Why apply to the CCRC at all?

[Erik Narramore]

The Campaign Team claim the evidence in their possession and submitted to the CCRC exonerates Jeremy Bamber, so why are they applying to the CCRC at all?

If you read the Criminal Appeal Act 1995 carefully, you will note that no explicit statutory exclusivity is given to the CCRC for criminal appeals.  In other words, there is nothing in that Act that says you have to go through the CCRC first.

Why, then, do people bother with the CCRC?  Because of the Court's powers in section 5(1).  As a practical matter, if somebody did try to appeal direct to the Court of Appeal, then the judges would almost-certainly invoke section 5(1) of the 1995 Act (which is section 23A of the 1968 Act it amends), which is the power to order that the CCRC investigate the case - effectively putting the matter in the hands of the CCRC anyway.

In view of all this, normally Jeremy would go through the CCRC, like virtually everybody else.  However, David's point is that the Campaign Team claim to hold exonerating evidence.  With such evidence, it would not be unreasonable for his Campaign Team to dispense with the CCRC and go direct to Essex Police or the CPS, or both, and ask them to consider their position on the basis that an agreed application could be made to the Court - maybe starting with an application for bail.

There is case law on this point arising from the joint enterprise appeals.  A number of cases say that the Court of Appeal acknowledges its direct jurisdiction and that an appeal without the CCRC is permissible, though it is also stressed that this is rare.   

The cases are R v Walsh [2007] NICA 4, Christopher Boughton-Fox v Regina [2014] EWCA Crim. 227 and R v Yassain [2015] 3 WLR 1571.  In these judgments, the appeal judges are effectively rebuffing the CCRC.  The Commission had always claimed an exclusive right of appeal in criminal cases once the immediate appeal period is exhausted (and the Commission still impliedly claims it has this right).  The Court decided this is not the case, albeit that direct jurisdiction is to be exercised exceptionally.

None of this is to say the Campaign Team should follow the unconventional route, but you have to ask, why mess around with the CCRC if there is evidence that exonerates Jeremy?

[Erik Narramore]

Two points could be elided, however.

It's one thing to pursue an accelerated appeal direct to the Court, perhaps with the co-operation of the CPS, on the basis of exonerating evidence; it is quite another thing to release the evidence to the world-at-large.

However, I think if there is exonerating evidence, you have to ask why it's not being circulated.  There is no obligation on the Campaign Team to do so, and it could be that they lack a platform to do so as there is an understandable caution among prominent people in the media and politics about being associated with a supposed double child killer, but why not release it to forums like this?

I think the only answer is that the evidence does not exonerate Jeremy, it merely casts doubt potentially, and given that Jeremy's cause lacks penetration into mainstream culture, it would be imprudent to release such evidence and allow critical evaluation and discussion of it.

Just as the neutrality of people like me can add natural weight to the pro-innocence cause in free discussion of the case, the downside is that neutrality means criticism.  The pro-guilt case can be ripped to shreds, but anything put up by Jeremy can come under the same scrutiny.

[Erik Narramore]

If the Campaign Team have exculpatory/exonerating evidence, then why not just go straight to the police/CPS and the Court of Appeal?  Even if the police/CPS aren't interested, Jeremy can still go straight to the Court, present his evidence, maybe ask for bail pending a full hearing, and insist that the Court clears him.

I went into detail about the law to show that there is nothing in the 1995 statute to prevent Jeremy going down this route.  The CCRC does not have exclusive rights over the consideration of appeals, though it is true that - barring exceptional circumstances - the Court will invoke section 5(1) and send it to the CCRC for investigation.

Surely evidence proving innocence is 'exceptional' and puts the Bamber appeal within the ambit of the case law I mention above where the judges re-asserted their direct jurisdiction?

[Erik Narramore]

You could even argue that the CCRC themselves should decline to consider Jeremy case on the basis that he has evidence that proves him innocent.  If he's clearly innocent, then what's it got to do with the CCRC?  Surely that's a matter for the Court of Appeal?  We needn't stand on ceremony.