GDS documents:-
R E G I N A
V
JEREMY NEVILL BAMBER
ADDENDUM SUBMISSIONS TO THE CRIMINAL CASES REVIEW COMMISSION ON BEHALF OF THE APPLICANT
PREVIOUS CASE REFERENCE NUMBER: 00381/1997
Studio Legale Internazionale,
Via Tommaso Salvini 15,
00197 Roma,
Italy
TEL +39 06 85203516
FAX +39 06 80692652
[email protected]www.studiolegaleinternazionale.comREF: GDS/DM/DP
08 MARCH 2004
The Applicant relies upon DOCUMENTS PROVIDING SUBSTANCE FOR A
THIRD ALTERNATIVE a “Wireless Message Log with a timing of 05.25 stating as
follows:
“05.25 Firearms team are in conversation with a person from inside the farm.”
The CCRC are specifically requested to consider the meaning of the word
“CONVERSATION”.
The Concise Oxford Dictionary, Tenth Edition, defines the word “conversation”
on page 311 as follows:
“an informal spoken exchange of news and ideas between
two or more people.”
It follows that by any interpretation at 05.25am, when the Applicant was outside White
House Farm in the company of the police, the Firearms team where in conversation
(informal exchange of news and ideas between two or more people) with a person from
inside the farm. There can be no misunderstanding of this vital piece of information
either in law, diction or language. Whilst this Applicant was with the police there existed
the clearest of evidence that there was someone, a person, inside the Farm. It follows the
conviction based upon the fact that whilst this Applicant had murdered his entire family
prior to attending the Farm with the police, with the existence of a person in conversation
from inside the Farm with the Police and such evidence not having been made available
for trial, the conviction is clearly unsafe and most unsatisfactory.
Studio Legale Internazionale
Rome, Italy
8 March 2004
--------------------------------------------------------
R E G I N A
V
JEREMY NEVILL BAMBER
SUBMISSIONS TO THE CRIMINAL CASES REVIEW COMMISSION ON BEHALF OF THE APPLICANT
PREVIOUS CASE REFERENCE NUMBER: 00381/1997
Studio Legale Internazionale,
Via Tommaso Salvini 15,
00197 Roma,
Italy
TEL +39 06 85203516
FAX +39 06 80692652
[email protected]www.studiolegaleinternazionale.comREF: GDS/DM/DP
08 MARCH 2004
R. v JEREMY NEVILL BAMBER
In drafting these further submissions, we have taken into consideration in a case of this nature and reminded the Applicant the fact that the Commission does not exist to provide a further appeal from a decision of the Court of Appeal. Its function is to consider issues which were not apparent at the time of the trial and the appeal, such as new evidence which has come to light since the proceedings were concluded or material which has somehow been ignored or overlooked. If the Commission considers that there is a possibility that a miscarriage of justice has occurred, it is duty bound to refer the case back to the Court of Appeal Criminal Division for a further hearing by that court on both conviction and sentence.
THE LAW
The terms of reference of the Commission are set out in the Criminal Appeal Act 1995 section 13, which provides as follows :-
1. A reference of a conviction, verdict, finding or sentence shall not be made under any of Sections 9 to 12, unless :-
(a) The Commission considers that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made.
(b) The Commission so consider :-
(i) in the case of a conviction, verdict or finding, because of an argument or evidence not raised in the proceedings which led to it, or on any appeal or application for leave to appeal against it, or
(ii) in the case of a sentence, because of an argument on a point of law or information not so raised, and
(iii) in the case of an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused.
(2) Nothing in Sub Section 1 (b)(i) or (c) would prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.
In drafting this Application, we have considered the inevitable consequences of a referral. We are of the view that in the case of this Applicant, there are exceptional circumstances which justify making a referral.
STATE OF THE LAW AND THE ROLE OF THE COURT OF APPEAL, CRIMINAL DIVISION POST A REFUSAL
The Court of Appeal (Criminal Division) is a creature of statute and must carry out its duties accordingly. Section 2 of the Criminal Appeal Act (1968), as amended, provides:
"(1) Subject to the provisions of this Act the Court of Appeal -
(a) shall allow an appeal against conviction if they think the conviction is unsafe; and (b) shall dismiss an appeal in any other case."
Section 3 (1) of the Human Rights Act 1988 requires the court so far as possible to read and give effect to primary and subordinate legislation in a way which is compatible with convention rights.
Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms confers on everyone the right to a fair trial.
There must be no difficulty in giving effect to the ‘right to a fair trial’ when discharging a duty to consider the safety of a conviction.
Although there are authorities which suggest that the safety of a conviction is to be considered irrespectively of the trial process by which it was procured (see R -v- Chalkley & Jeffries (1998) 2 Cr.App.R 79 and R -v- Clarke & Hewins (1999) (6 Archbold News 2 CA (9704882W3)), the approach taken by the Court of Appeal, Criminal Division in R -v- Mullen (1999) 2 Cr.App.R 143 CA and R -v- Smith (Patrick & Others), The Times May 31st 1999 must also be considered. In the latter case the court stated:
"Now that the test for allowing an appeal is simply the safety or otherwise of the conviction, is it competent for the court to consider evidence entertained after the wrongful rejection of a submission of no case to answer? Formerly the position was judged at the time of the submission (R -v- Cockley 79 Cr.App.R 181 CA). In R -v- Berry 98 Crim.L.R 487 (transcript 20th January 1998) this court seems to have considered that the approach remains unchanged following the amendments made to section 2(1)(a) of the Criminal Appeal Act 1968 by the Criminal Appeal Act 1995. However in Berry the point was not crucial. So it is still open and, once again, not altogether straightforward. What if a submission is wrongly rejected but the defendant is cross-examined into admitting his guilt? Should the conviction be said to be unsafe? We think it should. The defendant was entitled to be acquitted after the evidence against him had been heard. To allow the trial to continue beyond the end of the prosecution case would be an abuse of process and fundamentally unfair."
The CCRC may take comfort and remain fortified in the view by the decision in R v Weir, The Times, June 16th 2000. There, DNA evidence linked Weir to a murder by the profile extracted from an earlier saliva sample in a case which had been discontinued. The Crown accepted that the profile should not have remained on the database. Quashing the conviction, Swinton Thomas LJ said:
“This appellant was convicted of a brutal murder on the compelling evidence of the DNA sample.”
So, a material irregularity resulted in the quashing of a conviction when evidence as to guilt was overwhelming.
Prior to amendment in 1995 the Act required the court to allow an appeal where it considered the verdict was unsafe or unsatisfactory, or there had been any wrong decision in law, or there had been a material irregularity in the course of the trial, save that the court might dismiss the appeal if it considered that no miscarriage of justice had occurred. The approach was set out by Viscount Simon LC in Stirland v DPP (1944) AC 315 at p.321
“When the transcript [of the C of A] is examined it is evident that no reasonable jury, after a proper summing up, could have failed to convict the appellant on the rest of the evidence to which no objection could be taken. There was, therefore, no miscarriage of justice, and this is the proper test to determine whether the proviso to S4(1) Criminal Appeal Act 1907 should be applied. The passage in Woolmington v DPP (1) where Viscount Sankey LC observed that in that case if the jury had been properly directed it could not be affirmed that they would “inevitably” have come to the same conclusion should be understood as applying this test.”
It seems to be generally accepted that the 1995 amendment was not intended to disturb the previous practice of the Court. That was certainly the view of the Royal Commission on Criminal Justice (CM 2263 1993), which recommended the change, and of the then Secretary of State for Home Affairs and the Lord Chief Justice see Hansard (House of Commons) (6 March 1995) columns 53-55 and Hansard (House of Lords) (15 May 1995) columns 310-312. The reformulation was the subject of comment in R -v- Graham & Others (1997) 1 Cr.App.R 302. Giving the judgment of the court Lord Bingham LCJ stated at p.308:
"This new provision, the subject of a penetrating analysis by Sir John Smith QC in (1995) Crim.L.R 920, is plainly intended to concentrate attention on one question: whether in the light of any arguments raised or evidence adduced on appeal the Court of Appeal considers a conviction unsafe. If the court is satisfied despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence, that the conviction is safe, the court will dismiss the appeal. But if, for whatever reason, the court concludes that the appellant was wrongly convicted of the offence charged or is left in doubt whether the appellant was rightly convicted of that offence or not, then it must of necessity consider the conviction unsafe. The court is then subject to a binding duty to allow the appeal."
As was stated by Roch LJ giving the judgment of the court in Hickey & Others CA 30/7/97:
"This court is not concerned with guilt or innocence of the appellants; but only with the safety of their convictions. This may, at first sight, appear an unsatisfactory state of affairs, until it is remembered that the integrity of the criminal process is the most important consideration for courts which have to hear appeals against conviction. Both the innocent and the guilty are entitled to fair trials. If the trial process is not fair; if it is distorted by deceit or by material breaches of the rules of evidence or procedure, then the liberties of all are threatened.
This court is a court of review. The court reviews the trial process to equip itself to answer the question “do we think that the conviction appealed is safe or do we think it unsafe?
The court is not a court of trial or re-trial. Persons accused of serious crimes are tried by juries in the Crown Court.”
In R v Martin [1998] 1 Cr App R 347, the House of Lords was considering the proposition that denial of the right to trial by jury in favour of Court Martial was an abuse of process. At p.353 Lord Lloyd of Berwick said:
“It could not possibly be said that the decision not to stay proceedings by Court Martial in Germany, where the crime was committed, was contrary to the rule of law, or that it deprived the appellant of any of his basic human rights. Nor could it be said to be “something so unfair and wrong” (see per Lord Lowry in Hui-Chi Ming v R (1992) 94 Cr App R 236) that the courts ought to intervene.”
And at p.355:
“Finally, I should also mention that even if the Courts-Martial Appeal Court has been satisfied that there was an abuse of process, it would still have been necessary for the court to dismiss the appeal, unless it was persuaded that the conviction was unsafe.”
At p.356 Lord Hope of Craighead said:
“In the ordinary case the Appeal Court exercises its jurisdiction by examining the effect of the point raised in the appeal on the course of the trial. Defects or insufficiency in the evidence and errors of law and procedure at the trial must be assessed in the context of the whole trial before the court can be satisfied the conviction is unsafe.
…….the Appeal Court……ha(s) power to declare a conviction to be unsafe and to quash the conviction if they find that the course of proceedings leading to what would otherwise have been a fair trial has been such as to threaten either basic human rights or the rule of law.”
In R v CCRC ex parte Pearson (2000) 1 Cr App R 141, at pps. 146-7 Lord Bingham LCJ said:
“The expression “unsafe” in s 2(1)(a) Criminal Appeal Act 1968 does not lend itself to precise definition. In some cases unsafety will be obvious, as (for example) where it appears that someone other than the appellant committed the crime and the appellant did not, or where the appellant has been convicted of an act that was not in law a crime, or where a conviction is shown to be vitiated by serious unfairness in the conduct of the trial or significant legal misdirection, …….Cases however arise in which unsafety is much less obvious: cases in which the Court, although by no means persuaded of an appellant’s innocence, is subject to some lurking doubt or uneasiness whether an injustice has been done……If, on consideration of all the facts and circumstances of the case before it, the Court entertains real doubts whether the appellant was guilty of the offence of which he has been convicted, the Court will consider the conviction unsafe. In these less obvious cases the ultimate decision of the Court of Appeal will very much depend on its assessment of all the facts and circumstances.”
The following is not intended to be an exhaustive statement of the principles involved. The Court of Appeal, Criminal Division is concerned with the safety of the conviction. A conviction can never be safe if there is doubt about guilt. However, the converse is not true. A conviction may be unsafe even where there is no doubt about guilt but the trial process has been “vitiated by serious unfairness or significant legal misdirection” as in Smith (Patrick and Others) and in Weir.
DOCUMENTS ATTACHED TO THESE SUBMISSIONS
This application is supported by a bundle with enclosures. The documents attached are as follows:
(a) Various letters from Paul Martin & Co to Essex Police Force Solicitors and vice versa
(b) Transcript from the Court of Appeal, Criminal Division dated 12 December 2002
(c) Major Incident Project document
(d) Radio Log
(e) Letter from Andrew Hunter MP member for Basingstoke
(f) Trail Summing Up by Mr Justice Drake
(g) Letter dated 3 March 2004 from Essex Police Solicitor to Paul Martin & Co Solicitors
(h) Letter dated 27 February 2004 from Glaysers Solicitors to Paul Martin &n Co Solicitors
THE POSITION ADOPTED BY THE TRIAL JUDGE
Mr Justice Drake summarized the position of this Applicant on the 24 October 1986. The summing up is paginated in attachment (f) pages 6-109. For the purposes of these submissions the relevant sections are as follows:
“Secondly, I suggest to you that the question for you to consider is are you sure that Sheila did not do the killing? Well, in this case, the evidence---whichever way you accept it---goes to show that EITHER the defendant or Sheila carried out the killings. No-one suggests that there is anyone else who can conceivably have been the guilty party, and we are not concerned with any fanciful imaginations of some mysterious third party having appeared on the scene, and disappeared, with noone having the slightest idea of who it should be, or why it should be, and it has not been argued otherwise. On the facts of this case, the killer was either Sheila or Jeremy Bamber..” (Page 7 F-H) Summing Up
It follows that within the Trial and the Trial Judge having stated there was no other solution to the murders other than “either/or” and confirmed “it has not been argued otherwise” it is clear that neither Defence Counsel Mr. Rivlin QC or Prosecuting Counsel Mr Arlidge QC ever had sight of the Radio Logs or the Major Incident Report and this is indeed confirmed by a letter dated 3 March 2004 from the Essex Police Force Solicitor who is only able to “presume” the Radio Logs were made available to Glaysers Solicitors in 2002 and by a letter dated 27 February 2004 from Glaysers Solicitors who confirm the approximate date and circumstances of when the Radio Log was made available at West Hendon Police Station.
It is to the credit of the Essex Police Force Solicitor who, in the letter of 3 March 2004, discloses a further 18 pages of Radio Log and confirms the authenticity of the Radio Log with the entry at “05.25 Firearms team are in conversation with a person from inside the farm.”
It was common ground that this Applicant at that time was indeed with the police outside the farm-house. If indeed the firearms team were in “conversation” with a person from inside the house and if according to the Major Incident Report an unidentified male was seen at White House Farm these two documents make compelling testimony to a “third way.”
It is submitted, notwithstanding that those filing these submissions have not spoken to either Mr Arlidge QC or Mr Rivlin QC or indeed Mr Justice Drake (who gave a television interview after his retirement from the High Court Bench on this very case) it was considered that no English Counsel would have deliberately been aware of these documents and covertly hidden them from the Defence and as such there was no necessity to interview any of the dramatis personae from the Trial. The said ex-culpatory documents were simply not made available to the Court per se. It follows that as a consequence Mr Justice Drake continued his direction to the Jury in the following manner:
“..and therefore it follows that if you are sure that Sheila did not carry out the killings, it also follows that you must be sure the defendant did so, and equally, if you are not sure that Sheila did or did not carry out the killings, if you are either sure that she did, or are uncertain whether she did or not, then it follows that you have not been made sure that the defendant did so, and therefore he would be not guilty, so either way, that second issue I suggest to you—are you sure that Sheila did not carry out the killings—will lead you to a verdict in this case.” (Page 8 A-B) Summing Up
Mr Justice Drake did however, accentuate upon the responsibilities of the Prosecution and to his full credit as a Trial Judge gave the following warning which would be an indication, never heeded, for the following 20 years of this whole, unsafe and unsound, conviction:
“They do, however, have a very stringent obligation which is recognised in our criminal procedure. They have two duties which they have to perform and which in practise are zealously carried out. First, if in any of those statements there is something which would be of assistance to the Defendant who is on trial, then it is the duty of the Prosecution to make known that fact to the defence, because under our system of law, the Prosecution do not seek at all costs to secure a conviction. The duty of the Prosecution is to see that justice is done, and if they come across a witness who clearly would be of assistance to the Defence from something he had stated, they are under an obligation to make that fact known to the Defence and they do so.”(Page 37 A-C) Summing Up
The failure to disclose to the Defence the Radio Log, now very kindly disclosed by the Essex Police Solicitor in the proper format, and the discovery in papers at West Hendon Police of the Major Incident Report, at the time of trial was fatal to the Defence and whilst at that time The Human Rights Act was not enacted as Legislation, a conviction founded upon a grave violation of a human right within the current Legislation can never be deemed safe and must carry the label of “unsound, unsafe and wholly unsatisfactory”.
It is evidently clear the Learned Trial Judge, Mr Justice Drake, was of the clear opinion and view that all had indeed been disclosed by the Prosecuting Authorities. The Learned Trail Judge admonishes Defence Counsel in the following manner:
“Another matter which I must also refer to that cropped up in Mr. Rivlin’s closing speech, is one in which he did expressly make a complaint about the Prosecution handling of the case and a suggestion that the Defence had somehow been put at a disadvantage by the Prosecution….. Now I must tell you quite bluntly and straight, that he was wrong to make that criticism..” (Page 36 E-F) Summing Up
At all material times it is submitted that both Defence Counsel and Prosecuting Counsel and Mr Justice Drake were never availed by the Prosecuting Authorities, for reasons that are irrelevant for the purposes of these submissions, to the said documents which clearly call for a case to be argued as “the third way.”
SHORT FACTS OF THE CASE
The history of the matter is best set out by para 1-2 of the Judgement dated 12 December 2002:
“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. 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.”
The matter proceeded upon the following short and brief facts surrounding what was, is and remains a high profile case requiring of the Court of Appeal, Criminal Division extra attention both at the time of the first appeal and subsequent and as evidenced by the careful reasoned judgement behind the refusal and what was the careful attention of the Lord Chief Justice Lord Lane. The facts are summarized as follows by Lord Justice Kay and no issue is taken by those making these submissions:
“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.”
It is important for the purpose of this application that both (1) The Trial Judge Mr Justice Drake, (2) Lord Chief Justice Lane at the first Appeal and (3) The Court of Appeal, Criminal Division sitting in December 2002 as well as both (a) Prosecuting Counsel at Trial and subsequent Appeals and (b) Defence Counsel at Trail and subsequent Appeals found the following common ground as a basis for a Prosecution/Defence and is accentuated by Lord Justice Kay in the Court’s Judgement in December 2002:
“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.”
The Applicant both at Trial and both Appeal Hearings faced the prejudicial situation that the Crown rather than as a matter of law to carry the onus and burden of proof upon the Applicant having murdered his family, the crown had simply to prove that Sheila Caffell was not the killer and as a consequence the jury were left with “no third way” alternative. Rather then than having to prove the Applicant guilty the Crown concentrated on proving that Sheila Caffell was innocent thus, as a result of “any other possibility ruled out” would force the jury to convict notwithstanding that the jury convicted by majority decision as opposed to unanimous.
The Court of Appeal, Criminal Division have made clear what, in accordance with these submissions vitiated any possibility of the Applicant having ever received a fair trial by stating that the common ground of “either Bamber or his sister and no other way” was “unusually in a case of this nature.”
“THE THIRD WAY” SUBMISSIONS FOR REFERAL
Submissions made to the Court of Appeal, Criminal Division in December 2002, and at Trial and first Appeal resulted in the following information as the foundation for refusing the Applicant the Appeal:
“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.
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.”
The police investigation is summarized as follows and the further basis for upholding the conviction:
“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.”
The representations made to the Court of Appeal, Criminal Division up to para 32 of the said Judgement accounted for occurrences between 03.26am on the day of the incident to the moment the Police entered the farmhouse.
It was however, missing vital information and documents that the Crown had not disclosed to the Defence at the Trial before Mr Justice Drake, at the first Appeal but which it is conceded may have been placed within the multitude of documents disclosed some 18 years post trial and prior to the Hearings in December 2002 before the Court of Appeal, Criminal Division.
The said documents undermine what was the basis for a conviction “if it was not Sheila Caffell it must have been the Applicant because it provides a third alternative.
THE DOCUMENTS PROVIDING SUBSTANCE FOR A THIRD ALTERNATIVE
(1) MAJOR INCIDENT REPORT-: item 1 at 03.45 S11 Myall (police officer who attended scene with Applicant logs following) “UNIDENT MALE” at “White House Farm”. It is important to note that PC Myall is noting at 03.45 an unidentified male at White House Farm when the Applicant was clearly in his company.
(2) WIRELESS MESSAGE LOG:- penultimate items reading as follows- “05.25 Firearms team are in conversation with a person from inside the farm.”
There is further a failure on the part of the Crown to disclose the evidence of P.C. Mercer who that fateful evening was the dog handler and whose Alsatian dog was specially trained to “sniff” for explosives, firearms or signs from any person that had recently handled a firearm. The dog did indeed approach the Applicant and carry out his trained role without a positive result. Whilst per se this evidence would not necessarily in itself be sufficient to question a conviction it is indeed a strong inference, if it had been made available to the jury, that the Applicant had not recently handled a firearm and as such could not have been responsible for the killings which were carried out by a firearm.
There is further the evidence of a certain Steven Brian Smith of 23 Tollesbury Road, Tollshunt D’Arcy, Essex who heard “gunshot sounds” at a time when it was indeed conceded and common ground the Applicant was not at the Farm.
There is further all the witness statements and evidence of the Senior Police Officer Taff Jones (who died in somewhat strange and mysterious circumstances) just prior to the original trial and his notebooks. All could and should have been properly disclosed especially as he was the Officer who was in charge of the investigation and who did not believe the Applicant committed the said murders, invariable as he would have seen the radio logs (not disclosed) and the major incident report (not disclosed) spoken to PC Mercer and the result of the firearm test carried out by the Alsatian (negative) together with his own observations (not disclosed).
It is submitted thus that there was indeed a third alternative but that the substance to such was simply not disclosed so it became indeed “unusually common ground” that either the Applicant killed his family or they were killed by Sheila Caffell.
The Defence never had an opportunity at raising this potential defence. The evidence is quite powerful and overwhelming. At 03.45am PC Myall logs an unidentified male at White House Farm. No further information is given. Had this log been disclosed any Defence Counsel would have made further enquires with questions of the officer. Why a male? What did PC Myall see to make him include such in his log? At 05.25am the Firearms team “in conversation with a person from inside the house.” This is indeed perhaps the most powerful evidence that either (a) the real perpetrator was inside the house still or (b) someone of the family was still alive. Any of such hypotheses would be ex-culpatory evidence on the Applicant and should have been disclosed.
DID THE APPLICANT RECEIVE A FAIR TRIAL
The House of Lords declared in R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, 68, and recently repeated in Attorney General's Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 WLR 1, para 13, it is "axiomatic" "that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for it at all". Article 6 of the European Convention requires that the trial process, viewed as a whole, must be fair. Any answer given to the questions raised by these appeals must be governed by that cardinal and overriding requirement.
While the focus of article 6 of the Convention is on the right of a criminal defendant
to a fair trial, it is a right to be exercised within the framework of the administration of
the criminal law: as Lord Steyn pointed out in Attorney-General's Reference (No 3 of
1999) [2001] 2 AC 91, 118,
"The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public".
The European Court has repeatedly recognised that individual rights should not be
treated as if enjoyed in a vacuum: Sporrong and Lönnroth v Sweden (1982) 5 EHRR
35, 52, para 69; Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, 191,
para 52. As Lord Hope of Craighead pointed out in Montgomery v HM Advocate
[2003] 1 AC 641, 673:
"the rule of law lies at the heart of the Convention. It is not the purpose of article 6 to make it impracticable to bring those who are accused of crime to justice. The approach which the Strasbourg court has taken to the question whether there are sufficient safeguards recognises this fact."
The institutions and procedures established to ensure that a criminal trial is fair vary
almost infinitely from one jurisdiction to another, the product of historical, cultural
and legal tradition.. Instead, the achievement of fairness in a trial on indictment rests
above all on the correct and conscientious performance of their roles by judge,
prosecuting counsel, defending counsel and jury. Save in defined circumstances (such
as when ruling on the voluntariness of a confession in a voir dire or, much more
rarely, a specific allegation of official misconduct) the judge is not a factual decision-
maker. His task is to ensure that the trial is conducted in a fair and even-handed way.
For this latter purpose he is entrusted with numerous discretions (see Rosemary
Pattenden, Judicial Discretion and Criminal Litigation, 2nd ed 1990). The duty of
prosecuting counsel, recently considered by the Judicial Committee of the Privy
Council in Randall v The Queen [2002] UKPC 19, [2002] 1 WLR 2237, para 10, is
not to obtain a conviction at all costs but to act as a minister of justice. As Rand J put
it in the Supreme Court of Canada in Boucher v The Queen [1955] SCR 16, 24-25:
"Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly".
Defending counsel also are subject to clear professional rules: they may, in fact must
not invent a case for their client or pursue serious accusations in the absence of
material to support them: Code of Conduct for the Bar of England and Wales,
paragraph 708(e).
It is submitted that this Applicant, by the clear absence and availability of the
Documents capable of being argued by Defence Counsel as ex-culpatory, defined
the trial as being clearly unfair with the Defendant seriously disadvantaged.
DISCLOSURE
At the time of trial there was a duty to disclose material information subject to certain exceptions which were contained in the Attorney General’s Guidelines (Disclosure of Information to the Defence Cases to be tried on Indictment) laid down in 1981 (74 Cr.App.R 302). Amongst the exceptions for example were cases where a statement disclosed the identity of an informant or there were reasons for fearing that disclosure of identity would put a family in danger. There can be no doubt in this case that there were no such fears that disclosure of the radio log and major incident report, evidence from the police dog handler, evidence from a deceased officer would place anyone in danger. In those days the decision perforce, had to be made without reference to the court. There was no provision for the Crown to have ex parte access to the trial judge and if sought it would almost certainly have been refused. If an application had been granted it would almost certainly have been viewed as a material irregularity.
It is also without question a serious violation of the Bar Counsel’s Code of Conduct if Counsel is aware of ex-culpatory material not placing such before the Court if not the defence.
Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experience shows that miscarriages of justice occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made.
Until December 1981, the prosecution duty was to make available, to the defence, witnesses whom the prosecution did not intend to call, and earlier inconsistent statements of witnesses whom the prosecution were to call: see Archbold, Pleading, Evidence and Practice in Criminal Cases, 41st ed (1982), paras 4-178-4-179. Guidelines issued by the Attorney General in December 1981 ([1982] 1 All ER 734) extended the prosecution's duty of disclosure somewhat, but laid down no test other than one of relevance ("has some bearing on the offence(s) charged and the surrounding circumstances of the case") and left the decision on disclosure to the judgment of the prosecution and prosecuting counsel.
In R v Ward [1993] 1 WLR 619, 674 this limited approach to disclosure was held
to be inadequate:
"An incident of a defendant's right to a fair trial is a right to timely disclosure by the prosecution of all material matters which affect the scientific case relied on by the prosecution, that is, whether such matters strengthen or weaken the prosecution case or assist the defence case. This duty exists whether or not a specific request for disclosure of details of scientific evidence is made by the defence. Moreover, this duty is continuous: it applies not only in the pre-trial period but also throughout the trial".
The rule was stated with reference to scientific evidence, because that is what the
case concerned, but the authority was understood to be laying down a general test
based on relevance: see R v Keane [1994] 1 WLR 746, 752.
The problem of reconciling an individual defendant's right to a fair trial with secrecy as is necessary in a democratic society in the interests of national security or the prevention or investigation of crime is inevitably difficult to resolve in a liberal society governed by the rule of law. Complaints of violation have been made against member states including the United Kingdom, some of which have exposed flaws in or malfunctioning of UK domestic procedures. The European Court has however long accepted that some operations must be conducted secretly if they are to be conducted effectively: Klass v Federal Republic of Germany (1978) 2 EHRR 214, 232, paragraph 48.
In Edwards v United Kingdom (1992) 15 EHRR 417 there was a prosecution failure to disclose relevant information, but no PII issue had been raised. The omission was held to have been rectified by the appeal process. The applicant in Bendenoun v France (1994) 18 EHRR 54 similarly complained of non-disclosure by the prosecution: his application failed because (paragraph 52) the undisclosed material had not been relied on by the prosecution and he had given no sufficiently specific reasons for requesting the material in question.
Chahal v United Kingdom (1996) 23 EHRR 413 arose from protracted immigration proceedings and did not involve a complaint under article 6. But the case has proved very influential, since in it the Court held (paragraph 144) that the expedient of appointing security-cleared counsel, instructed by the court, who would cross-examine the witnesses and generally assist the court to test the strength of the State's case, served to illustrate (paragraph 131):
"that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice".
Rowe and Davis v United Kingdom (2000) 30 EHRR 1 arose from the proceedings in
which an important ruling had been given by the Court of Appeal in England
(paragraph 20 above). Having reviewed the facts of the case and the development of
English practice, the Court found that the applicants' rights under article 6 had been
violated. In doing so, the Court recognised it (paragraph 60) as a
"fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition Article 6(1) requires, as indeed does English law, that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused".
This had been the domestic law under the Attorney General's 1981 Guidelines, but
had ceased to be so in 1996. The Court continued:
“However, as the applicants recognised, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6(1). Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities. In cases where evidence has been withheld from the defence on public interest grounds, it is not the role of this Court to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them. Instead, the European Court's task is to ascertain whether the decision-making procedure applied in each case complied, as far as possible, with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused".
In PG and JH v United Kingdom (4 September 2001, unreported, appn no 44787/98)
the prosecution had sought to withhold on public interest grounds certain information
relating to the installation of a listening device. A police officer declined to answer
questions put to him in cross-examination by defence counsel because his answers
might reveal sensitive material. The judge then, with the consent of the defence, put
questions to the officer in the absence of the defendants and their lawyers and
concluded that the benefit of the answers to the defence was slight, if any, while the
damage to the public interest if the answers were made public would be great. The
Judge refused to exclude the evidence derived from the device. It was unanimously
held, partly on the same grounds as in Jasper and Fitt (paragraph 71), that the
withholding of the officer's report and the procedure adopted to examine him had not
violated article 6. The Court held (paragraph 71):
"The Court also notes that the material which was not disclosed in the present case formed no part of the prosecution case whatever, and was never put to the jury. The fact that the need for disclosure was at all times under assessment by the trial judge provided a further, important safeguard in that it was his duty to monitor throughout the trial the fairness or otherwise of the evidence being withheld. It has not been suggested that the judge was not independent and impartial within the meaning of Article 6 §1. He was fully versed in all the evidence and issues in the case and in a position to monitor the relevance to the defence of the withheld information both before and during the trial".
In both Atlan v United Kingdom (2001) 34 EHRR 833 and Dowsett v United Kingdom
(24 June 2003, unreported, appn no 39482/98) unanimous findings of violation of
Article 6(1) were made. In the first of these cases (paragraphs 44-45) the prosecution
repeatedly denied the existence of undisclosed material and had failed to inform
the judge of the true position, when it appeared that there had been undisclosed
material directly bearing on the defence advanced at trial. In the second case it was
held that the prosecution's failure to disclose material at the trial, although partly
cured in the Court of Appeal (paragraph 46), had not been wholly cured (paragraphs
47-49).
It is highly unlikely, in fact submitted as impossible, that Prosecuting Counsel, The Trial Judge Mr Justice Drake, Defence Counsel at three Hearings were made aware of the material and failed to disclose such or use such. What is evident however, is that the Court of Appeal sitting in December 2002 were also not made aware of such. The inference in such must be that the said documents were inadvertently “buried within myriads of documents” when finally disclosed in 2002 and since the basis of the previous CCRC Reference was upon forensic evidence, such ex-culpatory material in two simple pieces paper which provide a third alternative, were simply not considered.
These submissions lay or apportion no fault upon any party. No do these submissions form the basis of any accusatorial inquisition upon Prosecuting Counsel, Defence Counsel or any Members of the two diverse Court of Appeal justices who presided over the appeals of this Applicant.
The basis of the conviction was common ground that “either Sheila did it and if she did not Bamber did it” and was indeed noticed by Lord Justice May and noted as unusual. As stated previous the Court of Appeal is however, not a Court of Trail. It is a Court of Review. The Court has not established any precedent for acting on the Court’s own motion. The Court is bound by the submissions made by Defence and Prosecuting Counsel. The Court is specifically precluded from opening their own investigation into the facts of the case or documents. The Court of Appeal in December 2002 would not have been served all the papers made available to the defence by the CCRC and the main thrust of the argument was focused upon the forensic evidence and the DNA. The “third way” did not attract the appropriate consideration although the comment by Lord Justice Kay as the position being “unusually in a case of this nature” was judicial hindsight and wisdom at its highest. It was indeed so “unusual” that it was not the case owing to the failure to properly disclose the documents.
A failure to disclose need not necessarily be intentive. It may be inadvertent. What is important is the significance had the documents been disclosed, not so much during the appellate hearings, but at trial. As stated previously, those indicted of serious crimes are tried before a jury. There are no trials before the Court of Appeal, Criminal Division. This Applicant was convicted by a majority decision of 10-2 on the basis that if Sheila Caffell did not murder her family then it was the Applicant. No alternatives were proposed albeit such being somewhat in unusual circumstances. The documents subsequently disclosed make a third way not only possible, probable, but open a line of defence which had such been available may well have altered the pendulum in favour of the Defence at Trial.
BASIS OF SUBMISSION FOR REFERAL
The test is whether the Court of Appeal in hearing the appeal of this Applicant had during the appeal hearings in December 2002 sufficient material before it to properly and fairly evaluate what would have been the inevitable, albeit regrettable, consequences of the failure to of the Crown to make certain disclosures to the Defence at Trial. It is submitted that such material would have persuaded the said Court by virtue of its mandatory requirement. It clearly was available at trail in first instance and not disclosed and as such not argued.
CONCLUSION
The test for a referral, it is submitted, is not whether there would be any likelihood of success by virtue of a referral per se. It is whether the Criminal Appeal Act 1995 s.9-12 can be properly applied. We have detailed the basis at the beginning of these submissions. We are of the view that all the facts and circumstances were not made available to the Court of Appeal for them to properly evaluate on the basis outlined and by the failure of the Crown to disclose at trial potentially ex-culpatory evidence which by virtue of precedent and statute necessarily make a fresh application to the Court of Appeal, Criminal Division likely to succeed.
We therefore request this matter be referred to the Court of Appeal on the basis as outlined above and herein confirm our view that exceptional circumstances do arise for the Commission to depart from the constraints levied upon it and treat this matter, by virtue also of its inevitable consequences, as prioritive.
Studio Legale Internazionale
Roma, Italy
8 March 2004
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