R v Bamber (Part Two)
Link to part one of this judgment
The summing upWhen Drake J. summed up to the jury, he suggested that there were three “crucial questions”. The first was whether they believed Julie? If they were sure that she had told the truth it meant Jeremy had planned and carried out the killings. The second was whether they were sure that Sheila did not kill the members of her family and then commit suicide? The third was whether there was a telephone call in the middle of the night from Nevill to his son? If there was no such call then it inevitably undermined the whole of Jeremy’s story and he could have had no reason to have invented it, save to cover up his responsibility for the murders.
In dealing with the second question, whether Sheila may have killed the others and then committed suicide, the judge made clear that answering this question involved a number of different considerations. He suggested that one was “clearly of paramount importance”, namely whether the second and fatal shot to Sheila was fired with the silencer on. If it was, she could not have fired that shot. He made clear that there were other considerations and the jury could come to the conclusion that Sheila did not carry out the killings “even without reference to the sound moderator”. He added that the evidence relating to the sound moderator could, however, “on its own” lead them to conclude that Jeremy was guilty.
The application for leave to appealJeremy sought leave to appeal against his convictions on grounds drawn by those who represented him at trial. The grounds related to the judge’s summing up, alleging (a) that he had inaccurately assessed significant aspects of the prosecution case and omitted to refer to crucial aspects of the defence case, and (b) that he had with persistence and strength expressed opinions adverse to the defence.
Following rejection of the grounds by the single judge, the matter was heard by the full court. The Court rejected the criticisms of the summing up and refused leave. Lord Lane, LCJ giving the judgment observed: “What is sometimes overlooked is that a direction to the jury reflects the sort of case with which the Judge was dealing. A strong prosecution case will inevitably result in what may be strong comments. Exactly the same with a strong defence case, that may justify strong comments.”
The Court was of the opinion that this was a strong prosecution case that merited the comments about which complaint was made. The court, therefore, rejected the proposed grounds and concluded that there was “nothing unsafe or unsatisfactory about this conviction”.
Events after refusal of permission to appealAt the trial Drake J. was critical of the thoroughness of the police investigation in its early stages, when on the jury’s verdicts the police had too readily accepted that this was murder by Sheila and her subsequent suicide, when the true picture was very different. The Essex Police held an internal police inquiry to look into these criticisms. It is alleged that that report reveals evidence that was suppressed by the police, or which, at the very least, was not known to the defence at trial.
Jeremy subsequently made a formal complaint to the Essex Police about their handling of his case. In 1991, the City of London Police at the request of the Home Office carried out an investigation of Jeremy’s complaint. To conduct that inquiry a vast amount of documentation was gathered, access to which has been given to Jeremy’s legal advisers and some of the material gathered in that way is relied upon in support of the grounds of appeal.
On 24 September 1993, Jeremy petitioned the Home Secretary seeking a reference to the Court of Appeal. During consideration of the petition, the Home Office declined to disclose to Jeremy expert evidence that it had obtained. On 25 July 1994, the petition was refused. On 28 November 1994, He succeeded in a challenge by way of judicial review of the decision refusing to supply the expert report. The Home Office then supplied the evidence and agreed to reconsider the petition in the light of any further representations that might be made on behalf of Jeremy.
In February 1996, the Essex police destroyed many of the original trial exhibits without reference to Jeremy or his legal representatives. It might have been necessary for this court to examine the circumstances in which this had happened. The police officer responsible contended that it was done without his appreciating that there was any on-going legal process that might require the further use of the exhibits. However, during argument it was agreed that the court could protect Jeremy’s position by making assumptions in his favour and that, therefore, it was unnecessary to resolve precisely how this came about.
In April 1997, responsibility for reviewing alleged miscarriages of justice passed to the CCRC. Jeremy’s case was treated as still live, and was effectively transferred to the Commission to complete the review. After receiving representations on behalf of Jeremy and making investigations of its own, the CCRC referred the matter to this Court. The sole basis of referral related to fresh evidence in the form of DNA testing of the sound moderator. It expressed its decision in the following terms:
“In the Commission’s view, the new DNA evidence undermines a key aspect of the Crown’s case as presented to the jury and to which the trial judge gave considerable emphasis in his summing up. The new evidence is admissible, is capable of belief and affords a possible ground for allowing the appeal. There is a reasonable explanation for the failure to adduce this evidence at trial, in that the DNA techniques used were not available at that time.”
Grounds of appealGrounds 1 to 13 relate to documentation and other evidence which it is suggested was not made available to the defence before or at trial. However, many significantly more serious allegations were made against the police because it was suggested that there was evidence of a conspiracy to pervert the course of justice by deliberately concealing evidence helpful to Jeremy. The allegations extended beyond mere concealment and involved actual fabrication of evidence adverse to Jeremy. These allegations were reflected by ground 16 which alleged that “in the light of the activities” of three named police officers “the prosecution case as a whole is tainted and therefore unsafe”.
As observed by Mr Temple, QC, who has represented the prosecution at this appeal, there was a stark contrast between the allegations made on behalf of Jeremy in the opening of this appeal in the full glare of media publicity, and the case that Mr Turner, QC, on behalf of Jeremy felt able to advance when the evidence had been examined. It should be understood, particularly since his closing remarks did not attract the same degree of media coverage, that the appeal in this regard is a very different one that we now have to consider than might have been anticipated from the opening. Some of the very serious allegations made against police officers were manifestly wrong, and Mr Turner has recognised that position by not pursuing such matters once the fact became apparent. Nonetheless Mr Turner does maintain the suggestion that there is sufficient evidence of police wrong doing as to render the convictions unsafe.
The other and distinct aspect of the grounds relates to the blood in the sound moderator. The position has moved on evidentially from that as understood by the CCRC but ground 15 essentially raises the matter upon which the reference was made relating to DNA.
Ground 14 also relates to the testing for blood in the sound moderator, but is distinct from the issues of DNA referred by the Commission. The two matters clearly need to be considered in conjunction with one another.
Ground 1a – hand swabs from SheilaThis relates to hand swabs taken from Sheila during the post-mortem examination and the subsequent examination of these swabs. It is alleged that information was withheld from the defence about the examination of these swabs and suggests that this was not merely the result of inadvertence. It is contended that the evidence demonstrates impropriety by the police in deliberately concealing the true picture, and that the police may not have submitted the genuine swabs but rather obtained similar swabs from some other source and substituted them for the swabs taken from Sheila in order to produce a result favourable to the prosecution.
It is clear that the police from an early stage appreciated the possible significance of the state of Sheila’s hands and of anything that might connect them with the use of the gun. To preserve any available evidence, the hands were covered with plastic bags before the body was removed. When the post-mortem examination of the bodies of Neville and Sheila took place later that day an officer, DC Hammersley, took swabs from the hands of Sheila using a special kit made for taking samples for testing for firearm residues. The judge then details the conflicting documentation in relation to the submission and re-submission of the samples.
“… Mr Elliott, also gives evidence of examination of hand swabs taken from Sheila and of tests carried out thereafter which prove yet again that Sheila did not handle the bullets used that night.”
“The hands – were swabbed – swabs rejected by the laboratory. Later raised by D/Superintendent Ainsley in conference at the laboratory when the laboratory again stated that it was too costly to do and that it would be expected to show a positive result as the body of Sheila was in a room contaminated by gunfire. D/Superintendent Ainsley made issue that the swabs should be examined and if not done he wished a statement to explain why it had not been done. As a result they were examined and found to be virtually negative of residue, i.e. lead, oil and propellant.”
Mr Turner contended that it was significant that there had been mention in the interim report of the rejection but none in the final report. He suggested that the court could infer that Mr Ainsley had deliberately included the passage saying that the full report “negated the need to” read the interim report so that the rejection would not be noted by those responsible for the prosecution. Mr Turner invites the court to conclude that the circumstances of the re-submission demonstrate a determination by the police to have the swabs examined by the laboratory whilst concealing the earlier rejection. The notes of the scientist showed that the item was handed directly to the scientist and it is suggested that this must have been done to bypass DS Lovell who had been involved in the earlier rejection.
The final part of the evidential material relied upon on behalf of Jeremy in this regard are records that relate to exhibits gathered during the inquiry. Having looked closely at all the available documentation, it was the view of the court that whilst superficially the proposition that there might have been an element of deceit of the scientists in the first place and thereafter of the defence and the jury by the deliberate concealment of the fact of the earlier rejection might be tenable, any more rigorous examination of the facts showed that the proposition was unsustainable. However, the court was conscious of the fact that in cases where a miscarriage of justice is alleged, the truth may only be revealed by the fact that a tip of the iceberg emerges above the surface. Accordingly, we decided out of an excess of caution, to grant an application made by Mr Turner that he should have the opportunity of cross-examining witnesses who could give evidence about these matters. The court, therefore, required three witnesses to give evidence and having been called, each was cross-examined by Mr Turner and questioned further on behalf of the prosecution by Mr Temple. Their evidence was so transparently right that Mr Turner did not, even when reminded that he had not done so, feel able to challenge the evidence of one of those who must have been implicated if the sort of allegations of gross impropriety that he had made in opening the case were true. Thus the calling of the witnesses far from supporting the conspiracy had caused Jeremy’s counsel to see that it could not be maintained.
In terms of the overall consideration of the police conduct, they had brought the matter to the notice of the lawyers handling the case on behalf of the prosecution. That is the limit of their responsibility in terms of disclosure. Once the lawyers had been alerted as they undoubtedly were by the discussions in the presence of the DPP’s representative at the meeting at the laboratory and by the interim report directed to the DPP the responsibility for decisions as to whether a fact that needs to be drawn to the attention of the defence is for the lawyers. Thus these matters cannot reflect on the police as being a part of some deliberate attempt to hold back information from the defence. Although it is not necessary for us to go further and consider whether the prosecution lawyers were at fault since it can have no bearing on the safeness of the conviction, in fairness to them we should perhaps record that we are not persuaded that they were at fault.
Ground 1b – the testing of the hand swabs from SheilaMr Turner raised as a subsidiary ground to the matters already considered a further ground relating to the swabs. He said that as a result of the disclosure fresh evidence had been obtained that cast doubt upon the scientific conclusions put forward by the prosecution at trial in respect of the tests on the swabs and he sought leave to call fresh evidence. For our part we could not see how the evidence could in any way be said to relate to the alleged non-disclosure nor how it came within the ground of appeal in this regard. Nonetheless, we thought that we ought to consider the matter without regard to any technicalities.
In a number of cases this court has made clear that it will not readily admit expert evidence as fresh evidence where the necessary expertise was available at the time of trial (see e.g. Lomas, 53 Cr. App. R. 256 & Jones (Steven)  1 Cr. App. R. 56). To do otherwise would permit an appellant to shop around for an expert after conviction and upon finding one favourable to his case mount an appeal based on the views of that expert. To allow that would subvert the trial process and generally speaking the time for advancing expert evidence is before the jury and not after conviction. The prosecution opposed the application. It was clear that Jeremy had sought expert advice before trial. There was nothing new about the scientific knowledge that gave rise to this evidence. With that view we agree.
The prosecution said that the evidence would not in any event provide a basis for allowing the appeal and that a study of the summing up revealed the relative unimportance that this aspect of the evidence took in the case. It is clear that the judge was not inviting the jury to consider whether tests showed traces of lead on Sheila’s hands but rather “marks of lead”. In other words some visible signs that she had handled the bullets rather than a conclusion from a scientific test. He was reminding them that they could rely on their own observations when they had loaded the magazine and this cannot have related to the tests because the jury had done none. In one sense it mattered not whether the marks were of lead or something else because what the judge was inviting the jury to consider was whether loading the magazine was likely to have produced hands that were visibly dirtier than those of Sheila.
Thus it seems to us clear that having witnessed the demonstration, the judge was clearly inviting the jury to consider not the rather technical scientific evidence of the testing for lead but that which they had witnessed with their own eyes, and which they were in a particularly good position to judge because they had been given the opportunity of handling the material themselves.
Thus even if the scientific testing for lead could have been discredited, it would not have answered the essential point that if Sheila had loaded the magazine in the way that the killer did, she must have cleaned her hands afterwards. The ritualistic cleaning theory, with all its imperfections, was thus the essential matter upon which the jury had to concentrate.
We concluded in such circumstances that there was no valid reason why this evidence could not have been put before the jury by seeking to call an appropriate expert unless it was the case that Dr Lloyd’s views were not ones shared by others and, even more importantly, that even if the evidence had been given at trial, it could not have altered the outcome of the trial. Accordingly we declined to admit this fresh evidence and any other evidence consequent upon it and this aspect of ground 1 fails as a result.
Ground 2 – disturbance of the crime sceneJeremy contends that officers of the Tactical Firearms Group (“TFG”) upon entering the premises themselves knocked over chairs, stools, and a sugar bowl but falsely contended at trial that such disturbance preceded their entry. This is relevant to the suggestion that there was a violent struggle between Nevill and his killer before he was killed and the prosecution contention that Sheila would have been incapable of overpowering her father. Further if there was no violent struggle, the absence of any indication of such on Sheila was not of significance.
We find there to be no substance whatsoever in this ground of appeal. The firearms officers have been consistent throughout. Mr Turner indicated that he would not wish to cross-examine them in the event of the Crown successfully applying to call them. The issue of the absence of sugar on Sheila’s feet was of minimal significance in the trial. In the summing up all the references to Sheila’s feet were to the absence of blood rather than sugar.
The defence faced the task of explaining the absence of blood on Sheila’s feet with the implausible suggestion that she may have worn socks or washed her feet before committing suicide. In the circumstances the absence of sugar on Sheila’s feet added nothing to the prosecution case.
There is simply no evidence available to contradict the evidence of the firearms officers that save for moving one chair and two stools there was no disturbance of furniture and the sugar bowl was not disturbed by them. Their recent statements indicate a search effected slowly and carefully with the minimum of noise and carried out in relative silence with officers believing that Sheila may still be alive with a gun in her hand. They were trained to create as little disturbance as possible and not to move or touch anything unless it be for reasons of safety or self-preservation. The situation in which they found themselves with the possibility of an armed person somewhere in the premises meant it was both necessary and sensible to go into the farm house with the minimum of noise and disturbance until they were satisfied that an armed person would not suddenly emerge and confront them.
We are sure that none of the matters placed before us could possibly have resulted in the jury reaching a different conclusion on any material aspect of the case. This ground of appeal fails there being no evidence to support it.
Ground 3 – evidence relating to windowsGround 3 alleges that the prosecution failed to disclose at trial clear evidence which demonstrated that no reliance could properly be placed on their assertion that the downstairs bathroom and kitchen window were used by Jeremy to gain entry and exit to the farm house on the night of the murders. It was the Crown’s case that Jeremy entered White House Farm, for the purpose of carrying out the murders, by the downstairs bathroom window and left the premises by the kitchen window. It was the prosecution case that the marks on the paintwork had been made by Jeremy when entering the Farm during the late evening or early hours of the 6 or 7 August in order to commit the murders.
It was the defence case, revealed for the first time at trial, that Jeremy made those marks following his release after Police interview on or about 16 September upon his return from London having forgotten his keys. It was of potential advantage to the defence to demonstrate that the window in question was examined on the 8, 9, or 10 September and that at that time no marks were found on the window.
It is never easy for officers engaged in major enquiries to know to what extent they should include negative findings, which may be very numerous in their statements. In the case of DC Barlow we conclude that he should have included the fact that he examined all the windows on the 22 August. We find no evidence to indicate that he deliberately omitted this negative finding. Again this information should have been disclosed prior to trial.
Further complaint is made that the prosecution failed to disclose the fact that having been released from custody on 13 September Jeremy was continuously under surveillance until 1.30am on 16 September. It is said that there was no disclosure of this fact but we note from an attendance note that Jeremy “confirmed that he was under surveillance after his release from custody”.
The prosecution had established conclusively and without challenge Jeremy’s ability to enter and leave the White House Farm when it was apparently secure from his own answers. Julie Mugford confirmed the fact. The Crown did not have the burden of proving by which window and by which mechanism the entry was made. The Crown proved capacity both to enter and leave.
The only way in which the window evidence could have been of importance in the jury’s decision is if despite other evidence pointing to Jeremy as the killer, they might have been prevented from reaching that conclusion by doubting that he could have got in and out on the night in question with the windows being found next day in the condition in which they were found. On Jeremy’s own admissions, no such doubt could arise. It follows that any failure to disclose earlier examination of windows cannot affect the safety of this conviction.
Ground 4 – timing of telephone call to Julie MugfordGround 4 relates to the first telephone call made by Jeremy to Julie Mugford on the night of the killing. The prosecution contended at trial that this preceded the telephone call to the police, whilst Jeremy asserted that it was made after he had telephoned the police and before he left home to go to the farmhouse. It has to be said that whichever version is right, it was remarkable that Jeremy made such a call. On his own version he had just received a dramatic plea for help from his father, he had rung the police and had been asked to go to meet officers at the farm. Yet he delayed for long enough to make a telephone call to someone many miles away, who could not possibly help in the situation. However, it clearly was even less likely that he would have telephoned before he rang the police and if the call was shortly after 3am it was wholly inconsistent with his account and only consistent with the account of Julie Mugford as to the nature of that call. Thus timing of that call, if it could be determined by the jury was of importance.
On a realistic appraisal of the available evidence, this falls to be considered as an instance of fresh evidence that has emerged since trial and we must consider whether or not, if known by the defence at the time, it could have had any impact on the trial and the resulting convictions.
The evidence did not in any way reveal any defect in the evidence of the only two witnesses upon whom the jury would have had to have relied in reaching a conclusion adverse to Jeremy. Thus we concluded that there was no information recorded on the police action forms that required to be disclosed to the defence and that the action itself could not have had any impact upon the jury’s conclusions. For these reasons ground 4 is in our judgment wholly without merit.
Ground 5 – evidence relevant to the credibility of Julie MugfordGround 5 raises issues relating to Julie Mugford. When she had given a statement to the police in September 1985, she had made admissions of dishonest conduct in which she had been involved. She referred to a burglary offence committed jointly with Jeremy and to a cheque book fraud committed jointly with Susan Battersby. She was not prosecuted for either offence nor was Susan Battersby prosecuted for the cheque book fraud which she too had admitted to the police. The first limb of ground 5 is a complaint that the prosecution failed to disclose the fact that both Julie Mugford and Susan Battersby were given immunity.
As Mr Temple points out, in answer to that aspect of the matter, Julie Mugford and Susan Battersby were not granted immunity as such but a decision was taken by the DPP not to prosecute. We therefore read this ground as being a complaint that the documentation relating to the decision not to prosecute each of the witnesses was not disclosed to the defence.
The jury knew about the admissions made to the police. They further knew that neither of the girls had been prosecuted for these offences. Julie Mugford told the jury that she had “got a caution for it”. When the judge summed the case up to the jury, he referred to her receiving “a police caution”. It is undoubtedly correct that Julie Mugford had not received a formal police caution in the sense that that expression is clearly understood by police officers and lawyers. It seems unlikely to us that the jury would have understood the significance of a formal police caution as opposed to any other warning as to her future behaviour.
However, whether or not the jury understood the legal distinction of a formal police caution, we fail to see how this could have had any possible impact upon their considerations. What mattered in assessing the weight to be given to the witness’s evidence was their own admitted dishonesty, and how they had behaved in relation to such dishonesty, not how the authorities had responded to their admissions. Any failure to correct the judge’s reference to a formal police caution cannot be laid at the door of the police since the position was clearly understood by the lawyers and hence such a failure could not in any way taint the evidence of the police officers involved in the inquiry.
We turn, therefore, to consider the second aspect of this ground. After revealing these matters to the police, Julie Mugford and Susan Battersby went to Susan Battersby’s bank, the victim of their cheque book fraud, to inform the bank of their dishonesty. We are far from persuaded that anything done by the police or by the witnesses was improper on any version of the facts. Insofar as there is now a conflict between the witnesses, we are not persuaded that such conflict would have manifested itself, if these matters had been explored whilst memories remained fresh and notes still survived. Accordingly we are not in any way persuaded that this aspect of the case, which was to an extent removed from the critical features of the case, gives us any cause to doubt the safety of the convictions. We do not accept that any impropriety by the police has been established on the evidence available, either as to their conduct at the time of the visit to the bank or by way of some attempt to cover up their role in the matter.
Ground 6 – letter from Colin CaffellMuch attention was devoted at trial to consideration of the state of Sheila’s mind. It was common ground that she was a schizophrenic, and indeed she had been in St. Andrew’s Hospital Northampton between 3 and 29 March 1985 when she had become acutely ill. Dr Ferguson, the consultant psychiatrist who was in charge of her case gave evidence for the defence, and his view was that she had responded fairly quickly to medication so that by the time she left hospital her illness was reduced to a manageable state. He did not think she was a significant suicide risk, and the suggestion that she had killed her family, particularly her father and her own children did not fit in with his concept of her.
The defence called another consultant psychiatrist, Dr Bradley, who had never treated nor indeed even met Sheila, and who gave the court the benefit of his opinion from the medical notes. His evidence amounted to no more than that he had experience of cases where mentally disturbed persons who believed that it would be for the good of the victims had killed children and others. In addition, there was a body of evidence from non-expert witnesses who had spoken to or been in contact with Sheila in the days immediately preceding these killings. However, Jeremy gave evidence of what is now described as an argument or quarrel between Sheila and her parents on the evening preceding the killings when he was present.
The complaint under this ground of appeal is that there was in existence material that might have been relevant to Sheila’s attitude towards her children in the form of a letter to Nevill drafted by Sheila’s former husband, Colin (but never sent), shortly after her release from hospital on the 29 March. That letter expressed his concern about the effect that Sheila’s mental condition was having on her ability to look after the two boys properly, to pay attention to their needs and requirements, to get them off to school in time and generally take care of them. He was also concerned about the influence that Mrs Jeremy had upon the two boys. In fact, it appears from the evidence that he gave at trial that he himself was caring for the two children for about 95% of the time. He was seeking Nevill’s support in convincing Sheila that the boys should continue to stay with him most of the time, and that he should have full control over their well-being. It is to be noted that he and Sheila had joint custody of the children.
This letter was referred to in a disclosed statement made by Mr Caffell on 11 September 1985. The reference to the document in the disclosed statement alerted the defence to its existence and it was for the defence to satisfy themselves as to whether or not it was relevant to the case that they wished to present to the court. That conclusion is enough to dispose of this particular ground of appeal.
Ground 7 – the statement of Colin CaffellJeremy complains that the Crown failed to disclose at trial the original hand written statement of Colin Caffell, which demonstrated that the typed version of his statement was incorrect. Further and alternatively, the police failed to disclose the fact that Colin Caffell had complained in respect of the discrepancy, and that they had failed to correct it. The suggestion that the original hand-written statement was not disclosed is nonsensical. The hand-written statement in accordance with the usual practice would have been lodged with the court, and was available for inspection by all parties. No suggestion to the contrary has been put forward by counsel or solicitors instructed at trial. Furthermore, it also conceded that this particular passage of Mr Caffell’s statement was not led from him in evidence, nor was it cross-examined to. In the circumstances this error, insignificant as it is, cannot conceivably have any impact upon the safety of the verdict.
Ground 8 – photograph showing carving of the words “I hate this place”Ground 8 is a complaint that the prosecution failed to disclose at trial a photograph, which had been taken at the farmhouse, and which was numbered 101. The photograph reveals the words “I hate this place” carved on the cupboard doors of the room in which the twins were sleeping when they were shot. The basis for the assertion that this photograph was not disclosed lies in the fact that no member of the defence team can remember seeing the photograph.
The suggestion that a corrupt police officer might see this photograph as having such a significance as to be motivated to withhold it is another of the submissions made to us that does not seem to us to have any relationship to reality. The prosecution had disclosed a great deal of material that clearly demonstrated Sheila’s disturbed state of mind. The idea that this relatively unimportant additional fact might be thought so significant as to merit the taking of measures to conceal it is manifestly wrong. Any such officer would appreciate that removal of one of a numbered series of photographs would almost inevitably be commented on and would know that the carving was still in place to be seen by anyone who visited the farmhouse as inevitably the defence team would. This ground of appeal must fail.
Ground 9 – the BibleGround 9 is an allegation of non-disclosure relating to the Bible found beside Sheila’s body. The precise complaint is that the prosecution failed to disclose at trial the pages at which the Bible had been opened. Mr Turner draws attention to two distinct matters, two photographs of the Bible and documents relating to an inquiry made to a local Rector about the relevant pages. Photographs of the scene, which were before the jury at trial, clearly showed the Bible lying open but face down beside Sheila’s body. Since the Bible was face down, it is not possible to ascertain from these photographs the pages at which the Bible lay open. It is said that these pages are significant and represented “Sheila’s suicide note”. A number of passages are highlighted and it will suffice if we give one example, taken from verse 14 of Psalm 51: “Save me from blood guiltiness O God…”
The evidence suggests that the two photographs were not brought to the attention of the defence and Mr Turner once more submits that the only explanation for this is wilful concealment by the police.
The fact that the defence made no play of the Bible’s pages may very well have something to do with another aspect of the matter. The more each member of the court looked at the photographs in order to deal with this point, the more difficult we found it to reconcile the actual bloodstaining with the defence case. The largest area of blood seems to have got onto the Bible when it came into contact with a pool of blood beside the body. As already observed the Bible must have been shut whilst the blood was wet. It does not seem very likely that it was still wet hours after the event when the police might have handled it. If this is so, it was shut by someone and then reopened to lie beside the body after Sheila had been shot. These matters along with other considerations of a similar kind were placed before us by the prosecution on an application to call fresh evidence with which we will deal later. It did not, however, require fresh evidence for us to see that there was a potentially powerful point that might have been made in this regard by the prosecution at trial.
We are satisfied, therefore, that there was no failure by the prosecution to disclose any material in this regard that required to be disclosed. Even if we had reached a different conclusion, we fail to see how it would have assisted Jeremy. For these reasons, but particularly because we are satisfied that there was no failure to disclose matters of significance this ground fails.
Ground 10 – the question of inheritanceGround 10 is a complaint that the prosecution failed to disclose that Robert Boutflour, Jeremy’s uncle, who gave evidence for the prosecution, whilst having no direct interest in the estate was aware that if Jeremy inherited, he intended to sell what he could, thereby disposing of what had been a part of Robert Boutflour’s wife’s family’s estate.
A statement was taken from Mr Boutflour dealing with his understanding of the legal position. This was to the effect that on the assumption that the 5 deceased persons died in order of seniority he personally would have had no claim on the estate and would not have benefited in any way. However, Mr Lawson, QC, no doubt having carried out the necessary research, produced an agreed note for the jury which is acknowledged before us as being an accurate statement of the law. It showed that there was a real possibility that the Boutflour family, in the person of Pamela Boutflour, would benefit if any interest that Jeremy might otherwise have had in those estates were forfeited by reason of his conviction for murder.
Plainly, this was an issue to which the entire defence team must have been alive - as was the jury. In our judgment there is nothing in this ground of appeal either.
Ground 11 – the proposed purchase of a Porsche by JeremyThis ground was abandoned before the hearing and nothing further need be said about it.
Ground 12 – the telephone in the kitchenGround 12 complains that at trial the prosecution failed to disclose the fact that an officer had used the telephone at White House Farm on 7 August, thereby potentially destroying evidence and disturbing the original scene. At trial the evidence was that when the kitchen was entered the telephone in the kitchen was off the hook as can be seen in a number of photographs. The defence contended that the telephone off the hook was entirely consistent with Nevill having phoned Jeremy. The Prosecution countered this by alleging that Jeremy had set the scene. They drew attention to the fact that Nevill was severely bloodied and that the telephone had no visible blood upon it although no swabs were taken from it.
Complaint is made that the Crown failed to disclose at trial the fact that an officer of the TFG had used the telephone in the office at White House Farm. In order for the office telephone to be used it is necessary either to replace the kitchen hand piece on the phone or disconnect it or depress the black buttons on the phone. The telephone was plugged in to a point in a different room and hence was capable of being unplugged without any need to disturb the crime scene in the kitchen. We have concluded that even if a phone call was made from the office and even if the hand piece on the kitchen phone was replaced for that purpose and removed after the phone call, we cannot envisage that the acts of replacing and removing the hand piece could possibly remove all visible trace of any blood which might have been transferred onto the hand piece when Nevill made the phone call in issue. We have had regard to the extent of Nevill’s injuries and also to the blood visible on the work surface. We conclude that the possibility of blood being removed without visible trace from the kitchen phone hand piece by acts of replacing and removing the hand piece to be fanciful. There is no admissible evidence that any phone call was made by a TFG officer. We do not believe there was any disturbance of the crime scene. Mr Davidson’s statement made no mention of any actual disturbance nor do we consider there to be a realistic possibility that any blood was removed from the kitchen phone hand piece. This ground, as was the case with ground 2, depends upon unsubstantiated hearsay and must necessarily fail.
Ground 13 – scars on Jeremy’s handsWith all respect to Jeremy’s team, we have found this ground of appeal incomprehensible.
Grounds 14 and 15 – blood in the sound moderatorGrounds 14 and 15 each relate to different aspects of the evidence relating to the blood in the sound moderator. They are distinct matters but clearly need to be considered together because they relate to the same important aspect of the prosecution case. Ground 14 is an attack upon the blood testing evidence called at trial based upon fresh evidence which it is suggested would have cast doubt upon the prosecution evidence in this regard if it had been available to the jury. Ground 15 is the sole ground upon which this case was referred to the Court by the CCRC. It is based upon the testing of the sound moderator for DNA, a technique that was not available at trial.
We have set out at paragraphs 75 to 80 a summary of the evidence at trial relating to the scientific examination of the moderator. The critical part of that evidence was the analysis of the flake of dried blood found inside the sound moderator. The evidence was given by Mr Hayward, a biologist who was working at the Forensic Science Laboratory at the time of the examination. In his evidence he described how he had found “a considerable amount of blood” inside the moderator deposited in the spaces to the sides of the baffles around the edge of the silencer. He was asked if he had tested “any” of that blood. He said that he had and that it was human blood. He said that he had obtained grouping reactions for group A, EAP BA, AK I, Hp 2-1. He had done a PGM grouping test but it gave negative results. He said that these grouping results were consistent with the blood coming from Sheila but not solely from any of the others who had been shot.
Mr Hayward then said that you could get different reactions if there was more than one person’s blood present and he said that it was “a remote possibility” that the blood that he had tested was a mixture of blood from Neville and June Jeremy. Neville’s blood was group O, PGM 1+, BAP BA AK1, Hp2-1. June’s blood was group A, PGM 1+, EAP BA, AK2-1, Hp2-1. If these bloods were mixed together, you could get the results recorded from the blood tested from the moderator. However, if there was sufficient of June’s blood present to give the clear cut group A result, he would have “stood a good chance of detecting the AK2-1 which would have gone with it”. He said that there was nothing to suggest to him that there was blood from more than one person present.
Mr Hayward said that the conclusions of Dr Vanezis, the pathologist, and Mr Fletcher, the firearms expert, supported his view that the blood was from Sheila alone because their findings suggested that only Sheila had been shot with the gun in contact with her skin or from “very close range” and he would have been very surprised to find blood within the moderator from a person who had not been shot with the end of the moderator in contact with that person or at least very close to it.
Mr Hayward also gave evidence about examining a pull through used to examine the inside of the barrel of the rifle itself. He said that there was no blood at all on it.
Mr Fletcher, the firearms expert, gave evidence to explain how blood got into the moderator if it was attached, or into the barrel if there was no moderator attached. He said that the mechanism was complicated and not then fully appreciated. However, the expanding gas when the bullet left the muzzle was under normal circumstances distributed into the atmosphere. However with a contact shot there was no opportunity for this escape and the gas would follow the bullet into the wound as it expanded. Back pressure would then build up forcing the gas back out of the wound taking with it blood and tissue which would in effect be blasted back into the barrel if there was no moderator or into the moderator if one was attached. He said that even without direct contact, the same effect might occur but only if the gap between the end of the barrel, or the moderator if attached, and the skin was less than one millimetre. He said that the likelihood of such an occurrence was to an extent dependent on the part of the body to which the shot was delivered and the amount of blood present at that point.
If the shot to Shelia, which was a contact shot to the throat, had been fired without the moderator in place, he would have expected to find blood in the barrel of the gun. If the moderator was attached it was “virtually certain” that Sheila’s blood would get into the moderator. There was, he said “a very slight possibility of it not happening, but very slight”.
Mr Fletcher was asked about the wounds to Neville and June and whether they could have been contact wounds or wounds at such proximity that blood might have been propelled back into the moderator. He said that Neville had a wound that could have been a contact wound and that June had one wound where there was a slight possibility that it was a contact wound.
In dealing with this evidence, the defence were limited by the evidence available from their own expert. They called no such evidence at trial but the material that they had obtained pre-trial has been disclosed in the course of this appeal. The defence had instructed Dr Patrick Lincoln, whose expertise in such matters was well known. On 29 April 1986, he visited the forensic science laboratory and examined the relevant material. He carried out tests on all seventeen baffles. The first eight plates all gave weak or very weak positive reactions for blood. There was no blood clearly visible to the naked eye and Dr Lincoln concluded that “such findings could be consistent with an item having been previously swabbed by a forensic scientist to remove blood stains for testing”. The other nine plates “did not produce any evidence for the presence of blood”. He agreed with Mr Hayward’s conclusion that the combination of blood groups revealed in his testing of the inside of the moderator could have come solely from Sheila but did not come from any one of the other individuals. He said that it was not clear from Mr Hayward’s statement that he had obtained the blood from which the different group testings had been done from the same area of the moderator. If they were not from the same area, then the results could have originated from more than one individual.
On 8 September 1986, Dr Lincoln again went to the laboratory and this time met and discussed the matter with Mr Hayward. As a result of this meeting, Dr Lincoln appreciated that the blood tested all came from a single flake trapped under the first or second baffle. In a letter to the defence solicitors, Dr Lincoln said that Mr Hayward “used this single flake to produce a solution from which he was able to determine the groups”. He said that this meant that the possible explanation he had earlier suggested as to a combination of more than one persons blood no longer applied.
In one respect Dr Lincoln was in error. Whether that error was from something said by Mr Hayward or simply from an assumption made by Dr Lincoln cannot now be ascertained and matters not. The error was to suggest that the whole of the blood flake was dissolved and the resulting solution was used for all the tests. In fact what had happened was that the flake had been divided into a number of parts and each part had then been used for a separate group test. Thus the tests were not done on liquid drawn from the same solution made from the whole flake but on separate solutions each made from distinct parts of the flake. We have no means of knowing whether correction of this error would in any way have altered Dr Lincoln’s view.
Ground 14 is based upon evidence from a fresh expert instructed by the defence, Mr Mark Webster, a forensic scientist in independent practice. He was asked to consider the possibility that the blood tested by Mr Hayward might have been a combination of the blood of Neville and June. There were a number of features of Mr Webster’s evidence that we found less than satisfactory and we have little doubt that if it had been placed before a jury they would have shared that view. We cannot see that Mr Webster’s evidence unsupported by any experimentation or other credible basis would have had any significant impression on the jury. The jury could not convict solely on Mr Hayward’s conclusion in any event because he himself acknowledged the remote possibility that it was wrong. The jury could only have been sure when they considered other aspects of the case both relating to the moderator and to quite distinct issues. As to the moderator, there was the remarkable proposition raised by the defence case that Sheila having killed her family found that she could not shoot herself with the moderator on and instead of simply taking the moderator off and putting it down, went downstairs to an office, put the moderator in its proper place in the gun cupboard and then returned to her parents’ bedroom where she sat or lay down on the floor and shot herself. There was in addition not merely the presence of the blood flake in the moderator but the absence of any blood in the barrel of the gun, the end of which would have been in contact with her neck when the shot was fired.
Accordingly, having looked carefully at this aspect of the case, we can see nothing in the fresh evidence, which persuades us that there was any prospect of the jury reaching a diffident conclusion if they had heard that evidence. Thus there is nothing to render the conviction unsafe. We do, however, need to bear in mind the possibility that that position might be different following consideration of the DNA evidence and we will revert to it after considering the next ground.
Ground 15 – DNA evidenceGround 15 is the ground upon which the case was referred to this court by the CCRC. At the date of the investigation into this case DNA testing was not available for consideration of the source of body fluids. Hence the blood samples and blood staining was not subjected to such testing and was only subjected to the much less sensitive blood group testing to which we have already referred. During the course of the subsequent investigations, it was appreciated that DNA testing of the sound moderator was a possibility. Accordingly it was carried out and it was the conclusions of that testing that caused the CCRC to refer the case to this court. Since that date further DNA testing has been carried out and it is necessary to consider not only the information available to the CCRC but also that which has been discovered since.
The CCRC recorded the information available to it as: The silencer had been submitted by the Commission to the FSS for examination in order to establish whether there was more than one person’s DNA inside it. On the 6 March 2000, the Commission was informed that the tests had identified the DNA of at least two people inside the silencer and that there was both male and female DNA present. The female DNA was stronger than the male DNA and was present all the way through the inside of the silencer. They were not able to say that the DNA readings were derived from blood, and they were not able to identify from whom the DNA had originated.
Further inquires were commenced at this time with Essex Police in order to establish whether any blood exhibits existed from which sample references could be taken for June and Sheila. Inquiries into other areas raised in Jeremy’s application were being undertaken at the same time. The Commission was subsequently informed that Essex Police had destroyed all the blood based exhibits in February 1996.”
On this information the CCRC decided that “the DNA results as they stood began to support the theory put forward by the defence at trial”. They decided to take steps to see whether the female DNA found within the moderator came from Sheila. To this end they located Sheila’s natural mother and obtained a sample of her DNA. The evidence of the testing of this sample was recorded as: “The results of these tests were that…the DNA in the silencer could not have come from Sheila”.
The Commission concluded: Whilst it might be arguable that the recent DNA tests do not establish that the source of the female DNA was blood, the Commission believes, as a matter of probability, that it is from blood because it was found deep within the silencer. Given the record of handling of the silencer by the scientists, the Commission does not believe that any possible contamination from them is likely to have been found that far down inside. Also, given that it is an accepted fact that blood was in the silencer in 1985, the Commission considers that it is much more likely that the DNA is from the blood found in the silencer at the time. Considering the length of time that has passed and the fact that much of the blood was swabbed out for blood grouping, the Commission does not consider that the negative KM result strengthens the possibility that the DNA does not originate from blood. In any event, the Commission considers that the absence of Sheila’s DNA is significant.
The Commission considers that the fresh evidence relating to the silencer severely undermines the Crown’s case against Jeremy as it was presented to the jury. …”
Whilst acknowledging the careful approach of the CCRC, there were respects in which it is apparent that even on the information available to them, their conclusions fail to recognise the totality of the evidence available.
The evidence of Mr Hayward was not to the effect that all the blood in the moderator had been tested but rather that some of that blood had been tested. Thus this was not a case where the scientist was saying that the only blood in the moderator came from Sheila. His evidence was that the blood tested came from Sheila although he acknowledged the remote possibility that even that blood was a mixture of blood from Nevill and June.
No questions were asked at trial of Mr Hayward to establish what part of the blood he had tested. The position was, however, known to the defence through their own expert Dr Lincoln. Dr Lincoln had seen the evidential material upon which the group testing results were based and agreed with the conclusions. He recorded that evidence in the course of his report of 19 September 1986. He said that Mr Hayward had “found a flake of blood trapped under the first or second baffle plate” and that it was this flake that was tested and produced the groupings A, EAP BA, AK1, Hp2.1 upon which reliance was placed by the prosecution. Dr Lincoln further recorded: “Mr Hayward states that he could detect visible staining on the “upper baffle plates” and that he swabbed these plates so that the blood was taken onto cotton material which could subsequently be used in grouping tests. On this material Mr Hayward successfully determined the ABO and EAP groups and showed the blood to be groups A, EAP BA.”
This finding from the swabbing of the upper baffle plates was thus consistent with blood from either June or Sheila or even a combination of blood from the two of them but not in any way from blood from Nevill or Nicholas.
Thus, even if one accepted that the DNA found on the baffle plates at a much later date came from blood from June deposited on the baffle plates during the shootings, it was not in any way inconsistent with the conclusions drawn from the testing of the flake which material that had been destroyed by the very nature of the examination process and hence could not be subjected to DNA testing. Thus the evidence did not as the Commission suggested “severely undermine” the prosecution case.
Further the Commission had rejected the possibility of contamination affecting plates deep into the moderator. That conclusion did not fully take into account all the available evidence relevant to the issue of contamination. The CCRC considered “the record of handling of the silencer by the scientist” but that represented only one possible source of contamination in the case. In addition their conclusion that “it is much more likely that the DNA is from the blood found in the silencer at the time” failed to address the detailed findings that were made at the time. It is, however, against this background that ground 15 is raised by Jeremy and reads:
“Fresh DNA evidence, not available at trial, and now available supports the contention that blood in the silencer, said to be that of Sheila was in fact a mixture of the blood of Ralph and June. Jeremy has been denied the opportunity of strengthening this ground by the deliberate destruction of exhibits by the police in February 1996 in breach of their own guidelines as to the destruction of such exhibits.”
Samples obtained from Sheila’s natural mother and from other sources enabled the scientists to say with confidence that the major component did not come from Sheila. Because the blood sample of June no longer exists, it has not been possible to do a direct comparison between her DNA and that of the major component. However, it has been possible to obtain a sample from June’s sister, Pamela Boutflour, which because closely related relatives are statistically more likely to have shared components than unrelated individuals, has enabled conclusions to be drawn. That evidence shows that it is about 3,500 times more likely that the major source of DNA was from a full sister of Pamela Boutflour, i.e. June, compared to it being from an unrelated female. Both Mr Clayton and Miss Tomlinson, the DNA experts from whom we have heard, assessed this as strong evidenced that the major component therefore comes from June.
A part of this ground of appeal relates to the destruction of June’s blood sample. It is not suggested that that can be used as a free standing ground of appeal but it is combined with the DNA evidence to suggest that Jeremy may have been deprived of the chance of advancing even stronger evidence that the DNA was from June. On the evidence of the two scientists, we would feel that the only safe course for us to take is to conclude that the major component of the DNA on the baffles did originate from June. When we made clear to Mr Turner that this would be our approach and queried whether in such circumstances the destruction of the samples from June could be said to prejudice Jeremy, Mr Turner recognised the force in the point and after taking specific instructions from Jeremy decided not to pursue that aspect further. We have therefore not considered the circumstances in which the blood samples were destroyed since they have no bearing upon any other aspect of this case.
The minor components of the DNA on the baffles have yielded such very limited amounts of information that the scientists conclude that apart from evidence that there is DNA from at least one male present, no meaningful comparison can be made.
Since the CCRC referred this case to the court, further DNA testing has taken place of other parts of the moderator. Seven swabbings have been taken from internal parts of the moderator apart from the baffles. All seven results indicated that DNA from more than one person was present. The results were complex and incomplete and it was not possible to determine how many people had contributed to the DNA from the mixture. The predominant contribution appeared to have come from a female or females.
When comparisons were possible, components matching Sheila’s DNA profile were detected in 5 of these seven results. The other two results also contained components which matched those of Sheila, but not at all of the ten areas of DNA tested where information was available for comparison. Some of the components detected did not match the profile of Sheila Caffell or the Caffell twins.
Thus it is clear that no blood was ever seen by any of those who had examined the baffles on any baffle beyond the eighth one from the bullet exiting end and nor have any tests revealed the presence of blood beyond this point. Dr Lincoln in April 1986 specifically tested all the baffles for blood and found no trace of any beyond the eighth baffle.
In these circumstances we find it impossible to conclude that any particular finding of DNA necessarily came from blood. The possibility that blood was the source of any or all of the DNA recovered remains because firstly the LCN DNA tests may be more sensitive than any of the tests carried out for blood. Further detection of blood by testing may not be possible as a result of the blood degrading through the passage of time, exposure to heat or exposure to moisture.
Thus we think that the CCRC’s conclusion that the DNA was likely to have come from “the blood found in the silencer at the time” which was said to be justified “because it was found deep within the silencer” cannot be sustained. The DNA was certainly not from the flake of blood removed for blood grouping purposes and whilst some or all of the DNA that was found within the moderator may have originated from blood, a conclusion that it all did is not one that can be properly drawn.
That leads to the next major consideration, namely, how could the DNA, whether from blood or some other bodily fluid, have got into the moderator otherwise than as a result of back splattering in the course of the killings. This raises significant issues of contamination. These were dismissed somewhat readily by the CCRC but it seems clear to us they either failed to establish the full history of the moderator after its discovery or alternatively ignored important aspects of that history. The Commission considered the “record of handling of the silencer by the scientist” and concluded that no contamination from the scientist was “likely to have been found that far down inside”. That conclusion certainly ignores, at the very least, the examination by Dr Lincoln who removed all the baffles and tested them all so that contamination of baffles, whether deep inside or not, was a possibility. Even more importantly it failed to consider the use made of the moderator as an exhibit at trial where no sort of precautions would have been taken.
Mr Webster then reviewed in detail the history of the handling of the moderator and the various opportunities for contamination. He considered the fact that Dr Lincoln had taken out all the baffles and tested them all. He referred to the fact that both Mr Hayward and Mr Fletcher had handled the moderator in the witness box, a place where other exhibits were produced without any precautions being taken to avoid contact. He pointed to the fact that the judge specifically told the jury that they could “empty the baffles out later” and that it could not be established what use had been made of the moderator by the jury during their deliberations or what other exhibits may have been in their possession. He observed that the judge had told the jury that if they handled any of the clothing, they should put on plastic gloves for their own protection, thus giving rise to the possibility that blood stained items were examined by the jury with no precautions being taken to ensure that if they then went to handle the baffles there was not contamination.
We have no doubt at all that if this evidence had been placed before a jury, they would have concluded, as we do, that in accordance with the emphasised part of Mr Webster’s report quoted above, the DNA testing results were rendered “completely meaningless”.
Thus we are satisfied that the DNA evidence does not lead to any conclusion that the verdicts were unsafe.
Ground 16 – police misconductThe final ground of appeal is a generalised allegation that as a result of “the activities of Detective Superintendent Ainsley, DS Jones and DCI Wright as detailed in grounds 1 to 13, the prosecution case is tainted and the convictions therefore unsafe. We have already recorded our conclusions on the individual grounds and have made clear that we find none of the allegations of serious misconduct made out. Before reaching final conclusions about the individual allegations, we have deliberately reconsidered the matter to see whether looking at the wider picture gives rise to any concern that in looking at matters of detail, we might have missed evidence of the kind that only is capable of being perceived by having regard to a number of smaller matters. We can see no reason to revise our view on any of the matters and we have found no evidence at all to support the allegations of serious wrongdoing by the police that is suggested.
ConclusionHaving considered and rejected each of the grounds advanced on behalf of Jeremy, it follows that this appeal must be dismissed. Each member of the court has reached the conclusion that there is nothing in any of the matters raised before us that throws doubt upon the safety of these convictions.
It should be understood that it is not the function of this court to decide whether or not the jury was right in reaching its verdicts. That is a task that is wholly impossible in virtually every case because this court does not have the advantage of hearing and seeing the witnesses give evidence, and deciding which of the witnesses are trying to tell the truth and which of those who are trying to do so are accurate in their recollection. Our system trusts the judgment of a group of 12 ordinary people to make such assessments and it is not for the Court of Appeal to try to interfere with their assessment unless the verdicts are manifestly wrong, or something has gone wrong in the process leading up to or at trial so as to deprive the jury of a fair opportunity to make their assessment of the case, or unless fresh evidence has emerged that the jury never had an opportunity to consider. We have found no evidence of anything that occurred which might unfairly have affected the fairness of the trial. We do not believe that the fresh evidence that has been placed before us would have had any significant impact upon the jury’s conclusions if it had been available at trial. Finally the jury’s verdicts were, in our judgment, ones that they were plainly entitled to reach on the evidence. We should perhaps add in fairness to the jury that the deeper we have delved into the available evidence the more likely it has seemed to us that the jury were right, but our views do not matter in this regard, it is the views of the jury that are paramount.