The Disclosure Issue

[Erik Narramore]

Jeremy Bamber and the Campaign Team allege extensive non-disclosure of material in the case.

The whole disclosure issue warrants its own thread.

It is true that the CCRC have their own investigatory and disclosure powers and Commissioners, investigators and caseworkers can require sight of PII material (which does not alter the immunity status, as the immune material is not publicly-disclosed).  However, I would assume the point being made by the Campaign Team is that the CCRC process is closed and places great trust in the CCRC, and thus can be no substitute for open disclosure of evidence.

As I see it, the real issues with disclosure are:

(i). Which court(s) ordered that public interest immunity should apply, when, why, and in relation to which documents? Where are the court orders?

(ii). Where are the PII certificates?  Who signed them?

(iii). If the court has ordered disclosure of material for which there is no immunity against disclosure (i.e. non-PII material), then what further legal action is being taken against the police and CPS in this regard?  What materials are involved and where are the court orders?

(iv). Which specific documents does the Campaign Team want and, in each case, why?  I have seen the disclosure booklet, but that does not seem very extensive.  Is it still up-to-date?

(v). In his speech, Peter Tatchell talks about blanket disclosure, but surely he must know that the police and CPS cannot be expected to hunt down and disclose absolutely every document and artefact of the case.  Such an exercise would be impracticable and would lead to never-ending disclosure requests and allegations of cover-ups.  Disclosure has to be focused.  On the other hand, the law on criminal disclosure in England & Wales at the moment unrealistically expects prospective appellants to be able to articulate precisely what they think particular material will reveal.  Why can't the law find a reasoned middle ground?

(vi). In an unusual case such as this, involving multiple appeals and applications over many years, a whole life prisoner who steadfastly maintains absolute factual innocence, and very real and substantial doubts about key evidence, is there a case for blanket generic disclosure as Mr Tatchell pleads, perhaps as part of an open public inquiry?  Essex Police admit they destroyed key evidence in 1995.  The criminal justice system has - we hope - moved on from the 1970s and 1980s, of which this case represents an enduring legacy.  Should a means be found of drawing a line under the Bamber affair and that whole era that can satisfy everybody, at least in the criminal justice sense?

[Erik Narramore]

Here is a page from the Campaign Team website concerning PII and disclosure generally:

https://www.jeremy-bamber.co.uk/public-interest-immunity

Reading that leaves me none the wiser regarding my questions (i), (ii), (iii) and (iv).

Could someone from the innocent camp here on the Forum answer my questions, please?  Alternatively, if the answers are not known, could the innocent camp here on the Forum be honest about that and admit that they are relying entirely on representations from Jeremy?

[Erik Narramore]

The PII legal process is part of the open courts and has been since at least Conway v Rimmer, a 1968 case (albeit that was a civil case).  There is a closed part to the process, which is when a government minister or civil servant or other public official signs the PII certificate, but as established in Conway v Rimmer and confirmed in subsequent rulings, it is the court that decides whether material is immune from disclosure.

My questions are deliberately worded to elicit the information we need to establish if Jeremy's claims about this are truthful.  If it turns out that Jeremy is telling the truth, then all credit him and this would tilt the balance slightly more in his favour in my mind.  On the other hand, if it turns out that Jeremy has been lying or has been sloppy in his understanding of the legal nuances of things, then (as much as I hate to admit it) that would give greater credence and vindication to Adam's attacks on the defence case concerning the disclosure issue.

I hope somebody from the innocent camp can assist on this thread.  Thanks.  If I am wrong about any aspect of the law, by all means I am open to correction.  I am not a lawyer and this is very technical, so mistakes - by anybody - are forgivable.  I have the impression that even experienced lawyers trip up in this area.

[Erik Narramore]

A very simplified summary of how disclosure in the English criminal courts works would be:

Relevant Material: must be disclosed to the prosecution and defence.

Unused Material: must be notified to the prosecution and defence, but does not have to be disclosed unless requested by the prosecution or following an order of the court.

Sensitive Material: must be notified to the prosecution and normally to the defence, but does not have to be disclosed unless the court orders it.

PII certificates relate to Sensitive Material.  On production of a PII certificate, the prosecution must ask the court to confirm immunity from disclosure.  This application to the court can sometimes be made ex parte, but normally the defence will be party to these proceedings.

I am not a lawyer.  I don't purport that what I say is authoritative, but I hope the above helps.

[Erik Narramore]

My questions above, (i), (ii), (iii), and (iv), still stand.  I am hoping somebody in the innocent camp knows the legal history and is able to tell us when the court ordered that material should be immune from disclosure and what this material is.

This is important because the prosecution would not ask the court for immunity from disclosure unless the material is relevant.  If it was just any old non-relevant material, they could have hidden it behind the ordinary exceptions to their disclosure duties, especially when you consider how these duties were understood at the time.  If it's hidden behind PII, even some sort of 'suspensory immunity' that was never adjudicated on by an English court, then you can be sure that it's interesting material and probably weakens the prosecution case.

[Erik Narramore]

The PII certificate is merely a claim for immunity on the grounds of an asserted preponderance of public interest over the interests of litigants.  The only effect of the certificate is to establish some sort of 'suspensory immunity' [my own phrase] in which the material is ring-fenced from legal disclosure by the claimant pending an adjudication by a competent court.  The court decides, not the claimant.

[Erik Narramore]

In 2011, Jeremy is reported as saying:

"We have obtained 'Master Schedules' detailing which documents have been withheld from the defence under PII..."

Where are these 'Master Schedules'?  Who disclosed them?  Is it in fact the schedule attached to the 2002 letter from Jeremy's former solicitors that addressed disclosure?