R (on the application of Bamber) v Crown Prosecution Service 2020
http://www.bailii.org/ew/cases/EWHC/Admin/2020/1391.htmlOverview and highlights.
para 1-4: case history. "Over the years since his conviction he has relentlessly explored every avenue of challenge up to and including the European Court of Human Rights"
para 5-7: this is a second application for Judicial Review: "The matter before me is a renewed application for permission to seek judicial review, following refusal by Saini J on 22 January 2020. Mr Bamber seeks disclosure of material by the CPS which he says is needed so that a forensic expert can produce a definitive report which can then be submitted to the CCRC "
para 8-10: overview of the case
para 11: this Judicial Review relates to the sound moderator
para 12: defence claim that Michael Turner QC was told at the appeal by the defence that there was a second sounder moderator
para 13-14: the defence wrote to the CPS requesting disclosure but they refused
para 15-17: a pre-action letter was sent to the CPS (pre-action means a warning of legal proceedings, in this case a Judicial Review) and there was correspondence. "Mr Ferguson rejected the request for disclosure. In summary, he said:
a. There was no evidence that prosecuting counsel made any concession about a second silencer during the 2002 appeal;
b. Dr Wingad's minute does not support the existence of a second silencer and the evidence at trial was not inconsistent with what appears in the general examination record for DB/1 (the sound moderator found at the farm);
c. The renaming of exhibits is a common feature of investigations and the suggestion that the evidence relating to the silencer had been contaminated was speculative. "
para 18: legal test for disclosure ("Nunn") was not met.
para 19: a report from Philip Boyce was obtained.
para 20: a renewed application for disclosure was made
para 21-28: correspondence and the claim (commencement of the Judicial Review application) was issued on 6 December 2019
para 30-38: the claimant's case (Bamber's case): the material should be disclosed at it would help Philip Boyce to produce a more detailed report, although the report he had made so far was reasoned and persuasive. A second sound moderator would undermine the safety of the convictions (35). This was new evidence, even though the CCRC had considered this issue before in previous reviews (36).
para 39-45: the CPS's case: (1) Bamber could go to the CCRC to request disclosure (2) The claim was out of time (3) There was no arguable case. Point 2 was rejected
"In response to the Claimant's argument about alleged non-disclosure in 2001/2002, Ms Darlow said the CPS did not accept the unsubstantiated assertion that it breached one or more disclosure orders made by the Court of Appeal. She said that had there been material non-disclosure it would have been raised at the time. She pointed out that on 2 July 2002 the Court of Appeal ordered that both parties were to notify the Court of 'any failure in compliance with any order made, in writing, detailing all reasons for non- compliance and supply a copy of the letter sent to the other party.' "
"On the merits, Ms Darlow says, in essence, that Mr Boyce's report is complete and can be submitted in its present form to the CCRC. Although Mr Boyce has said he would like to see further documents, his report is not qualified and he expresses his conclusion with certainty.
She says that the documents in Appendix 1 to the November 2019 letter before claim have been disclosed in copy form and Mr Boyce has not explained why he needs the originals."
"As I will explain in a moment, Saini J concluded that there was no credible evidence that a second sound moderator was recovered at White House Farm. Ms Darlow says that the judge was right on this issue for the reasons he gave at [20] and [21] of his reasons for refusing permission. She says the issue was exhaustively analysed by the CCRC during the course of its second review and there was found to be no support for the assertion that two sound moderators were seized. She says the Claimant has failed to advance any credible explanation as to why reliance upon an expert witness, in purported support of the second sound moderator contention, was delayed until 2018. The existence of different exhibit numbers and the history of the recovery of the moderator was known to the Claimant since before his trial in 1986. "
The judgment then summarises "Saini J's" decision - i.e. the decision of the first application:
"
The decision of Saini J refusing permissionSaini J gave detailed reasons for refusing permission. His decision runs to 23 paragraphs.
He said the role of the CCRC as explained in Nunn, supra, at [39] were of particular relevance to this claim ([1]). At [2] he said that the Claimant has an adequate alternative remedy in the form of an application to the CCRC and that in any event he had not identified an arguable error of law in the CPS's decision.
He said that he would refuse permission on that twin basis; he would not have refused permission on grounds of delay ([3]).
At [4] he said that, considering the principles in Nunn, supra, it was beyond argument that the CCRC was the appropriate forum to determine the Claimant's arguments (see also at [9]). He said the CCRC had already received extensive submissions about silencers/moderators and is best placed to determine whether the Claimant's claims have substance (see also at [6]).
At [12] onwards Saini J gave his reasons for concluding that the Claimant had failed to make out an arguable case that the CPS has made any error of law. He said that he agreed with the CPS's reasons as set out in its letter of 3 December 2019.
At [15] he said the value to the prosecution of the moderator was drawn from the evidence of John Hayward that, first, it had paint on it (from a fight with Nevill Bamber) and Sheila Caffell's blood in it (from when she was shot). Second, Sheila Caffell could not have shot herself with the silencer attached to the gun. Saini J said that this conclusions were not weakened by the presence of a second moderator (if there were one).
At [19], so far as the suggestion of contamination of the moderator is concerned, Saini J said there was no credible theory as to how it could have taken place. The suggestion that blood could have been dropped in with a pipette was unsupported by any evidence.
For the reasons given at [20] the judge said there was no evidence that there was ever a second sound moderator and the suggestion that Mr Turner had been told the opposite by a member of the prosecution team was refuted by the three QCs who have appeared for the Crown at various stages.
Overall, at [23] the judge said the Claimant's arguments were speculative and the disclosure request was 'fishing'."
Finally, the court's conclusion: "
DiscussionI have carefully considered the arguments of the parties and have read and considered all of the material that has been lodged. I have carefully considered the decision of Saini J and for the reasons that he gave, with which I agree, and for the following reasons, I have concluded that permission should be refused. This does not leave the Claimant without a remedy. Much work has already been done and he has the makings of a fresh submission to the CCRC including an unqualified report from Mr Boyce in support of his case that there was a second moderator recovered from the farm. That provides him with the necessary basis for arguing that his convictions are unsafe.
I have set out the relevant passages from Nunn, supra. Whilst it recognised the duty of disclosure which lies on the CPS even post-conviction, it equally emphasised that the CCRC should be the first port of call for a litigant to whom disclosure is not made. Although whether or not to disclose material is always a fact specific determination, I would anticipate that most instances of Nunn disclosure will arise in fairly clear cut cases where it is plain that the disclosure will determine the case one way or another, for example, where a forensic sample is discovered that can be tested, or a new scientific technique is developed which did not exist at the time of conviction which can now provide a definitive answer. In such a case if the CPS were to decline disclosure then the case on judicial review would likely be an obvious one. The present case is a world away from that sort of case.
If ever there was a case where the CCRC should be approached to make a decision on what is said to be new evidence, it is this one. This is a massively complex case which has been investigated and re-investigated by more than one police force over some 35 years. The body of material is vast. After so many years, and so much litigation, the CCRC is the body undoubtedly best placed to consider the Claimant's arguments. This case is so complicated, and has so many overlapping layers, that judicial review is a hopelessly blunt tool with which to address and determine the Claimant's arguments. Even deciding what disclosure has, or has not, been made is fraught with difficulty Even if the Claimant were right on his primary case, the Court is hardly in a position to say whether the CPS's determination that it would not mean the convictions are unsafe, is one which was not reasonably open to it. It simply does not have the material or understanding of all the detail of the case to be able to make that determination.
So, like Saini J, I am unable to say that the CPS erred in law in refusing to make the disclosure sought. Like him, I am not on the material I have seen readily able to accept the premise that the existence of a second sound moderator is capable of affecting the safety of the Claimant's convictions in any meaningful way, notwithstanding what Mr Ferguson said in May 2018. The facts are that the moderator which was found had Ms Caffell's blood in it, and she could not have shot herself when the sound moderator was attached to the rifle. I acknowledge Mr Boyce's expertise and the detail in his report, but it needs to be evaluated against the whole corpus of evidence that has been gathered in this case. As I have said, the Court is handicapped in doing that.
For these reasons, despite Mr Stone's efforts, I refuse this renewed application for permission to seek judicial review. "
