Is Jeremy Bamber's non-disclosure hypocritical?

[Erik Narramore]

Jeremy is not under any duty to disclose the Statement of Reasons.  It's a private document.  Jeremy is a private individual engaged in litigation.  He is not a public body.

A court can order Jeremy to disclose private documents, but let us consider what the word 'disclosure' actually means.

It's when in litigation, or potential litigation, one party reveals to another documents on which it intends to rely.  The Crown can't rely on the Statement of Reasons, as it's not relevant to the current application.  Nor do they need to, as the same body that issued the Statement of Reasons is now reviewing Jeremy's latest CCRC application and will not normally accept re-submissions of evidence already disposed of.

That's why, whatever it may contain, disclosing the Statement of Reasons would be a pointless exercise in terms of the legal process.

What critics really mean is not that Jeremy should disclose the Statement of Reasons, but that he should share it with the public and publish it for all to see.  Why should he?  You may say that if it's no longer relevant to the legal process, then what's the harm? But if it's no longer relevant, then why should he bother?  Would you share with all the world private correspondence with a public body if you were undertaking a criminal appeal or some other sort of litigation?  You are asking him to voluntarily do this.  Or you think, failing that, the CCRC should be permitted to publish the document on its own initiative, yet the CCRC is not allowed to do that, as the document is directed at the applicant.

In contrast, documents generated by and held by public bodies, such as the police, are not just directed at police officers and there is no expectation that only other police officers will ever read them.  They are public property and potentially disclosable.

[Erik Narramore]

This is how I understand things:

Private documents - the expectation is that the documents will only be seen by the people reading or receiving them, unless a court orders otherwise or there is a duty of disclosure under litigation protocols (e.g. exchanging all relevant evidence before a trial).

Public/regulated documents - the expectation is that the documents may be seen by people other than those who read or receive them, including the whole world/the public-at-large.

There is some overlap between the two, but the expectations are different.  An example of the former is the Statement of Reasons.  It is private - for Jeremy and his advisors only.  If Jeremy wishes to publish the document, he can do so, but there is no specific expectation that he should do so, and there is no duty of disclosure as the document is not relevant.

An example of the latter could be a report written by a police officer as part of an investigation.  When he writes it, he knows that it may one day be considered in a court or disclosed to the world-at-large.

On this basis, I see no hypocrisy.

If Jeremy had in his possession a document of material relevance to the case that represented new evidence and he refused to disclose this because it helps the Crown, again that would not be hypocrisy unless it could be shown there is a specific obligation on him to disclose this evidence.  Since when do people incriminate themselves or weaken their own case?  Is that what you would do?  People don't do that, so it's not hypocrisy as there is no expectation on him to do so, and as I have shown, no duty either.

And as for double standards, the existence of two different and unequal standards does not equate to a double standard.  The standards are not the same for one as they are for the other, for good reasons.