Below the EP response to a 5 month review of the evidence I requested to be relesed
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The Essex Police Position in respect of applications under the Freedom of Information Act for Evidential
Material Gathered in the 1984 Investigation into the White House Farm Murders, and the conviction and
imprisonment of Mr. Jeremy Bamber.
April 2014
The White House farm Murders
In 1986 Jeremy Bamber was convicted by a jury of the murders of his adopted family at White House farm in
Essex in the previous year. Mr. Bamber has repeatedly and publically protested his innocence, and has
attracted the support of several campaigners and members of the public.
Mr. Bamber has several times applied to have the conviction overturned or his sentence reduced. The Court
of Appeal upheld the conviction in 1989. The Criminal Cases Review Commission (CCRC) referred the case
back to the Court of Appeal in 2001, which upheld the conviction again in 2002. The CCRC has since rejected
further applications from Mr. Bamber's lawyers in 2004 and 2012.
Essex Police regularly receive requests to release information about the Bamber case under the terms of the
Freedom of Information Act 2000. In the main these requests ask for the disclosure of evidential material
related to the case. To date, we have refused disclosure in every instance as it is the position of the Force
that disclosure would not be in the public interest.
Our reasons for adopting this position are set out in the following rationale.
Strategic Change Management Directorate
Information Management Department
Freedom of Information team
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The Right of Access
The Freedom of Information Act is designed to provide the public the general right of access to recorded
information that is held by public authorities. This right of access is intended to promote openness,
transparency and accountability in those authorities. However, the legislation is designed to focus more
upon the authorities themselves and how they operate and make decisions than upon individuals with
whom they may come into contact.
‘The principle (is) that public authorities should be open and accountable, in particular where they are
spending public money or taking decisions that significantly impact upon the public.’
ICO Information Rights Strategy version 1 (2012)
The FOI Act is designed in such a way that recorded information held by a public authority, including a police
force, must be disclosed unless there are compelling reasons not to release the information. A disclosure
under the Act is made into the public domain, to the whole world, and not just to the person making the
request. The general right of access is not unlimited and the Act contains a number of exemptions which
may be engaged.
The Cost Limitations
One very practical reason why information has been refused in the past is simply that of costs. Section 12 of
the Act states that the request may be refused if compliance with the request extends beyond the
reasonable limit, which is defined in the current fees regulations at 18 hours or £450. In other words, if it
would take more than eighteen hours to locate and retrieve the information specified in the request, this
exemption would be engaged and maintained.
The quantity of material gathered for the Bamber investigation has been described as vast. This material
was gathered nearly 30 years ago, before modern information management and records management
procedures had been instituted, and so only a limited quantity of the material has been collated; filed and
cross?referenced with a searchable database to make the information reasonably retrievable. However, in
the main part, the information is spread across more than two hundred boxes held at a storage facility. For
this reason, the costs exemption may come into play where applicants request such material.
However, while this practical consideration is very real, this is not the principal reason why Essex Police
would refuse to disclose such information under the FOI Act, and this is considered in detail in the following
pages.
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The Data Protection Considerations
In most situations, a public authority receiving a request for information about an individual who is not an
employee of that authority would be entitled to refuse to confirm or deny whether they hold any
information about that person at all, as to provide even the confirmation that such information existed
would be likely to breach that individual’s rights under the Data Protection Act 1998 (DPA), thereby engaging
the exemption at section 40(5) of the FOI Act.
In this unusual case, as it is a matter of very public record that Essex Police conducted the investigation into
the White House Farm murders and because so much information has been placed in the public domain by
Mr. Bamber himself, it would be inappropriate for Essex Police to refuse to confirm or deny that information
was held that was relevant to the case. The issue would therefore rest on whether it would be right to
release such information under the FOI Act, amending the relevant exemption to section 40(2).
(2)Any information to which a request for information relates is also exempt information if—
(a) it constitutes personal data which do not fall within subsection (1) ( (I.e. - it constitutes the
personal data of an individual other than the applicant)
(b) either the first or the second condition below is satisfied.
(3)The first condition is—
(a) in a case where the information falls within any of paragraphs (a) to (d) of the definition of “data” in
section 1(1) of the Data Protection Act 1998, that the disclosure of the information to a member of the
public otherwise than under this Act would contravene—
(i) any of the data protection principles
In this instance, disclosure of personal information under the FOI Act would contravene the first data
protection principle (Data Protection Act 1998, Schedule 1, para. 1) as set out below.
Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless -
(a) at least one of the conditions in Schedule 2 is met, and
(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.
The issue of fairness in this case principally concerns whether individuals would reasonably expect that such
information would be disclosed into the public domain in response to a request under the FOI Act, and in our
view they would not. The public expect that their information will be kept securely, and will only be used for
a policing purpose, such as preventing or detecting a crime or protecting life and personal safety or property.
The data must also be processed for a lawful purpose. However, regardless of these considerations, the data
can only be processed (and this term would include disclosure or release under the Freedom of Information
Act) if that processing can be legitimised by at least one of the conditions listed in the schedules of the Act.
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All information that relates to an individual in a significant way is defined by the DPA as ‘personal data’ (DPA,
part 1). Where that data also relates to the commission or alleged commission of criminal offences, the Act
defines the information as ‘sensitive personal data’ (see DPA Part 2) and the threshold to legitimise that
processing is much higher and the circumstances which provide the grounds must be particular and specific.
It has been established that the only condition that could legitimise the release of personal data in response
to a request under the FOI Act is schedule 1, condition 6, which is as follows ?
6(1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or
by the third party or parties to whom the data are disclosed, except where the processing is
unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate
interests of the data subject.
It has been considered that the general public could be considered as a third party or parties for the purpose
of the FOI Act, and so the condition at paragraph 6 of DPA Schedule 2 is often seen as being similar to a
public interest test.
Public interest tests are considered when applying any of the ‘qualified’ exemptions under FOI, and these
seek to establish whether the public interest in releasing the information is outweighed by that in
withholding the material.
However, the Information Tribunal took a more systematic approach when considering the disclosure of
MPs’ expenses claims in House of Commons v IC & Leapman, Brooke and Thomas (EA/2007/0060). In
considering the application of this condition to a disclosure under the FOIA, the Tribunal applied a threestage
test, constructed from the wording of condition 6:
• Is there a legitimate public interest in disclosure?
• Is the disclosure necessary for that legitimate public interest?
• Is the disclosure nevertheless unwarranted because of an excessive or disproportionate adverse
effect?
Those that support Mr Bamber often argue that disclosure of the information is in the legitimate interests of
the public, as it would establish his guilt or innocence and whether, as they allege, a miscarriage of justice
has occurred.
On the face of it, this would appear to be a compelling argument. However, our position is that even if the
whole vast quantity of material were disclosed into the public domain, the general public would not be able
to arrive at any decision of that kind.
The release of evidential information into the public domain could not achieve the stated aim of determining
the guilt or innocence of Mr. Bamber absent any authoritative context or judgement, which has already been
provided on several occasions by the criminal courts.
Further, the public would not have been present at the court to hear all of the information presented, such
as the testimonies of witnesses. We must bear in mind here that in a courtroom, it is a properly convened
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jury that arrives at the verdict, rather than those who happen to be present in the public gallery. This
consideration was echoed during the 2001 appeal by the comments of the judge ?
"It should be understood that it is not the function of this court to decide whether or not the jury was
right in reaching its verdicts. That is a task that is wholly impossible in virtually every case because
this court does not have the advantage of hearing and seeing the witnesses give evidence, and
deciding which of the witnesses are trying to tell the truth and which of those who are trying to do so
are accurate in their recollection.
Our system trusts the judgment of a group of 12 ordinary people to make such assessments and it is
not for the Court of Appeal to try to interfere with their assessment unless the verdicts are manifestly
wrong, or something has gone wrong in the process leading up to or at trial so as to deprive the jury
of a fair opportunity to make their assessment of the case, or unless fresh evidence has emerged that
the jury never had an opportunity to consider.
We have found no evidence of anything that occurred which might unfairly have affected the fairness
of the trial. We do not believe that the fresh evidence that has been placed before us would have had
any significant impact upon the jury's conclusions if it had been available at trial. Finally the jury's
verdicts were, in our judgment, ones that they were plainly entitled to reach on the evidence.
We should perhaps add in fairness to the jury that the deeper we have delved into the available
evidence the more likely it has seemed to us that the jury were right, but our views do not matter in
this regard, it is the views of the jury that are paramount."
The three stage test goes on to consider whether, if a legitimate public interest exits, disclosure would be
necessary for that interest. The position of Essex Police is that the disclosure is not in any sense necessary,
firstly as set out above, because it could not in any fair way achieve the stated aim of establishing guilt or
innocence, and secondly because more appropriate and effective procedures already exist to ensure the
interests of justice.
These interests are jointly served by the independent judiciary, the independent Criminal Cases Review
Commission, and in the case of allegations against the police force, by the Independent Police Complaints
Commission (CCRC).
One of Mr. Bamber’s supporters, former M.P for Basingstoke Andrew Hunter, has questioned the
effectiveness of these measures and tabled a question in the houses of Parliament in 2005, to which he
received a response from the then Parliamentary Under?Secretary of State for the Home Department
(Fiona MacTaggart), which included the following comments (Hansard, 9th Feb, 2005) ?
“The Hon. Gentleman has stated that he believes that the Home Office should look closely at the Bamber
affair, and in particular at the issue of non?disclosure and the behaviour and attitude of Essex Constabulary. I
shall begin by saying that, on previous occasions, the Home Office has looked closely at the Bamber affair, as
have the constabulary and the City of London Police following a complaint to the Police Complaints Authority
under the previous system. Its 14 month study did not uphold Bamber’s complaint.?“
“At the second appeal, the court found no evidence to support Mr. Bamber's allegations of serious
wrongdoing, including deliberate non?disclosure by the police; nor did the results of the internal inquiry and
the 14?month investigation of Mr. Bamber's complaints by the City of London police confirm that there was
any justification to Mr. Bamber's allegations.”
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Ms. Mactaggart closed by making the following powerful statements in support of the work of the CCRC:
“Before us is a concern that evidence has not properly been made available to the body that is rightly
charged with judging it. There is an independent body, which is sifting through that evidence and which has
the powers, given to it by Parliament, to call for that evidence if it believes that it is in any way relevant to the
case for a re?hearing by the Court of Appeal. It is doing that job.
The CCRC is not anybody's patsy. It has the power to require the material. It is the mechanism that has the
power to ensure reconsideration if a case merits reconsideration. We have established a powerful
independent way to deal with miscarriages of justice. If the concern is that there has in this case been a
miscarriage of justice, that body must have the opportunity to do its job and to ensure that that matter is
dealt with effectively.”
A brief examination of the CCRC’s website provides the following statistics in relation to its performance in
examining appeals –
Information Held for the Purposes of Investigations and Proceedings
Aside from the data protection considerations, the FOI Act also contains an exemption at section 30(1) for
material gathered during the course of the investigation and subsequent proceedings –
(1) Information held by a public authority is exempt information if it has at any time been held by the
authority for the purposes of—
(a)any investigation which the public authority has a duty to conduct with a view to it being
ascertained—
(i)whether a person should be charged with an offence, or
(ii)whether a person charged with an offence is guilty of it,
(b)any investigation which is conducted by the authority and in the circumstances may lead
to a decision by the authority to institute criminal proceedings which the authority has power
to conduct, or
(c) any criminal proceedings which the authority has power to conduct.
Case Statistics ? Figures to 30 September 2013
Total applications*: 16792
Cases waiting: 658
Cases under review: 511
Completed: 15624 (incl. ineligible), 537 referrals
Heard by Court of Appeal: 509 (351 quashed, 147 upheld)
*Total applications includes 279 cases transferred from the Home Office when the Commission was
set up in 1997.
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Section 30 is a qualified exemption which is structured in such a way that any information that is captured by
the exemption (which in this instance would apply to all of the material gathered for the Bamber case) is
exempt from disclosure unless a compelling public interest exists to support its release.
The factors in favour of disclosure surround openness and transparency in a matter where wrongful police
action has been alleged. Some of Mr. Bamber’s supporters cite the recent disclosure of information
surrounding the Hillsborough disaster as a parallel.
Our reticence to disclose information has been interpreted as the Police having something to hide. This is
not the case at all, but a disclosure project such as that undertaken in the Hillsborough matter is a hugely
costly exercise that we simply could not justify undertaking, particularly in these financially constrained
times, without very good reason.
As has already been considered, disclosure of the information cannot serve the claimed public interest; more
effective and appropriate routes already exist to achieve that purpose, and very importantly, in this matter
no evidence of wrongdoing on the part of the police has ever been produced or substantiated.
For these reasons we feel that the factors that favour disclosure can be given little weight. Here we are
reminded of the Tribunal’s comments in the case of Toms v The Information Commissioner where it
recognised that there is a public interest in the protection of investigations by noting that in considering the
public interest it had had regard to the White Paper which preceded the introduction of the 2000 Act. It
highlighted in particular the following extract:
“[freedom of information] should not undermine the investigation, prosecution or prevention of crime, or the
bringing of civil or criminal proceedings by public bodies. The investigation and prosecution of crime involve a
number of essential requirements. These include the need to avoid prejudicing effective law enforcement, the
need to protect witnesses and informers, the need to maintain the independence of the judicial and
prosecution processes, and the need to preserve the criminal court as the sole forum for determining
guilt.”(para 7).
Essex Police do not believe that the public interest is served by the release of evidential material that would
enable the matter to be re?tried in the public arena or the media. To do so would undermine the proper
functions of the courts, the due process of law and the criminal justice system as a whole. The public
interest has already been served, and more than sufficiently, by the previous attention this matter has
received by the proper authorities in the courts.
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Conclusion
In closing, and in summary, we hope that this rationale document has comprehensively explained the
reasons for Essex Police decisions to refuse the disclosure of information under the Act. There are very real
imperatives related to data protection considerations, and to costs. The evidential material gathered in the
Bamber case is vast, and is in the main retained in an unstructured, unsearchable format. Considerable
public resources have already been engaged in entertaining Mr. Bamber’s appeals. Essex Police would not
seek to engage in any activity that would involve the further use of our resources unless there was an
overpowering public interest, which would best be established and manifested by the CCRC determining that
such material was required for the purposes of their deliberations.
Despite the allegations promulgated by Mr. Bamber and his supporters, there is no compelling reason why
information should be disclosed in this matter more than in the case of any other convicted criminal. Were
we to concede as a matter of routine to the release of information in such circumstances, then it would
become common practice for criminals to demand the material in each of their own cases under the FOI
legislation, where more suitable avenues already exist. This would have the effect of hampering the criminal
justice system, would put tremendous strain on the already overburdened resources of police forces and
other public authorities, and would undermine the credibility of the information legislation. We cannot see
that this could reasonably be considered to be in the public interest.
The Essex Police position is that the CCRC are the correct arbiters of the public interest in respect of the use
of material gathered for the purpose of the investigation and prosecution. Essex Police are ready to comply
should the CCRC require us to provide any material for their consideration.
