April 16 2024
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Judicial review ‘a blunt tool’ to resolve post-conviction disclosure

Judicial review ‘a blunt tool’ to resolve post-conviction disclosure

A bid by convicted murderer Jeremy Bamber to secure evidence he claims could clear him has been dismissed by the High Court, in a ruling that underlines the importance of the role of the miscarriage of justice watchdog in post-conviction disclosure.  

As reported on the Justice Gap here, Bamber’s legal team issued judicial review proceedings against the Crown Prosecution Service over a failure to disclose evidence. They claim that the evidence could undermine Bamber’s 1986 conviction for the murders of his adoptive parents, sister and her six-year-old twin sons, thus rendering his whole life sentence a miscarriage of justice.

The challenge has implications for appeal law specialists who argue that, since the Supreme Curt case of Nunn in 2014, it has become increasingly impossible for the those alleging to be wrongly convicted to access evidence held by the police post conviction (here).  

In that case, Lord Thomas said that the ‘safety net’ in the case of disputed requests for review of such material was the Criminal Cases Review Commission (CCRC). As has been reported on the Justice Gap, campaigners believe that the Nunn ruling left those seeking disclosure in a ‘Catch-22’ – i.e., to make a successful request for evidence, they need to argue that such evidence is likely to demonstrate innocence. However, the only way to establish such knowledge is by accessing the evidence in the first place. It was a point raised by the chair of the all-party parliamentary group on miscarriages of justice chair Barry Sheerman MP in parliament.

In the Bamber ruling, Mr Justice Knowles said he did not accept the existence of evidence was capable of determine the case ‘in any meaningful way’. He said that Bamber had ‘relentlessly explored every avenue of challenge up to and including the European Court of Human Rights’, including a number of applications to the CCRC. 

Bamber’s legal team argued that the CPS had misapplied the Nunn test.

‘If ever there was a case where the CCRC should be approached to make a decision on what is said to be new evidence, it is this one,’ said Mr Justice Knowles. ‘This is a massively complex case which has been investigated and re-investigated by more than one police force over some 35 years.’ The body of material was ‘vast’. ‘After so many years, and so much litigation, the CCRC is the body undoubtedly best placed to consider the Claimant’s arguments,’ he continued.

The judge went on to call judicial review ‘a hopelessly blunt tool’. ‘Even deciding what disclosure has, or has not, been made is fraught with difficulty… It simply does not have the material or understanding of all the detail of the case to be able to make that determination.’

His solicitor, Mark Newby called the decision ‘disappointing’ and said that there were ‘the makings of a fresh submission to the CCRC’. ‘The High Court declined a request…  which would have answered a very material aspect of this case namely – prima facie conclusions reached by an eminent ballistics expert that there may have been two silencers examined in this investigation,’ he said. ‘The issue could have been answered by disclosing just 27 documents out of an overall case file running to several million pages.’

He said that ‘the most expedient and resource sensitive way to address this important issue’ was through a judicial review; however he nw says that the ‘onus’ is on the CCRC.