 minutes earlier. The caller was the appellant and having given his name and address he said:

"You've got to help me. My father has rang me and said "Please come over. Your sister has gone crazy and has got the gun." Then the line went dead."

He went on to say that his sister had a history of psychiatric illness and he confirmed that there were guns at his father's house, which was White House Farm, Tolleshunt D'Arcy in Essex. The telephonist contacted the Police Information Room and a police car was despatched to the father's address. The appellant was asked to meet the police there. 8. When the police attended at the farm, they were joined by the appellant. There was no sound from the farm save for the barking of a dog and fearing that they might be in a hostage situation the police decided to wait until daylight. At about 7.45 a.m., armed officers entered the farm and found all 5 occupants dead from gunshot wounds. Mr. Bamber lay dead in the kitchen, his wife was dead on the floor in her bedroom, the boys were dead in their bed and Sheila Caffell was lying on the floor of the same room as her mother. Across her chest and pointing up at her neck, through which the wounds that had killed her had been fired, was the rifle used to shoot all five members of the family. Beside her body lay a Bible. The scene certainly gave the appearance that Sheila Caffell had shot herself, and the likelihood that this was the case was reinforced by information given to the police by the appellant.

9. A police inquiry into the matter was at once initiated and it is clear that the senior police officers involved, and to some extent the pathologist who attended, readily accepted at that stage that they were dealing with five deaths for which Sheila Caffell was responsible. However there seem to have been some junior officers, who from an early stage believed that everything did not add up. This view was soon echoed by a number of members of the wider family. It was not though until early September that the real possibility that someone else might have killed all five was properly addressed and there was a change in the senior investigating officer. The appellant's ex-girlfriend then came forward and gave information to the police. This caused the focus of attention to move to the appellant and another said to be connected to him. Further inquiries were made and as a result the appellant was charged with the five murders.

10. The rather unusual history of the investigation as recounted is important to appreciate and bear in mind because the attitude and behaviour of the police needs to be interpreted and understood against that background.

11. With that introduction, it is next necessary to review in some detail the respective cases at trial. We have been greatly aided by helpful summaries prepared by counsel upon which we shall draw gratefully. It is convenient first to set out the background to the killings.

Background to the killings 12. Ralph Nevill Bamber, (who was known as Nevill Bamber and we shall refer to him in that way) was 61 at the time of his death. He was a farmer and a local Magistrate and lived with his wife June at White House Farm. He was a well-built man, 6' 4" tall and in good physical health. Those who knew him spoke of him as a good and fair man. He kept a number of guns including shotguns and the rifle, which was to feature in the killings, at the farm. He shot on his own farm as well as attending shoots locally. A number of witnesses called at the trial spoke of the care with which Nevill Bamber treated the weapons kept at the farmhouse. He would clean the guns following use and would not allow them to be left lying around.

13. The rifle was a .22 Anshutz automatic rifle. Together with a Parker Hale sound moderator (silencer) and telescopic sights, it had been bought by Nevill Bamber on 30 November 1984. 500 rounds of ammunition had also been purchased. There was evidence that the gun was used to shoot rabbits and would only ever be used with the sound moderator and the telescopic sights attached. A screwdriver was required to remove the telescopic sights but there was evidence that this was not normally done because of the time it took to realign them

14. June Bamber was also 61 years old. Religion had always played a strong part in her life. In her latter years her interest in this regard had to an extent come to dominate her thinking, to a point that might have been thought to be obsessive. In 1982, she received treatment at a psychiatric hospital in Northampton.

15. Nevill and June Bamber married in 1949 and shortly afterwards took a tenancy of White House Farm. They were unable to have children of their own and adopted two children, Sheila and Jeremy, the appellant.

16. Sheila Caffell was born in 1957 and was 28 at the time of her death. She was educated privately, before attending secretarial college in London and then working as a model. When in London she met Colin Caffell and they married in May 1977. On 22 June 1979 their twin sons were born. Daniel and Nicholas Caffell were six when they were killed.

17. Shortly after the marriage Sheila's mental health began to fail and the couple divorced in May 1982. During 1983 Sheila was admitted to a psychiatric hospital and subsequently was diagnosed as a paranoid schizophrenic. In March 1985 she was re-admitted to hospital before being discharged a little under four weeks later. For the months before their death, the children had been living with their father, although seeing their mother frequently. On 4 August 1985 (three days before the killings) Colin Caffell had taken his ex-wife and children to spend a few days with their grandparents at the farm in Essex.

18. The appellant, Jeremy Bamber, was born on 13 January 1961 and is now 41 years old. He too was educated privately before he attended college in Colchester and then spent time in Australia and New Zealand. For the year or so before the killings the appellant had worked with his father at the farm. He lived at 9 Head Street in Goldhanger, a house, which had been bought by his parents. The village of Goldhanger is some 3 to 3½ miles from White House Farm. By car it would take some five minutes to travel between the two. On a bicycle it would take about fifteen minutes by the shortest route.

19. In 1983 the appellant met Julie Mugford a student at Goldsmith College in London and they began a relationship which lasted until shortly before his arrest in September 1985.

20. The Bamber family had interests in other farming properties in the area and also in the Osea Road Caravan site which was owned jointly by June Bamber, her sister Pamela Boutflour, Ann Eaton (June's niece) and the appellant. The value of the joint estate which the appellant stood to inherit after the killings was some £435,000.



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Offline mike tesko

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Relevant events before 7 August 1985 21. Anthony Pargeter, Nevill Bamber's nephew and a competition standard shot, stayed at White House Farm between 26-28 July 1985. He saw the .22 rifle in the gun cupboard in the ground floor office. The telescopic sights and sound moderator were attached and the gun appeared in a "new" condition. There were no scratches or marks upon it. Later the appellant, himself a good shot, took the rifle out for some target practice.

22. The Bamber's housekeeper/cleaner saw Sheila Caffell several times during the course of Monday, 5 August. She saw nothing unusual in Sheila's behaviour. The next day, Sheila was seen with her children on several occasions by Julie and Leonard Foakes, who were working on the farm. She appeared happy and all was apparently well.

23. Barbara Wilson, the farm secretary telephoned the farmhouse at 9.30 p.m. and spoke to Nevill Bamber. He was not cheerful and Mrs Wilson thought she had interrupted an argument. In evidence she described Nevill as abrupt, very impatient and very short. Pamela Boutflour, June Bamber's sister also telephoned the house that evening at about 10 p.m. She spoke first with Sheila Caffell who was quiet and then to her sister. Mrs Boutflour noted nothing unusual in her sister's mood or in their conversation.

The appellant's telephone call to the police 24. In the early hours of Wednesday, 7 August the appellant telephoned Chelmsford Police Station on a direct line number as opposed to the 999 emergency call system and spoke to PC West. He said, "You've got to help me. My father has just rung me and said, "Please come over. Your sister has gone crazy and has got the gun." Then the line went dead". He explained that he had tried to ring his father back at White House Farm but he could not get a reply.

25. Using a radio link PC West contacted Malcolm Bonnet at the Chelmsford H/Q Information Room. PC West then spoke to the appellant again, who complained at the time the officer was taking. He said, "When my father rang he sounded terrified". The appellant was told to go to the farm and to wait there for the police. PC West described the appellant as sounding "very laconic" and calm during the first part of their conversation and said that there was no sense of urgency. When he spoke to him again the appellant appeared "more urgent and distressed in his manner".

26. PC West recorded the time of the appellant's call as 3.36 a.m. At trial it was accepted that the officer had misread a digital clock. The officer's contact with Mr Bonnett was recorded as being at 3.26 a.m. and it seems clear that the appellant's call must have been at 3.26 a.m. or very shortly before.

27. At 3.35 a.m., Mr Bonnet arranged for a police car to go to White House Farm. A check made by a British Telecom operator of the telephone line to the farm was made at 4.30 a.m. The receiver was off the hook and all the operator could hear was the sound of a dog barking.

The arrival of the police at White House Farm 28. PS Bews, PC Myall and PC Saxby drove from Witham Police Station passing the appellant in his car on their way to the farm. He was travelling at a speed very much slower than their vehicle. Ann Eaton's evidence was that the appellant was normally "a very, very fast driver". The appellant's car arrived at the farmhouse 1-2 minutes after the police vehicle.

29. The appellant told the officers about the telephone call from his father, adding that it sounded as though someone had cut him off. When asked if it was possible that his sister was inside with a gun he said yes. He told the police that he did not get on with her. He was asked if it was likely that his sister had gone berserk with a gun and he replied, "I don't really know. She is a nutter. She's been having treatment." When asked why his father had called him and not the police, he said that his father was not the sort of person to get "organisations" involved, preferring to keep things within the family. When asked why he had not dialled 999, the appellant said he did not think it would make any difference to the time it would have taken for the police to arrive.

30. Having walked to the house from the lane there was further conversation. The appellant told the police that Sheila Caffell could use a gun. He said they had gone target shooting together and she had used all the guns in the house before. In the light of what they were told the uniformed officers requested armed assistance before any attempt to search the house was made. The appellant dictated a list of the firearms kept at the house. He told the police that he had loaded the .22 automatic rifle the previous night because he thought he had heard rabbits outside. He said he had left the gun on the kitchen table with a full magazine and a box of ammunition nearby. Those who saw the appellant at the scene at that time described him as remarkably calm. At some stage during their conversations that morning PC Myall and the appellant spoke about motor cars. The appellant said that the Osea Road Caravan Site company, "would be able to stand him a Porsche" car at some point during the year.

31. Armed officers from the Essex Police Tactical Firearms Unit arrived at the farm at about 5 a.m. There was further conversation with the appellant. At about 5.30 a.m. he said to PS Adams, "What if anything has happened in there, they are all the family I've got". He became visibly upset and asked to telephone his girlfriend, Julie Mugford, who was later driven to Essex from London.

32. Reconnaissance of the farmhouse revealed all the doors to be shut, as were the windows save for one in the main bedroom on the first floor. At about 7.30 a.m., the decision was made to enter the farmhouse and not long afterwards officers moved into place. Through the kitchen window, an officer observed the body of what appeared to be a woman but was in fact Mr. Bamber. Entry was then forced through the rear door which had been locked from the inside.

The discovery of the bodies and the scene within the house 33. In the kitchen the police found Nevill Bamber's body slumped forward over an overturned chair next to the hearth, so that his head was just above a coal scuttle. The police evidence was that there were other chairs and stools upturned and broken crockery, sugar and what appeared to be spots of blood on the floor. A ceiling light lampshade had also been broken. It will be necessary to address further these matter later but on the evidence available at trial, it appeared as though a violent struggle had taken place. On one of the surfaces there was a telephone with the receiver off the cradle. A quantity of .22 shells was beside it.

34. Subsequent searches of this room revealed Nevill Bamber's blood stained wristwatch under a rug and a piece of broken butt from the rifle on the floor.

35. Upstairs the bodies of June Bamber and Sheila Caffell were found on the floor of the main bedroom. That of Mrs Bamber was very heavily bloodstained and lay by the doorway. Sheila Caffell's body was by her parents bed. The .22 rifle (with the sound moderator and telescopic sights removed) was on her body with her right hand resting lightly upon it and with the muzzle of the weapon just below wounds to her neck. Immediately to her right, resting on the upper right arm and the floor, was a Bible that belonged to June Bamber.

36. The bodies of Daniel and Nicholas Caffell were found in their beds in another bedroom.

37. Firearms officers inspected the gun cupboard in the ground floor office to make sure that the other weapons were safe. Unaware of the possibility that anything in that cupboard might have played a part in the killings, neither they nor any other police officer sought to examine the cupboard or search for any sound moderator or sights for the .22 rifle.

38. At 8.10 a.m., Dr Craig attended the scene to formally certify the deaths. In cross-examination at the trial he said the deaths could have occurred at any time during the previous night. The appearance of Sheila Caffell's body suggested to him that the wounds had been inflicted by her own hand. In answer to the judge the witness made it clear this was not an opinion the jury should rely upon as a true indication that the injuries had been self-inflicted.

39. Dr Craig also saw the appellant outside the farmhouse. He said he appeared to be in a state of shock. At one stage he broke down and cried and he also appeared to vomit. The appellant told the doctor there had been "some considerable discussion" amongst the family about the future of Sheila Caffell's children the previous evening, during which the question of their being fostered had been raised. He said that the family was concerned that his sister had been abusing the children.

Post-mortem examinations 40. The bodies were taken to the Chelmsford and Essex Mortuary where post- mortem examinations were conducted. The bodies of Nevill Bamber and Sheila Caffell were examined on 7 August, and those of June Bamber and the twin boys the following day.
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Offline mike tesko

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Re: Mistakes by Appellate Court in 2002 Appeal, Debackle..
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41. Nevill Bamber, who was wearing his pyjamas had been shot eight times. There were two wounds to the right side and two to the top of the head. If not immediately fatal, the combined effect of these four injuries would have been immediate unconsciousness and incapacitation. There was a wound to the left side of the lip and another to the left part of the lower jaw. This injury caused severe fracturing of the jaw, of the teeth in that area and damaged soft tissue in the neck and the larynx. These features of this particular injury and the resultant flow of blood into the mouth meant, in the pathologist's opinion, that Nevill Bamber would not have been able to engage in purposeful talk. There were also gunshot wounds to the left shoulder and a grazing wound above the left elbow.

42. The examination of Nevill Bamber's body also revealed black eyes and a broken nose, linear bruising to the cheeks, lacerations to the head, linear type bruising to the right forearm, bruising to the left wrist and forearm and three circular burn type marks to the back. The linear marks were consistent with Mr Bamber having been struck with a long blunt object, possibly a gun.

43. Mrs Bamber was bare footed and dressed in a nightdress. She had received seven gunshot wounds, of which one to her forehead and one to the right side of the head would have caused death very quickly. She also suffered shots to the right side of the lower part of her neck, the right forearm, two injuries to the right side of the chest and to the right knee. There was a great deal of blood on her body and clothing and from its pattern, it appeared that at some stage of the attack she had been in an upright position

44. Daniel had received five wounds from a gun to the back of his head, which appeared to have been fired in an arc and in quick succession. Nicholas had three gunshot wounds to his head.

45. Sheila Caffell was also dressed in her nightwear and bare-footed. She had received two contact or near contact bullet wounds to her throat. The higher of the two wounds would have killed her almost instantaneously. The lower of the two would have been a fatal injury but not one where death would have occurred immediately and a person having suffered such an injury may have been able to stand up and walk around for a little time. The lack of heavy blood staining to Sheila Caffell's nightdress suggested that this had not happened here. The lower of the two injuries must have been the first since it had led to haemorrhaging inside the neck and this would not have occurred to the same extent if the other wound, which would have been immediately fatal, had preceded it. Dr Vanezis gave evidence that the nature of the blood stains to the nightdress suggested that Sheila Caffell was sitting up when she received both injuries. After the second injury she would have immediately fallen back. There was no evidence of any other mark or injury to Sheila Caffell's body such as might be suffered during a fight or in a scuffle.

46. From the pathological evidence alone, the pathologist could not say, one way or the other, whether Mrs Caffell had been murdered or had taken her own life.

The condition of Sheila Caffell's body and her clothing 47. The firearms officers who were the first to see her body noted that her feet and hands were "perfectly clean". Her fingernails were well manicured and not broken and there were no marks or indentations on any of her fingers. All her fingertips were clean and free from any blood, dirt or powder and there appeared to be no trace of any lead dust or coating which is usual when handling .22 ammunition.

48. The act of loading the magazine of an automatic weapon (carried out at least twice in this case) would be expected to leave visible traces of the lubricant and the materials from the bullets on the hands.

49. DC Hammersley, the Scenes of Crimes Officer placed plastic bags over Sheila Caffell's hands and feet before her body was removed from the farmhouse. He saw some blood staining to the back of the right hand, but apart from that the hands, to his eye were clean and the nails intact. The deceased's feet were also free from blood staining and from any debris such as sugar.

50. Following removal of the bags at the mortuary, Sheila Caffell's hands and forehead were swabbed. Extremely low traces of lead were detected when the swabs were examined. Such levels being consistent with the levels found from the handling of every day things around the house. These results were compared to hand swabs taken from volunteers at the laboratory who were required to load the magazine with eighteen rounds of ammunition. Significantly higher traces of lead were found than those recorded on the hands of Mrs Caffell. The scientist Mr Elliott gave evidence that if Sheila Caffell had loaded eighteen cartridges into a magazine he would have expected the hand swabs to have revealed appreciably higher deposits of lead.

51. Mrs Caffell's nightdress was bloodstained. When tested the blood was consistent with being her own blood. The garment was also examined for the presence of any firearm discharge residues or oil from the rifle. No such traces were found. The scientist gave evidence that there would be a strong chance of finding such residues or markings on the clothing of an individual who had fired a rifle twenty-five times.

52. The Bible found by Sheila Caffell's body, belonged to her mother and was normally kept in a cupboard to the right of her bed. It was examined for fingerprints. Many belonged to June Bamber and there were a small number of insufficient detail for comparison, save for one which appeared to have been made by a small child.

53. Analysis of samples of Sheila Caffell's blood and urine taken during the post mortem examination indicated that she had consumed cannabis some days before her death and she had made therapeutic use of the prescribed anti-psychotic drug, haloperidol.

Search and examination of White House Farm 54. The senior police officers who attended the scene, led in the initial stages by DCI Jones (who died in May 1986), came quickly to the view that Sheila Caffell had murdered her parents and children before committing suicide. Inevitably this had an impact upon the nature and thoroughness of the searches and examination of the farmhouse.

55. The house appears to have been photographed first, with particular attention paid to the bodies and the rooms in which they were found. Thereafter samples and swabs were taken from some of the blood-staining. There was then a search directed principally at the recovery of bullets and cartridge cases and the seizing of other exhibits.

56. It seems clear that there was not the carefully ordered scientific examination or detailed search of the type that would have occurred today. Other guns were left at the premises and there was no attempt, at that stage, to search for any sound moderator or sights that may have been associated with the murder weapon. There were attempts to examine possible means of entry and exit. As other lines of enquiry progressed officers and scientists returned to the address on a number of occasions to conduct further searches and examinations. One of the grounds of appeal relates to the examinations made of the windows and we will detail these when we consider that ground.

57. Five carpet samples taken from the main bedroom were examined and found to bear numerous spots of dripped blood. These were tested and found to match the blood groupings of June Bamber. Wallpaper from the hallway to the left-hand side of the kitchen door was found, on examination, to be stained with human blood consistent with the blood grouping shared by Nevill Bamber and the twin boys. Since the boys seem to have been shot in their beds, it is a clear inference that this was Mr. Bamber's blood.

The finding of the cartridges and nature of the wounds to the deceased 58. In all twenty-five cartridge cases were recovered from the scene and the firearms expert gave evidence of his opinion as to which of these could be associated with each particular victim.

59. Two bullets were recovered from June Bamber's side of the double bed in the main bedroom and were consistent with the shots that had caused the injuries to her right shoulder, chest and forearm.

60. Found in or just outside the bedroom were thirteen cartridge cases. Seven would account for the shots into June Bamber, two for the wounds suffered by Sheila Caffell, leaving four cartridge cases that had been fired at Nevill Bamber. Three further cartridge cases were found in the kitchen, with a further case on the stairs leading up from the kitchen. If one accepts that the four shots to the head which would have immobilised and killed Nevill Bamber were fired in the kitchen where his body was recovered, it would follow that he had received the less serious injuries upstairs in the bedroom and was then able to make his way downstairs where he was subsequently killed.
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61. The last eight cartridge cases were recovered in the children's room and accounted for the injuries they suffered.

62. Mr Fletcher also gave evidence of the range at which the shots had been fired. The lower (and not immediately fatal) of the injuries suffered by Sheila Caffell was caused when the muzzle of the gun was within three inches of the throat. The upper injury was a contact shot.

63. Of the seven injuries suffered by June Bamber, five were shots from the gun held at least one foot away from the body. The bullet wound between the eyes was fired from less than one foot away, and could have been with the gun in contact with the skin, although he viewed that as unlikely. Mr Fletcher was unable to estimate the range of the shot which had caused the injury to the right side of Mrs Bamber's chest.

64. In respect of the eight shots into Nevill Bamber's body, the six to his head and face were fired when the rifle was within a few inches of the skin. The remaining injuries to the arm were caused when the gun was at least two feet from the body.

65. As regards the twins, four of the five injuries suffered by Daniel were caused when the gun was held within one foot of his head, the fifth was from over two feet away. The three wounds to Nicholas were contact or close proximity shots.

Telephones 66. There were normally four telephones at White House Farm (although there was only one telephone line). A cream old-fashioned finger-dial telephone kept in the main bedroom (the bedroom telephone), a blue digital telephone in the first floor office (the office telephone), a cream cordless telephone kept in the kitchen but used around and outside the house (the cordless telephone) and a fawn digital telephone also kept in the kitchen (the kitchen telephone). The only telephone with a memory recall feature was the cordless telephone but this had been faulty and was collected for repair on the morning of 5 August 1985.

67. The telephone that had been found with the receiver off its cradle in the kitchen was in fact the bedroom telephone, which had been moved downstairs. The kitchen telephone had been hidden amongst a pile of magazines in the kitchen. The office telephone was in its normal place.

68. There was no evidence of telephone billing information of the sort which would be available these days. There was, however, expert evidence called as to the effect of a telephone call having been made from White House Farm to Goldhanger which was then abandoned by the caller with the receiver being left off the cradle, as claimed by the appellant. If such a sequence had occurred, the telephone link would have remained open either until the handset at White House Farm was replaced or until the handset at Goldhanger had been replaced and left in position for a period which could vary from 1 to 2 minutes, when an automatic interruption of the link would take place. Until one or other of these events, the appellant would have been unable to make any call from the Goldhanger telephone.

Examination of the rifle 69. The rifle was a German made Anschutz model 525 .22 self-loading rifle in good working order. Cartridges are loaded into a magazine, which has a capacity of 10. It is, as the jury found when they conducted the exercise themselves, progressively harder to load as the number of cartridges increases. Loading the tenth is exceptionally hard. Assuming a full capacity at the commencement of the shooting at the farm, the discharge of the rifle twenty-five times would require it to be re-loaded a minimum of two more times.

70. The stock was damaged, with a piece of wood missing. The broken piece of wood found on the floor in the kitchen was the missing part of the stock.

71. The rifle bore blood smearing on the barrel in the region of the fore-sight and around the mechanism and there were splashes of blood to the left side of the weapon. The appearance of the blood staining was consistent with it having been used to strike somebody who was already bleeding. On analysis the blood was found to be human blood but tests to determine grouping were unsuccessful. A "pull-through" on the barrel of the rifle was conducted for any traces of blood within the weapon. There were none.

72. The weapon was also examined for fingerprints. A print from the appellant's right forefinger was found on the breech end of the barrel, above the stock and pointing across the gun and Sheila Caffell's right ring fingerprint was found on the right side of the butt, pointing downwards. There were three further finger marks on the rifle, each of insufficient detail for identification purposes.

Recovery of the sound moderator 73. On 10 August 1985 members of the family, who were far from convinced that Sheila Caffell had been responsible for the killings, went to White House Farm with the executor of the estate, Basil Cock. During the afternoon David Boutflour found the sound moderator together with the telescopic sights for the murder weapon at the back of the gun cupboard in the downstairs office. His father, his sister Ann Eaton, the executor and the farm secretary all witnessed the recovery.

74. The silencer was taken to Ann Eaton's address for safekeeping and that evening members of the family examined it. They noticed that the "gun blue" of the surface had been damaged and there appeared to be red paint and blood upon it. The moderator was packaged up and the police were informed of the discovery. When collected by DS Jones on 12 August he noticed a grey hair, about an inch long attached to it. By the time the moderator had been delivered to the Forensic Science Service at Huntingdon the hair had been lost.

Scientific examination of the sound moderator 75. Traces of blood in the form of smears were found in three places on the outside of the moderator: on the flat surface at the muzzle end, in the knurled end and in the ridge at the gun end of the device. The blood on the outside of the moderator was confirmed to be of human origin but there were insufficient quantities to permit grouping analysis.

76. Inside the moderator, on the four or five baffles nearest to the end from which the bullet would exit, there was a considerable amount of blood. At one point blood had pooled to form a flake when it dried, and this flake was subjected to group testing. Results were obtained for four of the five tests performed. Mr Hayward, the forensic scientist said that they showed that the blood could have come from Sheila Caffell but not from any of the other individuals involved. Mr. Hayward said that there was a possibility that the blood could be a mixture of blood from more than one person and if it was, a mixture of blood from Nevill Bamber and June Bamber could account for the findings in the grouping tests. However he judged that possibility to be a "remote" one.

77. Mr Hayward added in evidence that he would be very surprised to find blood from a person, who had not been shot with a contact or very close contact shot, inside the muzzle of the moderator. He concluded that since (a) the blood inside the moderator belonged to the same group as Sheila Caffell and (b) there was no blood within the barrel of the rifle of the gun, that she had been shot whilst the moderator was fitted to the rifle.

78. Mr Fletcher, the firearms expert also expressed the opinion to the jury that the sound moderator had been fitted to the gun when Sheila Caffell had been shot. He attributed the presence of blood within the device to the phenomenon of "back-spatter". This occurs when the expansion of gases created by a bullet being discharged creates back pressure which in turn propels blood from the wound back towards the weapon. This effect is only seen when the muzzle of the weapon is in contact with, or very close contact to, the victim.

79. Exercises and tests conducted at the laboratory established that it would have been physically impossible for a woman of Sheila Caffell's height and reach to have operated the trigger and shot herself with the sound moderator attached to the weapon. She simply could not have reached it. Thus she could only have committed suicide if the sound moderator had been removed from the rifle.

80. Having seen what they believed to be red paint on the moderator, members of the deceased's family returned to the farmhouse and examined the red painted mantel shelf above the Aga in the kitchen. On the underside they found what appeared to be recent damage. On 14 August 1985 the underside of the mantel shelf was examined by one of the scenes of crime officers, DI Cook. He found score marks and took a sample of the paint from the area. The paint sample was compared with the paint recovered from the knurled end of the moderator and each was found to contain the same fifteen layers of paint and varnish. On 1 October 1985 casts were taken of the marks and impressions found on the underside of the shelf. These were also consistent with having been caused by the moderator and there had been more than one contact between it and the shelf.
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Offline mike tesko

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Re: Mistakes by Appellate Court in 2002 Appeal, Debackle..
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81. Sheila Caffell and her mental state. Clearly of importance to the theory that Sheila Caffell killed the others and then took her own life was available evidence about her and her mental state at the time. This, of course, became an important part of the defence case, and it is convenient to review this aspect of the matter at this stage.

82. According to Pamela Boutflour (June Bamber's sister), Sheila Caffell was not a violent person and she had never known her to use a gun and in the opinion of the witness she would not know how to use one. The evidence of Ann Eaton (June Bamber's niece) was that she had never seen Mrs Caffell with a gun and that she "would not know one end of the barrel of a gun to another". The witness added that Sheila Caffell was not a practical person and had very bad hand-eye co-ordination. Other witnesses called during the trial also said they had never seen her with a gun, save for an occasion when she had been photographed carrying one as part of a modelling assignment.

83. Colin Caffell (her ex-husband) said that although there had been violent outbursts by Sheila during their time together, this had involved the throwing of pots and pans and the occasional striking of him. To his knowledge she had never harmed the children or behaved violently towards anybody else.

84. The defence at trial called Dr Ferguson, a Consultant Psychiatrist at St Andrew's Hospital in Northampton, who had the care of Sheila Caffell between August 1983 and her death. Mrs Caffell had been referred for treatment by her general practitioner and seen by Dr Ferguson for the first time on 2 August 1983. Then she was in a very agitated and psychotic state and he admitted her for in-patient treatment on 4 August. Dr Ferguson came initially to the diagnosis of a schizo-affective disorder characterised by disturbance of thinking and perception. She was depressed in a paranoid way, struggling with the concept of good and evil and caught up with the idea that the Devil had taken her over and given her the power to project the Devil's evil to others including her twin sons. In particular she spoke of a fear she could create in her children an ability to have sex and do violence with her. In the discharge letter Dr Ferguson made reference to her morbid thoughts, which included the idea she was capable of murdering her children or communicating an ability to them to kill. He said she had spoken of suicidal thoughts although he did not regard her as a suicide risk. Miss Caffell responded to the treatment at hospital and was discharged on 10 September 1983.

85. Dr Ferguson continued to see Sheila Caffell as an outpatient and during that period made a firm diagnosis that his patient was suffering from schizophrenia. During that period she was prescribed the anti-psychotic drug, Stelazine. Whilst she was then pre-occupied with her ability to have more children, there were less obvious signs of mental illness and no evidence of acute disturbance.

86. On 3 March 1985 Sheila Caffell was re-admitted to hospital in Northampton. Then she was agitated, very disturbed and in an anxious state. Her thinking was again very involved with the concepts of good and evil, but on this occasion more directly related to excessive religious ideas. She made no reference to any thoughts concerning her children or parents. As before she responded to treatment and was discharged on 29 March 1985.

87. Thereafter Sheila Caffell received monthly injections of Haloperidol, a drug used to treat agitated states which had anti-psychotic and tranquillising properties. It also has sedative side effects at the levels prescribed.

88. When told on 8 August 1985 that Sheila Caffell had killed her parents and children and then herself, Dr Ferguson said this did not fit "his concept" of his patient. He did not feel she was someone who would actually be violent to her children or towards her father, although she was a highly disturbed woman and had expressed disturbed feelings towards her mother.

89. In cross-examination Dr Ferguson agreed that Mrs Caffell's condition was well known to her family. There had never been manifestations of violence either when her illness was being managed or when in a highly disturbed state in hospital. In the context of what was alleged to have occurred Dr Ferguson found it possible to conceive of Sheila Caffell wanting to harm her mother or herself but "difficult to conceptualise her harming her children or her father". He had always felt Sheila loved and cared for her children and saw her father as a very secure, caring and strong support in her life.

90. Dr Bradley, another Consultant Psychiatrist, was also called by the defence during the trial to give general evidence of the features of "altruistic" killings and to confirm that it was not unusual that a female murderer should not have a history of previous violence. He also gave evidence that where parents kill children there may be an element of "over-kill" or the infliction of excessive violence.

91. Professor Knight, another defence witness, lent support to Dr Bradley's evidence as to the feature of excessive violence in parental killings. He also spoke of instances where the murderer (having killed their spouses in most cases) has then gone about some mundane or "ritualistic" task, such as cleaning up before committing suicide. In cross-examination he accepted the proposition contained in an article, which he himself had written some years earlier, that "women almost never commit suicide by shooting".

92. A number of other witnesses were called on the appellant's behalf at trial as to Sheila Caffell's mind. They included Farhad Emami (Freddie), a friend who gave evidence as to her mental state before the second admission to hospital, her relationship with her parents and her mood and appearance in the months before her death.

93. Also called on the appellant's behalf were Miss Grimster who had seen Miss Caffell on 30 March 1985. The deceased said she saw herself as a white witch and said she had once contemplated suicide. Nurse Heath from the Nottingham Hospital spoke of her low mood on one occasion and of a more optimistic one on another. Sandra Elston who saw Sheila Caffell on 31 July 1985 said the deceased appeared well and her only concern was about a poor haircut she had recently had.

Julie Mugford 94. Julie Mugford was 21 years old at the time of the offences and a student at Goldsmiths College at the University of London. She met the appellant in 1983 whilst working in Colchester during one of the vacations and they became boyfriend and girlfriend. During the relationship she met the appellant's parents, his sister and her children. In December 1984 the appellant had proposed to her.

95. On the day after the killings, Miss Mugford made a statement to the police. In that statement she said nothing adverse to the appellant. She spoke of receiving a telephone call from him at about 3.30 a.m. on the night of the killings. She said that he "sounded disjointed and worried" and he said "There's something wrong at home." She had been sleepy and had not asked what it was.

96. On 7 September, Julie Mugford contacted the police and told them that she had omitted matters from her earlier statement. She then gave a very different account that she was to repeat to the jury in evidence.

97. She said that after she met the appellant, it quickly became obvious to her that the appellant disliked his family. He resented his parents whom he claimed, "tried to run his life" and he said he did not get on with Sheila Caffell. He was angry that she lived in an expensive flat in Maida Vale, which was maintained by his parents. Between July and October 1984, he said that his parents were getting him down and he said that he wished "he could get rid of them all". In evidence Miss Mugford said this included his sister and children because "if he was going to get rid of them it would have to be all of them". The appellant explained to her that his "father was getting old, his mother was mad … Sheila was mad as well … and in respect of the way the twins had been brought up, … they were emotionally disturbed and unbalanced". The appellant also told Julie Mugford he had seen copies of his parents' wills.

98. Miss Mugford's evidence was that the conversations about killing the appellant's family became more frequent between October and December 1984. At first he spoke of being at the house for supper and then drugging the family before driving back to Goldhanger in his car. He said that he then intended returning to the farmhouse on foot or on bicycle and burning the house down. The appellant then appeared to realise that it would be difficult to burn the premises down especially since it would have the consequent effect of destroying the valuables within the property.

99. Later the appellant said he had decided to shoot his family and he told her that he had discovered that the catch on the kitchen window did not work and he could gain access to the house in that way. The appellant said he planned to leave the address by a different window, which latched when it was shut from the outside. He spoke of Sheila Caffell being a good scapegoat because of her admission to hospital during Easter 1985 and said that afterwards he would make it seem as if Sheila had done it and then killed herself.

100. Julie Mugford spent the weekend before the killings with the appellant in Goldhanger. During that period he dyed his hair black and she saw his mother's bicycle at the address. Other witnesses saw the bicyle at the appellant's home following the killings. Robert Boutflour saw mud on the walls of the tyres but not on the tread, as if it had been through deep mud.
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Offline mike tesko

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Re: Mistakes by Appellate Court in 2002 Appeal, Debackle..
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101. At about 9.50 p.m. on Tuesday, 6 August the appellant telephoned Miss Mugford. During their conversation that evening he said he was "pissed off" and had been thinking about the crime all day and that it was going to be "tonight or never". The following morning she was awoken by a telephone call from the appellant to her lodgings in London. The appellant said to her, "Everything is going well. Something is wrong at the farm. I haven't had any sleep all night … bye honey and I love you lots". Miss Mugford did not take him seriously and went back to sleep. As to the timing of this call, Miss Mugford said in evidence said that it was between 3.00 and 3.30 a.m.

102. A number of Miss Mugford's housemates were disturbed by the telephone call and provided additional evidence as to timing. One, Helen Eaton, had been consulted by Julie Mugford, when the latter was first making a statement to the police about it. She put the time at 3.00 a.m. in evidence but agreed in cross-examination that it might have been as late as 3.30 a.m.

103. Another flat mate, Sue Battersby, said that she was positive that when she was disturbed, she had looked at her clock and the time shown was 3.12 a.m. However, she pointed out that she was in the habit of keeping her clock about 10 minutes early and police checks made on the clock confirmed this to be the case. If her evidence was right and if the clock was, as the evidence suggested, ten minutes fast, the time was probably no more than a minute or two after 3 a.m.

104. Joanna Woad gave evidence that when she heard the telephone, she looked at her digital clock and all that she noted was that the time was 2 something. This meant that according to her clock the time was between 2.00 and 2.59 a.m. If it was at the end of that bracket, it differed very little from the time suggested by Susan Battersby's evidence.

105. Miss Mugford described how later during the morning of Wednesday, 7 August 1985, the appellant telephoned her again. He said he could not speak for long, Sheila had gone mad and he told her not to go to work because a police car would come and pick her up. Miss Mugford was then taken to the house in Goldhanger, where out of earshot of the police officers, the appellant told her, "I should have been an actor".

106. That evening when they were alone, Miss Mugford said that she asked the appellant whether he had done it. He said he had not, but that he had arranged for a friend of his, Matthew MacDonald, to kill his family. He spoke of what he had told MacDonald as to ways of getting in and out of the farmhouse undetected and he said that one of his instructions was for MacDonald to ring him from the farm on the telephone which had the memory redial facility so that if the telephone was checked by the police it would provide him with an alibi.

107. The appellant reported that MacDonald had said that everything had been done as instructed but there had been a bit of a struggle with the appellant's father. He said MacDonald had told him, "for an old man he was very strong and put up a fight" and that MacDonald had then become angry and shot seven bullets into Nevill Bamber. The appellant said that Sheila Caffell had been told to lie down and shoot herself last. He said that MacDonald had then placed a Bible on her chest to make it look as though she had killed in some sort of religious mania. The appellant said the children were shot in their sleep and so they had not felt anything and there was no pain. He told Julie Mugford that MacDonald had been paid £2,000 for the killings.

108. As a result of hearing this account, the police arrested not only the appellant but also MacDonald. Their inquiries showed that Macdonald could not have been at the farm that night and he was called by the prosecution to give evidence, that was not disputed, to confirm that he had nothing to do with the shootings.

109. In the course of her evidence Miss Mugford explained that initially she did not want to believe what the appellant had told her but then she became scared and the appellant had threatened her that if anything happened to him she would be implicated.

110. She and the appellant spent the following weekend with Colin Caffell and on 12 August she went to the house in Goldhanger with the appellant. There he told her that the police had been a bit slack because they had not done all the fingerprinting at White House Farm. On 16 August Miss Mugford attended the funerals of Nevill and June Bamber with the appellant and then on 19 August the funerals of Sheila Caffell and her children. During that period the witness spoke of the appellant taking her out for frequent meals, and buying expensive clothes for himself and for her. She described the appellant's mood during this period as "very happy". After one of the funerals they drank champagne and cocktails.

111. Miss Mugford spent the weekend of 17-18 August 1985 with the appellant in Eastbourne and it was then that she began to ask how he could behave as he was doing. She kept telling him "£2,000 for five lives". The following week the couple went to Amsterdam for two days, staying in expensive hotels and eating out. On 27 August Miss Mugford returned alone to her lodgings in London and she told her friend Susan Battersby of what the appellant had done.

112. On Saturday 31 August Julie Mugford asked the appellant whether he loved her. He said he did not know. Again they spoke about the murders. Miss Mugford said she could not cope with him behaving so normally and asked why he had told her what had happened. She said she felt guilt for the two of them. The appellant told her he was doing everybody a favour and there was nothing to feel guilty about. Later that night the appellant told her that she was the best friend he had ever had and he had entrusted his life to her.

113. On Tuesday 3 September the couple met again in London at the flat which had belonged to Sheila Caffell. Again Miss Mugford raised the question of their relationship and his part in the killing. During their conversation the appellant received a telephone call from an ex-girlfriend and Miss Mugford heard him asking her out. She became angry and threw an ornament box at a mirror and then slapped the appellant. He became very angry and twisted her arm up behind her back. Four days later, she went to the police.

114. During the course of making her witness statements in September, Julie Mugford admitted that at Easter 1985 she had helped the appellant steal money from the offices of the Osea Road Caravan site which was owned by the appellant and various members of the family. On this occasion he had stage-managed the scene to give it the appearance of a burglary by an outsider. Some £970-£980 had been stolen which was used in part to buy a lavish meal.

115. Miss Mugford also admitted that she had used a cheque book belonging to Susan Battersby which had been falsely reported as stolen to obtain some £700 of property in Oxford Street. She told the jury that she and Miss Battersby had repaid the money to the bank in October 1985 and that she had been cautioned for the offence.

Other evidence of the appellant's dislike of his family 116. Other evidence was given which supported the evidence of Miss Mugford that the appellant disliked his family. Mary Mugford (Julie's mother) said the appellant had often told her that he hated his adoptive mother and he described her as quite mad.

117. During the winter of 1984 the appellant told one of the farm workers, "I'm not going to share my money with my sister" and he had always given the impression he did not get on with Sheila Caffell.

118. James Richards, another student from Goldsmiths College who had met the appellant through Julie Mugford, heard him talk of his parents in about February 1985. He claimed they kept him short of money and that his mother was a religious freak. He said, "I fucking hate my parents".

119. In about March 1985, in the context of a discussion about the security at the Osea Road caravan site, the appellant told his uncle Robert Boutflour, "… I could kill anybody … I could easily kill my parents".

120. Witnesses were called on the appellant's behalf in respect of this aspect of the case. They included a sales representative and a chartered surveyor who said they had met the appellant and his father and that they had never heard the appellant say anything nasty about his family.
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Offline mike tesko

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Re: Mistakes by Appellate Court in 2002 Appeal, Debackle..
« Reply #6 on: Yesterday at 12:43 AM »
The appellant's witness statements, arrest and interviews 121. In his witness statement of 7 August 1985, the appellant dealt with his family background, dealing in particular with Sheila's mental health. He alleged she had hit her children, spoke of her depression and what he termed her "paranoia schizophrenia" and told the police about her admissions to hospital. After her second discharge he said she was unable to cope and appeared vacant. He said he and his sister had had an amicable relationship and he understood the problems she faced.

122. The appellant said Colin Caffell had brought Sheila and the children to the farm on Sunday, 4 August where they were to stay for a week.

123. On Tuesday, 6 August he described working at the farm until 8-9 p.m. before returning to the farmhouse for supper where he stayed for about half an hour. The appellant said there was a discussion between his parents and Sheila about future plans for the children and mention was made of foster parents. She appeared "vacant" during this conversation.

124. During this conversation the appellant said he saw rabbits outside the house so he took the .22 rifle from the office/den, loaded it with eight to ten rounds from a box of ammunition that he left in the kitchen and went outside. In fact he fired no shots outside and he then left the gun in the kitchen having removed the magazine and the bullet which was in the breach. The appellant said he had left the farmhouse shortly before 10 p.m. Nobody then appeared distressed and he drove home. He went to bed at about 11 p.m.

125. The appellant said he was awoken at about 3.10 a.m. by the telephone call from his father. His father told him, "Sheila's gone crazy, she has got a gun". After a few seconds the line went dead. He tried to call back immediately and found the telephone at the farm to be engaged. He then telephoned Chelmsford Police Station and thereafter went to the farm to meet the police. Before leaving he called Julie Mugford at about 3.25 a.m.

126. In a second witness statement made the following day, 8 August 1985, the appellant gave a little more detail of the conversation which he said had taken place between his parents and Sheila Caffell. He also said the sights and the silencer were not with the rifle. The appellant said his sister had not previously fired the gun, although she had walked with him when he had been out shooting with his father.

127. Following Julie Mugford's visit to the police, the appellant was arrested on 8 September 1985 and interviewed during the course of the following three days.

128. Throughout the interviews the appellant maintained his innocence and the account that he had given in his witness statements. He denied any form of confession to Julie Mugford or any talk of planning to kill his family. He said she was lying because he had jilted her.

129. In respect of the additional matters raised during the interviews he said that his relationship with his mother had improved during the course of the last two years and things had been more loving between them. He said he loved his sister and did not dislike his parents. He denied they kept him short of money.

130. The appellant admitted committing the burglary with Julie Mugford at the Osea Road Caravan Site on 23/24 March 1985 when £980 had been stolen. He said he had done it to prove that the security at the site was poor.

131. He told the police that he had seen the draft wills his parents had made leaving their joint estate to be shared between him and his sister.

132. The appellant agreed that his mother's bicycle had been at his home during the week before the killings.

133. He said that he had fired the rifle with the sights both on and off. He claimed that the gun would not fit into its case with the silencer attached and so it was used mainly with the silencer off.

134. At one point during the interviews the appellant said that following the call from his father he had telephoned Julie Mugford before the police. It was pointed out to him that in his earlier witness statements he had said he rang the police immediately upon receipt of his father's call and only after calling the police had he rung Miss Mugford. He responded that he may be confused about the sequence of telephone calls. He could not explain why having received the call from his father he had not immediately telephoned 999.

135. He told the police that there were occasions when he gained entry to his parents' home by way of a number of the downstairs windows including those in the kitchen and the bathroom. He explained that he used a knife to move the catches in order that the window could be opened from the outside.

136. The appellant was bailed from the police station on 13 September 1985. Some days later he went on holiday to the South of France. On his return to this country on 29 September he was re-arrested and charged with the five murders.

The Appellant's Evidence at Trial 137. No transcript has survived as to the appellant's evidence in chief, although it seems clear from the summing up that it was entirely consistent with that which he had told the police. A transcript of his cross-examination is available. In cross-examination the appellant said Sheila Caffell had frequent delusions and had spoken to him of suicide.

138. He admitted that the burglary at the caravan site had been motivated by greed and that by breaking a window and scattering papers around he had deliberately sought to give the impression it had been committed by somebody other than him.

139. Apart from Julie Mugford the appellant suggested that other witnesses had told lies about him during the trial. They included Mrs Mugford, James Richards, Dorothy Foakes and Robert Boutflour.

140. He admitted enjoying the good things in life – restaurants, wine bars, travelling, fast cars etc. In respect of the conversation with PC Myall about the Porsche car, the appellant said he was in fact referring to a kit model car made by a company called Covan Turbo who produced vehicles looking very similar to Porsche vehicles but at a cost of between £1-2,000.
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Offline mike tesko

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Re: Mistakes by Appellate Court in 2002 Appeal, Debackle..
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141. The appellant claimed to have returned to the farmhouse within a day or two of his release from the Police Station, i.e. a day or two from the 13 September, and gained entry via the downstairs bathroom window. He said he had done this because he had left his keys in London and needed some documents for his trip to the South of France. The appellant did not accept that that had been an unwise thing to do bearing in mind the circumstances nor that it would have been easy for him to have borrowed keys from the housekeeper who lived nearby.

142. He described his father as reasonably careful with guns and agreed that had Mr Bamber seen the rifle lying around in the kitchen he would have put it away in the gun cupboard. He agreed it would have taken him 30 seconds to have returned the gun to its cupboard and that he had been lazy.

143. The appellant confirmed he had not seen his sister fire a gun as an adult.

144. Having received the telephone call from his father, the appellant said that it had not crossed his mind to use the 999 system to call the police. Instead he described spending a little time looking up the number for Colchester Police Station. On that particular page of the directory (which he was shown in the witness box) it reads in bold type, "In emergency call the operator (dial 999 where appropriate) and ask for the police". The appellant agreed that on his account, even though his father had asked him to come quickly, he had then telephoned Julie Mugford and then driven slowly to the farmhouse. He agreed it would also have been possible for him to have called one of the farm workers. He said he had not considered that.

The Prosecution Case at Trial 145. The prosecution case at trial was that the appellant, motivated by hatred and greed, had planned and carried out the killings. Having left White House Farm at about 10 p.m. on Tuesday 6 August 1985 he had returned by bicycle (taking a route which avoided the main roads) in the early hours of the following morning.

146. He had the means and knowledge to gain entry to the address, one such route being through the bathroom window. He then took the rifle, with the sound moderator attached as normal, and made his way upstairs to where the members of his family were sleeping.

147. The precise sequence of the killings was unclear. June Bamber was shot whilst still lying in bed but had managed to get up and walk a few steps before she collapsed and died by the main bedroom door. Nevill Bamber was also shot in the bedroom but was able to get downstairs into the kitchen where there was a violent struggle before he was overwhelmed and then shot a number of times in the head. The children had been shot in their beds as they slept.

148. Sheila Caffell, probably in a sedated state from her medication, was also shot in the bedroom. When she was dead the appellant set about arranging the scene to give the impression that it had been she who had murdered her family before taking her own life. The appellant then discovered, as he laid the gun upon her body, that it would not have been possible for her to have shot herself with the sound moderator attached since her arms were not long enough to reach down to the trigger. He therefore removed the silencer from the gun and then positioned the Bible by the body, knowing Sheila had been preoccupied with religion in the weeks before her death.

149. The appellant returned the moderator to the gun cupboard and before leaving the address called his home at Goldhanger, leaving the receiver off the hook, thus lending support to the alibi he would later rely upon. He then left the premises, one available route being to climb out of the kitchen window, banging it from the outside to drop the catch back into position and then cycled home.

150. Shortly after 3 a.m. he telephoned Julie Mugford, before calling the police at 3.26 a.m. He chose not to make a 999 call, drove slowly to the farmhouse, gave misleading information about his sister and her knowledge of guns to create as long a delay as possible before the bodies were discovered.

151. The prosecution relied upon the following areas of evidence:

i) The appellant's expressed dislike of his family;

ii) His speaking of his plans to kill his family and thereafter his confessions to his girlfriend, Julie Mugford;

iii) The finding of his mother's bicycle at Goldhanger;

iv) The appellant's admitted ability to effect covert entry into and exit from the farmhouse and the finding of the hacksaw blade outside the bathroom window. His claim to have entered the house in that way after the first arrest was an attempt to explain these findings;

v) Because on the facts of the case it could only have been the appellant or Sheila Caffell who carried out the killings, the factors below proved they were not the responsibility of the appellant's sister:

a) Although seriously mentally ill, there had been no indication of any deterioration in her mental health in the days before the killings. Neither had she expressed any recent suicidal thoughts and the expert evidence was that she would not have harmed her children or her father;

b) Save for the appellant nobody had seen her use a gun and she had no interest in them. Sheila Caffell also had very poor co-ordination and would not have been capable of loading and operating the rifle nor would she have had the required knowledge to do so;

c) She would not have been able physically to have overcome her father (who was fit, strong and 6' 4" tall) during the struggle which undoubtedly took place before his death in the kitchen;

d) Her hands and feet were clean. They were not blood stained and neither was there any sugar upon them;

e) Hand swabs from her body did not reveal the levels of lead to be expected in somebody who must have re-loaded the magazine of the gun on at least two occasions; and

f) Her clothing was relatively clean and she was not injured in the way that might be expected of somebody involved in a struggle. Her long fingernails were still intact and undamaged.

vi) The sound moderator had on any view been attached to the rifle during the fight with Nevill Bamber in the kitchen. But if Sheila Caffell had committed suicide it must have been removed before she shot herself. The following aspects of the evidence established it was still in place on the gun when the appellant's sister was murdered:

a) The blood grouping analysis proved (on the particular facts of the case) that Sheila Caffell's blood was inside the moderator; and

b) Had the appellant's sister murdered the other members of her family with the moderator attached to the gun and then discovered she could not reach the trigger to kill herself, the moderator would have been found next to her body. There would have been no reason for her to have removed it and returned it to the gun cupboard before going back upstairs to commit suicide in her parents' room.

vii) The appellant's account of the telephone call from his father could be proved to be false for the following reasons:

a) His father was too badly injured to have spoken to anybody;

b) The telephone in the kitchen was not obviously blood stained;

c) As a matter of common sense, Nevill Bamber would have called the police before the appellant;

d) Had the appellant really received such a call, he would have immediately made a 999 call, alerted the farm workers who lived close to the farmhouse and then driven at speed to his parents home; and

e) Instead he had spoken to Julie Mugford before calling the police. When he subsequently contacted the Police, it was not by way of the emergency system.

viii) He stood to inherit considerable sums of money.

The defence case at trial 152. The defence answered the prosecution case in the following way:

i) The witnesses who spoke of the appellant's hatred and dislike of his family were either lying or had misinterpreted what he had said;

ii) Julie Mugford, the jilted girlfriend, had also lied to prevent anybody else being with the man she had loved;

iii) Nobody had seen the appellant cycling to and from the farm in the early hours of 7 August;

iv) Because the appellant had on a number of occasions before and after the killings entered the house by various ground floor windows there was no probative value in the finding of the hacksaw blade etc;

v) Sheila Caffell had killed her parents and children and then taken her own life for the following reasons:

a) She had a very serious mental illness and it was known that even those with no previous history of violence had killed. She had expressed the morbid thought of an ability to kill her own children;

b) Those who carried out "altruistic" killings had been known to indulge in ritualistic behaviour before committing suicide. Sheila Caffell may have replaced the moderator, changed her clothes and washed herself before killing herself, thus explaining the absence of blood staining, the minimum traces of lead on her hands and absence of sugar on her feet;

c) Having lived on a farm and been present at shoots, the appellant's sister would have understood how to load and operate the rifle;

d) The gun, the magazine and the rounds of ammunition had been left close at hand by the appellant in the room where he had heard an argument about placing the children in foster care;

e) The defendant bore no obvious signs of injury;

f) No bloodstained clothing of his had been recovered by the police; and

g) Dr Craig, Dr Vanezis and the first senior investigating officer had all proceeded on the basis that Sheila Caffell was responsible for the killings.

vi) There was a possibility that the blood in the moderator was not from Sheila Caffell, but represented a mixture of Nevill and June Bamber's blood;

vii) In respect of the telephone call from his father, the appellant had not initially appreciated the seriousness of the situation and then had become frightened to go to the farm alone.

The summing up 153. When Drake J. summed up to the jury, he suggested that there were three "crucial questions". The first, and he made clear that they were not in any order of importance, was whether they believed Julie Mugford? If they were sure that she had told the truth it meant the appellant had planned and carried out the killings. The second was whether they were sure that Sheila Caffell did not kill the members of her family and then commit suicide? The third was whether there was a telephone call in the middle of the night from Nevill Bamber to his son? If there was no such call then it inevitably undermined the whole of the appellant's story and he could have had no reason to have invented it, save to cover up his responsibility for the murders.

154. In dealing with the second question, whether Sheila Caffell may have killed the others and then committed suicide, the judge made clear that answering this question involved a number of different considerations. He suggested that one was "clearly of paramount importance", namely whether the second and fatal shot to Sheila Caffell was fired with the silencer on. If it was, she could not have fired that shot. He made clear that there were other considerations and the jury could come to the conclusion that Sheila Caffell did not carry out the killings "even without reference to the sound moderator". He added that the evidence relating to the sound moderator could, however, "on its own" lead them to conclude that the appellant was guilty.

The application for leave to appeal 155. The appellant sought leave to appeal against his convictions on grounds drawn by those who represented him at trial. The grounds upon which leave was sought related to the judge's summing up, alleging (a) that he had inaccurately assessed significant aspects of the prosecution case and omitted to refer to crucial aspects of the defence case, and (b) that he had with persistence and strength expressed opinions adverse to the defence.

156. Following rejection of the grounds by the single judge, the matter was heard by the full court. The Court rejected the criticisms of the summing up and refused leave. Lord Lane, LCJ giving the judgment observed:

"What is sometimes overlooked is that a direction to the jury reflects the sort of case with which the Judge was dealing. A strong prosecution case will inevitably result in what may be strong comments. Exactly the same with a strong defence case, that may justify strong comments."

157. It seems clear from the judgment as a whole, that the Court were of the opinion that this was a strong prosecution case that merited the comments about which complaint was made. The court, therefore, rejected the proposed grounds and concluded that there was "nothing unsafe or unsatisfactory about this conviction",

158. With one exception, none of the grounds raised before us relate in any way to the matters put before the court on the earlier occasion. The one exception relates to the fact that stories emanating from Julie Mugford had appeared in the press shortly after the trial. This was despite the fact that the prosecution had informed the defence, following discussion with the witness, that she had not sold her story to the press nor was it her intention so to do. One of the grounds relates to the same matter and we will deal with it further when we come to consider that ground. In every other respect, the application for leave to appeal has no relevance to the issues we have to determine.

Events after refusal of permission to appeal 159. At the trial, with justification, Drake J. was critical of the thoroughness of the police investigation in its early stages, when on the jury's verdicts, the police had too readily accepted that this was murder by Sheila Caffell and her subsequent suicide, when the true picture was very different. The Essex Police held an internal police inquiry to look into these criticisms. This was conducted by an officer, Detective Chief Superintendent Dickinson, who subsequently reported to his Chief Constable on the matter. It is alleged that that report reveals evidence that was suppressed by the police, or which, at the very least, was not known to the defence at trial.

160. The appellant subsequently made a formal complaint to the Essex Police about their handling of his case. In 1991, the City of London Police at the request of the Home Office, carried out an investigation of the appellant's complaint. To conduct that inquiry a vast amount of documentation was gathered, access to which has been given to the appellant's legal advisers and some of the material gathered in that way is relied upon in support of the grounds of appeal.
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Offline mike tesko

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Re: Mistakes by Appellate Court in 2002 Appeal, Debackle..
« Reply #8 on: Yesterday at 12:48 AM »
161. On 24 September 1993, the appellant petitioned the Home Secretary seeking a reference to the Court of Appeal. During consideration of the petition, the Home Office declined to disclose to the appellant expert evidence that it had obtained.

162. On 25 July 1994, the petition was refused.

163. On 28 November 1994, the appellant succeeded in a challenge by way of judicial review of the decision refusing to supply the expert report. The Home Office then supplied the evidence and agreed to reconsider the petition in the light of any further representations that might be made on behalf of the appellant.

164. There then followed a lengthy period of correspondence but no further representations were made. The CCRC in its reference (at paragraph 5.4) records:

"However it is clear from the correspondence that the case was still live and awaiting further representations at least at the end of 1995."

165. In February 1996, the Essex police destroyed many of the original trial exhibits without reference to the appellant or his legal representatives. It might have been necessary for this court to examine the circumstances in which this had happened. The police officer responsible contended that it was done without his appreciating that there was any on-going legal process that might require the further use of the exhibits. However, during argument it was agreed that the court could protect the appellant's position by making assumptions in his favour and that, therefore, it was unnecessary to resolve precisely how this came about.

166. In April 1997, responsibility for reviewing alleged miscarriages of justice passed to the CCRC. The appellant's case was treated as still live, and was effectively transferred to the Commission to complete the review.

167. After receiving representations on behalf of the appellant and making investigations of its own, the CCRC referred the matter to this Court. The sole basis of referral related to fresh evidence in the form of DNA testing of the sound moderator. It expressed its decision in the following terms:

"In the Commission's view, the new DNA evidence undermines a key aspect of the Crown's case as presented to the jury and to which the trial judge gave considerable emphasis in his summing up. The new evidence is admissible, is capable of belief and affords a possible ground for allowing the appeal. There is a reasonable explanation for the failure to adduce this evidence at trial, in that the DNA techniques used were not available at that time."

168. The Commission considered various other matters but concluded that none in themselves would afford a basis for allowing an appeal but considered that some had relevance to any suggestion that the other evidence was of a quality that would enable the conviction to be maintained. The Commission's conclusion was that if the evidence about the blood in the sound moderator could not be viewed as having the significance attached to it at trial, then the rest of the evidence would not be sufficient to maintain a conviction.

Grounds of appeal 169. We turn, therefore to consider the grounds of appeal that have been presented to the court. They fall into two distinct groups, the first group, and numerically much the larger, relates to documentation and other evidence which it is suggested was not made available to the defence before or at trial. The resulting grounds make allegations of a failure to disclose and suggest in the first place that these various failures render unsafe the resulting convictions. Grounds 1 to 13 come within these broad descriptions. However, in the grounds and in the opening of the appeal, many significantly more serious allegations were made against the police because it was suggested that there was evidence of a conspiracy to pervert the course of justice by deliberately concealing evidence helpful to the appellant. The allegations extended beyond mere concealment and involved actual fabrication of evidence adverse to the appellant. These allegations were reflected by ground 16 which alleged that "in the light of the activities" of three named police officers "the prosecution case as a whole is tainted and therefore unsafe".

170. As observed by Mr Temple, QC, who has represented the prosecution at this appeal, there was a stark contrast between the allegations made on behalf of the appellant in the opening of this appeal in the full glare of media publicity, and the case that Mr Turner, QC, on behalf of the appellant felt able to advance when the evidence had been examined. It should be understood, particularly since his closing remarks did not attract the same degree of media coverage, that the appeal in this regard is a very different one that we now have to consider than might have been anticipated from the opening. Some of the very serious allegations made against police officers were manifestly wrong, and Mr Turner has recognised that position by not pursuing such matters once the fact became apparent.

171. Nonetheless Mr Turner does maintain the suggestion that there is sufficient evidence of police wrong doing as to render the convictions unsafe.

172. The other and distinct aspect of the grounds relates to the blood in the sound moderator. The position has moved on evidentially from that as understood by the CCRC but ground 15 essentially raises the matter upon which the reference was made relating to DNA.

173. Ground 14 also relates to the testing for blood in the sound moderator, but is distinct from the issues of DNA referred by the Commission. The two matters clearly need to be considered in conjunction with one another.

174. We propose, therefore, to consider each of the grounds 1 to 13 individually. We will then turn to consider grounds 14 and 15 relating to the blood. Then we will look at the overall position and consider the cumulative effect of the various matters under ground 16. Finally, we will refer to an application by the prosecution to call fresh evidence in support of its contention that the convictions were safe.

Ground 1a – hand swabs from Sheila Caffell 175. Ground 1 as presented to the court can conveniently be split into two distinct parts and we will consider each in turn. Each part relates to hand swabs taken from Sheila Caffell during the post-mortem examination and the subsequent examination of these swabs. The first part alleged that information was withheld from the defence about the examination of these swabs and suggests that this was not merely the result of inadvertence. It is contended that the evidence demonstrates impropriety by the police in deliberately concealing the true picture. The further suggestion is made that the police may not have submitted the genuine swabs but rather obtained similar swabs from some other source and substituted them for the swabs taken from Sheila Caffell in order to produce a result favourable to the prosecution.

176. It is necessary to start by examining those parts of the evidence which are not in issue. It is clear that the police from an early stage appreciated the possible significance of the state of Sheila Caffell's hands and of anything that might connect them with the use of the gun. To preserve any available evidence, the hands were covered with plastic bags before the body was removed. When the post-mortem examination of the bodies of Nevill Bamber & Sheila Caffell took place later that day an officer, DC Hammersley, took swabs from the hands of Sheila Caffell using a special kit made for taking samples for testing for firearm residues. He labelled the swabs with the reference DRH/33. There is evidence from which it can be established that these samples were taken at 3.15 p.m. on 7 August.

177. At trial Brian Elliott, a scientist from the Home Office Forensic Science Laboratory, gave evidence that the item DRH/33 described as "Swabbing Kit – hands of Sheila Caffell" had been received at the laboratory on 13 September 1985. He said that tests had been carried out for the presence of lead and that only "very low levels of lead have been detected on the two hand swabs". He further reported that tests had been carried out on two members of the laboratory staff who had loaded eighteen cartridges, similar to those used to shoot those who died at White House Farm, into the magazine of the rifle, and "significantly higher levels of lead" had been detected. Clearly if this evidence was right it cast doubt upon Sheila Caffell having loaded the cartridges into the gun and thus to her having killed the others and then herself.

178. The defence in part countered this evidence by reference to the ritualistic cleansing theory to which we have made reference.

179. Mr Turner, however, points to a number of documents that he submits, if known about by the defence, would have altered the approach taken to this aspect of the evidence and might well have avoided the need to embark upon the ritualistic cleansing theory, which from the summing up, did little to impress the trial judge, and therefore, in all probability, the jury.

180. The first document to which reference is made is a form that accompanies a submission of an item or items to the laboratory by the police (known by its document reference as a HOLAB 3 form). The form in question, completed by DS Davidson, shows that the item DHL/33 was submitted on 9 August 1985 for testing for firearms residue with a submission serial number of 17. The form is marked "Item 17 not accepted at Lab". This is a document that came to light as a result of the City of London Police inquiry.
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Offline mike tesko

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Re: Mistakes by Appellate Court in 2002 Appeal, Debackle..
« Reply #9 on: Yesterday at 12:50 AM »
181. Light is thrown on the circumstances of the rejection by a further document again coming to light in the same police inquiry. The document is a message memorandum from the Home Office Science Laboratory file recording the passing of a message from DS Lovell, one of the police liaison officers at the laboratory responsible for receiving items for examination, to DCI Wright, one of the officers then responsible for the inquiry into the shootings. It reads:

"Advised that item 17 not accepted at Lab due to contamination risk as it came into Laboratory with firearms (not connected with this case). D/C/I Wright not pleased with circumstances of rejection."

182. The next documentation said to be of significance in this regard are copies of the HOLAB 3 forms that accompanied the swabs when they were submitted again on 13 September 1987. When the forms were originally prepared using a typewriter, there were two items listed for submission, a blood sample and a Citroen motor car. They were numbered as Serial Numbers 73 and 74, the numbers running on from earlier submissions. On the forms there had been the hand-written addition of a third item, the hand swabs from Sheila Caffell. This item has been given the next consecutive serial number 75. Two other features of the forms are said to be significant. The first is that on each copy the description of when and where the samples were taken records the time of taking as 11 a.m. on 7 August. The second, and the one upon which greatest reliance was placed, is that whilst two of the three copies that have been produced records the item's identifying mark as DRH/33, the third gives it as DRH/44.

183. Mr Turner made the point that nowhere does the form record that the submission is a resubmission of an item and that the fact that the item has been earlier rejected is not in any way made apparent. He drew to our attention another form from the same inquiry upon which the fact that the rifle and the sound moderator were being resubmitted was made clear.

184. Mr Turner next drew attention to the notes made at the laboratory during the examination of the swabs. The notes made no reference to the earlier submission and hence, it is suggested that one can conclude that the scientist was unaware that he was examining an item rejected on the earlier occasion by the laboratory.

185. Mr Turner submits that there is evidence that the fact of the rejection was widely known to investigating officers, to some members of the forensic science service and to the office of the Director of Public Prosecutions ("the DPP"), responsible for the preparation of this case for trial. He points to a memorandum of a meeting at the forensic science laboratory on 18 September 1985, before the examination of the hand swabs had been done. Amongst those present were Detective Superintendent Ainsley, by then in charge of the investigation, and DCI Wright to whom the original message about the rejection had gone and whose displeasure is recorded. The memorandum of the meeting made by the firearms examiner, Mr. Fletcher, includes:

"Statement to explain why handswabs not examined."

186. Mr Turner then drew attention to two reports made by Detective Superintendent Ainsley for submission to the DPP. In an interim report dated 23 September 1985, Mr Ainsley records that the handswabs were submitted but were rejected by the laboratory. In the second and final report, which starts by suggesting that the writer will cover all the points made in the interim report "thereby negating the necessity to refer back", there is no reference to the rejection of the handswabs and the only reference to this item reads:

"… Mr Elliott, also gives evidence of examination of hand swabs taken from Sheila Caffell and of tests carried out thereafter which prove yet again that Sheila did not handle the bullets used that night."

187. A further report by Mr Ainsley is relied upon. The report is headed "Initial Investigation". It makes reference to "matters raised at trial", and bears a date 20 October 1986, that is during the currency of the trial. There is no evidence of the purpose for which it was prepared or to whom it was addressed. From its contents, it appears most likely that it was directed at the criticisms being made at trial of the inadequacy of the initial inquiry. Since 20 October was the day before Mr Arlidge QC, leading counsel for the crown made his final speech to the jury, it seems most likely that the report was written for the use of prosecuting counsel. It contains the following reference to the handswabs:

"The hands – were swabbed – swabs rejected by the laboratory. Later raised by D/Superintendent Ainsley in conference at the laboratory when the laboratory again stated that it was too costly to do and that it would be expected to show a positive result as the body of Sheila was in a room contaminated by gunfire. D/Superintendent Ainsley made issue that the swabs should be examined and if not done he wished a statement to explain why it had not been done. As a result they were examined and found to be virtually negative of residue, i.e. lead, oil and propellant."

188. Mr Turner submitted that the three reports were evidence that Mr Ainsley was a party to a conspiracy to conceal the fact of the rejection from the defence and, therefore, from the jury. He contended that it was significant that there had been mention in the interim report of the rejection but none in the final report. He suggested that the court could infer that Mr Ainsley had deliberately included the passage saying that the full report "negated the need to" read the interim report so that the rejection would not be noted by those responsible for the prosecution. He further submitted that the passage in the report prepared during the trial again showed Mr Ainsley seeking to hide the true position by giving a false explanation for the rejection suggesting that it was a matter of cost rather than contamination.

189. Mr Turner invites the court to conclude that the circumstances of the re-submission demonstrate a determination by the police to have the swabs examined by the laboratory whilst concealing the earlier rejection. It is suggested that a number of features of the documentation should lead to this conclusion. The HOLAB 3 form describing the item as DHL/44 on its re-submission had a number of features that would have concealed the fact that it was the same item that had earlier been rejected. The wrong identifying mark had been given concealing its true identity as DRH/33. It had been given the serial number 75 which differed from the original submission where it was serial number 17. The description of when the swabs had been taken on the form suggested that it was at the 11 a.m. on 7 August so that it had the appearance of being an earlier sample to DRH/33 which was in fact taken at 3.15 p.m. on that day. There was no mention on the form of it being a resubmission. Thus, it is said that anyone looking at the form would be misled into thinking that they were examining a quite distinct set of swabs.

190. The notes of the scientist showed that the item was handed directly to the scientist and it is suggested that this must have been done to bypass DS Lovell who had been involved in the earlier rejection.

191. The final part of the evidential material relied upon on behalf of the appellant in this regard are records that relate to exhibits gathered during the inquiry. The first such item is the Major Incident Property Register. This records in respect of item DRH/33 under a heading of where stored "Retained by S.O.C." and then apparently by way of a subsequent addition "13/11 F/cell". The only other recorded information is that the item was destroyed in 1996. The second document to which reference is made is a Scenes of Crime Exhibit List. This records that DRH/33 went "To lab. 9/8/85".

192. It is on this material that Mr Turner advances the possibility that DRH/33 was never examined in September 1985 and that either further swabs were taken from Sheila Caffell's body or alternatively swabs which had never been taken from Sheila Caffell at all were substituted. Mr Turner's submission as it appears in his skeleton argument is:

"It is submitted that had DRH/33 been the swabs examined, firstly the exhibit books would have recorded the fact of submission on 13/09 and secondly, if they were examined it is unlikely they would have existed in February 1996, to be destroyed. It is submitted that the overwhelming probability is that a second clean set of hand swabs were submitted in place of DRH/33."

193. With every respect to Mr Turner that seems a very flimsy basis upon which to consider making the very serious allegations of serious criminal misconduct that he has made. It pre-supposes that a resubmission of the item would of necessity be recorded on one or other of these records; it overlooks the fact that there is no record on either document of the return from the laboratory of the items in August to the custody of the keepers of either record; it suggests with no sort of evidential basis that neither the item nor the remaining parts of it would have been returned by the laboratory following examination; and it puts forward the inherently unlikely proposition that after the substitution of a false set of swabs, the original swabs were retained so that they could be placed in the female cell in November and be destroyed in 1996 even though it would have been known to the scientists that the examined swabs had been destroyed during their examination.

194. Having looked closely at all the available documentation, it was the view of the court that whilst superficially the proposition that there might have been an element of deceit of the scientists in the first place and thereafter of the defence and the jury by the deliberate concealment of the fact of the earlier rejection might be tenable, any more rigorous examination of the facts showed that the proposition was unsustainable. We will explain shortly why we reach such a conclusion. However, the court was conscious of the fact that in cases where a miscarriage of justice is alleged, the truth may only be revealed by the fact that a tip of the iceberg emerges above the surface. Accordingly, we decided out of an excess of caution, to grant an application made by Mr Turner that he should have the opportunity of cross-examining witnesses who could give evidence about these matters. The court, therefore, required three witnesses to give evidence and having been called, each was cross-examined by Mr Turner and questioned further on behalf of the prosecution by Mr Temple. Their evidence was so transparently right that Mr Turner did not, even when reminded that he had not done so, feel able to challenge the evidence of one of those who must have been implicated if the sort of allegations of gross impropriety that he had made in opening the case were true.

195. The first of these three witnesses to give evidence was Peter Wingard, who was a Senior Scientific Officer at the laboratory at the relevant time, later became a Forensic Service Manager for 4 or 5 years and is now retired. He had been responsible for examination of the laboratory records when a request for information was sent to the laboratory by the appellant personally. He had subsequently supplied the available documentation to the City of London police inquiry, from where it was subsequently made available to the appellant's legal advisers. Mr Wingard was able to give evidence of the system of submissions to the laboratory at the time, and also to confirm which of the documentation before the court would have originated from the laboratory.

196. Mr Wingard explained that the rejection of the item would be made by the police liaison officer acting upon standing instructions that where swabs were submitted having been in the vicinity of firearms they should be rejected. The liaison officer would not necessarily consult a scientist before making such a decision. He rejected the suggestion that once rejected in this way, there would be no way in which the laboratory would examine such items thereafter if it was aware that they had been resubmitted. He explained that there was a significant difference between an examination of the swabs required to provide evidence that a person had discharged a firearm where the testing could as a result of the contamination produce a false result suggesting that the person had had contact with guns, and a test the purpose of which was to provide evidence that a person had not been in contact with a gun. In the latter case the issue of contamination ceased to be a factor since it could never decrease any findings only add to them.

197. Mr Wingard was asked whether in any event he would expect to see a record of the rejection in the statements provided by the scientists. He said that it would very much depend on the reason for the rejection and its possible effect on the outcome of the tests. It was not normal to recount the history unless it had a bearing on the evidential value of the conclusions. If rejection might in any way invalidate conclusions that might be drawn from the evidence of the tests, then he would expect that it would be recorded. However, that was not the situation here since there was no way in which contamination by proximity to firearms could have decreased the quantity of lead found on the swabs from Sheila Caffell's hands. The rejection, and the reasons for it were, therefore, not relevant to the inference suggested from the testing that Sheila Caffell had not been responsible for the repeated handling of the bullets. He made clear that the testing was for the presence of lead, and was not testing for firearms residue as such.

198. Mr Wingard said that it was commonly the case that items were resubmitted to the laboratory with a different serial number to the original submission, and scientists paid little regard to this number. The identifying feature upon which they relied was the Identifying Mark. This would first and foremost be on an exhibit label which would be attached to the item itself on submission, and would also appear on the HOLAB 3 accompanying the submission.

199. The next witness called by the court was DS Lovell, the liaison officer at the laboratory involved with the August rejection. He explained that no item would be submitted to the laboratory without first being seen by him or one of the other liaison officers. Where a scientist received an item directly as had happened with the swabs on resubmission, the scientist would come to the reception area and collect the item directly but the liaison officer would still be responsible for checking it in. It would simply avoid the item going through the normal internal process of delivery to the scientist but it would not avoid the liaison officer being involved in checking it in. He had played such a part on the resubmission because his writing was on one of the copies of the HOLAB 3 form. Thus the suggestion that the swabs had gone directly to the scientist to avoid DS Lovell so that he would not notice that it was a resubmission was clearly wrong.

200. DS Lovell explained that three copies of the HOLAB 3 would accompany the item to the laboratory. The laboratory would retain two copies and the third would be endorsed by the receiving officer and handed back to the person delivering the item by way of receipt. A part of his responsibility would be to check the items received by the laboratory against the HOLAB 3 form by reference to the identifying mark that they bore. He had not noticed a discrepancy in this regard on this occasion either between the item and the HOLAB 3 forms or between the three copies of the forms. He looked at the three copies of the form that have been traced. Each had been stamped by him with his personal stamp and with the laboratory date stamp. Examination showed that two of the copies of the form gave the identifying mark as DRH/33 and one gave it as DRH/44. He could be sure that he had received each from the stamps. The DRH/44 was one of the two copies retained by the laboratory since it bore hand-written notes that he had made.
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Offline mike tesko

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Re: Mistakes by Appellate Court in 2002 Appeal, Debackle..
« Reply #10 on: Yesterday at 12:51 AM »
201. In relation to the rejection in August, DS Lovell explained that he would have consulted a scientist before rejecting the item. He could not remember the circumstances of its resubmission because it was so many years after the event but because of the nature of the case and the contact that there had been between the police and the laboratory relating to it, he thought that he may well have been expecting it back when it arrived.

202. DS Lovell explained that when items relevant to a case were referred to the laboratory, the case would be assigned a reference number. All documentation would be labelled with that number and kept on that file. Exhibits submitted for firearm examination would be given a distinct number and a separate file would be opened for documents relating to that examination. It is clear from the items recovered that all the documentation within the laboratory was dealt with in accordance with that system and thus could readily be produced when queries were raised some years later.

203. The third witness called in this respect was DS Davidson. DS Davidson was responsible for completing the HOLAB 3 forms relevant to the resubmission. Since he was the one who had written on the one copy DRH/44 and on the other two DRH/33, it must follow that since he would know that all three should bear the same identifying mark, if there was a police conspiracy to deceive the laboratory and others, he must have been a party to that conspiracy. The only other possible explanation apart from the conspiracy allegation for the difference was an inadvertent slip on his part.

204. DS Davidson explained that when a submission is made, four copies of the form HOLAB 3 are completed. Three go to the laboratory and the fourth is necessary because the officers do not submit items directly to the laboratory. They submit the items to the Essex Police headquarters and the fourth copy is for use at headquarters. Arrangements are then made for the onward transfer of the items from that central location to the laboratory. Thus items from a number of cases may be submitted at the same time. Clearly that happened here because the rejection of the swabs came about because items unrelated to this case were transported at the same time. Bearing in mind how significant an inquiry this was relating to five shootings, one can well see why DCI Wright would be displeased that the action of those at headquarters had caused the rejection of an item that the investigating officers wanted examined.

205. DS Davidson said that he could remember that having already typed the two items on the list, he received a telephone call, he thought from DCI Wright, to add as a third item, the swabs. He could remember that there was some urgency about the matter but he could not recall the detail of the conversation. He did not think that he was aware that it was a resubmission and he was unaware of anything concerning the rejection. He had added the swabs to each of the copies. He was unaware that he had put the wrong identifying mark on one copy and it was simply a slip on his part. He was asked why each of the forms recorded that the swabs had been taken at 11 a.m. when DRH/33 had been taken at 3.15 p.m. He said that it was an error that he had made and he explained that he had available to him forms that he had completed as the items were gathered (CID/6 forms), these correctly recorded the time as 3.15 p.m. but showed other items recovered at 11 a.m., and in his hurry he had misread the forms.

206. Having received the explanations given by the witness, Mr Turner completed his cross-examination without suggesting to the witness any impropriety on his part and without challenging the explanations that had been given. Mr Temple, on behalf of the prosecution, queried whether this was inadvertence on the part of Mr Turner or whether in the light of the evidence given, Mr Turner now accepted that the allegations of improper conduct could not be sustained. Mr Turner told the court that it was not through inadvertence. The court was not surprised by Mr Turner's altered position because the evidence appeared to us to be manifestly truthful. Thus the calling of the witnesses far from supporting the conspiracy had caused the appellant's counsel to see that it could not be maintained.

207. Mr Turner asked the court to call one further witness in this regard, the scientist who had examined the items. We queried what he hoped to achieve by cross-examination of the witness and he indicated that he wanted to establish that the witness was unaware of the earlier rejection of the swabs when he examined them. That evidence was available in statement form and we were prepared to accept that proposition without the need to hear oral evidence. However, it has to be said that any proper examination of the file by the scientist would have revealed that fact because it is clear from the laboratory notes that the scientist had checked the identifying labels of the item and was fully aware that he was dealing with DRH/33 in respect of which there was information on file about its earlier rejection.

208. The allegations made in opening that there was evidence to show gross criminal misconduct by the police in respect of the swabs have thus turned out to be wholly groundless to the point where the appellant's counsel felt no longer able to maintain them. Quite apart from the evidence of DS Davidson, there were a number of reasons why these allegations were patently wrong:

i) The evidence of the contamination was not in any way damaging to the prosecution case. As Mr Wingard pointed out, it could not, even if known, adversely affect the inference that the prosecution sought to draw from the tests. If the swabs had become contaminated that would point towards Sheila Caffell having had contact with the gun rather than away from it. Any results, therefore, might give an increased reading that might favour the defence but could not adversely affect the defence. Whilst we accept that a corrupt police officer might go to extreme lengths to cover up evidence helpful to the defence, it makes no sort of sense for such an officer to commit serious criminal offences to hide evidence that which is either neutral or favours the prosecution.

ii) The suggestion that Detective Superintendent Ainsley sought to conceal the fact of the rejection in his final report cannot be right. He had raised it with the laboratory staff at the meeting on 18 September requiring a statement to be made to explain why the hand swabs had not been examined. Since the hand swabs were at the laboratory awaiting examination at the time, this is inconsistent with the allegation that he was trying to hide the earlier rejection from the scientists.

iii) There would be no point in submitting a HOLAB 3 form with the false reference to DRH/44, whilst at the same time submitting another copy with its true identifying mark recorded and with the item labelled with the correct mark, as it clearly was from the scientist's note. A moment's thought would have caused any police officer to realise that the examining scientist would inevitably look at the exhibit label, not least to sign it so that he could later identify the item that he had examined.

iv) The documentary evidence about the keeping of the swabs did not lead to the suggested inference. It did not record the return of DRH/33 after the initial rejection and DS Davidson said that he had not seen the item again after it was sent to headquarters in August. Between August and resubmission, it must, therefore, have been at headquarters and as such would not have appeared on the documents produced. 209. We have not the slightest doubt that the only failing by the police revealed in their dealings with the swabs are some relatively minor form completing mistakes by DS Davidson. On these relatively minor failings the whole edifice of a conspiracy theory was constructed and unsurprisingly when tested it came crashing down.

210. Thus the only true complaint that can be made is that the defence were not told at trial that the initial submission of the hand swabs had been rejected. We have to ask ourselves whether this in any way invalidates the jury's findings. We ask ourselves what possible use could have been made of that fact if it had been known to the defence. They could not have used it to challenge the findings from the test of the swabs because, as already explained, it could not have affected the results in any way adverse to the interests of the appellant. They could not have used it to make any collateral attack on the care taken by the officers in the case because the sending of the item at the same time as other items unconnected with the case was in no way the failing of the officers involved in the inquiry but rather that of the officers dealing with the onward transmission at headquarters. Thus we are satisfied that even if this information should technically have been disclosed, the failure to do so can have had no impact upon the jury's verdicts.

211. In terms of the overall consideration of the police conduct, they had brought the matter to the notice of the lawyers handling the case on behalf of the prosecution. That is the limit of their responsibility in terms of disclosure. Once the lawyers had been alerted as they undoubtedly were by the discussions in the presence of the DPP.'s representative at the meeting at the laboratory and by the interim report directed to the DPP the responsibility for decisions as to whether a fact that needs to be drawn to the attention of the defence is for the lawyers. Thus these matters cannot reflect on the police as being a part of some deliberate attempt to hold back information from the defence.

212. Although it is not necessary for us to go further and consider whether the prosecution lawyers were at fault since it can have no bearing on the safeness of the conviction, in fairness to them we should perhaps record that we are not persuaded that they were at fault. It was not the practice at that time routinely to produce documents as part of the disclosure process that related merely to the transmission process of items for scientific examination. They were always available for inspection both at the police station and at the laboratory if required, but the normal procedure was to await some request in this regard. This would most frequently happen when a defence expert visited the laboratory and would request sight of the laboratory file. The defence had instructed an expert to look into the firearm side of the case and he had visited the laboratory. The prosecution were, we are satisfied, entitled to assume that he had either looked at the file or that he was satisfied that it was unnecessary. However, clearly if the possible contamination might have produced results that were unfair to the accused, the whole picture would have changed and there would have been an overriding duty on the prosecution lawyers to ensure that the defence lawyers were not misled by not receiving this information. But, as we have made clear more than once that was not the situation here.

213. Thus we reject this first ground of appeal and we are equally satisfied that there is no misconduct revealed by this aspect of the case that falls to be considered when we come to ground 16, the general allegation of misconduct against the police.

Ground 1b – the testing of the hand swabs from Sheila Caffell 214. Mr Turner raised as a subsidiary ground to the matters already considered a further ground relating to the swabs. He said that as a result of the disclosure fresh evidence had been obtained that cast doubt upon the scientific conclusions put forward by the prosecution at trial in respect of the tests on the swabs and he sought leave to call fresh evidence. For our part we could not see how the evidence could in any way be said to relate to the alleged non-disclosure nor how it came within the ground of appeal in this regard. Nonetheless, we thought that we ought to consider the matter without regard to any technicalities.

215. At trial Mr Elliott had given evidence of the results of testing the swabs for lead, which included information about other elements detectable on the swab. He had also given evidence of the comparative tests carried out on other scientists after they had handled ammunition from the same source as that used in the killings and loaded it into the magazine. The tests were said to demonstrate appreciably higher lead levels on the scientists' hands than were found on the swabs taken from the hands of Sheila Caffell. This was put forward as evidence that Sheila Caffell had not handled the cartridges in a manner consistent with her being the killer.

216. At trial, Mr Rivlin QC, who appeared for the appellant at trial, sought to counteract this evidence in two ways. First in cross-examination of the scientist, he drew his attention to traces of other elements in the test results from the swabs, iron and copper, and queried whether these were significant. The scientist said that they were no more than might have been obtained from the atmosphere. He did not think the copper could have come from the bullets unless they had been scratched. The other defence approach to this evidence was the theory of ritualistic washing to which reference has earlier been made.

217. The evidence which Mr Turner sought to call was that of Dr Lloyd, a chemist. He contended that Dr Lloyd's evidence would cast doubt upon the test findings and that if it had been available at trial, it might very well have obviated the need to advance the ritualistic washing theory that the jury may well have found unsatisfactory.

218. Dr Lloyd's conclusions, as apparent from a report with which we were supplied, were principally that the lead found on the handswabs from Sheila Caffell and from those tested in the laboratory came from petrol combustion residues and was not connected with the handling of bullets. Secondly that the handswabs from Sheila Caffell were not qualitatively different from those from the testees. He was critical of the laboratory test saying that swabs should have been taken both before the handling of the bullets so that a comparison could have been made between the two. Accordingly in his opinion the test results were of no assistance to the determination of whether or not Sheila Caffell had handled the cartridges in the same manner as the testees.

219. Section 23(2) of the Criminal Appeal Act 1968 requires the court to have regard to four matters in deciding whether to admit fresh evidence:

"(a) whether the evidence appears to the Court to be capable of belief;

(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings".

220. In a number of cases this court has made clear that it will not readily admit expert evidence as fresh evidence where the necessary expertise was available at the time of trial (see e.g. Lomas, 53 Cr. App. R. 256 & Jones (Steven) [1997] 1 Cr. App. R. 56). To do otherwise would permit an appellant to shop around for an expert after conviction and upon finding one favourable to his case mount an appeal based on the views of that expert. To allow that would subvert the trial process and generally speaking the time for advancing expert evidence is before the jury and not after conviction.
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Offline mike tesko

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Re: Mistakes by Appellate Court in 2002 Appeal, Debackle..
« Reply #11 on: Yesterday at 12:52 AM »
221. Mr Temple for the prosecution opposed the application. He submitted that it was clear that the appellant had sought expert advice before trial from Major Meads, a firearms expert, who in turn had consulted Mr Edwards, a chemist. There was, he submitted, nothing new about the scientific knowledge that gave rise to this evidence. With that view we agree.

222. Mr Temple further submitted that the evidence would not in any event provide a basis for allowing the appeal. He submitted that a study of the summing up revealed the relative unimportance that this aspect of the evidence took in the case. The judge had made reference to it at two points in the summing up. He had referred to it in conjunction with the cleanliness of Sheila Caffell's body and had put it not as an individual item but as part of an overall picture. At page 84F of the transcript he said:

"Then another point is that when she was found, there was no blood marks on her feet – on the soles of her feet. Well, you may think that is a matter of considerable importance because she had been involved in the fighting with her father as well as killing her mother, surely it is inconceivable that her feet would have been clean in the way that they were found to be, and in the way you see them to be clean from the photograph. What is suggested on behalf of the Defence is that after killing, at any rate, the father and the mother, she went and washed; and tied up with that piece of evidence is the fact that there were no marks of lead on her hands."

223. Mr Temple says that the passage makes clear that even without the evidence relating to the lead, it is clear that the defence were having to rely on the theory of ritual washing to explain the clean feet and that the evidence even if called at trial would not have removed the need to rely on this theory.

224. The judge continued:

"Well, now, so far as that is concerned, you have had the opportunity yourselves to load the magazine, and see what happened to your hands which you will bear in mind, whether you think it likely that she would have had lead marks on her hands. If she would have done, then the Defence answer that by saying well, nevertheless she may have washed between loading the magazine the second time and killing herself."

225. The judge then dealt with Mr Rivlin's cross–examination on this topic and concluded by saying (page 85F):

"As to the suggestion that she may have washed, well it is a matter to which I am sure you will give thought because it may be an important part of the evidence in this case that her hands and feet did not bear upon them either blood on her feet, or marks from the bullets on the hands, that one might have been expecting."

226. At page 90 F, the judge mentioned this aspect of the matter for the second time saying:

"I have reminded you of the fact – and it is a fact – that when she was found she had no marks of blood on the soles of her feet and no marks of having handled bullets on her hands."

227. The first thing that struck the court about those passages is that the judge was not inviting the jury to consider whether tests showed traces of lead on Sheila Caffell's hands but rather "marks of lead". In other words some visible signs that she had handled the bullets rather than a conclusion from a scientific test. He was reminding them that they could rely on their own observations when they had loaded the magazine and this cannot have related to the tests because the jury had done none. In one sense it mattered not whether the marks were of lead or something else because what the judge was inviting the jury to consider was whether loading the magazine was likely to have produced hands that were visibly dirtier than those of Sheila Caffell.

228. The reason why the judge approached the matter in this way becomes apparent when the evidence of Mr Fletcher, the prosecution's firearms expert is considered. Mr Fletcher gave the jury a demonstration of loading the magazine with the bullets. He commented that in his experience loading a full magazine would leave marks on the hands adding "in this case you get a black discolouration". (Transcript PMS/10 page 18B). When he was cross-examined by Mr Lawson, junior counsel for the appellant at trial, he was asked about this part of his evidence and said (Transcript PMS/10 page 47H):

"Well they are my own observations, and I think the observations of the court yesterday when the demonstration was made, that by loading cartridges into the magazine you get residues on your hands from the bullets and cartridges."

229. Thus it seems to us clear that having witnessed the demonstration, the judge was clearly inviting the jury to consider not the rather technical scientific evidence of the testing for lead but that which they had witnessed with their own eyes, and which they were in a particularly good position to judge because they had been given the opportunity of handling the material themselves.

230. We should perhaps point out that quite apart from Mr Fletcher's evidence, the matters were also apparent in the notes that he made of the experimental loading of cartridges. He had noted after the first loading "some lead specks and frags and some discolouration"; after the second "Further specks and frags and darker discolouration"; and after the third "quite a few specks and fragments of lead and grey/black discolouration". (See memorandum of Dr Lloyd dated 14 October 2002). As Dr Lloyd points out it may have been an assumption that the particles were lead, but the fact that the hands became dirty was noted on that occasion as well.

231. Thus even if the scientific testing for lead could have been discredited, it would not have answered the essential point that if Sheila Caffell had loaded the magazine in the way that the killer did, she must have cleaned her hands afterwards. The ritualistic cleaning theory, with all its imperfections, was thus the essential matter upon which the jury had to concentrate.

232. We concluded in such circumstances that there was no valid reason why this evidence could not have been put before the jury by seeking to call an appropriate expert unless it was the case that Dr Lloyd's views were not ones shared by others and, even more importantly, that even if the evidence had been given at trial, it could not have altered the outcome of the trial. Accordingly we declined to admit this fresh evidence and any other evidence consequent upon it and this aspect of ground 1 fails as a result.

Ground 2 – disturbance of the crime scene 233. The appellant contends that officers of the Tactical Firearms Group ("TFG") upon entering the premises themselves knocked over chairs, stools, and a sugar bowl but falsely contended at trial that such disturbance preceded their entry. This is relevant to the suggestion that there was a violent struggle between Mr Bamber and his killer before he was killed and the prosecution contention that Sheila Caffell would have been incapable of overpowering her father. Further if there was no violent struggle, the absence of any indication of such on Sheila Caffell was not of significance.

234. Additionally the appellant contends that the Crown failed to disclose a police action record, Action 94 in which DI Cook was asked to examine for sugar the bag in which the body of Sheila Caffell had been transported from the farm to the mortuary. He reported back to DCI Wright in the following terms:

"There was no sugar on the floor it was all confined to an area under the table and if it was, officers would have been walking in the same

Sugar was later found because the table was moved and sugar swept around. No sugar in body bag"

235. The complaint of non disclosure in relation to Action 94 is that whilst, as was the practice in 1986, no general disclosure took place in relation to any action or message, this particular action was clearly of importance to the defence and thus the prosecution were under a positive duty to bring it to the attention of the defence and failed so to do.

236. The assertion in the first part of this ground namely that officers knocked over chairs, stools and a sugar bowl is based in part upon Action 94 but also upon three other documents. Firstly the report of the Essex Review in which the reviewing officer, Detective Chief Superintendent Dickinson, wrote:

"The kitchen was in some disorder. A number of chairs had been knocked to the ground, the table had been pushed forward causing some items of crockery to fall to the floor, including a sugar basin and two stools had been knocked over. It is now believed the stools were possibly knocked over by members of the TFG whilst making their way through the kitchen"

237. The Review does not disclose the source of such belief and accordingly affords no evidential support for the appellant's contention.

238. We have looked at a number of statements taken recently by the prosecution to check that they do not reveal any possible source of this hearsay. In a statement dated 9 May 2000, DI Cook stated that any information he had relating to the subject was "sort of hearsay as far as I was concerned". He said he could not categorically recall any of the officers saying that they knocked the chairs over or the stools or whatever they are, "but certainly I can't recall specifically saying the sugar. I cannot recall who the third party was who may have told me. I don't believe it was the firearms team". We have been supplied with statements from every member of the firearms team all of whom positively assert that save for moving two stools they moved nothing and disturbed nothing upon entering the kitchen.

239. We have considered with great care the statements of PC Collins and PC Delgado who must have been the two officers who entered first at about 7.30 a.m. on the 7 August. PC Collins in a statement of the same date describes forcing an entry into the house and seeing the body of a male person positioned over an upturned chair, which balanced against a cupboard. Having described that person and concluding that he was dead he said:

"On looking around the kitchen I saw upturned chairs and stools and broken crockery on the floor, and on the floor on the far side of the room there were small spots of what appeared to be blood. It appeared that a violent struggle had taken place within this room".

PC Delgado made a similar statement. 240. Mr Turner draws our attention to the fact that on the 19 September 1985 all the police officers who attended at the scene were summoned to attend at Witham Police Station for a round the table conference with Investigating Officers. On the following day, 20 September 1985, PC Delgado made a further statement in which he said:

"in the kitchen by the doorway to the hall were two stools which were laying down on the floor blocking a covering position into the hall, these stools were moved to near the kitchen table. In the hallway the door to the cellar was forced open to allow access, it appeared the door was stuck with old paint and had not been opened for some time. PC Collins attempted to go down the cellar stairs, which gave way beneath him. A window in the dining room was unlocked and opened to allow an escape route if needed, this window was later shut and secured. The door to the bedroom opposite the children's room was locked and this was forced to allow access".
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Offline mike tesko

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Re: Mistakes by Appellate Court in 2002 Appeal, Debackle..
« Reply #12 on: Yesterday at 12:54 AM »
241. On 30 September PC Collins made a second statement in which he said:

"I moved two kitchen stools which were laying down near to the hallway entrance. I moved these stools about 2 or 3 feet but left them in a similar position as they were found. I moved them to enable me to carry on my search of the house as safe as possible. In the hallway a cellar door was forced open, the door appeared to have not been open for a long time. I opened a window in the dining room which I first had to unlock by moving a small catch to allow an escape route for an officer I had left to cover the stairway from the doorway of the dining room. To my knowledge nothing else was moved or disturbed".

242. We take the statements of PC Collins and PC Delgado as clear statements that apart from moving two stools they moved no other furniture. The statements from some 10 other TFG officers indicate that there was no other movement of furniture and certainly no spillage of sugar attributable to any officer. On the other hand the crime scene was disturbed in the sense that the door to the cellar was forced, the cellar stairs gave way, the dining room window was unlocked and opened and a bedroom door was forced.

243. The second document advanced by the appellant in support of the proposition that furniture was moved and sugar was spilled by the officers is the City of London Police Review of 1991 which makes reference to a statement taken from DI Cook in which he stated:

"I later learned that the chairs and brown sugar had been knocked over by the firearms unit when they rushed about the house looking for Sheila".

This again is necessarily hearsay evidence or hearsay upon hearsay. 244. A statement was made to the same inquiry by Ann Eaton in these terms:

"I think it was then I asked if Sheila had sugar on her feet, this was based upon my observation of sugar grains being all over the floor of the kitchen but I later found out that it had been knocked over the floor by a police officer. When it was I was not told, but it was apparently done when they were clearing the house up. If that was the case they must have really knocked it over as it was all over the kitchen".

245. This statement is also based upon hearsay and is at odds with the sworn evidence given at trial. It cannot possibly be right because there is clear photographic evidence of the sugar bowl and the sugar on the floor on the morning of 7 August with Mr Bamber's body still in place when no clearing up of the house had then taken place.

246. Finally it is said that Detective Superintendent Ainsley's interim report of 23 September 1985 and his final report of 7 November 1985 both contain the following paragraph:

"Whilst it is fair to say that the Tactical Firearms Group when searching the premises take the utmost care not to disturb the scene, there is of necessity a certain amount of disturbance and as will be seen from their statements, this was no exception"

247. It seems to us that there is nothing in this passage, which is inconsistent with the "disturbance" identified by PC Collins and PC Delgado in their second statements (namely forcing doors and opening windows). It may well be significant that the round table meeting of the TFG officers and others took place on 19 September. PC Delgado made his statement the following day and the interim report was written three days after that.

248. Application was made pursuant to s.23 of the Criminal Appeal Act 1968 by Mr Turner inviting the Court to call Mr Cook so that he might cross-examine him. We refused that application. Mr. Cook arrived at the farmhouse at 9.20 a.m., one hour and fifty minutes after the entry by the TFG officers. He had gone there accompanied by a photographer and he had arranged for the photographer to photograph the scene beginning with the kitchen at approximately 10.00 a.m. It necessarily follows that any attempt at giving evidence about disturbance of the scene could not result from his own observations since it is not suggested that he observed any disturbance as it took place. The nearest Mr Turner came to suggesting a basis for Mr Cook to give evidence about these matters was that the photographs did not realistically or accurately depict the state of the kitchen. We do not accept that proposition. The photographs are of excellent quality and accurately depict the scene of the crime. DI Cook could not give any admissible additional evidence supporting the appellant's proposition that the TFG knocked over chairs, stools and a sugar bowl.

249. We have considered the potential impact that Action 94 might have had on the jury. We think it is wholly unrealistic to suggest that the jury might have been persuaded by it that there had not been a violent struggle in the kitchen. Even if one discounts the evidence of the overturned stools and chairs and the broken sugar bowl, there was sufficient other evidence to suggest a violent struggle. Mr Bamber's body lay across an overturned chair that can have had nothing to do with the actions of the TFG, the light fitting was broken, there were the injuries apart from the shot wounds to Mr Bamber, there was the piece broken off the rifle stock, there were score marks under the mantelpiece where it had been struck by the sound moderator attached to the rifle, and there was Mr Bamber's watch lying damaged under a rug on the other side of the room.

250. DI Cook's comments on the Action 94 are unsatisfactory in themselves. The words "There was no sugar on the floor it was all confined to an area under the table and if it was, officers would have been walking in the same. Sugar was later found because the table was moved and sugar swept around" are in themselves potentially contradictory depending upon how they are read. It should not be forgotten that DI Cook was one of the officers who had supported the murder/suicide conclusion and that at the date of Action 94, different officers had taken over responsibility for the inquiry and concluded that the original investigation had missed significant evidence. In such circumstances DI Cook had every motive to seek to support his original view by reading into matters that had been reported to him more than was the reality of the situation.

251. We find that there is nothing in the hearsay comments recorded in the Action 94 that even if they could have been introduced into evidence could realistically have been thought to lead to a conclusion other than that there had been a violent struggle in the kitchen.

252. Looking at the Ainsley Reports, we consider that the comment "there is of necessity a certain amount of disturbance" was entirely in accord with the evidence of the TFG officers. A sledgehammer was taken to a door, a window opened, a door unlocked, a chair moved, stools moved, a cellar door forced, a window unlocked and the door opposite the children's room forced. We reject the submission that Ainsley's reports in any way support the appellant's submission that the firearms officers "knocked over the chairs, stools, and a sugar bowl".

253. As to the Essex Police Report, we can find no evidential support for the hearsay suggestion that "It is now believed the stools were possibly knocked over by members of the TFG". By the time of that inquiry, there must have been a number of officers who had every motive to down play the failure to spot important factors in the early stage of the inquiry and the situation was such that just such a proposition might very well be floated. However there is nothing to cause us to believe that it originated from anyone who could give first hand information about the matter.

254. As already explained Ann Eaton's recollection years after the event of what she had been told cannot be factually right whether or not she correctly recalled that which she was told.

255. We find there to be no substance whatsoever in this ground of appeal. The firearms officers have been consistent throughout. Mr Turner indicated that he would not wish to cross-examine them in the event of the Crown successfully applying to call them.

256. The issue of the absence of sugar on Sheila's feet was of minimal significance in the trial. In the summing up all the references to Sheila Caffell's feet were to the absence of blood rather than sugar. In the prosecution case summary it was said:

"The only blood to be found on the body was that of Sheila Caffell nor was there any debris or blood on the soles of her feet" and in their closing speech: "Compare Sheila to June. June is covered in blood, blood on her feet".

257. The defence faced the task of explaining the absence of blood on Sheila's feet with the implausible suggestion that she may have worn socks or washed her feet before committing suicide. In the circumstances the absence of sugar on Sheila's feet added nothing to the prosecution case.

258. As the Judge said at p.84 F in the passage to which we have already referred:

"there were no blood marks on the soles of her feet. Well, you may think that is a matter of considerable importance, because if she had been involved in the fighting with her father as well as killing her mother, surely it is inconceivable that her feet would have been clean"

259. There is simply no evidence available to contradict the evidence of the firearms officers that save for moving one chair and two stools there was no disturbance of furniture and the sugar bowl was not disturbed by them. Their recent statements indicate a search effected slowly and carefully with the minimum of noise and carried out in relative silence with officers believing that Sheila Caffell may still be alive with a gun in her hand. They were trained to create as little disturbance as possible and not to move or touch anything unless it be for reasons of safety or self-preservation. The situation in which they found themselves with the possibility of an armed person somewhere in the premises meant it was both necessary and sensible to go into the farm house with the minimum of noise and disturbance until they were satisfied that an armed person would not suddenly emerge and confront them.

260. We are sure that none of the matters placed before us could possibly have resulted in the jury reaching a different conclusion on any material aspect of the case. This ground of appeal fails there being no evidence to support it.
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Offline mike tesko

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Re: Mistakes by Appellate Court in 2002 Appeal, Debackle..
« Reply #13 on: Yesterday at 12:57 AM »
Ground 3 – evidence relating to windows 261. Ground 3 alleges that the prosecution failed to disclose at trial clear evidence which demonstrated that no reliance could properly be placed on their assertion that the downstairs bathroom and kitchen window were used by the appellant to gain entry and exit to the farm house on the night of the murders.

262. It was the Crown's case that the appellant entered White House Farm, for the purpose of carrying out the murders, by the downstairs bathroom window and left the premises by the kitchen window.

263. Police Sergeant Golding gave evidence that at 2.30 p.m. on 7 August he commenced to secure the ground floor and found all windows to be secure and fastened with the exception of two windows. One was in the ground floor bathroom, which was in a closed position with the catch open. He secured the window by closing the latch. The other was a transom window, which formed part of a casement type window in the kitchen. The transom window was open approximately halfway. He secured the window.

264. In contrast with Sergeant Golding, DCI Jones made a statement dated 7 October 1985 in which he reported that he had attended at the farm at approximately 9.15 a.m. on 7 August and he had proceeded to check every room on the ground floor of the house and found that on the ground floor all the windows in the house were secure and locked except the window to the dairy. That statement was read to the Jury as part of the Defence case.

265. Complaint is made that part of Mr Ainsley's Final Report was not disclosed to the Defence in which he wrote:

"There was no apparent entry to or exit from the house and D.Chief Inspector Jones did in fact examine the inside of all ground floor windows and noted that they were all shut and secured on their latches. The scene was photographed. It seems however that after the inspection of D.Chief Jones some person had partially opened the transom window in the kitchen and also opened the catch on the ground floor bathroom windows. I have been unable to discover the person responsible but there was comment made of the smell in the kitchen and the flies gathering. There is no reason to believe that the bathroom window was opened, but following the departure of the Scene of Crime officer, the witness Police Sergeant Golding secured the windows mentioned."

266. We reject the complaint that this portion of the police report should have been disclosed. It is no more than a commentary on evidence, which had been reduced to statement form and served upon the Defence. The conflict between the two versions was there to be seen on the face of the statements (Golding p. 102) and (Jones p.987/8). This point was plainly not lost on the Defence who read the statement of Jones as part of their case and commented upon the conflict in their closing speech.

267. The second ground of complaint is that whilst the Defence were made fully aware that Scene of Crime officers carried out a thorough examination of the scene on the 8 and 9 September, the terms of reference for the search of the scene were not disclosed to them and in particular they were not told that specific attention was paid to entry and exit marks at White House Farm. The examination had not revealed any scratch marks on the bathroom window. Our attention was drawn to a case diary kept by Mr Ainsley in which was recorded under 8 September:

"Scenes of Crime to visit 9 Head Street under the command of DI Cook and White House Farm under the command of DCI Wright and to carry out a full, thorough Scene of Crime examination, fingerprints and scientific in particular in relation to entry and exit marks at White House Farm".

268. The examination of the Farm for entry and exit marks became particularly significant. On the 1 October 1985 Brian Elliott a forensic scientist examined the window catch and surrounding area of the downstairs bathroom/toilet sash window. He noticed that the brass catch had been scratched on the inner edge and that there was damage to the white paintwork on the adjacent faces of the top of the bottom sash and the bottom of the top sash. The white paint on the outside of the window including the outer face of the top of the bottom sash appeared clean and fresh.

269. He concluded that the damage to the sash window and catch was consistent with a thin blade having been inserted between the closely fitting sashes of the window in an effort to force the catch open. Furthermore this attack occurred after the outside of the window had last been painted. There was evidence that the windows had been painted in June and July.

270. It was the prosecution case that the marks on the paintwork had been made by the appellant when entering the Farm during the late evening or early hours of the 6 or 7 August in order to commit the murders.

271. It was the defence case, revealed for the first time at trial, that the appellant made those marks following his release after Police interview on or about 16 September upon his return from London having forgotten his keys. It was of potential advantage to the defence to demonstrate that the window in question was examined on the 8, 9, or 10 September and that at that time no marks were found on the window.

272. There is no doubt that the prosecution did disclose the fact that a scene of crime examination did take place at White House Farm on September 8 and 9. The defence were served with statements of DS Finch, DS Lunn and DC King. A fingerprint examination took place. Carpet fibres were taken and the side lounge window was photographed and swabbed and paint samples were taken from the side lounge window. Whilst none of their statements contain any negative observations or findings, it must have been obvious to the defence team that a scene of crime investigation into points of entry and exit was in fact taking place. We agree with the submission that in the circumstances of this case negative findings might usefully have appeared in these statements although we are satisfied that no impropriety occurred. Since the prosecution knew nothing of the use said to have been made of this window by the appellant following his release from custody, they cannot have appreciated the potential importance of this evidence to the defence. We are equally satisfied that this very experienced defence team must have known by way of deduction what the general purpose of the visits were on the 8 and 9 September. However as Mr Temple concedes the time certainly came when the specific purpose of these visits became disclosable and it was so prior to trial.

273. Further complaint is made that the prosecution failed to disclose the fact that DC Barlow examined the windows of White House Farm on 22 August 1985 and noted nothing of significance in relation to the bathroom window. His statement of 21 November 1985 indicates that:

"on Thursday the 22nd of August I was on duty when I went to White House Farm. There I made an examination of the kitchen window"

There is no reference in the statement to the bathroom window. 274. In notes written for the Essex Review (after trial) he wrote:

"22/8/85 first opportunity to go to White House Farm. Examined all the windows. Most are sash type and could be opened from outside but could not be closed"

He makes no suggestion of finding any entry mark associated with the bathroom window. 275. It is also of significance that he recorded on 20 August 1985:

"They (Robert Boulflour and Ann Eaton) thought the windows could be locked from outside the premises making particular reference to the window behind the bushes by the Geese pond facing towards the tennis court".

This would appear to be the kitchen window and provides the explanation for DC Barlow's examination of the kitchen window. 276. It is never easy for officers engaged in major enquiries to know to what extent they should include negative findings, which may be very numerous in their statements. In the case of DC Barlow we conclude that he should have included the fact that he examined all the windows on the 22 August. We find no evidence to indicate that he deliberately omitted this negative finding. Again this information should have been disclosed prior to trial.

277. Further complaint is made that the prosecution failed to disclose the fact that having been released from custody on 13 September the appellant was continuously under surveillance until 1.30 a.m. on 16 September. It is said that there was no disclosure of this fact but we note from a Kingsley Napley attendance note of 3 September 1986 that the appellant "confirmed that he was under surveillance after his release from custody".

278. Mr Turner complains that failure to disclose the exact details of the surveillance put the defendant as he then was at a disadvantage when drafting his proof of evidence. In particular it would have assisted him to recollect when he left the note in the office. Since the appellant knew he was under surveillance we need not consider whether there should have been disclosure of the fact but we note that the Attorney General's guidelines of December 1981 in force at the relevant time gave a discretion to withhold material where "it contains details which, if they became known might facilitate the commission of other offences or alert someone not in custody that he was a suspect, or it discloses some unusual form of surveillance or method of detecting crime".

279. In evidence the appellant stated that he had returned to the farm the night after his release or the night after that – i.e. on the 14 or 15 September. In evidence he said:

"After my arrest at Chelmsford I went to London, came back and had not got my key. I needed car documents kept in the office for a holiday and I got in the loo window. I left a note on B.Wilsons desk to ask her to pay my solicitors bills".

280. Had prosecuting counsel been informed that the appellant was in fact under surveillance and in London at the time a potentially devastating cross-examination followed by the calling of rebuttal evidence would have caused the defence much embarrassment. Mr Turner contends the matter could have been simply explained away as a mistake as to dates, the actual visit occurring on 16 or 17 September as in fact he had instructed his solicitors. We have seen his proof of evidence to that effect.
"Oh, what a tangled web we weave, when we first practice to deceive"...

Offline mike tesko

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Re: Mistakes by Appellate Court in 2002 Appeal, Debackle..
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281. Since prosecuting counsel was not given this information, the appellant avoided this potential crisis and since the appellant knew of the surveillance no possible disadvantage accrued to him by reason of its non-disclosure.

282. We must of course consider whether the combination of failing to disclose in the statements of DS Finch, DS Lunn, and DC King the fact that an examination for entry and exit marks had been carried out and the further failure in DC Barlow's statement to disclose that he had examined all the windows has adversely affected the safety of the convictions.

283. In interview the following passage appeared:

"Appellant: There are many ways to get into the house i.e. windows"

Question: "What do you mean, insecure windows?

Appellant: "Insecure windows, secure windows, it makes no difference".

284. On the 12 September, 2 days later he was asked:

"Question: Have you ever got in a window by putting something in between the window frames, like a knife, to move the catch so you could slide the window open?

Answer: "Yes".

Question: Which window?

Answer: Downstairs toilet and lounge window".

285. Having been interviewed he was released on bail and thereafter asserts that within a day or two he went to the White House Farm and climbed in through the very downstairs toilet window and thereby provided an explanation for the marks on the window frame. This resulted in his being asked in evidence the very pertinent question whether it was unwise to go back within 2 days of being questioned about climbing in and out of the downstairs toilet window to and leave marks on that very same window in order to get into and out of the house.

286. The prosecution had established conclusively and without challenge the appellant's ability to enter and leave the White House Farm when it was apparently secure from his own answers. Julie Mugford confirmed the fact. The Crown did not have the burden of proving by which window and by which mechanism the entry was made. The Crown proved capacity both to enter and leave. There was no issue. As the trial Judge said (at page 10E):

"… how he got there and out again whether by the kitchen window or any other means, though of interest, cannot affect the outcome of the case"

287. The only way in which the window evidence could have been of importance in the jury's decision is if despite other evidence pointing to the appellant as the killer, they might have been prevented from reaching that conclusion by doubting that he could have got in and out on the night in question with the windows being found next day in the condition in which they were found. On the appellant's own admissions, no such doubt could arise.

288. It follows that any failure to disclose earlier examination of windows cannot affect the safety of this conviction.

Ground 4 – timing of telephone call to Julie Mugford 289. Ground 4 relates to the first telephone call made by the appellant to Julie Mugford on the night of the killing. The prosecution contended at trial that this preceded the telephone call to the police, whilst the appellant asserted that it was made after he had telephoned the police and before he left home to go to the farmhouse. It has to be said that whichever version is right, it was remarkable that the appellant made such a call. On his own version he had just received a dramatic plea for help from his father, he had rung the police and had been asked to go to meet officers at the farm. Yet he delayed for long enough to make a telephone call to someone many miles away, who could not possibly help in the situation. However, it clearly was even less likely that he would have telephoned before he rang the police and if the call was shortly after 3 a.m. it was wholly inconsistent with his account and only consistent with the account of Julie Mugford as to the nature of that call. Thus timing of that call, if it could be determined by the jury was of importance.

290. Ground 4 alleges that evidence was withheld from the defence at trial which supports the assertion he made at trial that the call to Julie Mugford was at about 3.30 a.m. and no earlier. Alternatively it is suggested that there is now fresh evidence that supports that contention.

291. A further and related complaint is made that a document was not disclosed which revealed that Susan Battersby, one of Julie Mugford's flatmates, who gave evidence that the call was at 3.12 a.m., had been less assertive in respect of the timing of the telephone call, indicating that it was either at 3.12 or 3.20 a.m. when she was seen by the police.

292. The source of the first part of these allegations is a hand-written note made by Ann Eaton, who was present with Julie Mugford when she was seen by the police and made a statement on the day after the killings, 8 August. Ann Eaton made a statement to the police on 8 September. In that statement, Ann Eaton said:

"I recall that the officers were asking Julie what time she had received the second telephone call from Jeremy. She said it was 3.30 a.m. The police officer said that it was very important and that it must be right. Julie asked the officer if she could ring her flat in London to confirm the times. The officer agreed and she made a telephone call apparently to her flat. She spoke to somebody and queried the time, then turned and said, "3.15 a.m."

293. Later in the same statement Ann Eaton said that on reaching home, she had made notes on a card of the events of 8 August and that she had retained the card that was handed to the police and given a reference CAE/4. The card recorded the fact that Julie had given a statement and then apparently added in brackets alongside at some later stage was:

"There was trouble getting right time of 3.15 phone call. A London friend was phoned."

294. No reference was made in that statement to any other notes made by Ann Eaton on 8 August. The document that those advising the appellant have now discovered came to light as a result of the City of London Police inquiry. Ann Eaton was seen as a part of that inquiry and made a statement. She described how her September 1985 statement had been taken by an officer DS Davis. She said that he had allowed her to have time to use her 1985 diary and "loose note cards" to put things in date order. She said that she had retained the documents and had handed them to the City of London police. One of the documents was a different set of notes made in pencil on a card which recorded the taking of the statement from Julie Mugford (it was given a reference in the inquiry of CAE/4A). It said about the timing of the telephone call:

"Stan Jones talked to Julie about the phone call. Julie said her flat mate said 3.30 a.m."

295. The first complaint under this ground relates to the card CAE/4A. It is said that the prosecution failed to disclose this card or that in the alternative it is fresh evidence that the court should consider in determining the safety of the conviction.

296. There can be no doubt that the defence were unaware of this note at trial. We, therefore consider, whether it is a document that the prosecution were under a duty to disclose, whether there is any reason to think that the police or Ann Eaton may have deliberately concealed its existence, and whether in any event it could have been used by the defence in a way that would have had an impact on the jury's verdicts.

297. We think that it is clear from the content of the two notes that the card CAE/4A was made first probably as the events were unfolding. The card CAE/4 was what appears to be an expanded version of those notes although not containing all the same detail made at some later stage, possibly that day when Ann Eaton got back home as she recalled in her September 1985 statement. At some later stage additions were clearly made to the second note and it seems likely that they included the reference to the "3.15 phone call".

298. The first question that we must consider is whether the police were in possession of the card CAE/4A so that it could have formed a part of the disclosure. We conclude that it was not in their possession. The card CAE/4 had been taken from Ann Eaton and was treated as a potential exhibit at trial. It was undoubtedly in the possession of the police. The other card must have been in the possession of Ann Eaton after she had made her statement because she was able to produce it to the City of London Police.

299. Hence we are dealing with a case either of suppression by the police and/or Ann Eaton, or with a straightforward case of fresh evidence and not with a case of inadvertent non-disclosure by the police.

300. We have looked carefully to see whether any evidence exists that suggests that DS Davis was aware that there were two cards that gave potentially important conflicting information and we have found none. In a statement made by Ann Eaton in 2000, she referred (pages 36 and 37) to the note CAE/4A and said that she had made additions to CAE/4 at the time of making her statement or shortly before. That was a conclusion to which we had independently come.
"Oh, what a tangled web we weave, when we first practice to deceive"...