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The Justice Gap
Does Jeremy Bamber have a human right to be released from prison with immediate effect?
* By Michael Naughton
* 22 March 2021 | 7:13 am
The recent application to the miscarriage of justice watchdog on behalf of Jeremy Bamber is based on 347,000 sheets of newly disclosed documents withheld from the defence at the time of his trial and on eight new grounds of appeal that his lawyer says fundamentally undermines the prosecution narrative at trial and should exonerate him (here). Michael Naughton asks whether Jeremy Bamber, who has so far sent 35 years in prison for crimes that he has always maintained he didn’t commit, should be immediately released on the basis that his trial was unfair under human rights legislation.
Anyone with even only the slightest passing interest in criminal justice matters in Britain will be familiar with the Jeremy Bamber case, which has divided public and legal opinion since his conviction for the 1985 murders of his adoptive parents, Nevill and June Bamber, his sister, Sheila Caffell, and his sister’s six-year-old twin sons Daniel and Nicholas Caffell.
For some, Jeremy Bamber has come to epitomise evil personified for the nature and brutality of the crimes that he was convicted for, a discourse that was strengthened in a recent drama series that claimed to be based on the murders at White House Farm.
For those in the anti-Bamber camp, his apparent unwillingness, audacity and sheer callousness in refusing to acknowledge his guilt and show remorse for his crimes have been viewed as adding insult to injury to his deceased victims and their survivors (here).
It is, perhaps, unsurprising, then, that Bamber is one of just 60 whole-life prisoners in England and Wales, an infamous group which includes some of Britain’s most notorious convicted criminals such as Rosemary West, Levi Bellfield, Stephen Port (Grindr Killer) and Michael Adebolajo (for the murder of Lee Rigby).
On the other hand, Jeremy Bamber has always steadfastly maintained his innocence (he is the only whole life tariff prisoner to maintain innocence) and his supporters and advocates have long argued that Jeremy Bamber is an innocent scapegoat who was convicted for crimes that he didn’t commit (here).
At the centre of the pro-Bamber campaign are claims of non-disclosure of evidence that would exonerate him fully from the murders. Non-disclosure of evidence that works counter to the prosecution’s narrative or which positively supports the defence case is a perennial cause of miscarriages of justice.
In the case of John Kamara, for instance, his protestations of innocence were also deemed to be false at his trial and were rejected by the Court of Appeal. It was only when it was discovered that the prosecution had failed to disclose 201 witness statements that were beneficial to his defence that his innocence was accepted and his conviction overturned (here).
More recently, the police and prosecution side’s control of the disclosure of evidence regime was again shown to be lacking in the in the near-miss case (because he wasn’t actually wrongly convicted) of Liam Allan, which involved the non-disclosure of 40,000 text and WhatsApp messages that undermined the rape allegations that he charged with and on trial for.
The problem for the pro-Bamber advocates, historically, has been a hitherto impossible dilemma to overcome: they say that they haven’t been able to prove their claims as they haven’t had the evidence to support them because the evidence that could support the claims has not been disclosed.
The impasse was broken earlier in the month when the nature and full scale of the non-disclosure of evidence in the Jeremy Bamber case was revealed when his lawyer, Mark Newby, made it public that he had submitted a third application to the Criminal Cases Review Commission (CCRC) based on 347,000 sheets of evidence that were obtained when the 30-year Public Interest Immunity on the non-disclosed evidence in the case had expired.
Those who follow miscarriages of justice will have heard of Mark Newby, a solicitor advocate who specialises in alleged miscarriages of justice, who has been involved in overturning a large number of wrongful convictions. He is not a frivolous man and his thoughts on the implications of the previously undisclosed evidence on Jeremy Bamber’s conviction are most concerning for anyone concerned with the fairness and/or justice of the criminal justice system in England and Wales.
Crucially for Newby: ‘The audit trail now uncovered raises very serious questions over withheld evidence, misleading of the jury, interference with the crime scene, the movement of key evidence, altered phone records and admitted destruction of original exhibits.’
‘Every part of the reported case appears to be untrue, and there is now a new narrative to be told which if accepted by the Commission [CCRC] and then in turn the Court of Appeal should lead to Jeremy Bamber being exonerated,’ he said.
This highlights why disclosure of all and any evidence, or what the American’s call full open book disclosure, in a criminal trial is crucial for trials to be fair and justice to be carried. It is also crucial that full disclosure is provided for the outcomes of criminal trials to be accepted as legitimate by the general public and be in accordance with human rights law.
Perhaps most pertinent to the analysis here is Article 6 of the Human Rights (right to a fair trial) which provides a framework of protections to alleged criminals aimed at avoiding wrongful convictions. More specifically, section 1 of Article 6, for instance, enshrines the right to a fair trial, whilst section 2 requires that everyone charged with a criminal offence be presumed to be innocent until proven guilty. Section 3 then lays out additional minimum rights for those charged with criminal offences, which includes the requirement that a defendant has adequate time and facilities for the preparation of their defence (s.3(b)) and to examine or have examined any prosecution witnesses and to obtain the attendance and examination of witnesses on their behalf under the same conditions as prosecution witnesses (s.3(d)) (here).
Evaluated against Article 6, in what sense can Jeremy Bamber’s trial be said to be fair when 347,000 items of evidence were not disclosed to his defence team? Here I would distinguish between ‘fairness’ in the lay sense in terms of criminal trials attempting to determine the truthfulness or otherwise of alleged crimes and ‘fairness’ in terms of compliance with the procedural dictates of the criminal justice process – a distinction between procedural or substantive justice.
Indeed, are we to simply accept that Jeremy Bamber’s trial was fair because the criminal justice system says that it was? How could Jeremy Bamber adequately prepare his defence when evidence that is now claimed to totally undermine the prosecution case against him was not disclosed? How could he examine any potential witnesses or scrutinise forms of evidence that neither he nor his defence or previous appeal lawyers knew existed?
Are we to uncritically trust the outcomes of trials that involve Public Interest Immunity (PII) where individuals are convicted for crimes that they say that they didn’t commit when hundreds of thousands of items of evidence are not disclosed to the defence? And, incidentally, why would defence lawyers accept that their clients can be tried without full sight of all of the police and/or prosecution evidence in the case; why would they accept that such trials are fair?
Other fundamental questions raised by the revelation of the non-disclosure of almost 350,000 pieces of evidence in the Jeremy Bamber case in the context of Article 6 relate to the so called protections provided to those alleged or charged with criminal offences against wrongful convictions such as the presumption of innocence, the burden of proof on the prosecution and the need for equality of arms between the prosecution and defence: how can Jeremy Bamber’s conviction be conceptualised as fair and/or just in light of the revelation of the extent of the non-disclosure in his case? (see here).
It is in this context that I would invite readers to put themselves into Jeremy Bamber’s shoes (or any alleged innocent victim of wrongful conviction and/or imprisonment for that matter) and consider whether they think it would be fair if they or their loved one were accused of a crime that they said that they didn’t commit and the prosecution could withhold almost 350,000 sheets of evidence, which in the Jeremy Bamber case Mark Newby believes should exonerate a man who has spent the last 35 years in prison from any culpability for the murders that he was convicted for.
If Jeremy Bamber is not to be released immediately on the grounds of the failure to provide his human right to a fair trial, the least that he can expect is a public commitment by the CCRC to prioritise his latest application above all other applications and to ensure that if he is innocent that he doesn’t spend a day longer in prison than he needs to.
