Case No. CO/6487/2012 
Neutral Citation Number: [2012] EWHC 3768 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Thursday, 29 November 2012

B e f o r e: 
 
PRESIDENT OF THE QUEEN'S BENCH DIVISION) 
SIR JOHN THOMAS  
and 
MR JUSTICE GLOBE
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Between: 
THE QUEEN ON THE APPLICATION OF BAMBER 
Claimant

v 

CRIMINAL CASES REVIEW COMMISSION 
Defendant 
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Mr Simon McKay (Solicitor Advocate) (instructed by McKay Law) appeared on behalf of the Claimant 
Mr Marc Brown (instructed by the Criminal Cases Review Commission) appeared on behalf of the Defendant 
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J U D G M E N T 

THE PRESIDENT:  
Introduction
1.	There is before the court the renewed application for judicial review of the decision of the Criminal Cases Review Commission, given on 25 April 2012, not to refer to the Court of Appeal (Criminal Division) the case of the claimant, Jeremy Bamber.  I do not propose to set out the events relating to the murders of the Bamber family, which occurred as long ago as August 1985.  They were extensively set out in the judgment of the Court of Appeal (Criminal Division), given on 12 December 2002 by the late Kay LJ, in a judgment of great learning and thoroughness, which traversed all the facts as they were known.  In any event, the facts are ones that are well‑known to the public in general, and it is not necessary to examine them for the purposes of this application for reasons I shall explain. 
The procedural background
2.	The claimant was convicted of the murder of the members of his family.  In March 1988 and in 1989 respectively his applications for leave to appeal against conviction were refused, firstly by the Single Judge and then by the full court.  In 2001 there was a reference by the Criminal Cases Review Commission to the Court of Appeal (Criminal Division), which was considered by the Court in 2002 in the judgment to which I have just referred.  It did not set aside the conviction.
3.	After that in March 2004 an application was made to the Criminal Cases Review Commission.  It spent a considerable time reviewing the materials on grounds that were then put forward and did so until September 2011.  I deal with that extensive period so briefly because it is accepted by Mr Simon McKay, and in my view rightly accepted, that there was nothing in that very long period of time which produced grounds upon which, given the history of the matter, it would have been right to challenge the decision of the Commission.  There was nothing further that was before it that justified any reference to the Court of Appeal (Criminal Division).  
4.	However, in September 2011 Mr Bamber instructed Mr McKay.  If I may say so, he put before the Commission, and has put before us, a case on a much more limited and focused basis, which has been the subject of the grounds that have been argued before us today.  His realism and the strength of his advocacy is shown by the fact that he has accepted that in the review before us of the thorough and lengthy decision of the Commission, made, as I have said, on 25 April 2012, that runs to 109 pages, the decision can only really be questioned on three relatively narrow points.  
The issues
5.	Those are points that, in effect, he put forward in January 2012.  Submissions were made and were supported by evidence from Dr Caruso, who is a professor and Executive Chairman in the Department of Surgery at the University of Arizona College of Medicine, Phoenix, Arizona; he is Chief of the Burns Services of the Arizona Burn Centre.  It was also supported by evidence set out in the report of Dr David R Fowler, who is the Chief Medical Examiner of the State of Maryland and has various qualifications as a forensic pathologist.  He is what is described on the other side of the Atlantic as a "wound ballistician".  Those are the two reports which are central to these proceedings, together with what was subsequently broadcast by ITV in a television programme containing part of the evidence of Mr Boyce, a consultant firearms expert, who had previously been employed in well‑known companies, including LGC forensics.
6.	That description of the scope of what was put before the Commission needs a little further elucidation.  Before turning to that, it is necessary to state that when the Commission refused in its decision to refer the case to the Court of Appeal (Criminal Division) and a judicial review was commenced in June 2012, a very detailed acknowledgment of service was served by the Commission in July 2012.  The matter was considered by Ouseley J who refused permission; the application has been renewed before us today.
7.	The issue before us can be summarised as follows: the only alternative suspect to Jeremy Bamber was his sister, Sheila Caffell.  It was said at the trial, and has been said subsequently, that she was the person who killed the other four members of the family and then committed suicide.  The issue, therefore, upon which this application is concentrated, goes to the question of whether there is now a basis for reference to the Court of Appeal (Criminal Division) in relation to whether it can be shown that she was the person who was the murderer.  The issue has narrowed to an extent to an even further degree, because it has turned upon the evidence relating to the way in which the father, Mr Bamber senior, was killed.
8.	That question again has resolved into a narrow issue as to whether, when the fatal shot was fired in the kitchen at the father, Mr Bamber senior, the rifle used had on it a silencer, it being accepted that if there was a silencer on it at that time the prospects of the sister being the murderer were nil.
9.	The approach that has been taken, and very properly taken by both the Commission to the way in which the case has been put, and by Mr McKay, on behalf of Mr Bamber, has therefore concentrated on this one aspect.  The argument before us has proceeded on a first assumption, namely that if there was evidence that the silencer was on the gun when the fatal shot was fired, then there would be little doubt about the safety of the conviction.  But if there was no silencer on it, then there was, for the purposes of this application, sufficient that it might be necessary to refer it to the Court of Appeal on the basis that there was a real possibility that the sister was the murderer.  I say that at the outset because it is extremely important to understand that assumption upon which this judicial review is proceeding.
10.	The question as to whether the silencer was used or not turns again on a relatively narrow issue.  That relates to the finding of circular wounds on the father.  These are said, and were said at the time by one of the experts, to possibly be burn marks.  At the time those were unexplained.  But it was the prosecution case that the silencer must have been on the gun, first by reference to a flake of blood that was found in the baffles of the silencer that could be attributed to the blood group of the sister, and secondly, that there was red paint on the curled end and a mark on the mantelpiece, which, given the other evidence, showed that the silencer must have been on.  As is accepted, on the basis of that evidence at the time of the trial, that part of the Crown’s case was not seriously challenged at trial.
The proper approach of the Commission
11.	The evidence of Dr Caruso and Dr Fowler, to which I shall refer in a moment, was evidence that it was contended, on behalf of the claimant, met the test under section 23(2) of the Criminal Appeal Act 1968 (as amended).  Section 2 specifies for the court a number of factors to take into account in deciding whether to admit fresh evidence:  first, whether the evidence is capable of belief; secondly, whether it affords any ground for allowing the appeal; thirdly, whether it was admissible; and fourthly, whether it was reasonable explanation for the failure to adduce the evidence at the proceedings.  
12.	It is central to the approach that the Commission took  that the Commission assumed, for the purposes of this review of Jeremy Bamber's case, that those factors and hence the test on its receipt by the Court of Appeal could be satisfied.  It is necessary to spell that out because of the way in which the Lord Chief Justice at the time, Lord Bingham of Cornhill, set out the correct approach to a review of the decision of the Criminal Cases Review Commission, in the well‑known case of R v Criminal Cases Review Commission ex parte Pearson [1999] 3 All ER 498.  He set out that there was in general to be a two‑stage test:  first, is there a real possibility that the evidence would be received by the Court of Appeal, and secondly, if so is there a real possibility that the court would conclude that it might have affected the decision to convict? 
13.	The assumption made in this case by the Commission is that the first stage could be satisfied.  The Commission were not accepting that it was, but were prepared to assume it could be.  It has been accepted, very properly by Mr McKay today that, in the light of that assumption that has been made, it cuts away a ground of challenge to the decision as to whether the Commission properly applied the first stage of the test.
14.	There is, in my view, nothing at all wrong with a court or a body such as the Commission saying "Well there are two stages.  We will assume you get through stage 1, but you are bound to fail on stage 2."  It is often a much more economical way of proceeding.  It disadvantages the person, the subject of that decision, in no way, because a point that he might have found difficulty on is resolved in his favour.
15.	Thus in this particular case the first and essential ground that is now open to Mr Bamber is the question whether there can be a proper challenge to the judgment of the Commission, that there was no real possibility that the court would conclude that the new evidence might affect the decision of the jury to convict.
16.	It is not necessary for me to spell out the test that is applicable to the judgment that the Court would make, because it is set out in the judgment of Lord Bingham, in R v Pendleton [2002] 1 WLR 72.  That test is applied regularly by the Court of Appeal (Criminal Division).  In the light of the decision of the now Chief Justice, Lord Judge, in R v Erskine [2009] EWCA Crim 1425, it is not necessary to review other cases because the principle was stated by Lord Bingham and it is not necessary to restate it at the levels below the Supreme Court.  Secondly, looking at the facts of individual cases advances one nowhere, as the test is so fact‑specific.  
17.	So we turn to what is accepted to be a rather difficult hurdle for Mr Bamber to overcome, namely to show the decision and judgment of the Commission on this key issue was one that can be properly challenged in this court.  In looking at that it is necessary to take the three points that are relied on.
The blood flake
18.	The first point that is relied on as constituting reasons for a reference to the Court of Appeal (Criminal Division) is uncertainty about the provenance of the blood flake.  I have already referred to the importance to the Crown's case of the finding of the blood flake of the blood group of the sister in the silencer.  Plainly if her blood flake was in the silencer it was a very formidable issue for Mr Bamber to overcome.  
19.	It is suggested that on the basis of the materials put before the Commission there is a proper basis for investigating, even at this stage 27 years later, the possibility that it got there through contamination.  The Commission took the view at paragraph 186 of its decision that there was no basis upon which that should be questioned.  It is, in my view, not necessary for us to resolve that issue.  I will assume that there may be some basis for challenging the conclusion.  That is an assumption that is massively in favour of Mr Bamber, because it is difficult to see the grounds upon which the judgment of the Commission, at this late stage, could be questioned.  
Dr Caruso’s evidence 
20.	I do say that because it seems to me that the issue in this case really turns upon the second and third points made, namely the judgment of the Commission in relation to the evidence of Dr Caruso and Dr Fowler.
21.	Dr Caruso's evidence is set out in two very short letters.  When I say very short letters one is probably about a quarter of a page long and one is slightly less than that.  The reason for the brevity of his reports is that he concluded that further tests needed to be made, in particular to see if the barrel of the rifle used could be made hot enough so that it could have inflicted what were said to be burn marks upon the corpse of the deceased father.  Dr Caruso came to the view which he expressed briefly, that there was probably cause to believe that the burns were the result of a hot rifle being placed on to the skin of the father.  It is not necessary, I think, to say more about his evidence than that.  
22.	The Commission dealt with this issue at paragraphs 356 to 359.  In very brief summary, and it is important for anyone looking again at this matter to look at these paragraphs in full, the Commission concluded that there was insufficient to show that a hot rifle could have caused the marks.  His report went no further than saying it was consistent with a heated barrel, but it did not address other mechanisms.  The Commission considered that it was unlikely that the barrel could have been heated sufficiently to cause the marks.  The report of Dr Caruso did not deal with the evidence at the trial.  
23.	It seems to me that the most substantial difficulty that relates to challenging this decision is that all of these reasons are reasons within the judgment of the Commission.  It is not necessary for this court to reach the view that they were right.  As is accepted by Mr McKay, it is not enough for him to show that they were wrong.  He has to show, on the ordinary test applicable to a review, that this was not a judgement they could properly have reached.  It seems to me, just looking at their reasoning and the facts of this case, these views were properly open to the Commissioners. 
24.	It would, I think, be helpful to add one further matter.  Prior to the Commission making its report, the Commissioners were aware from the screening of the television documentary of the evidence of Mr Boyce, to which I have already referred.  His conclusion was a conclusion in support of Dr Caruso, but there was no evidence in that television documentary to show how the barrel of the rifle could have been heated sufficiently.  
25.	There is, however, a further report that was submitted, after the Commission's decision of 25 April 2012, in which Mr Boyce set out his view as to how the rifle end could have been heated to the necessary temperature.  He accepts that multiple firing would not have had sufficient effect on the temperature of the rifle barrel or the silencer.  He concludes that the rifle or the silencer had to be heated artificially in order to burn.  It was possible to heat a barrel on a hot plate of a cooker to 200 degrees in less than five minutes.  
26.	This issue is not dealt with by the Commission, but I think it would be helpful to express a short view.  There was in the kitchen an AGA.  The mechanism that Mr Boyce suggests must imply the placing of the rifle barrel on a hot plate of the AGA, and by the hot plate of the AGA I mean that part that is normally used for cooking and which when it is not used for cooking can be covered by a lid.  An AGA is not constructed so if a gun is leant against it, it will heat the barrel up.  As Mr Boyce makes clear, it would have to be on the hot plate.  It seems to me that if that further evidence had been before the Commission, although it would be a matter for them, it would seem very improbable that a barrel would have been heated in that way.
27.	So in my judgment it is clear that the evidence of Dr Caruso, on the assumption that it is admissible, would not in the Commission's judgment have been sufficient to pass the test in Pendleton, and I can see no basis upon which  their view could be challenged.
Dr Fowler’s evidence
28.	The evidence of Dr Fowler is set out in a more substantial report.  That report has been peer‑reviewed by Dr Dragovich, who is Chief Medical Examiner in Oakland County, Michigan and Dr Marcella Fierro, who is the retired Chief Medical Examiner to the Commonwealth of Virginia.  Both have qualifications as forensic pathologists.  In his careful report, Dr Fowler makes clear that he has reviewed the evidence, which was available in relation to the wounds.  He concluded that the abrasions found were consistent with those of a rifle without a silencer, that there were no distinctive marks on the body which showed that a silencer had been attached, and the residue was consistent with contact wounds.  He refers to further work that needs doing, a matter to which I will return in a moment.  
29.	The Commission's judgment on this matter, which is set out carefully in its decision, is at paragraphs 360 to 362.  First of all, it is said that Dr Fowler did not deal with the fact that there was no residue found in the rifle, but there was the blood flake found in the silencer.  Although there is really no answer to the first half of that observation, as regards the second there is the point, on which I was prepared to make an assumption, namely that there may be a problem with the blood flake.  I have made that assumption because it seems to me that it is possible to do so by reference to the other reasons given by the Commission.  The first is the fact that the evidence of Dr Fowler does not grapple with the evidence of the fight in the kitchen and the paint evidence, to which I have referred; second, it does not grapple with the contemporaneous evidence of Mr Fletcher and Dr Vanezis at the trial, which dealt with these issues; third, the Commission took the view that the injuries could well have been caused by another process.  
30.	It is accepted realistically by Mr McKay that those are formidable points.  I cannot see how one can begin to say those are points that the Commission can in any way be criticised for arriving at.  They must be plainly within that ambit of judgment open to the Commission.  It therefore seems to me very, very difficult to see how, on the analysis that I have briefly summarised, the conclusion in relation to the evidence of Dr Fowler is susceptible to challenge.  
Conclusion on the main issues
31.	Taking, therefore, the three grounds relied on together, and for this purpose making an assumption again in favour of Mr Bamber on the first point, but doing so on the basis that the second and third points, namely the report of Dr Caruso and the report of Dr Fowler, have been dealt with by the Commission in a way that is not open to challenge, it seems to me that properly understood the approach of the Commission has been one that is very favourable to Mr Bamber making the assumption, in the case of expert evidence in his favour, that it is admissible, and going on to make a judgment on that basis.  
32.	I would add, in relation to the assumption about the receipt by the Court of Appeal (Criminal Division) of fresh evidence, it is ready to receive evidence of an expert nature where there has been appropriate scientific advances. It is much more cautious about expert evidence which is accepted as not new science, but the result of more research on the specific case or another view.  I say that because the assumption upon which the Commission has proceeded is one that is as favourable and as generous as could be made to Mr Bamber.
The alleged failure to make further enquiries
33.	I turn, therefore, having dealt at some length with that first ground of challenge, to the other remaining ground of challenge.  That relates to the failure to make further enquiries.  As is apparent from the summary I have given of the report of Dr Fowler and the report of Dr Caruso, both are preliminary in nature.  It is argued, again attractively by Mr Simon McKay, that it was the duty of the Commission, as these reports were preliminary, to have made further enquiries.  However, again the question is not whether this court thinks further enquiries should be made, but whether the judgment of the Commission is one that is open to challenge.  
34.	It seems to me that a challenge is impossible to make for two primary reasons.  First, the Commission has spent a very, very considerable time, namely from March 2004 until April 2012, examining for a second time the safety of the convictions.  It must be a matter for the Commission's judgment whether, in those circumstances, it is right to prolong the investigation.  Secondly, and more importantly, there is the question of the Commission's judgment as to whether such enquiries would actually advance the matter further.  It seems to me that their decision that further enquiries would not advance the matter further is a matter that on the evidence before this court was a decision plainly open to them on the circumstances.  I sought to illustrate that in the observations I have made in relation to heating up the barrel of the rifle.  
Overall conclusion
35.	In my judgment, therefore, this is a case where Mr McKay has taken a very responsible attitude.  He has advanced points that could properly be made to the Commission.  He has pursued those points with considerable vigour and provided to the Commission two areas where they had to consider the new evidence very carefully.  But having reviewed with his considerable assistance, and that of the Commission, the Commission's approach to these matters, I cannot see any way in which on the assumptions that have been made, all of which are entirely favourable to Mr Bamber, or any proper challenge can be made to this decision.  
36.	For these reasons, which in the light of the length of time that this case has been going on, and its notoriety, I have given at some length, I would refuse this renewed application. 
37.	MR JUSTICE GLOBE:  I agree. 
38.	THE PRESIDENT:  Are there any incidental matters to raise? 
39.	MR BROWN:  There is no application.   
40.	MR MCKAY:  Only to ask the court to publish this judgment. 
41.	THE PRESIDENT:  On a renewed application we do not always publish the judgment, but I always have to correct a transcript.
42.	(After the case concluded the President confirmed the order of the judgment at public expense.)