This is a 'policy' piece, and those who are interested only in discussing the murders and the legal case may wish to skip this thread.
Before I begin, an important caveat is that while I will be making here a highly speculative legal argument, my interest is confined to a conventional understanding of the law (including, as here, novel innovations within existing principles). I have no wish to promote or explore pseudo-legal arguments, such as those advanced by common law movements and other fringe groups.
For the purposes of what I will say here, I am going to adopt the assumption that Jeremy Bamber is actually guilty - though he has not entered a reliable confession, so only he knows this - and I will envision a scenario about 4 or 5 years into the future in which a further application to the CCRC has been made and has failed and Bamber's legal prospects are considered bleak.
At that point, given the state of the law as it is, Bamber would have few options beyond making a confession and hoping that he might be released at some point on compassionate or other legal grounds.
What I would like to tentatively explore is the possibility of an alternative relief, which is rarely used in England but is quite often made use of by prisoners in the United States. Although clearly the USA is a separate jurisdiction, it is widely understood that its laws and norms are an off-shoot of English law. Here I will look specifically at the relief of habeas corpus ad subiciendum - Latin for 'You have the body for examination', usually shortened to habeas corpus.
In basic terms, in most common law jurisdictions (including England & Wales), prisoners (either pro se or through counsel) or third parties ad litem, can apply to the court for a writ of habeas corpus, which requires a custodian (usually a prison governor or manager of a psychiatric unit, or similar) to deliver a prisoner or patient to the court for the purposes of examining the legality of his continued confinement. In English courts, this is known formally as a Writ of Habeas Corpus for Release, and the application is made to the High Court nearest to the prisoner, or when the court is not 'in term', i.e. the judge is not sitting locally, application should be made to the High Court in London.
In England, my impression is that habeas corpus litigation is not used extensively, and when it is used, tends to be restricted to seeking relief for individuals in certain eclectic categories of confinement, some examples being: people who have been 'sectioned', i.e. held in non-custodial psychiatric units pursuant to the Mental Health Act; people who are in immigration detention; and, civil prisoners in ordinary prisons.
In contrast, in the United States, habeas corpus writs are used much more commonly in mainstream criminal justice. The most high-profile application of habeas corpus in American jurisprudence is in cases where a long-term prisoner may have failed to appeal his conviction or sentence, or both, and as a last resort, identifies evidential or procedural flaws in the original trial or the police investigation that may threaten the legality of his detention. Some of you may be familiar with the case of Rubin Carter, a death row inmate in America who had been convicted of murder at the state level and always protested his innocence. Carter's appeals to the state courts failed and his lawyers then decided to seek relief under federal law by applying for a writ of habeas corpus. When the application was heard, Carter's lawyers were able to argue successfully that his original trial breached his legal and constitutional rights and he was released from death row and his conviction was quashed.
Again, here I assume Jeremy Bamber is guilty, and I ask: Is the Jeremy Bamber case an example of why the English courts should make greater use of habeas corpus to relieve prisoners who may even be guilty, but whose rights have been infringed?
I believe so, and would cite the following:
1. First, in my view, Bamber did not receive a fair trial. Some of the points to consider are:
(i). Julie Mugford's evidence was strictly irrelevant, intended only to manipulate the jury, and her statements should not have been admitted into evidence.
(ii). The police failed to undertake a proper criminal investigation, which undermined the presumption of innocence and shifted much of the burden of proof to Bamber himself. The prosecution case was weak in that there was no forensic evidence directly linking Bamber to the crime scene.
(iii). The court failed to inform the jury of key facts and evidence and did not visit White House Farm.
(iv). The trial judge misdirected the jury.
(v). The provenance of the key piece of evidence, the moderator, is highly questionable given that there was a plain motive - and perhaps also an inclination - for some members of the extended family to see Bamber convicted.
(vi). Important evidence was not disclosed to Bamber by Essex Police at trial, or for many years after, and this may have impeded his defence and his ability to appeal his conviction.
2. Second, I think the lawfulness and fairness of Bamber's continued imprisonment is open to question. There is the simple fact that Bamber has now spent 33 years in prison and counting. I believe that is punishment enough. Also, Bamber was handed a 25-year tariff by the sentencing judge, Mr Justice Drake. I appreciate that does not mean he should have been released at the 25-year point, only that he was eligible for parole at that point - a different thing. However, there is no suggestion that Bamber is a public risk, he remains in prison only due to ministerial interference, namely the imposition of a whole life order. Contrary to what is sometimes believed, the European Court of Human Rights did not rule that whole life orders in England are unlawful, but did rule that such orders must be subject to annual reviews, with the possibility of release for prisoners who make progress in their rehabilitation. The fact that Bamber denies these offences does not, in itself, preclude his rehabilitation.
Is a habeas corpus argument at all viable or realistic?
I cannot say. I merely open the idea up for honest discussion. I call this a 'revival' of habeas corpus because although the relief is firmly entrenched and used regularly in the English courts, it is not used to its full potential. A professional lawyer or judge will immediately scoff at my argument. That's not necessarily a commentary on its validity, rather it's because practitioners and jurists in the legal system must be conservative - for obvious reasons, they will not stray too far from established practices. This is a novel point - albeit within existing laws and principles - and, for the moment, more appropriate for consideration by the academic lawyer.
One of the points that distinguishes the two major Anglo-Saxon jurisdictions is that the English, due to our natural informality, have retained a great reverence for juries. This permeates even discussion of criminal cases in society. We sometimes hear ordinary people say: 'He was convicted by a jury'. Lawyers in court even sometimes say the same thing when a criminal conviction is mentioned or brought into question. (A Treasury counsel once cross-examined me in a Customs & Excise case in which I was the defendant, and at one point he said in reference to a previous case: 'You were convicted by a jury!'. I felt like saying, 'Yeah, so what?', but resisted the urge). It is believed the jury's verdict is sacrosanct and it is that deep psychic attachment to the wisdom and common-sense of the layman that sometimes inhibits a proper, science-based review of judicial decisions.
Our American cousins, in contrast, are more ready to override juries, and early on in their history, having faced down the Crown in a violent rebellion and established a civil Republic, took up the incipient constitutionalism of the English Parliamentarians and gave it full expression in a written constitution and rigid legal protections for criminal defendants that allow educated judges to upturn the decisions of juries with ease, even on very technical grounds. Hence the case of Rubin Carter and many similar others.
Rubin Carter may well have been guilty, but that is not what matters to an American judge. It's not the point. The point is that Carter's rights were infringed and so he had to be granted relief and released. It's not that American courts want to help murderers, rather it's that due to America's history, the American judiciary and wider society understands the vital importance of procedural integrity in criminal proceedings for the protection of fundamental liberties. The point being - if they can frame a bad person, they can frame a good person too. There has to be something standing in the way - that something is law.
