Disclosure & P.I.I.

[Erik Narramore]

If the material is subject to a P.I.I. order, the CCRC have no power to disclose this material to anyone without the consent of the court.

I would hope and expect that if P.I.I-protected material was found that the CCRC considered may make the conviction unsafe, then this fact would be notified to the defence in the generality and a report would be made to the CPS, who would then have to consider whether the conviction could be sustained.  If the CPS then refused to do the right thing, the CCRC would have to consider an application to the court for disclosure of the protected material on some basis, or arrangements would have to be made to hear that part of the appeal behind closed doors.

My understanding is that, in regard to material relating to criminal cases, all decisions about disclosure (other than minor or trivial documents) are made by the CPS on behalf of police forces.  This is because disclosure is a legal matter.  In basic terms, the law allows the authorities to withhold disclosure of non-material evidence, but the interpretation of what is 'non-material' is drawn quite narrowly.  At the same time, there is guidance in place that encourages the defence to consider carefully any disclosure requests for non-material evidence so as not to swamp the courts with paperwork, delay the legal process or burden the authorities with vexatious demands and fool's errands.  A balance is achieved normally by the police and CPS drawing up schedules of non-material evidence and unused property in their possession so that the defence can see what they have and then make sensible decisions about what they may need.

The passage of time does not necessarily affect the validity of the grounds underpinning a P.I.I. order.

The point of P.I.I. is to withhold evidence and information on the grounds of public interest.  The difficulty is that even relatively trivial things from the distant past may still have serious consequences today.  For example, if the police were to reveal information about informants or people who have assisted the police, even long ago, this may deter others from co-operating with the police in the future for fear that their co-operation and assistance may, one day, be disclosed too.

Sometimes P.I.I. procedures will rely on trust and honesty of the people involved, whether prosecutors or government ministers, but even when a P.I.I. certificate is signed, immunity still has to be confirmed by the court, as it is the court that grants or refuses the order.  The underlying point is that both the prosecution and defence have an overriding duty to justice and must assist the court.  This comes before their duties and obligations to whomever they act for.  If the defence come across information that harms the accused, they must disclose it to the court.  Likewise, the prosecution must disclose anything that might throw doubt on the prosecution case, no matter how trivial it may be and even if the prosecutors themselves do not believe the evidence or information is of value - they are not judge and jury, the court must make that decision.  Where this brings prosecutors into conflict with the public interest, then the court must decide what to do.  Ultimately, all decisions about P.I.I., including whether to grant, vary or quash orders, are for the court.

[Erik Narramore]

I had always understood that it is settled law, from Conway v Rimmer [1968] onwards, that PII certificates issued by ministers have to be considered by the court.  This seems to be confirmed in R v Keane [1994].

There is quite a lot on PII and the jurisprudence on it in R v H & C [2004] 2 AC 134 (link: https://www.bailii.org/uk/cases/UKHL/2004/3.html), where it's explained that before R v Ward [1993] (the Judith Ward appeal), the court's rights were undermined by the broad scope ability of the prosecution to withhold material.  This changed with the judgment in Ward.

What all this seems to be saying is that a PII certificate is merely a claim by a minister that public interest immunity applies, not confirmation of it.

If there is PII in the Bamber case that was not ordered by any court, then the position - as I understand it - is that public interest immunity is only claimed, not confirmed.  Disclosure must be determined by the court with regard to the grounds for which PII is claimed, and taking into account that PII is only claimed for relevant material.

If PII is claimed for Julie's prior statements or draft statements, is that not an implied admission that the material is relevant?  I appreciate that there is also the 'Golden Rule' principle, enunciated in R v H & C [2004] mentioned above, by which a claim by the prosecution that 'non-relevant material' is sensitive and therefore immune from disclosure must be subjected to the simple test of whether it weakens the prosecution case or strengthens the defence case.  Either way, if material is withheld under PII, it is 'relevant' in the broad sense - the very fact of asserting immunity implies relevancy.

As to why PII might be claimed, the only legitimate reason I can think of is that Julie and possibly also Jeremy were involved in serious criminal activities and disclosure would compromise criminal intelligence sources.

[Erik Narramore]

Since at least 1968 (Conway v Rimmer), Public Interest Immunity must be confirmed by a court.  It is possible that in criminal cases this did not apply practically until much later, but it is clear from the cases in the 1990s (cited in my post above) that Public Interest Immunity in criminal cases must be confirmed by the court and can be reviewed even in appeal cases.

Thus, it appears, Jeremy Bamber has had the right to seek to overturn any PII certificate issued since at least 1993, if not earlier.

If I am right in my understanding of the law, then the question arises: Why hasn't Jeremy challenged the PII certificate(s)?

Another issue here is that if and when a PII certificate is issued, a copy of it will normally be available to view.  I have not seen one published on the Campaign Team's website.

[Erik Narramore]

The case law from 1968 onwards may have not touched practically on criminal law.  This means it could be that a PII hearing was only available to Jeremy after R v Ward, which was 1993.  But 1993 is the very latest date point.

Therefore, my questions above stand.  The fact that the disclosure is politically-sensitive is irrelevant.  Even 'non-relevancy' of material is (paradoxically) irrelevant because R v H & C [2004] makes clear that the Golden Rule applies and the court must consider the broader relevancy of material, which means the political sensitivity of disclosure can work against the Crown.  If it's embarrassing to Essex Police, that in itself is a compelling ground for disclosure and refusal of a PII certificate per R v H & C [2004].

[Erik Narramore]

The question is whether the material is relevant.  There is then an argument over what is considered to be 'relevant'.  I would say that in a lengthy decades-long saga such as this, what is 'relevant' must change over time.

It could be that the more embarrassing the material is for Julie Smerchanski and Essex Police, the more relevant it becomes.  As I explained above, it is not just about strict relevance, there is a broader test of relevancy that could be brought into play.

Let's say - strictly hypothetically, because we don't know this is the case - that there are draft statements and/or interview notes which, read together, would reasonably indicate that Julie Mugford changed her story in fundamental ways under pressure from Essex Police.

Strictly speaking, this is non-relevant material because it does not go to whether she is a truthful witness, as her evidence is the statement adduced at trial and that is what should be examined.  But there could be a broader relevancy to such material if, in conjunction with other arguments, it suggests that undue pressure was put on her to change her evidence.

Reflecting on this, another ground for Public Interest Immunity has occurred to me, which is that the disclosure of draft statements and interview notes could undermine criminal investigations and the pursuit of justice as it could set a precedent for unwieldy blanket disclosure of such material in all criminal cases, which would worry potential witnesses.  Maybe this is the ground given?

But where are the PII certificates and why has Jeremy not contested this in court?