From the 2002 appeal judgment:
"Ground 4 – timing of telephone call to Julie Mugford
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.
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.
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.
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."
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."
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."
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.
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.
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".
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.
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.
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.
The only evidence that suggests that the card CAE/4A was being used by Ann Eaton is the reference by her in her statement to the City of London Police made some years after the event. In that statement she referred to having retained the notes she had consulted in making her statement and she seems not to have recalled that the card CAE/4 had been taken from her by the police. Thus her recollection was at least in this regard faulty. There is, therefore, no evidence upon which we feel any reliance can be placed that she had both cards CAE/4 and CAE/4A with her when she made her statement. Equally there is not a shred of evidence to suggest that DS Davis inspected both sets of notes and decided only to produce that which in this one respect fitted in with the emerging case against the appellant. Accordingly we find no evidence of any impropriety on the part of DS Davis.
So far as Ann Eaton is concerned, we can see nothing that would permit of a conclusion that she was behaving improperly. She is no lawyer or policeman. The significance of any conflicting rough notes would not be apparent to her in the same way that it would be for a person engaged professionally in police inquiries. These were no more than rough notes made by someone who not unnaturally must have been devastated by the events of 7 August and its aftermath. We can see no reason to believe that she was deliberately suppressing information that she realised might be of significance.
Thus on a realistic appraisal of the available evidence, this falls to be considered as an instance of fresh evidence that has emerged since trial and we must consider whether or not, if known by the defence at the time, it could have had any impact on the trial and the resulting convictions.
To consider this aspect of this ground, it is necessary to look at the available evidence at trial. The starting point has to be what Julie Mugford said at trial and in earlier statements. In the statement that she made to the police on the 8 August following a telephone call to one of her house mates, she said that the phone call had been at about 3.30 a.m. In a later statement she said that she had since learnt from Susan Battersby that it was at 3.15 a.m. In evidence she said that she had been woken by the telephone call between 3 a.m. and 3.30 a.m. She said that she had not looked at any watch or clock. In cross-examination, her first statement was put to her and the passage including the approximate time of 3.30 a.m. was read to the jury and she acknowledged that that was what she had said at the time. Mr Rivlin did not choose to establish that she had spoken to one of her flatmates before committing herself to the time of 3.30 a.m. although that fact was apparent from the evidence available to him. Doubtless this was because he thought it was of greater advantage that her independent recollection was 3.30 a.m. rather than establishing that it was or may have been somebody else's recollection. In any event the evidence that she had given did not conflict as to timing with the defence case.
Helen Eaton (unrelated to Ann Eaton) was the housemate to whom Julie Mugford spoke whilst making her statement on 8 August. She first made a statement on 11 September in which she said that the phone call was at about 3 a.m. She confirmed that she had spoken to Julie Mugford when the latter was making her first statement and added:
"I told her that it was about 3 a.m. I should add that I am not exactly certain about the time of that phone call, although for some reason I thought it was made at about 3 a.m."
In evidence Helen Eaton again put the time at about 3 a.m. like Julie Mugford she accepted in cross-examination that it could have been at about 3.30 a.m. She told the jury that she had not looked at her watch at the time and that she could not be accurate as to time within half an hour.
Douglas Dale was in the house at the time. He made a statement on 9 September saying that he had heard the phone at about 3 a.m. He also gave that evidence at trial. But when cross-examined he said that it could have been about 3.30 a.m. He said that he had never looked at the time and had probably been told the time the next morning by others.
Since Julie Mugford and each of the last two witnesses had given evidence that they had not looked at any clock when the telephone rang, it followed that any estimation of the time that they made was of necessity either a guess or based upon information from someone else. The other two occupants of the flat each said that they had looked at the time when the telephone rang and they were able to remember to differing degrees what time was recorded.
Joanne Woad first made a statement on 16 September. In that statement she said that she thought the time was about 2 a.m. On 3 October, she made a further statement in which she explained why she had said about 2 a.m. She said:
"In my original statement I stated that this call was at 2 a.m. To be more precise I can add that when I awoke I remember looking at my digital radio/alarm clock at the foot of my bed and reading the hour figure as "2". I do not remember noting the minute reading and therefore the time could have been anywhere between 2 a.m. and 2.59 a.m."
In evidence Miss Woad gave precisely the same account and she would not accept in cross-examination that she was wrong.
The last of the flatmates, Susan Battersby, made a statement on 10 September. In that statement she said that she had been woken by the telephone and had looked at her radio clock and noticed that it was 3.15 a.m. She went on to point out that the time might not be accurate because she kept her clock 10 minutes fast. On 19 December, she made a further statement. In that statement she again referred to the telephone call being at 3.15 a.m. but later in the statement she said:
"I can say that sometime during the evening of Thursday 8 August 1985, I telephoned Julie at Jeremy's house in Goldhanger. I spoke to Julie in relation to the time of the telephone call from Jeremy to our flat during the early hours of Wednesday 7 August 1985. I told Julie that Jeremy had phoned her at 3.12 a.m. I can now remember that when I looked at my clock radio display, the time showed 3.12 a.m. Previously I had said the phone call was at 3.15 a.m. I am positive the time was 3.12 a.m. I was aware that Julie wanted to know the time of this phone call as she had phoned the flat trying to contact me that day when she spoke to Helen Eaton."
In her evidence to the jury Susan Battersby was adamant that the time shown by her clock was 3.12 a.m. and that she had kept her clock approximately 10 minutes fast. The prosecution supported her evidence about keeping the clock fast by calling evidence from her boyfriend and also by evidence from a police officer who had been to check the timing on her clock at a later date without forewarning her. In cross-examination the fact that she had originally said that the time was 3.15 a.m. was put to her. She explained that she had been quite nervous when she made her first statement and had not then appreciated the importance of giving the time exactly. Later she had thought about it and she could picture in her mind the time as being 3.12 a.m. and she remained certain that that was the time shown on the clock.
If the jury were to disbelieve the appellant's evidence as to the timing of the telephone call, it could only have been because they were sure about the evidence of one or other of Joanne Woad and Susan Battersby. They could have accepted both to be right because if Joanne Woad was right the time could have been 2.59 a.m. and no precise check had been made as to the accuracy of her clock. If Susan Battersby was right, it was at approximately 3.02 a.m. and whilst it was known that she kept her clock approximately 10 minutes fast there was some room for some slight variation.
To detemine whether the document CAE/4A was capable of having an impact upon any conclusion that the jury might have reached, it is necessary to consider what use could have been made of it at trial and whether even if used it could have altered any conclusion that the jury might have reached about the evidence of Joanne Woad or Susuan Battersby either by demonstrating some weakness in their evidence or by supporting the evidence of the appellant.
The document did not purport to record anything observed or heard directly by Ann Eaton other than that after speaking to Helen Eaton, Julie Mugford had said that her flatmate said that it was 3.30 a.m. Such evidence is hearsay evidence as to what Helen Eaton herself said. Based upon this document, Helen Eaton could have been cross-examined about what time she had said to Julie Mugford but the document would not have been admissible to disprove any answer that she gave.
Even without knowledge of CAE/4A, Julie Mugford could have been asked questions about the conversation which she had had with Helen Eaton. If she said that Helen Eaton had given a time other than 3.30 a.m. she could have been asked why having said that she needed to telephone the flat before giving the time, she had still said 3.30 a.m. in her statement. All of this was possible without any need to know about, or to refer to, CAE/4A.
Thus it is very difficult to see how knowledge of CAE/4A could have altered the approach which Mr Rivilin chose to adopt. But even accepting in that some way it could have led to other cross-examination we have to consider whether that cross-examination could possibly have had any impact on the jury.
This evidence did not in any way reveal any defect in the evidence of the only two witnesses upon whom the jury would have had to have relied in reaching a conclusion adverse to the appellant. Neither Joanne Woad nor Susan Battersby was a party to the discussion on the telephone whilst Julie Mugford was making her statement. The evidence was clear on the point that each of them was out of the flat at that time. The most the evidence revealed was that Helen Eaton had thought the time was about 3.30 a.m. and that Julie Mugford having consulted her was prepared to adopt that time. However, crucially both Julie Mugford and Helen Eaton had said consistently that they themselves had never looked at the time when the telephone call was received during the night. Each accepted that the time could have been as late as 3.30 a.m. in evidence and the jury knew that. We fail to see how the jury could have attached any further weight to their estimate of the time made on the 8 August when it was not said to be based upon them actually looking at a clock. In any event the jury knew that Julie Mugford gave that estimate in her statement made on that very day.
Thus we are satisfied that even if the jury were able to know of the existence of this document, it could not in any reasoned way have enabled them to have resolved the conflict between Joanne Woad and Susan Battersby on the one hand and the appellant on the other hand in a way different from any conclusion that they may have reached on the evidence which they heard. Accordingly this fresh evidence can form no basis for doubting the safeness of the conviction.
The other document referred to under this ground is a police action form. On 9 September 1985, Detective Superintendent Ainsley issued a written action requiring that Susan Battersby should been seen and a statement should be taken from her. The action recorded that the statement was required:
"Re knowledge of Jeremy Bamber and in particular relation to telephone calls received on 7 and 30 August 1985."
This action was issued to DI Bright. The following day the first statement was taken from Susan Battersby. As we have already recorded in that statement she said that the telephone call was at 3.15 a.m.
The action record has on it under "result of the action":
"10 p.m. tues?
3.12? 3.20? 7/8/85
Tues 27.8.85
Statement obtained
Statement under caution obtained
PDF attached"
Alongside the reference to statement obtained apparently in a different hand and at right angles to the writing there appears in a circle 3.15.
It is common ground that this police action was not seen by the defence. Mr Turner suggests that it was deliberately suppressed. We cannot accept that this is so. None of the police actions or police messages were disclosed to the defence. However, we are satisfied that at the relevant time when this case was being prepared for trial, it was not routinely the case for such documents to be disclosed. Mr Edmund Lawson QC who acted as junior counsel for the appellant at trial gave evidence to us and in evidence said that he could never recall seeing such a police action in any case at or prior to that date. His experience corresponds entirely with that of each of the members of this court, all of whom were involved as counsel in major criminal cases in the mid-1980's. We are thus entirely satisfied that the document was not disclosed because at that date it was not the practice for such documents to be disclosed.
However, even rejecting the suggestion of deliberate suppression of the document we have to consider whether the document reveals information which in itself ought to have been drawn to the attention of the defence.
Mr Turner's submission is that the document gives rise to the inference that Susan Battersby gave at least two different times when she was seen by the police on that occasion, namely 3.12 a.m. and 3.20 a.m. and that this would have been further information that the defence could have utilised to show that she was not sure of the time in the way that she had purported to be before the jury.
We fail to see how anyone could draw from the document and the rest of the evidence on this matter, the inference suggested by Mr Turner. The action does not purport to be a record of anything said by the witness. It is an internal document for the use of DI Bright. That which was to be said by the witness was to be recorded in statement form and the statement recorded the time as being 3.15 a.m.
It seems to us that before taking the required statement DI Bright would inevitably inform himself of the evidence available and of the inferences that the police thought might be drawn from such evidence before going to see the witness. We think, examining just the document, that the most likely explanation for these notes that appear before the record of taking the statement are that they were jottings made by the officer pre-interview. Certainly nothing in the subsequent statement would in any way allow of an inference that the witness was saying anything other than that the time was 3.15 a.m. There is no mention in her statement of either 3.12 a.m. or 3.20 a.m. Each of those times are consistent with the case against the appellant and contradicted his account and there would be no reason why those times should not have been given if the witness was putting them forward. The action refers to the "27 August". However examination of the statement shows that this specific date does not appear in the statement and the witness speaks of events happening on either 26 or 27 August. This does not seem consistent with her putting forward the 27 August in the course of any conversation as a precise date as would be suggested if Mr Turner's inference as to the meaning of the notes that precede the record of the taking of the statement were correct.
We were aware that if we had taken a different view on looking at the document, the prosecution would have sought to call DI Bright who would have advanced exactly the explanation that seemed to us the only sensible one. We could see nothing that the defence could have put to that officer which in any way could have justified a different conclusion.
Thus we concluded that there was no information recorded on the police action form that required to be disclosed to the defence and that the action itself could not have had any impact upon the jury's conclusions. For these reasons ground 4 is in our judgment wholly without merit. "
