Today the High Court declined a request by the those representing Jeremy Bamber to order disclosure which would have answered a very material aspect of this case namely prima facie conclusions reached by an eminent Ballistics Expert that there may have been two Silencers examined in this investigation . The issue could have been answered by disclosing just 27 documents out of an overall case file running to several million pages.
It remains our view that this would have been the most expedient and resource sensitive way to address this important issue , however the High Court has concluded that the high water mark imposed in the case of Nunn R (Nunn) v Chief Constable of Suffolk [2015] AC 225 has not in this case been crossed . Indeed The Honourable Mr Justice Knowles who decided the case considered that this case was so uniquely complex that the Court could simply not itself do justice to a determination one way or the other of whether Jeremy Bamber could establish in the end whether he had the required evidence to demonstrate to the Court that he and his expert are correct and that accordingly the material would make a decisive difference .
Counsel for Jeremy Bamber said that the existence of a second moderator would potentially undermine the safety of the convictions. Whilst the prosecution also relied on other evidence, the question of whether Ms Caffell could have shot herself with the moderator affixed to the rifle inevitably became a prominent one. He said there were questions surrounding the correctness of the attribution of the blood to Ms Caffell, and the attribution of the paint to a struggle with Nevill Bamber. Jeremy Bamber had advanced a detailed assessment of why this would make a material difference to the safety of the conviction.
The essence was that Jeremy Bamber was very sure that the conclusion with the 27 documents seen would have supported his case, however we could not say for certainty without seeing the documents and this remained the problem.
The argument was strongly contested by the Crown, but, the real thrust of the argument was that it was only the CCRC who could consider this uniquely complex case.
His Lordship significantly summarised the position as it stands as this:
“55. I have carefully considered the arguments of the parties and have read and considered all of the material that has been lodged. I have carefully considered the decision of Saini J and for the reasons that he gave, with which I agree, and for the following reasons, I have concluded that permission should be refused. This does not leave the Claimant without a remedy. Much work has already been done and he has the makings of a fresh submission to the CCRC including an unqualified report from Mr Boyce in support of his case that there was a second moderator recovered from the farm. That provides him with the necessary basis for arguing that his convictions are unsafe.”
Whilst the decision is disappointing, we agree with his Lordships assessment that Jeremy Bamber certainly does have the makings of a fresh submission to the CCRC. Indeed there is material which still simply cannot be put into the public domain and a significant amount of further material which will now be added to the application to now be put to the Commission which we consider will require a thorough investigation by the Commission .
The net consequence of what is about to be delivered in the months ahead is to afford the commission an opportunity to be able to look at key areas of this uniquely complex case again, but with the benefit of fresh material which we submit raises the required possibility that the Court would not now uphold the conviction if the case was referred .
As part of the run into this case there was criticism that Jeremy Bamber was advancing a narrative of misconduct by Essex Police which was unsubstantiated , yet it was revealed just 24 hours before the hearing , following concerns that had been raised by Jeremy Bamber , that a former senior investigating officer in the case Michael Ainsley had not only taken sensitive material from the investigation home , but he had passed documents to the author of the Book , Carol Ann Lee , which led to the ITV Drama and then taken it upon himself to destroy evidence .
This is a deeply concerning chain of events, which is subject to an ongoing investigation.
Accordingly despite the overall outcome to this review , it is our view that the Jeremy Bamber’s case has moved forward as result of these proceedings and the team look forward to the now pivotal next step of being able to start to engage with the commission over this case in the months ahead .
The Onus is now on the Commission once it is seized of the case as His Lordship noted:
“57. If ever there was a case where the CCRC should be approached to make a decision on what is said to be new evidence, it is this one. This is a massively complex case which has been investigated and re-investigated by more than one police force over some 35 years. The body of material is vast. After so many years, and so much litigation, the CCRC is the body undoubtedly best placed to consider the Claimant’s arguments. This case is so complicated, and has so many overlapping layers, that judicial review is a hopelessly blunt tool with which to address and determine the Claimant’s arguments. Even deciding what disclosure has, or has not, been made is fraught with difficulty Even if the Claimant were right on his primary case, the Court is hardly in a position to say whether the CPS’s determination that it would not mean the convictions are unsafe, is one which was not reasonably open to it. It simply does not have the material or understanding of all the detail of the case to be able to make that determination.”
Jeremy Bamber is represented by Mark Newby of QualitySolicitors Jordans – https://www.qualitysolicitors.com/jordans/our-people/mark-newby
His Counsel are:
Joe Stone QC https://www.doughtystreet.co.uk/barristers/joe-stone-qc http://kbgchambers.co.uk/members-Exeter-Plymouth-Truro
Matt Stanbury https://gcnchambers.co.uk/barrister/matthew-stanbury/