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Jeremy Bamber – Why will the CCRC not investigate the evidence protected by so called Public Interest Immunity (PII)?

Jeremy Bamber


As far as we know, the Criminal Cases Review Commission (CCRC) has never in its 27 years of existence requested to see documents held secret under Public Interest Immunity (PII) in the White House Farm murder case.


There are things that our rulers, in their wisdom, feel that the public shouldn’t know, presumably because the knowledge might be disturbing or embarrassing to authority. PII —previously known as Crown privilege—is a long-standing exclusionary rule of evidence. When operated, it excludes certain evidence (normally documents) from production in court. So, PII might be used to protect matters of national security if a trial involved exposing information that a State enemy would find useful, such as how to build an atomic bomb. All well and good if protecting us from adversaries that mean us harm.


However, in theory PII has no application in the evidence accumulated in a straightforward criminal investigation and murder trial, which is what the case against Jeremy Bamber amounts to. Jeremy Bamber was accused of killing five members of his family at White House Farm (WHF) following a police investigation with no involvement of the state security services (as far as we know).


The WHF tragedy is a case which the prosecution presented as a choice between two possible perpetrators, Jeremy Bamber or his sister Sheila Caffell. No foreign powers or state secrets involved. So how do any of the documents gathered during police investigations into the WHF tragedy warrant being locked away from scrutiny for another 70 years on top of the 40 years that they have already been kept secret?[1] Even if there is any conceivable case for keeping the documents secret, why has the CCRC not requested to see the documentation?

Is the CCRC simply exasperated with Jeremy Bamber’s insistence that he is innocent?


What the CCRC said about his submission that was rejected in 2012 is:


"Following the provisional decision in 2011 Mr. Bamber wrote a series of slightly different letters addressed to CCRC Commissioners individually and accompanied these with a document of 167 paragraphs setting out his views on his case. This document is highly tendentious and has not been supported by copies of any of the material on which it purported to rely. The claims made are variously inaccurate, speculative and unsupported...The Commission is satisfied that all submissions of any substance made by or on behalf of Mr Bamber have been fully considered and adequately addressed in this Final Statement of Reasons" (emphasis added).


However, the CCRC dismissal of the submission fails to recognise that up to 2012 Jeremy Bamber had very little documentation to rely upon in forming his submission. It was only after the CCRC had dismissed his case and extinguished his hopes that he and his supporters could begin to analyse documentation finally released by Essex Police – and that documentation told a very different story to the narrative outlined at his trial in 1986.


The seemingly dismissive statement above, which was presumably intended to silence Jeremy Bamber for all time, fails to acknowledge a fundamental aspect of being ‘innocent’. That is, you know that you didn’t do what you have been accused of and convicted and imprisoned for. The same certainty of innocence drives many falsely imprisoned persons. They know that they didn’t commit the crime – and insist that there has to be an explanation somewhere, if only the CCRC would investigate properly.


What drives people crazy with frustration is knowing they are innocent but being unable to prove it and in that situation it is only natural that some theories are proposed that others may find fanciful, or tendentious, inaccurate and speculative. It doesn’t mean that they are without any merit, they just need someone to be prepared to investigate, such as happened with Andrew Malkinson.


The WHF murder investigations, as far as we know, uncovered nothing that needs to be kept confidential, but there are a very considerable number of documents that are hidden under PII. Indeed, two investigations by Essex Police that determined that Sheila Caffell killed her family remain secret – and the CCRC have never attempted to access these important enquiries, one by Det. Chief Inspector Thomas Jones and one by Detective Superintendent James Kenneally.


Surely, knowing that two police investigations exonerated Jeremy Bamber, is an obvious starting point for the CCRC to begin assessing his claims that he is innocent. It is equally clear that until such time as the CCRC have examined the investigations conducted by DCI Jones and Superintendent Kenneally, and until they have examined all of the documentation held under PII, Jeremy Bamber will never be able to give up his quest to be absolved of responsibility for the murders.


Likewise, until such time as he is told why documentation is being locked away for a further 70 years, long after he has died and long after any witnesses or police officers involved in the case have died, how can he stop himself from speculating that there is evidence somewhere that exonerates him? It is not locked away from public scrutiny because it proves that he is guilty – quite the opposite.


Put yourself in his shoes. Jeremy Bamber is perfectly entitled to believe that the documents being denied to him ‘prove’ or at least strongly suggest his innocence and until the CCRC has examined those documents he cannot be expected to ‘surrender’. However, the CCRC will not insist that the PII documentation is made available to them. The CCRC does not even seem curious to know what is contained in those top-secret documents held under PII. Those documents must contain information that would seriously, perhaps fatally, undermine the prosecution case otherwise, why are they being hidden? A fearless CCRC would demand to see them.



How is Public Interest Immunity judged necessary?


According to the Crown Prosecution Service (CPS):[2]


Where sensitive material is identified as meeting the disclosure test, and the prosecutor is satisfied that disclosure would create a real risk of serious prejudice to an important public interest, (emphasis added) the options are to:


  • disclose the material in a way that does not compromise the public interest in issue.

  • obtain a court order to withhold the material.

  • abandon the case; or

  • disclose the material because the overall public interest in pursuing the prosecution is greater than in abandoning it.


If the disclosure test is applied in the robust manner endorsed by the House of Lords in R v H and C [2004]UKHL 3, applications to the court for the withholding of sensitive material should be rare. Fairness ordinarily requires that material which weakens the prosecution case or strengthens that of the defence should be disclosed. There should only be derogation from this golden rule in exceptional circumstances. (emphasis added).


For the layperson, public interest would normally be a straightforward concept – it is public interest that the truth is established and the guilty are punished. It seems that the CPS doesn’t share that view. It is almost the opposite. The (alleged) golden rule alluded to above seems to be of base metal; many legal commentators are of the opinion that PII is granted far too often. As Simon McKay (Jeremy Bamber’s legal counsel) says: “It is an exceptional remedy, but this exceptionality has been normalised through over use.”[3]


Essex Police are still withholding a large amount of photographs and case documents. During August 1985, the Essex coroner was provided with evidence sufficient for him to allow the release of the bodies for burial and cremation. The police had informed him that the investigation was ongoing but on the basis of four murders and a suicide. The documents and evidence to substantiate this were allegedly ‘lost’.


Many of the documents from a 1986 Police internal enquiry into the handling of the case (Dickinson) are under PII - this includes key witness, Julie Mugford's, interviews and those of her mother, Mary Mugford. What could those two women have said that endangered national security?


Many of the documents from the 1991 Police Complaints Authority (PCA) investigation carried out by the City of London Police (COLP Investigation) are also held under Public Interest Immunity (PII).


Also under PII are the original documents, (98%) from when the case overseen by DCI Jones was still thought to be a suicide and murder case. Known as SC68885 this was from the 7th August 1985 to the 8th September 1985. The CCRC have never even asked to examine this extensive file of information that exonerated Jeremy Bamber.


After 8th September, a new case number was assigned when they decided it was a murder investigation - SC78685 – some of these records were released to the Defence. When asked about missing files Essex Police state that they have released all of the documents from the case - yes the second investigation - but not from the original investigation!



Are Essex Police above the law?


Essex Police have not fully complied with three court orders to disclose material that Jeremy Bamber’s defence team deem to be relevant to his case.

 

These orders were as follows:


  1. Judicial Review issued by the Central Criminal Court in 1994. An order to disclose material came after Jeremy Bamber sought disclosure of DNA evidence from Essex Police and they refused. Despite the judgement instructing the Home Secretary to disclose material to Jeremy Bamber, all DNA material was destroyed apart from the sound moderator. A Special Branch officer instructed the incineration of evidence in 1996. In a statement to the Metropolitan Police in 2002 he claimed he was ‘unaware’ of the ruling to disclose.  

  2. Court of Appeal Criminal Division, Royal Courts of Justice, 30 July 2001. Issued before Jeremy Bamber’s 2002 Appeal, this general order was to disclose all material including pre-trial evidence, all details of the destruction of DNA material by Special Branch, laboratory submissions, all relevant material to the findings of the Police Complaints Authority (PCA) enquiry, detail of material the Crown intends to withhold, all material from the Essex and City of London Police enquiries and all material previously made available to the Criminal Cases Review Commission. There was only partial disclosure of this material.

  3. Court of Appeal Criminal Division, Royal Courts of Justice, 2 July 2002. This order was a specific request for material including audio tapes, diaries, witness statements, basis of information contained with a police report, documents held at the mortuary and Chelmsford and Essex Hospital, statement regarding regulations governing destruction of exhibits and statement of the officer authorising destruction in 1996, all statements and results in respect of DNA testing of the sound moderator, disclosure of police interviews with the Stokenchurch enquiry, guidelines regarding completion of exhibit books and forms, disclosure of fresh evidence and unused material. The order was only partially complied with.

 

It has now been revealed by Jeremy Bamber Innocence Campaign (JBIC) member Philip Walker at a demonstration held outside the CCRC offices on 10 May 2024[4], that the CCRC did not even start reading Bamber’s most recent (2021) submission, for two years after it was handed to the CCRC.


This seems to sum up perfectly the level of interest at the CCRC at resolving the question of Jeremy Bamber’s possible innocence. It is hard to envisage that the original cadre of ‘crusading’ Case Review Managers employed by the CCRC in 1997 would not have regarded documentation hidden by PII as a challenge to be overcome rather than meekly accept that the documentation was inaccessible.


The CCRC has become enfeebled over the past ten years and despite having the powers to access PII documents, they just don’t use them. What kind of ‘management’ at the CCRC allows a submission containing ten meticulously researched grounds and over a thousand pages of documentation to remain unexamined and undisturbed for two years? Then, when someone finally bothers to read the submission, they find it “mind-blowing”.[5] What has the CCRC Chief Executive done since the discovery that the content of Bamber’s submission is mind-blowing?

 

So, in conclusion, I have no idea what the secret records locked away at Kew tell us about the White House Farm tragedy, but I would be willing to wager that they would raise very considerable doubts about whether Jeremy Bamber killed his family. The PII documentation might even completely exonerate him; only the CCRC has the authority to establish that. Will the CCRC have the courage to demand that they see those secret documents?

 

Don’t hold your breath.


By Bill Robertson


Bill Robertson has researched alleged miscarriages of justice for around 20 years and advised on several cases, including the most recent application to the CCRC by Jeremy Bamber.


Please let us know if you think that there is a mistake in this article, explaining what you think is wrong and why. We will correct any errors as soon as possible.



References


[1] “Since my original submissions, the Crown Prosecution Service (CPS) have doubled down on not disclosing any further evidence to me, or anyone else, by concealing it behind a 70-plus year Official Secrets Act Order, and archiving this material at Kew, the Royal Archive.” See Jeremy Bamber at Jeremy Bamber's assessment of the CCRC's handling of his 3rd application: "The Criminal Cases Review Commission are no longer fit for purpose and, perhaps, they never were." (empowerinnocent.wixsite.com)

[2] Crown Prosecution Service Disclosure Manual: Chapter 13 - Making a PII Application.

[5] Jeremy Bamber's assessment of the CCRC's handling of his 3rd application: "The Criminal Cases Review Commission are no longer fit for purpose and, perhaps, they never were." (empowerinnocent.wixsite.com) “It has, so far, taken 3 years for my Case Review Manager and his Manager to review 3 of the 10 grounds of appeal that we submitted to them 36 months ago. Astonishingly, it is only very recently that my Case Review Manager has read my submissions in full. He originally stated that, had he read my submissions in full at the beginning, that would have ‘blown his mind’”.

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