Jeremy Bamber's Legal Representation At Trial: Some Brief Thoughts

[Erik Narramore]

Geoffrey Rivlin, Q.C., was an excellent barrister.  I know this because I've listened to some of his advocacy.  His quieter approach has something to commend it.  It's easy to criticise with the benefit of hindsight, but you could argue that at the 1986 trial Rivlin succeeded in his essential task of establishing reasonable doubt.  If so, then the blame is to be apportioned among the jury, trial judge and prosecution rather than the defence barristers.

Yet maybe Rivlin's strengths were the seed of Jeremy's downfall?  I am not a lawyer, but I would imagine that there are two essential strategies that a criminal advocate can adopt and which run through every criminal barrister's mind in cases of consequence like this one, though he may not say so or think about it in so many words:

(i). Innocence.
(ii). Reasonable doubt.

This is not a dichotomy.  In practical reality, there is considerable overlap between the two and most trial strategies I expect include something of both.

In Rivlin's defence of Jeremy to the jury, he started with the plea of innocence (words to the effect, "Jeremy did not kill his family"), then in almost the same breath he switched over to reasonable doubt (words to the effect, "You can only convict on good evidence").  The question is where the emphasis is or should be.

I would take the view that the 'reasonable doubt' strategy is the weaker of the two, though it can be the optimal strategy in some circumstances.  Personally, if I were an innocent man accused of something, I would expect my lawyers to be declaring my innocence to the court at every opportunity and I would regard anything less as rather unprofessional.  However, there are occasions when lawyers have to be careful about what they say and do.

For instance, we think that Rivlin should have been more aggressive with the family and alleged that the silencer evidence was planted, but Rivlin may have quite fairly taken the view that, even on the balance of probabilities (which is the accused's onus when refuting criminal evidence), this would require a high bar to be met and would be risky for that reason.  The defence case theory that Sheila put the silencer back before killing herself sounds a bit fat-fetched, but there again, Sheila was a paranoid schizophrenic and the defence are saying she killed herself in a state of psychosis, and against that background, it doesn't seem so far-fetched.  And remember, Rivlin did not have to prove it happened, he only had to convince the jury that it was a reasonable possibility.  If the judge then misdirected the jury by dismissing this possibility out of hand, giving wrong information about Julie Mugford's criminal record, and misrepresenting the blood evidence, etc., that is not Rivlin's fault.

I think it is quite likely that in Rivlin's case he was naturally inclined towards 'reasonable doubt' defences anyway, as it comports with a more detailed and forensic manner.  In other words, he wasn't the type for extroverted theatrics and pleas of innocence, but maybe that is what Jeremy really needed in his lead counsel and the more detailed/forensic approach should have been reserved for junior counsel?

Did Kingsley Napley get it the wrong way round in selecting Rivlin and Lawson?  It's pretended that Rivlin was a deliberate choice and Wilkes in his book claims that Rivlin's understated approach was chosen intentionally, but wasn't the first choice for lead counsel George Carmen, a barrister in the more Rumpolean mould, like Michael Mansfield?  We shouldn't over-do the generalisations, though: successful barristers like Carmen and Mansfield still have to dig into the detail, and Carmen especially was quite forensic.  They can't just wing it with theatrics alone: their extroverted performances, full of personality, are the end result and a feature of their personalities rather than something they rely on.

Carmen would have had some fun with the Bamber case and you can imagine him giving the relatives a hard time about the silencer and bringing up the 'cuckoo' taunt.  I would have certainly asked them about that.  My first question to Ann Eaton: "Are you familiar with the word 'cuckoo', Mrs. Eaton?"

I do think Jeremy may have been ineffectively represented at trial, but the problems were mainly to do with pre-trial preparation, especially disclosure, which is a bit more the domain of the solicitors than the barristers.  This is a topic that is deserving of a much longer and more thoughtful piece, which I may do if and when I get round to it.  Any discussion of the effectiveness of legal representation in an English context would, I believe, have to begin with the test in R (Aston) v Nursing and Midwifery Council [2004] EWHC 2368, which sets out stare decisis a simple test of competence in advocacy.  We would then have to consider, among other things, Paul Terzeon's evidence to the 2002 appeal and any comments that Jeremy has made about his defence.

[Erik Narramore]

there are questions to be asked about what was done at the 'coal face' end of the defence litigation in regard to disclosure.  Why wasn't there a major pre-trial battle over disclosure in the courts?

But to be fair, I think enough was there for reasonable doubt to be established, and again, in complete fairness to Geoffrey Rivlin, Q.C., I think he did just about establish reasonable doubt.  I think the trial was dysfunctional.  Maybe Rivlin could be blamed for treating the prosecution witnesses with kid gloves at times.  Having read the transcripts, it seems to me there were questions he didn't ask and he could have given them a harder time, but he still succeeded in his essential task, and he managed to split the jury.

My 'cuckoo' suggestion is, I admit, a little disingenuous because it's peripheral and doesn't go to the core of the case, but we must remember that a criminal trial is street theatre.  A lay jury want a story.

Did the defence have a story?

Having noted the points in favour of Rivlin's advocacy, I do think the defence should have taken a different approach.  I think it should have been the 'innocence' approach.  If I'd defended Jeremy, I would spun an inter-generation story of a cluster of farming and business families in the Blackwater villages, with Nevill as the outsider coming in and, through hard work and diligence, usurping the Boutflours and potentially lining up his adoptive son, Jeremy, for the Speakman inheritance.

In my cross-examination of Robert Boutflour, I would begin with his father, a Durham academic, and taking advantage of his indiscretion and loquaciousness, lead him into an admission that he resented the notion of Jeremy taking over as he is not of blood and fits the Prodigal Son mould.  Of course, Robert would point to Jeremy's indiscretions, but I would in reply point to Jeremy's hard work over the previous year and the evidence of the farming surveyor to this effect.

However, here I speak with the benefit of hindsight, which Jeremy's defenders at trial did not have.

[Erik Narramore]

The defence case theory at trial was that Sheila shot the family, then washed and put away the silencer, then shot herself.

An explanation for this approach by Rivlin is in the way the law treats evidence.

If the defence say that some member of the family contaminated the silencer intentionally and maliciously, then this means the defence are refuting the silencer as evidence or rebutting some underlying assumption behind this evidence.  The onus on the defence is to prove this on the balance of probabilities.  For an accusation of this type, the balance of probabilities will be a high bar, probably 90% or more (albeit not quite as high as 'beyond reasonable doubt').  It's easy to see how that could become a millstone around the neck of the defence.

If, on the other hand, the defence merely say that Sheila put the silencer away, and also that the silencer was open to accidental and inadvertent contamination during examination - by, successively, the family, then CID and SOC officers and other police officers and staff, and the FSS - then this means the defence are accepting the silencer evidence, but offering a different interpretation on it.  The defence do not have to prove that this alternative interpretation is the truth, they only have to demonstrate to the jury that it is a reasonable possibility.

Thus, Rivlin pursued the line of least resistance.  He accepted a large chunk of the prosecution case, but offered the jury an alternative explanation for it and asked the jury to consider whether this alternative explanation was reasonably possible.

[Erik Narramore]

Something has clicked with me about Jeremy.  It's a minor point, but I want to note it before I forget.

Under cross-examination by Arlidge, Jeremy reportedly said in regard to some point or other: "That is for you to establish".

This was a clear reference to the reasonable doubt standard and it occurs to me that Jeremy may well have picked this up from his legal team, quite possibly from a conversation with Rivlin himself.  I can imagine it is just the sort of thing that Geoffrey Rivlin would say.  "Jeremy, that is for the prosecution to establish", he might have said during a meeting between them, leaning back with his spectacles perched on his nose and his wig on the desk.

Jeremy has then repeated this, for want of something better to say.

I wonder what Geoffrey Rivlin thought on hearing it?

Personally, I see nothing wrong with what Jeremy said and I find the reaction of others to it quite interesting, not least because we are supposed to not have a trial transcript of Jeremy's evidence available, yet various sources purport quite confidently to tell us what he said.

Interestingly, if you compare different sources, it does seem that Jeremy's utterance wasn't much noticed at the time and didn't make the waves that people now claim.  I think a police officer, possibly Ainsley, has said that Jeremy convicted himself at that point, but I suspect that is a view given in retrospect and it does not reflect the mood of the court at the time.  It probably just stuck in the minds of police officers and journalists present, because it's a memorable turn-of-phrase.

In Claire Powell's book, which I rate as quite good (she surprised me), she speaks favourably of Jeremy's performance at trial and says that the defence thought he had done fine, even giving the impression it was all fairly uneventful.

[Erik Narramore]

We don't know, and we don't have the transcript, and the two major early books on the case, Powell's and Wilkes', don't mention it (to my recall), so how has the subject come up in commentary on the case in the media?  Powell thought Jeremy's evidence was fairly uneventful and he was thought to have done quite well.

My speculation that he learnt the phrase from Rivlin doesn't touch on how he said it.  I have no idea about that, but let's say he was cocky.  That would not necessarily be to his detriment in the eyes of the jury.  Jurors could view cockiness in the accused favourably, depending on the circumstances and how they view the case.  They could have regarded him as ballsy and brave for saying it, if he was cocky.  There again, some say that Arlidge treated Jeremy with relative kid gloves in cross-examination.

We know that several of the jurors were sceptical about the prosecution case.  Not just two.  It must have been at least three, maybe more, because the jury were unable to return a majority verdict in quick order once the majority direction had been given by the trial judge.

One more thing: I don't believe this official story that Jeremy and Julie's trial transcript was never put together or is lost or missing.  I think there is a transcript of Jeremy and Julie's evidence somewhere, in some form.  All the surrounding information about the case suggests it.

[Erik Narramore]

I'm not sure about this comment from Campion, but it's relevant to the thread, so I'll add it:

I have just found this about geoffrey rivlin qc involvement with corruption. In 1969 after having been a police officer for 15 years, John Alexander Symonds was one of three officers charged with corruption, following a newspaper investigation into bribery at Scotland Yard. I think its operation Countryman. He skipped bail and fled to Morocco. Symonds claimed that he had been 'fitted up' and forced to leave under pain of death, after threatening to expose during any trial "the endemic and systemic corruption within the metroplitan police. The barrister involved with his trial was Geoffrey Rivlin qc, Later to become Justice Rivlin. Your eyes will bang together when you read what John Alexander Symonds says. As I am hopeless on a computer its over to you Bamberista's.

Admin note:  I have felt it necessary to censor part of this post for legal reasons.