Bamber, Bain and Structural Impartiality

[Erik Narramore]

I watched the Black Hands podcasts when they came out as I always had a distant interest in the case, and I hadn't realised until recently that there had also been a New Zealand TV series.  It looks well-made.

I've never really been able to make my mind up about the Bain case.  I think it's a bit like the Bamber affair: probably he did it, but the evidence doesn't quite make the bar of proof, as there's that bit of reasonable doubt.

What's interesting is that the UK Privy Council were willing to quash the conviction on grounds that seem somewhat weaker than those advanced by Jeremy Bamber's supporters.  This suggests to me that an external court that works beyond domestic social and political pressures can often take a more neutral view of things, due to its detachment.  Another possible example of this principle in operation is the European Court of Human Rights, which has sometimes handed down rulings that are domestically unpopular but nevertheless consistent with law - including the case brought by Vintner and other prisoners, among them Jeremy, to challenge whole life orders.

One would like to think an ordinary English appeal court or administrative court could work perfectly well in this way, as it is detached from the immediacy of events, but appeal judges are situated in the society from which the cases arises, and it would be naive to believe that they can be entirely impartial.  The 2002 appeal judgment in the Bamber case is a demonstration of this, in my view.

Maybe the Bamber case would also benefit from the more impartial purview of an overseas court?

[Erik Narramore]

I should add that I don't watch docudramas for the purpose of deciding on somebody's guilt.  I do look at the actual evidence.  That's kind of the point. 

The 2002 appeal judgment was certainly exhaustive in its scope, but I'm not sure it was exhaustive in the depth of understanding brought to the case and the evidence.  Ultimately it could well be that Jeremy does not have, and never has had, one clinching argument that demonstrates conclusively the legal unsafety of the convictions; equally, it could be that there is not one single point that demonstrates his guilt and some small but important room for doubt.

I think it is a case that is stuck in that grey area and always will be and probably the question of whether Jeremy should be released rests on how much latitude an appeal court is prepared to give to the legal safety question, given the seriousness of the offences and the likely political fallout for the criminal justice system were it to be decided that the convictions were unsafe all along.  It won't look good.

My view is that the convictions are not safe and should have been quashed in 2002. (I assume any attempted re-trial at that point would have been undermined by the Essex Police decision a few years earlier to destroy key evidence, so he would in due time have been released).

I think the Bain case suffers from a similar problem.  It inhabits a grey area, and I must repeat my observation of how interesting it is that the UK Privy Council saw fit to quash Bain's convictions on grounds somewhat weaker than those that could avail Jeremy Bamber.

I disagree with those who think that judicial procedures should be confined to a nation-state, though there is a nuance to this.  I don't believe what we might call an 'exterior court' should be supreme over domestic courts, and in point of fact the ECHR technically isn't.  Besides, we entered into the Convention willingly under treaty and it was an Act of Parliament that domesticated Convention rights.  It wasn't imposed on us.  Although I am on the Right of the political spectrum, and I abhor European federalism of the sort advocated by supporters of the EU, at the same time I recognise that the domestic judiciary in England may benefit from the tempering influence of an exterior court that can examine and review cases free of domestic social and political pressures.  I assume New Zealand retained its affiliation to the UK Privy Council until recently for similar reasons.

I somewhat agree that the ECHR's original intent has drifted and an element of 'mission creep' has developed.  The Convention was established as a way of ensuring that certain European countries without strong traditions of due process and rule of law adhered to basic principles of decency, and Britain signed purely in order to add its weight and backing to the initiative, not because it was thought that Britain itself had been found wanting in these areas.  Even so, we signed what we signed and the rules apply to us as much as anybody else, and in Continental criminal justice systems, the prevailing thinking has moved away from life sentences.  The choice, if we don't like it, is that we either seek a 'national adjustment' (known in legal language as a 'margin of appreciation') of how the Convention applies to us on the basis that we have different legal traditions to other Convention states, or we withdraw from the Convention.